Ex Parte Hart
- Reporters:
- , ,
- Before:
- Bbooks, Davidson
The Constitution, article 5, section 1, as amended in 1891, clearly authorizes the creation of corporation courts, it being expressly provided in said amendment that “the Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” This amendment is not in conflict with section 18 of article 5, which makes provisions for justices of the peace and the number of justices of the peace to be elected in the counties. Corporation courts are in no sense justices’ courts, though within the limits of the cities where they are created they are vested with jurisdiction concurrent with that of justices’ courts in offenses arising under our State laws. DAVIDSON, Presiding Judge, dissents.
If the Corporation Court in the city of Sherman is a State court with jurisdiction to try offenses against the Penal Code of the State of Texas, it is made so by a creative act of the Legislature. If there is any authority for the creation of such court making it a State court with jurisdiction to try State offenses, it is found in the opinion of Mr. Justice Henderson, in the case of Coombs v. State, 40 Texas Criminal Reports, 672, in which is found the following: “I am not prepared to say that the municipal courts can not be habilitated, and brought into our judicial system, and made to do double service both as municipal and State courts.” We must submit that the act of the last Legislature providing for the creation of such corporation courts, and making them State courts, does not comply with the requirement of that intimation. A corporation court as provided for by the said act depends for its existence upon the existence of a municipal corporation and an ordinance of such municipal corporation creating a municipal court. The laws and Constitution of the State do not provide officers for such corporation courts, but leave that to the action and discretion of the municipal corporation. Fines and costs collected by the officers of said court for violation of State laws are diverted from the treasury of the State into the treasury of the city. This court then presents the anomaly of a State court, not subject to the control of a single State officer, trying offenses against State laws, paying the revenues derived from said court into a city treasury, and punishing convicts by imprisonment in a city prison in custody of a person who has no official position known to the laws and Constitution of the State, and who is under no bond as a State official. The example of the creation of the Dallas Criminal District Court, cited in said opinion illustrating the idea intended to be conveyed by Judge Henderson, is not analogous to the creation of the corporation court, and supports our contention above contained. In that case the creative power of the Legislature was exercised in the creation of a court, the number of which is not limited, in conferring upon the court so created no other than the jurisdiction and functions conferred by the Constitution upon that particular class of courts, and providing for the election of officers of such court. It does not allow the diversion of any State fines, and in all things complies with the constitutional requirements for the creation and maintenance of the class of courts to which it belongs.
If it be conceded that the legislative act authorizing the creation and maintenance of corporation courts is constitutional, and if such courts be State courts constituting a part of the judicial system of the State, then it must be conceded that, when created, they must conform to the constitutional requirement for the creation of the State courts. The Constitution grades all offenses and designates the particular court in which each separate grade shall be prosecuted, giving the district court original jurisdiction of all felonies, and county courts ex
clusive original jurisdiction of a certain grade of misdemeanors, and the justice and county courts concurrent original jurisdiction over all other misdemeanors. See article 5, section 19, State Constitution . Can the Legislature provide for the prosecution of any offense in any court other than the one provided by the Constitution for such prosecution? We submit that a felony can not be prosecuted in any except a district court, and that a misdemeanor over which a justice and county court has jurisdiction can not be prosecuted in any court except a justice and county court. If the Legislature should create any court not a county court with jurisdiction to try the offenses over which a justice court has jurisdiction, would it not be in effect creating a justice court? The Legislature created a court which it is not and can not be contended is a county court, denominated it a corporation court, but conferred upon it the powers and jurisdiction in criminal matters conferred upon justice courts. Then if said corporation court is a State court with any criminal functions at all, it must be in effect a justice court. If a justice court, the creation and maintenance of a corporation court in the city of Sherman violatesarticle 5, section 18, of the Constitution , providing for the creation of justice courts and fixing the number thereof for each precinct; because it is admitted that the corporation court in the city of Sherman is situated in justice precinct No. 1 in Grayson County, and that there were at the time of the creation of such court, and are now, in existence in said precinct, two duly organized and legal justice courts.We direct the attention of the court to
article 5, section 21, of the State Constitution , which says: “The county attorney shall represent the State in all cases in the district and inferior courts in their respective counties.” Section 8 of chapter 33 of the general laws relieves the county attorney of the duty of appearing in corporation courts and deprives him of his fees, if he does so appear. It is admitted that the corporation court in the city of Sherman is in Grayson County, which has a duly elected and acting county attorney. This clause of the Constitution was construed in the case of the State v. Moore, 57 Texas, 307, and we think the decision in that case in point.
