Whitener v. Belknap Co.

The Court of Civil Appeals for the Fifth Supreme Judicial District has certified to this court the following statement and questions:

"In the above entitled cause the following issues of law arise, which this court deems it advisable to present to the Supreme Court of the State of Texas for adjudication, to-wit:

QUESTION I. Is the act of the Twenty-fourth Legislature of the State of Texas, entitled an "Act to establish a court at Texarkana, in Bowie County, to be styled 'Texarkana Civil and Criminal Court,' and to prescribe the jurisdiction and organization thereof, and to conform the jurisdiction of other courts thereto," constitutional?

QUESTION II. Does article 5, section 1, of the Constitution of Texas, as amended in 1891, authorize the Legislature to create a court for a part of a county, to the exclusion of the regular District Court, and to be held at a place other than the county seat, such as is provided in the act above mentioned?

QUESTION III. Does section 20 of said act confer upon this court jurisdiction to hear and determine appeals from said court?"

It is not necessary for us to determine at the present time what character of courts other than those named in the Constitution may be created by the Legislature under the provisions of article 5, section 1, of the Constitution, as amended, for the reason that the Legislature has not in our opinion attempted, in this instance, to exercise the power therein conferred.

The Act of the Twenty-fourth Legislature of the State of Texas, entitled "An Act to establish a court at Texarkana, in Bowie County, to be styled the Texarkana Civil and Criminal Court and to prescribe the jurisdiction and organization thereof and to conform the jurisdiction of other courts thereto," (Rev. Stats., title 21, chap. 6) must be sustained as constitutional unless its enactment is expressly or by necessary implication prohibited by the Constitution. (Lytle v. Halff Bro., 75 Tex. 132.) In order to determine whether the passing of such law is prohibited by the Constitution, we must first ascertain what has in fact been done by the Legislature by the enactment thereof. The law does not create a separate judicial district in Bowie County, which the Legislature might have done, but it provides specially that the court shall be presided over by the judge of the Fifth Judicial District or the judge of any district in which Bowie County may be thereafter embraced. It was then and to continue part of an existing district. It does not therefore come within the principles announced in the case of Lytle v. Halff Bro., cited above.

We will examine the law to ascertain what its effect is: First. It establishes a court to be held in the city of Texarkana, Bowie County; and within that portion of Bowie County described it confers upon the court thus established, jurisdiction as follows: "All the jurisdiction, power and authority in both civil and criminal cases which is now or may hereafter be vested by the Constitution and the laws of this State in the District Courts of this State, except such jurisdiction, power and authority as are specially withheld from the said court by this chapter; and said court shall also have original jurisdiction of all suits, complaints and pleas whatever without regard to any distinction between law and equity, as well as of all proceedings under distress warrants issued by justices of the peace, when the amount in controversy shall exceed in value $200 exclusive of interest; but said court shall have no jurisdiction in probate matters, and the jurisdiction of the County Court of Bowie County as a Probate Court and the jurisdiction of the District Court of said county in probate matters shall not in any manner be affected, altered or changed by this chapter. Said Texarkana Civil and Criminal Court shall also have exclusive original jurisdiction of all criminal cases, both felonies and misdemeanors, where the offense is committed in that portion of Bowie County described in article 1531j and over which justices of the peace and mayors or recorders courts have not jurisdiction under the laws of this State, and shall have appellate jurisdiction of all cases civil and criminal over which justices of the peace and mayors and recorders courts of cities and towns have original jurisdiction and in which cases appeals are now or may hereafter be allowed to be prosecuted to the County Court." Thus all of the jurisdiction which might have been conferred under the Constitution upon the District Court of Bowie County, except in probate matters, has been conferred upon this court, and all of the jurisdiction of the County Court, except in probate matters, has been likewise conferred upon it. It also provides that it should have and exercise all jurisdiction thereafter conferred upon District Courts by the Constitution or law.

Second. The judge of the District Court of the Fifth Judicial District, in which Bowie County was included, is made ex officio judge of the court, and the clerk of the District Court of Bowie County is also made ex officio clerk thereof. The district attorney of that judicial district and county attorney are required to discharge the same duties in this court that they would have discharged in the District and County Courts of Bowie County; the entire court when organized would be the same officers as in the District Court.

