Timmins v. Lacy , 30 Tex. 115 ( 1867 )

Moore, C. J.

It is insisted by appellant, that the judgment in this case should be reversed, for want of jurisdiction of the district court to bring before it, by controrari, the proceedings of the county court apprenticing the minor, Elkin Pope, for its revision and correction. The law under which the action of the county court in this case was had conferred, it is said by appellant, on that court a special and exclusive jurisdiction over the entire subject-matter provided for therein, and that its judgments, or any proceedings had under this law, cannot he reviewed or brought in question, either by ajipeal or certiorari, in’the district court or any other tribunal. We are referred to no authority to sustain this position. Reliance is had, it is supposed, however, upon the cases of Baker v. Chisholm, 3 Tex., 157, and Arberry v. Beavers, 6 Tex., 457. An examination of these cases makes it quite apparent that they cannot be relied upon to support the position contended for by appellant.

In the first of these cases the court says: “ The authority conferred upon the chief justice of the county by this statute was special, and restricted to one express object. Bo mode is provided for revising Ms decision, either by the special statute which conferred the authority, or by any general law. His exercise of the authority conferred was definite and final.” And in the other case it is said: “ The authority here conferred was in the nature of a special commission, which was determined by the performance of the act to which it extended. It did not constitute the officer a judical tribunal,” or “inferior jurisdiction,” within' the meaning of the constitution. (Const., art. IV, sec. 10.) That had reference to those inferior judicial tribunals which are constituted to administer the justice of the county, and whose proceedings are according to the course of the common law. * * * That it was the chief justice of the county who was empowered to act in this case did not change the character of the authority conferred. The duties imposed by the act had no connection with his official duties as chief justice, and might as well have been required of any private person.”

The statute under which the county court acted in this case provides, “ That in all applications for apprenticeship ten days’ notice, as in case of guardianship, shall be given, and no minor shall be apprenticed except at a regular term of said court.” But the county court does not derive its jurisdiction in the matter from the statute, for, though it is to be regulated by law, it is conferred upon the court by the constitution of the state as directly and positively as on any other of the several branches of its jurisdiction. It follows, therefore, that its action in this particular is that of an “inferior tribunal,” and in which the district court is given by the constitution (art. IV, see. 6) a general superintendance and control, with power, when necessary for this purpose, to issue writs of injunction, certiorari, &c. (Newson v. Chrisman, 9 Tex., 113, and cases cited.)

The 16th section of the IVth article of the constitution, defining the jurisdiction of the county court, in express terms delegates to it authority to apprentice minors, under such regulations as may be prescribed by law; and while the 6th section of the same' article, when enumerating the different subjects of which the original jurisdiction had been conferred on the county courts, to which the appellate jurisdiction of the district court should extend, does not, in direct terms, include or refer to this branch of the jurisdiction of the county court, yet it would, we think, require a more technical construction of this section of the constitution, than there seems any .necessity for giving it, to hold that it restrains the district court from the'exercise of a superintendence and control over the action of the county court in this particular, under the previous clause of the section conferring this authority in respect to all inferior tribunals. It could only be said, at most, if this reference to the subjects for which the county court is established should be regarded as a limitation of the appellate and original jurisdiction of the district court on it, rather than for description and identification of the county court, acting in the character and capacity here referred to, instead of as a court for the transaction of police and county business, that the district court could not, in respect to the matter in question, exercise appellate and original jurisdiction in a matter passed upon in the county court by. an appeal; yet it could nevertheless exercise a general control and superintendency over it by certiorari, or any other writ appropriate for this purpose, and in conformity with the established usage of the common law or statutory enactment.

That the district court, by virtue of the authority conferred on it by this section of the constitution, may exercise control over inferior tribunals, is fully sustained by decisions in analogous eases entitled to our highest consideration.