BROOKS, JUDGE.—Applicant applied to the county judge of Grayson County for a writ of habeas corpus, asking to be released from illegal imprisonment, alleging that applicant had previously been convicted in the Corporation Court of the city of Sherman, said city being situated in justice precinct No. 1, there being already in existence two justice of the peace courts in said precinct. Applicant charges that
This brings before us for decision the constitutionality of what is known as the “corporation court.” This case, together with two others, was submitted by able argument and brief by G. P. Webb, Esq., and W. P. Ellison, Esq., at our late Tyler term, 1899, since which time we have devoted much thought and consideration to the able brief and argument made by them, and have reached the conclusion, so strenuously contended for, that the judiciary article of the Constitution clearly and explicitly authorizes the creation of municipal courts, and in such court applicant was convicted. Were it not for the amount of thought and research displayed by this court in previous decisions holding adversely to the above, and were it not, furthermore, for the importance of the results to flow, we would content ourselves with the above statement. The Constitution of this State, both before and since the amendment of 1891, clearly authorizes the creation of corporation courts.
But it is earnestly insisted that the Constitution, wherein it authorizes the creation of other courts, had reference solely to what are ordinarily denominated “State courts.” An effective answer to this proposition is contained in Sutherland on Statutory Construction, section 380, to wit: “As municipal corporations are vested with a portion of the authority which properly appertains to the sovereign power of the State, they must be confined to those powers which are clearly granted, as it is only by such grants that the government proper can delegate its just authority.” We do not think it necessary to cite authorities on this question, but deem that the bare statement of the proposition should receive universal assent. However, Judge Cooley, in speaking of this matter, and discussing our American system of decentralization of power,—that is, wherein the States awarded part of their respective sovereign powers to the Federal government, and the States in turn awarded their power to the respective subdivisions of the State,—uses this language: “It is this [that is, this desire to decentralize power] that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road, and school districts, and to confer powers of local legislation upon the people of each subdivision, and also to incorporate cities, boroughs, and villages wherever the circumstances and needs of a dense population seem to require other regulations than those which are needful for the rural districts. The system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages; and in America the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates.” Cool. Const. Lim., p. 223. Yet, is it not remarkable in the face of such statements from such learned authors, that any court would say that the Constitution which authorizes the creation “of such other courts as may be provided by law” should not have reference to the organiza
It has been insisted that perhaps the provision of the corporation court bill, which deprives the county attorney of any fee for representing the State in said court, was unconstitutional. The writer of this opinion does not agree to this contention. However, this is a matter that does not legitimately come within the scope of this decision, but I am of opinion that the following authorities clearly uphold the provision in question: State v. Moore, 57 Texas, 307; State v. Hanscom (Texas Civ. App.), 37 S. W. Rep., 453. We therefore hold that the act creating the corporation courts is clearly within the scope and purview of the State Constitution. Harris County v. Stewart, 91 Texas, 133, and Ex Parte Wilbarger (just decided), ante, p. 514. The judgment is in all things affirmed.
Affirmed.
(March 14, 1900.)