Third. All rules adopted or to be adopted for the District and County Courts by the Supreme Court are to apply to the court created by this act; grand and petit juries are both provided for, to be summoned, empaneled, and the investigations and trials had under the same law that governs such matters in the District Court. Except for providing a court-house and jail, the expenses of the court are to be paid by the county the same as the expenses of the District Court of that county.

Looking at the provisions of this law — if the name of the court were blank — would any lawyer hesitate for a moment to write in the act the words "District Court of Bowie County?" We think not. It has all of the jurisdiction that could be conferred upon the District Court of that county, except in probate matters; its officers are those of the District Court, its grand and petit juries are selected and governed by the same statutes, its rules of procedure are the same, and, as stated above, the expenses of holding the court are to be paid under the same provisions of the law, by the county. In other words, wherever the Constitution or the law now uses the words "District Court," or where they might thereafter be used in the laws of this State, they are to embrace and apply to that court. In every essential element it is a District Court under the Constitution; the effect of the law is to make it such court, no matter what it may be called. How it could be embraced in all laws to govern District Courts, and not be that character of court, is difficult to understand. The Legislature could not change the effect of this law by calling it the "Texarkana Civil and Criminal Court." The substance and not the name must govern in the construction of that law.

Being a District Court, does the Constitution expressly or by necessary implication forbid the enactment of such a law as this? Article 5, section 7, of the Constitution, provides for dividing the State into judicial districts and for the election of a judge for each district, prescribes his qualifications, residence and term of office, and specially provides as follows: "He shall hold the regular terms of his court at the county seat of each county in his district at least twice in each year in such manner as may be prescribed by law. The Legislature shall have power by general or special laws to authorize the holding of special terms of court or the holding of more than two terms in any county for the dispatch of business."

The section of the Constitution quoted above specifically requires the judge to hold the regular terms of his court at the county seat of each county in his district. It follows by necessary implication that he cannot hold a regular term of his court at any other place than the county seat of the county, and the Legislature had no power to authorize or require a district judge to do that which the Constitution forbad him to do. This court judicially knows that Texarkana is not the county seat of Bowie County, but that Boston is the county seat of that county. (Carson v. Dalton, 59 Tex. 500.) This being a District Court, a regular term of such court cannot be held elsewhere than at the county seat.

The regular terms of court mentioned in the Constitution means those terms which are prescribed by law and which are to be held in each year at the times named in the statute. The terms of the court prescribed in this act are to be held at fixed dates twice in each year and are within the meaning of the Constitution regular terms of the court and cannot be held away from the county seat.

We therefore answer the first question, that the act mentioned in the question was passed in violation of the Constitution of the State and is therefore void.

If the court created by this law is not a District Court of Bowie County, then the law is void, because it has no provision for any judge to preside therein except the judge of the District Court, and no provision for any clerk of such court except the clerk of the District Court of Bowie County. Neither has it any provision for electing or appointing such officers in the future. Article 16, section 40, of the Constitution, provides: "No person shall hold or exercise at the same time more than one civil office of emolument except that of justice of the peace, county commissioner, notary public and postmaster, unless otherwise specially provided herein." If it were admitted that, so far as the judge of the District Court is concerned, this would not be to him an office of emolument, it is nevertheless such a duty as the Legislature could not compel him to perform, and it would be simply a matter of choice on his part whether he would hold the court or not. The office would be one of emolument to the clerk, and therefore, if it is not a District Court it would be an office different from that of clerk of the District Court of Bowie County and not one of those excepted by the Constitution, therefore he could not lawfully hold or perform the duties of both offices at the same time. The act, therefore, if it be considered, as we think it cannot, as creating a court different from the District Court of Bowie County, must be held void, because it does not provide any of the officers necessary to perform the duties of such court.

It is evident from this law that the Legislature undertook by this means to require the officers of the District Court of Bowie County to hold two regular terms of that court at the city of Texarkana and to deprive the District Court, sitting at the county seat, of jurisdiction over a portion of that county. As we have before stated, holding it to be a District Court of Bowie County, this cannot be done.

It is unnecessary for us to answer the second question propounded.

This being a District Court of Bowie County, although illegally constituted, the Court of Civil Appeals has jurisdiction of this appeal to determine the matters involved herein