“The superintending control,” says the supreme court of Arkansas, (ex parte Anthony, 5 Pike, 365,) “ given by the constitution to the supreme court, and all inferior and other courts of law aud equity, is in no respect different from that possessed by the circuit courts, except in this, that the latter is limited to the county courts and justices of the peace, while the former is extended to all courts in the state. The language in both instances imports the same thing, and the power derived from it must be exercised in like manner by each tribunal; consequently no appellate jurisdiction is granted to either. "Yet the power vested by the constitution in the supreme court, to issue writs of error, supersedeas, certiorari, and habeas corpus, mandamus, and quo warranto, and other remedial writs, and to hear and determine the same, does, in our opinion, confer upon this court, by express grant, the power of adjudicating all cases determined .by an inferior judicial tribunal in the state, when, according to the principles of the common law, the case so determined can by means of any of the writs aforesaid be legally and appropriately brought before it, and to this extent the constitution gives to this court an appellate jurisdiction of which it cannot be deprived by an act of the legislature. But the legislature is fully competent to prescribe by law the order of proceeding to be observed in the exercise of this power, provided the proceeding so prescribed does not in any manner abridge or affect the jurisdiction of this court.” (Bob, a Slave v. The State, 2 Yerg., 173; Hays v. Pope County, 5 Pike, 308; ex parte Tarlten, 2 Ala., 35.)

It is also equally clear, that the writ of certiorari is an appropriate remedy in such cases as the present. “In England,” says the supreme court of Ohio, (Walpole v. Ink, 3 Ohio, 143,) “ the remedy by certiorari is twofold, to remove the case for trial into the court above, or merely to inquire into the correctness of its orders.”

And in Ruhlman v. The Commonwealth, 5 Binney, 24, it is said: “The distinction is thus taken in Grenalt v. Burwell, 1 Salk., 263; S. C, Carth., 494; Com. R., 80; 1 Lord Ray, 469. Whenever a new jurisdiction is erected by act of parliament, and the court or judge that exercises this jurisdiction acts as a court or judge of record, according to the course óf the common law a writ of error lies on their judgment; but when they act in a summary method, or in a new course different from the common law, a writ of error does not lie, but certiorari.” (Broks v. Morgan, 5 Ired., 485; Weldz v. Washburn, 16 Johns., 49; Savage v. Gulliver, 4 Mass., 177.)

In Tennessee, where the circuit court has authority to issue the writ of certiorari merely by virtue of its authority to supervise and control inferior tribunals, in a case where the reputed father of an illegitimate child whom he had legitimated in the county court in the manner prescribed by the statute of that state, it was held that the county court had no power to put such child in the custody of the father, or to bind it contrary to the wishes of the mother, unless the child is a pauper. “The county,” says Catron, J., “were mistaken in supposing that the reputed father had any right to the possession of the child. Therefore the order of the court, authorizing him to take possession thereof, must be quashed. And so the circuit court ought to have ordered, had the cause been brought up by certiorari.”

It remains for us to inquire as to the correctness of the decision of the court below on the merits of the case presented by the certiorari.

This proceeding commenced in the county court by the application of a¡ipellant, under the 1st section of the 43d chapter of the acts of the last session of the legislature, to have apprenticed to her the minor, Elkin Pope, alleged in the amended application to be under .fourteen years of age. The minor is alleged to be the offspring of the appellee, Sarah Lacy and Harry Pope, born while they were held in slavery, and while they cohabited as man and wife, having married, as is said, “ after the usual fashion of marriages with slaves.” The minor, it seems, has been at all times recognized by Harry Pope as Ms child, but the connection between him and the appellee, Sarah, had ceased some ten years before they were emancipated, and both of them had contracted other marriages, also after the custom of marriages with slaves; and have never since their separation recognized each other as husband and wife. The minor, Elkin, was with his mother when they were emancipated, and continued witMher or under her control until he was taken by force to the residence of appellant by her son, with the consent of said Harry. But, as soon as he seems to have been permited to do so, he returned to his mother, and remained with her or under her control until the commencement of this proceeding.

The order of the court apjtrenticing the minor to the appellant seems to be approved by his reputed father, Harry Pope, and the only question which it is necessary for us to determine at the present time is, whether this is sufficient to authorize the court to apprentice him, notwithstanding the opposition of his mother, and her ability to support and maintain him. We are clearly of opinion that it is not. It is a universally recognized principle of the common law, that the father of a bastard has no parental power or authority over such illegitimate offspring. It is difficult to conceive upon what ground it can be imagined that the reputed father of the minor in question can be held entitled to exercise the rights of a parent over him. The fundamental definition of the word bastard is, a child born out of lawful wedlock. And there can surely be no lawful wedlock between parties who are under disability, and cannot exercise the freedom, of consent essential in any contract. (State v. Samuel, 2 Dev. & Batt., 177; Hall v. Mullin, 5 Har. & John., 193; Jackson v. Leroy, 5 Cow., 397.) In the first of these cases, it is held that the marriage of slaves, consisting of cohabitation merely by the permission of their owners, does not constitute the relation of husband and wife, so as to attach to them the privileges and disabilities incident to the common law; and hence that a slave who was the wife of another slave might give evidence against him even in a capital case.

