Ratcliff v. State , 106 Tex. Crim. 37 ( 1926 )

Quoting some excerpts from the original opinion, counsel for the state argues that the declaration of this court touching the subject of intent amounts to a paradox in that counsel says: "Conceding that the court knows what the legislature intended, the court condemns the act." It is not the object of the lawmakers that is obscure. They intended to protect the free movement of commerce. It is when the means adopted are considered that confusion and conflict with established principles and statutory declarations, as stated in the original opinion arise. In the conclusions reached touching the indefinite terms of the law, this court remains of the opinion that in the announcements made on the original hearing, no violence has been done to the precedents cited in the motion for rehearing. Some applicable illustrations are to be found in the opinions of the courts of this state. See M., K. T. Ry. Co. of Texas v. State, 100 Tex. Rep. 424; Ex Parte Slaughter, 92 Tex.Crim. Rep., 243 S.W. 479, 26 A. L. R. 891 and 897; Dockery v. State, 93 Tex.Crim. Rep., 247 S.W. 508; Ex Parte Humphrey, 92 Tex.Crim. Rep., and other cases cited in Vernon's Tex. P. C., 1925, Vol 9; also Ruling Case Law, Vol. 25, p. 812.

Invoking the principle that concerning legislative acts the presumption favors their validity, in the absence of a report of the evidence heard on the trial, counsel presents some hypotheses with reference to what might have been proved to combat any evidence adduced contrary to the reasonableness of the law in question. In substance, he says that there might have been frequent strikes among the employees of common carriers which had rendered necessary the employment of state rangers and troops to preserve the peace; that conditions surrounding the workers required their housing in groups and under guard; that when exposed there had been frequent instances of assault; and that the penalties ordinarily imposed were inadequate to prevent acts of violence. Perhaps the history of the state would warrant that some notice by way of judicial knowledge be taken of some of the facts embraced in the above imagined conditions. Such knowledge would carry with it the fact that the preservation of the peace was a function of the government which would ordinarily be performed by peace officers, rangers and the militia, if needed, and that these agencies had, in most instances, been able to effect the result.

Mullens, the alleged injured party, is denominated a "guard." We fail to find a "guard" specifically classified among those embraced in the extraordinary protection contemplated in the statute. From Article 1097, P. C., 1925, we quote:

"The term 'person or persons engaged in the work of loading or unloading or transporting commerce in this state' as used in this chapter shall be construed as including any person or persons employed in any way in the docks, wharves, switches, railroad tracks, express companies, compresses, depots, freight depots, pipe lines, or approaches or appurtenances to or incident to or used in connection with the handling of commerce by common carriers within this state. This article by naming certain occupations and work shall not be construed to exclude any other occupation or work not named, but reasonably incident to and necessary for the transportation of commerce in this state by common carriers. For the purposes of this chapter the words 'common carrier' are defined to mean any railway corporation, any express company, any interurban railway company, any street car company, any ship, dock, wharf company, any pipe line company, engaged in the transportation of freight, express or passengers. The word 'commerce' is defined to mean any freight, express or passengers being handled or transported by any common carrier as herein defined."

There is an averment in the indictment that a "guard" was necessary. The evidence is not before us. We have indicated in the original opinion that a properly framed law protecting the public from injury due to such extraordinary conditions might be within the scope of the legislative authority, and that in such a law the principle of classification of persons affected might be legitimately applied. However, we are not prepared to say that an armed guard, when off duty, is within the purview of the present statute; nor do we desire to be understood as declaring that under a statute so indefinitely framed private interests such as are named in the statute (Art. 1097, supra), could be legally empowered to engage, without limitation and without definition of their powers or restrictions upon their authority, the so-called "guards," contemplating that they bear arms and exert the power of arrest pertaining to police officers. As stated above, the preservation of the peace is a function of government to be maintained by the agencies of the government, that is, the peace officers and the militia, under the control of the government and under the legal restrictions which the law prescribes, and this function of the government ought not, at least in the absence of very definite safeguards (not found in the act in question) be delegated to the controllers of private industries.

The motion is overruled.

Overruled.