Stone v. Hill , 72 Tex. 540 ( 1889 )

Gaines, Associate Justice.

At a term of the Justice Court held at Brenham, the county seat of Washington County, on the last Monday in December, 1881, Heber Stone, one of appellants, recovered a judgment against the appellee. By another judgment rendered in the same court at a term held on the last Monday of October, 1883, the first judgment was revived and a chattel mortgage foreclosed, which had been given in 1882 to secure it. In September, 1884, execution was issued upon the last named judgment and was placed in the hands of appellant Moore as sheriff of the county, who by virtue thereof seized certain property of appellee. Appellee then brought this suit to enjoin the sale of the property and the enforcement of the execution as well as the issue of any other execution upon the judgment. A preliminary injunction was granted, which upon final hearing was made perpetual. From this judgment the defendants appeal.

The ground upon which the injunction was claimed was that the respective terms of the court at which the judgments in the Justice Court were rendered were not authorized by law, and that therefore the judgments were void. Article 1547 of the Revised Statutes contains this provision: “The justice or justices residing at the county seats shall hold the regular term of their courts * * * on the last Monday of each month." The Seventeenth Legislature passed an act which provided that the article cited should be so amended as to read as follows: “Article 1547. Justices of the peace shall hold regular terms of the court at their respective offices at such times as may be prescribed by the Commissioners Courts of the county." Laws 17th Leg., 10. This act was passed February 17,1881, and took effect from its passage. The Commissioners Court of Washington County did not prescribe the time for holding the Justice Court in Brenham until Hovember 12, 1883.

On behalf of appellee it is contended that article 1547 of the Revised Statutes having been repealed by the act of 1881 there was no authority of law for holding the Justice Court in the Brenham precinct until the Commissioners Court acted. But we do not think that this position can be maintained. It is true that a strict and literal construction of the act would support the contention of appellee. But in construing a statute the intention of the Legislature is to be considered, and when that intention is evident, though not consistent with the letter of the law, and a literal construction is calculated to create confusion and to work irreparable wrong, the intention should govern. The evil which was sought to be remedied by the act in question is shown by the emergency clause. It reads as follows: “There being no adequate law now in force fixing the times of holding the Justices Courts where there are more than one residing at the county seat, and it being impossible for the constable to wait upon the courts holding sessions at the same time, an imperative public necessity exists that this act take effect at once, etc." Cities only having eight thousand inhabitants or more were entitled to two justices of the peace. Const., art. 5, sec. 18; Rev. Stat., art. 1534. There were probably not ten cities of this class in the State at the time the act was passed; therefore it was evidently intended by the act in question merely to confer power upon the Commissioners Court to change the times for holding the Justice Courts at the county seats so that they could remedy the expressed evil by fixing a different day for holding the Justice Courts in those counties where there were two justices in the same precinct. The law involved no radical change of policy, and in our opinion was never intended absolutely to require the Commissioners Courts to-mate a change. Where there was no reason for change of the day then fixed by the law it was not likely that all the Commissioners Courts in more than one hundred counties in the State would think to designate the days upon which these courts should be held, and therefore it should not be held that the Legislature intended to declare a law which might result in the closing of numerous tribunals in the State until the Commissioners Courts should be called upon to take action in the premises. It should rather be held that it was intended that the days previously fixed should be deemed designated by the commissioners unless they should see proper to make a change.

The Constitution provides that the justices “shall hold their courts at such times and places as may be provided by law.” Const. 1876, art. 5, sec. 19. Article 1546 of the Revised Statutes provided that they should hold one term each month. This remained unrepealed by the act of 1881. We can not believe that by that act the Legislature meant to leave the justices without power to hold their courts until such time as the commissioners should act. It is rather to be presumed that they intended that each justice of the peace holding his office at the county seat should hold his court as then prescribed by law until the Commissioners Court should prescribe a different day for the beginning of their terms.

If a precedent were needed for our ruling it is found in the case of Womack v. Womack, 17 Texas, 1. There an act of the Legislature changing the terms of the District Court was construed contrary to its literal terms, and it was held that though the act prescribed that it should go into effect immediately it did not take effect so as to avoid a term of the court, which under the old law came on within a few days after the passage of the new statute. The principle is that where the intention of the Legislature is manifest, that intention will prevail over the literal terms of the statute.

We think the terms of the Justice Court at which the judgments called in question in this suit were rendered were not without authority of law, and that the judgments are therefore valid.

The judgment here appealed from will therefore be reversed and here-rendered for appellant.

Reversed and rendered.

Opinion January 25, 1889.