And in Jackson v. Leroy, it is said: “By the civil law slaves could not take by purchase or descent. They had no heirs, and therefore could make no will. They were not entitled to the rights and considerations of matrimony, and therefore had no relief in case of adultery, Hor were they proper objects of cognation or affinity, but of quasi cognation only. (Taylor’s Elements Civil law, 429; Cooper’s Justinian, 411, 420.) Contubernism was the matrimony of slaves; a permitted cohabitation, not partaking of lawful marriage, which they could not contract. The same disability, I apprehend, will apply to the case of slaves with us. The state of slavery in this country compares with that existing under the Roman law in many respects. The progress of society in civilization, more correct notions on the subject of moral obligation, and, above all, the benign influence of the Christian religion, have softened many of the rigors attendant on slavery among the ancients. But the rights of the slave, in respect to marriage and the acquisition of property by way of inheritance, remain substantially on the same ground.” (Cunningham v. Cunningham, 1 Harris & McHenry, 561; Bynum v. Bostick, 4 DeS., 266; Marbletown v. Kingston, 20 Johns., 1; 20 How., St. Tr., 27.) These authorities show very conclusively that the permitted cohabitation existing formerly among our slave population did not partake of lawful marriage. If we could say the legal rights of husband and wife, parent and child, spring from these connections, it must also be held that corresponding disabilities flow from them, many of which are of a severely penal character, affecting almost this entire portion of our population.

Whether the mutual and continued voluntary recognition since emancipation of a subsisting marriage, between the parties to such pre-existing permissive cohabitation during slavery, does not give to such connection the sanction of legal marriage, pfesents a very different question.

It is said with much force by Maííhws, J., in delivering the opinion of the court in the case of Girod v. Lewis, (6 Mart., 559,) “It is clear that slaves have no legal capacity to assent to any contract. With the consent of their masters they may marry, and their moral power to agree to such a contract Or connection as that of marriage cannot be doubted; but whilst in a state of slavery it cannot produce any civil effect, because slaves are deprived of all civil rights. Emancipation gives to the slave his civil rights; and a contract of marriage, legal and valid by the consent of the master and moral assent of the • slave, from the moment of freedom, although dormant during slavery, produces all the effects which result from such contract among free persons.”

This opinion certainly places the law on this subject in as favorable a light for appellant as can possibly be insisted upon. But it evidently falls far short of supporting the judgment of the county court in this case. For most certainly emancipation can have this effect only in such connections as are existing between slaves at the time it takes place. Indeed, the only ground upon which the decision can be maintained is, that the assent manifested by their continued cohabitation, after acquiring capacity to contract, gives validity to the existing relation, sanctioned by moral, though not by legal obligation.

If, however, the father of this minor was his legitimate parent, I think it would be an erroneous and unreasonable construction of the statute to suppose that this child could be taken from its mother against her consent, and apprenticed solely at' his will and pleasure. It was evidently, to my mind, the object and purpose of the law to give this authority to the parents or guardians of minor children subject to their control, and for whose care and nurture they were providing. Surely it is not to be supposed that merely because the father, when discharging his duties as such, is regarded as the head of the family, may, after years of desertion and abandonment, during which he has left his wife to struggle unaided for their support, rob her, by means of this law, of the society of her children, and thus add to the injury already done her the severest blow which can be inflicted upon a woman, whatever may be her condition or sphere in life.

Although it was insisted for appellant that the county court had exclusive and final jurisdiction in respect to the apprenticing of minors, yet as no objection was made to the manner of proceeding in the court below, and the trial of the matter in that court de novo, and especially as the judgment of the court is correct upon either hypothesis, we have not deemed it necessary to inquire at this time whether the writ, of certiorari authorized by the constitution, especially in absence of any statute regulating it, is limited merely to the bringing of the record and proceedings of the inferior court to the district, for the correction of- such errors of law as may have been committed in the proceedings had in such court, or whether, under it, the whole matter may be brought before the district court for a trial de novo.

There being no error in the judgment of which appellant can complain, it is

Aeeirmed.