Peck v. City of San Antonio , 51 Tex. 490 ( 1879 )

Bonner, Associate Justice.

This was a suit instituted on three bonds, with coupons attached, issued by the city of San Antonio under section 12 of “ An act to incorporate the San Antonio and Mexican Gulf Railroad Company,” approved September 5, 1850. A demurrer to the petition having been sustained, the cause was dismissed and the plaintiff prosecutes this writ of error.

There is no question raised as to the regularity of the proceedings under which the bonds were issued, but one of want of power only to issue them, on the ground that the law under which the proceedings were had was in contravention of that clause of the Constitution which provides that “ every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” (Const. 1845.)

The precise question of the constitutionality of this section of the act under consideration has three times before been decided by this court.. It was first decided under its military organization, and held to be constitutional. (San Antonio v. Lane, 32 Tex., 405.) That court not having been organized under the Constitution and laws of the State, with all due respect to the members who composed the same as individuals, their opinions have not received the same authoritative sanction given to those of the court as regularly constituted. (Taylor v. Murphy, 50 Tex., 291.)

It next came before the court as regularly organized, and was decided to be unconstitutional, because it embraced a distinct object not expressed in the title. (San Antonio v. Gould, 34 Tex., 49.)

In the still subsequent case of Giddings v. San Antonio, 47 Tex., 548, in an elaborate and exhaustive opinion by the late chief justice, to which it would be superfluous to add anything, the whole question was thoroughly reviewed, and the last preceding decision—San Antonio v. Gould—approved and the unconstitutionality of the section sustained.

In the concluding part of his opinion, the learned chief justice says: “ This suit, it would seem, from the date of its commencement, was brought.to take the opinion again of this court when composed of still another set of justices; and the only question made looks to the reversal of the last decision of the court made in it. While it is of the highest importance that the courts should be open at all times for the assertion of rights that are believed to be well founded, it would be unfortunate that it should be thought practicable, on a doubtful question, to easily procure a change of decision ■with every change in the members who might from time to time compose the.Supreme Court.” He adds: “This question is, therefore, not before us as one of first impression, but stands with the weight in favor of an affirmance of the last decision of this court upon it.” (47 Tex., 557.)

These remarks are applicable to the present case, and it would seem that the question was finally settled by two subsequent decisions of this court, overruling a former one, and would now be thus treated by us, without a written opinion, were it not in deference to the late decision of the Supreme Court of the United States, which sustains the case of San Antonio v. Lane, supra. That learned court, after reviewing the above cases, say: “ The question may, therefore, be fairly considered as still unsettled in the jurisprudence of this State. Under these circumstances, this court has always felt at liberty to follow the guidance of its own judgment,” (San Antonio v. Mehaffy, 6 Otto, 312.)

Although we entertain the very greatest respect for the opinions of that high tribunal, yet we feel it our duty, upon a question which involves the proper construction of a local statute under the Constitution of Texas, to follow the latest decisions of this court; and particularly when, as in this case, the direct point involved has received our deliberate consideration upon a reexamination of the question.

To remove any doubt which may arise in the courts of this State from the above case of San Antonio v. Mehaffy, we again reaffirm the unconstitutionality of the section of the act under consideration.

Affirmed.