Daniel v. Hutcheson , 4 Tex. Civ. App. 239 ( 1893 )

When the decision in this cause was rendered, on the 13th instant, I dissented from the conclusion of a majority of the court, upon material and controlling questions of law, and I now enter of record my grounds of dissent. In construing any section of a constitution, it is unquestionably the duty of the court to look to the object and purpose of the different sections of the instrument which relate to the matter under consideration; and if by looking to all the sections bearing upon the matter for decision, the leading object and purpose of the convention can be ascertained, it should be followed; even if the interpretation thus given to the instrument be in conflict with the literal and strict compliance of some of its provisions. The intention of the law maker constitutes the law, and that intention may not be expressed by the letter of the law. That which is clearly implied in a written instrument is as effectual as what is expressed.

But my construction of the judicial article of the Constitution of 1869 does not make that article conflict with any other provision of that instrument. Section 1 of article 5 vests the judicial power in the Supreme Court, in District Courts, and in such inferior courts and magistrates as may be created by the Constitution, or by the Legislature under its authority. Section 6 of this article provides, that the State shall be divided into convenient judicial districts, and that the Governor, by and with consent of the Senate, shall appoint one judge for each district, who shall hold his office for eight years, and shall hold a court three times a year, in each county of his district, at such time and place as may be prescribed by law; and section 7 is in these words: "The District Court shall have original jurisdiction of all criminal cases; of all causes in behalf of the State to recover penalties, forfeitures, and escheats; and of all suits and cases in which the State may be interested; of all cases of divorce; of all suits to recover damages for slander or defamation of character; of all suits for the trial of title to land; of all suits for the enforcement of liens; and of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to $100, exclusive of interest; and the said courts, and the judges thereof, shall have power to issue the writ of habeas corpus, and all other writs necessary to enforce their own jurisdiction, and to give them a general superintendence and control over inferior tribunals. The District Court shall also have appellate jurisdiction in cases originating in inferior courts, with such exceptions and under such regulations as the Legislature may prescribe. And the District Court shall also have original and exclusive jurisdiction for the probate of wills; for the appointing of guardians; for the granting of letters testamentary and of administration; for settling the accounts of executors, administrators, and guardians; and for the transaction of all business appertaining to the estates of deceased persons, minors, idiots, lunatics, and persons of unsound mind; and for the settlement, partition, and distribution of such estates, under such rules and regulations as may be prescribed by law."

It is evident from these several provisions of the Constitution of 1869, that the judicial article of that instrument was not self-operative, and could not take effect until the Legislature should divide the State into judicial districts, and should prescribe the times and places for holding the courts.

It is also evident, that the Constitution of 1869, when it invests the District Court with probate jurisdiction, means the court created by that instrument, and has no reference to the District Court created by the Constitution of 1866. I therefore conclude, that the intention of the convention was that both the District and County Courts created by the Constitution of 1866 should continue in the discharge of their functions, until the District Courts created by the Constitution of 1869 were organized and put into operation by legislative and executive action, as provided in section 6. I can not believe that it was the intention of the convention which framed the Constitution of 1869, that immediately upon the ratification of that instrument by the people, the judicial powers of the State should be suspended until the courts created by that Constitution should be organized. Clegg v. The State, 42 Tex. 607. The Constitution itself did not so declare, and it is only by implication that such conclusion can be reached. Construing the first, sixth, and seventh sections of article 5 together, it is clear to my mind that it was not the intention of the convention to confer probate jurisdiction upon the District Court created by the Constitution of 1866; but a new tribunal of justice, possessing all the powers of both the District and County Courts then existing, was provided for, and when organized was to supersede both the District and County Courts created by the Constitution of 1866.

If I am correct in this view, then if the decision of the court in this case be the law, the judicial department of this State was suspended in its functions from the 3rd day of December, 1869, until the organization of the District Courts by the act of the Legislature in the summer of 1870. As a matter of history, we know that the District and the County Courts continued in the exercise of their jurisdictions long after the adoption of the Constitution in December, 1869; and if the law be as held by a majority of this court, then all that was done by the judiciary of this State between the time of the election held in November and December of 1869, and the day on which the act of the Legislature organizing the District Courts, which I believe was on the 10th of August, 1870, must be held to be null and void; and the titles to property honestly bought and paid for, under judgment and decrees of the County Courts, and now aggregating in value perhaps millions, are worthless.

It is certainly more conservative, and I think more in consonance with the rules for construing both statutory and constitutional law, to hold that the County Courts were authorized by the law to continue their functions until superseded by the District Courts which were organized by the Act of the Legislature of 1870, passed in obedience to the sixth section of the fifth article of the Constitution of 1869. I can see nothing in this view of the subject in conflict with the decision in the case of Peak v. Swindle. I have no doubt of the correctness in that decision. When the Constitution was adopted by the people of the State, that instrument immediately took effect, and was operative in all of its parts as far as practicable; and it was suspended in none of its provisions to await the action of Congress in admitting the State into the Union. But it is too plain to admit of argument, that the judicial article of the Constitution was not self-operative. The substitution of one framework of government in all its parts, by another, is not the work of a single day.

For the reasons indicated in this opinion, my conclusion is, that the order of the County Court of Harris County, made in February, 1870, directing the sale of the property involved in this suit by the administratrix of the estate of R.W. Dowling, deceased, and the subsequent ratification by said court of the sale so ordered, passed the title of said property to the purchaser, and that the judgment of the District Court of Harris County rendered for the appellee should be affirmed, and that the decision of this court, reversing that judgment and rendering judgment for appellant, is erroneous.

Upon hearing by the Supreme Court on certificate of dissent, the opinion of the majority of the court was reversed, and the judgment of the District Court affirmed. Decision October 28, 1893.