DAVIDSON, PRESIDING JUDGE (Dissenting).—During my absence the decision of this case was rendered. This accounts for my failure to then note my dissent. Judge HENDERSON agreed to the conclusion reached, and for his views referred to his late opinion in Ex Parte Wilbarger, ante, p. 514. I am somewhat at a loss to understand the attitude of my brethren in regard to the question at issue, as stated in their diverging opinions. But their views explain themselves. Had my Brother BROOKS contented himself with simply basing his opinion upon that expression in section 1 of article 5 which states the judicial power of this State shall be vested in certain named courts, “and in such other courts as may be provided by law,” I could have remained silent, as my views upon this question have been fully expressed in Ex Parte Coombs, 38 Texas Criminal Reports, 648; Leach v. State, 36 Texas Criminal Reports, 248; Ex Parte Knox (Texas Criminal Appeals), 39 Southwestern Reporter, 670. The main question at issue in this case was the same as in those cases, and was thoroughly discussed by Judge Henderson and myself in the Coombs case, as well as by Judge Brown, for the Supreme Court, in Harris County v. Stewart, 91 Texas, 133. Judge BROOKS uses this language: “The fact that provisions of previous Constitutions may have contained express power authorizing the Legislature to create municipal or corporation courts, and the present contains no such provision, is no argument whatever that the omission of such express authority in the present Constitution is a repeal by implication of the authority heretofore existing in previous Constitutions.” This is not a correct statement of the proposition. These Constitutions did not undertake to grant authority to the Legislature to create corporation courts. They simply recognized the existence of such corporation courts as were or might be created by the Legislature, independent of the judiciary article. This was one of the main questions discussed and decided in all the cases supra. As, for example, the Constitution of 1845, in this respect, reads as follows (
Now, with reference to the statement of Judge BROOKS that “the doctrine of ‘expressio unius est exclusio alterius’ does not apply to State Constitutions,” I have not been able to find an authority that sustains this statement, nor does he cite one in support of it. He relies only upon Endlich on Interpretation of Statutes, page 752, latter clause of section 533. The section cited uses this language: “The maxim, ‘Expressio unius est exclusio alterius,’ in the sense in which, as has been seen, it is properly applicable to the construction of statutes, is equally so in the interpretation of constitutional provisions. * * * It was said, however, by a late chief justice of Pennsylvania: ‘The expression of one thing in the Constitution is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions declaratory in their nature. The remark of Lord Bacon “that, as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated,” expresses a principle of common law applicable to the Constitution.’ No doubt, ‘when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.’ But this proceeds upon the principle that, where a right is given, and the conditions of its exercise are prescribed, by a superior power, an inferior one, charged with acting under and in accordance with it, can not vary or add to those conditions,—a principle obviously alike applicable whether the superior power be the people themselves and the governing rule the Constitution, or whether the superior power be the Legislature and the governing rule a statute.” In support of this, the work quoted from cites many authorities. Endl. on Interp. Stats., sec. 533, and authorities collated in notes under said section. See also section 397, et seq. The authorities cited by Judge BROOKS not only fail to support him, but are emphatically and unequivocally against the proposition. To the same effect is Potter‘s Dwarris on Statutes, page 674, where it is said: “Certain maxims and rules of construction adopted or discussed by Judge Story are deserving of consideration in this chapter, among which are ‘that a specification of particulars in an instrument is the exclusion of generals;’ or, in other words, ‘the expression of one thing is the exclusion of another.’ And Lord Bacon‘s remark is cited with approbation, viz., ‘that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.‘” In Story on Constitutions, section 448, this language is found: “Another rule of interpretation deserves consideration in regard to the Constitution. There are certain maxims which have found their way not only into judicial discussions, but into the business
Judge BROOKS states that the rule of “expressio unius est exclusio alterius” applies to amendments of Constitutions, but denies the rule is applicable to a succeeding or new Constitution. If it applies to an amendment of a Constitution, it certainly would apply with equal force to a new Constitution, for the amendment takes the place of that portion of the Constitution which has been amended as thoroughly as the new Constitution could take the place of the old. In this respect Endlich on Interpretation of Statutes uses this language in section 517 of his work: “Statutory provisions which have expired or been repealed may, as has been seen, be looked at as aiding the construction of other provisions and enactments in pari materia. Similarly, clauses that have been eliminated from a Constitution by amendment may be referred to in aid of the interpretation of others originally
I have thus hurriedly and crudely stated some of my reasons for dissenting from the opinion rendered by Judge BROOKS. It would have afforded me pleasure, if the crowded condition of the docket would permit the time, to have more thoroughly gone into these matters.