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 http://www.archive.org/details/cu31924024708350 
 
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 THE HISTORY OF THE 
 SUPREME COURT OF 
 THE STATE OF TEXAS 
 
 WITH BIOGRAPHIES OF THE 
 CHIEF Mid ASSOCIATE JUSTICES 
 
 X 
 
 By J. H. DAVENPORT 
 
 PUBLISHED BY 
 
 SOUTHERN LAW BOOK PUBLISHERS 
 AUSTIN, TEXAS 
 
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/$ZST}74, 
 
 COPYRIGHT 1917 
 
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PKEFACE. 
 
 This outline of the history of the Supreme Court 
 of Texas is presented to the public in the belief 
 that it will prove entertaining and instructive to the 
 professional and general reader as well. 
 
 Cases cited and quoted in the work were selected 
 because of their general or historical interest, or 
 their influence upon the history of our judiciary, 
 irrespective of their status as precedents. No claim 
 is made that they comprehend all, or even a ma- 
 jority, of the most important cases decided by the 
 court. The circumstance that the professional 
 reader is familiar with the leading cases, and that 
 the general reader is not interested in cases involv- 
 ing only dry discussions of principles of law, as, 
 also, the obvious fact that citation of all the im- 
 portant cases adjudicated by the court would have 
 extended the volume and scope of the work beyond 
 reasonable bounds, were considerations which im- 
 pelled the writer to restrict citations to cases herein 
 presented. 
 
 Liberal quotations from the court's opinions were 
 necessitated by a desire to give the general reader, 
 having no access to the reports, a comprehensive 
 view of the basis of the enduring reputation of the 
 distinguished judges who wrote them, and the 
 writer's conviction that no mere synopsis of the 
 opinions could do justice to the learned jurists who 
 formulated them. 
 
Pkeface 
 
 It is believed that the work possesses value to the 
 legal profession as a comprehensive compilation of 
 important data relating to the Supreme Court and 
 its justices, contained in numerous volumes of the 
 reports and in consequence difficult of access. 
 
 To the law student, at the threshold of his pro- 
 fessional career, the work should possess a special 
 interest and value in its disclosure of his future field 
 of action, and the splendid achievements of distin- 
 guished lawyers who have won renown in the great- 
 est sphere of human endeavor. 
 
 The writer is pleased to tender his acknowledg- 
 ments to Hon. T. H. McGregor of the Austin Bar, 
 Hon. C. Klaerner, State Librarian, and Mr. L. K. 
 Smoot, Mr. Sinclair Moreland and Miss Marian 
 Darwin, his accommodating assistants, for appre- 
 ciated courtesies extended in the course of his work. 
 
 Conscious of its imperfections, the writer submits 
 the work to the approval of an intelligent and gen- 
 erous public, with no other regret than that incident 
 to a consciousness of his inability to do full justice 
 to the august tribunal of which it treats. If the 
 work shall inspire in its readers the profound re- 
 spect and admiration which the writer feels for that 
 great court and the eminent jurists who have adorned 
 it during the eight decades of its existence, he will be 
 recompensed for labors devoted to the story of the 
 most splendid achievements connected with the in- 
 comparable and imperishable history of Texas. 
 
 Austin, Texas, February, 1917. 
 
 J. H. D. 
 
CHAPTER I. 
 
 r 
 
 1824-1846. 
 
 Supreme Court of Coahuila and Texas — Limited Powers — 
 Superior Judicial Court of the Province of Texas — Qualifi- 
 cations of Superior Judge — Ceremonies in Convening Court — 
 "Dress of Etiquette" for "Solemn Occasions" — Thomas 
 Jefferson Chambers, Superior Judge — Sketch of Judge 
 Chambers — Address to the People of Texas — Rising Tide 
 of Revolution — A Courtless Judge — Creation and Organiza- 
 tion of Supreme Court of the Republic of Texas — James 
 Collingsworth, Chief Justice — Sketch of Justice Collings- 
 worth — John Birdsall Succeeds Chief Justice Collingsworth — 
 Thomas Jefferson Rusk Succeeds Chief Justice Birdsall — 
 Sketch of Justice Rusk — John Hemphill Succeeds Chief 
 Justice Rusk — Sketch of Justice Hemphill — Associate Jus- 
 tices of the Supreme Court of the Republic — Sketches of 
 Justices Baylor, Franklin, Hansford, Morris, Robinson, 
 Williamson, "Wheeler, Patrick, and Ochiltree — Scott vs. 
 Maynard — Construction of Spanish Law Defining Commu- 
 nity Property — "Compound of Error and Mixture of Juris- 
 prudence" — Morton vs. Gerden — Judicial Pean to the Con- 
 stitution — "Amidst and Above the Storm" — Whiting vs. 
 Turley— "Chancelling It." 
 
 Following the revolution in which it won its in- 
 dependence of Spain, Mexico, through its sovereign 
 constituent Congress, in defining the five internal 
 States which should constitute the Mexican Confed- 
 eration, declared that the provinces of Nuevo Leon, 
 Coahuila, and Texas should constitute the internal 
 State of the east. The constitution of the Confed- 
 eration, adopted October 24, 1824, provided that the 
 judicial power of each of the internal States should 
 
2 The Supkeme Cotjbt of Texas 
 
 be exercised by such tribunals as should be created 
 and established by their respective constitutions. 
 In pursuance of the authority conferred, the State 
 of Coahuila and Texas, by its constitution adopted 
 in 1827, created a supreme State tribunal, to be 
 located at its capital, composed of such magistrates 
 as should be provided by law, divided into three 
 "halls," the powers and jurisdiction of which were 
 denned. The qualifications of magistrates were, that 
 they should be citizens in the exercise of their rights, 
 twenty-five years of age, natives of the Eepublic, 
 and upright, enlightened lawyers. They were made 
 appointive by Congress on nomination of the Gov- 
 ernor, and were to receive a competent salary to be 
 designated by law. They were not subject to re- 
 moval from office except for legally established 
 cause; were held responsible for their proceedings 
 in the discharge of their functions, and could be 
 accused therefor before Congress by "any individual 
 of the people whatever." 
 
 In so far as is known no record exists of the ju- 
 dicial labors of this court, and, in consequence, noth- 
 ing is known of the personnel of its Justices, or the 
 abilities which they brought to bear in the discharge 
 of their official duties. The value of decisions of the 
 court as precedents probably was seriously impaired 
 by its adherence to the following restriction upon the 
 exercise of its important functions, which serve as 
 an enlightening example of primitive conceptions of 
 an efficient judiciary existing in the minds of the 
 framers of the constitution: "The tribunals and 
 courts of justice, being authorized solely for applying 
 the laws, shall never interpret the same, or suspend 
 
The Supreme Count of Texas 3 
 
 their execution." 1 The difficulties necessarily inci- 
 dent to "applying" laws which judges were ex- 
 pressly inhibited from construing or nullifying, will 
 suggest themselves to the professional mind as being 
 fatally inconsistent with an effective and conscien- 
 tious administration of the law. 
 
 By an act of the Congress of Coahuila and 
 Texas, approved April 17, 1834, the province of 
 Texas was made a separate judicial circuit, compris- 
 ing the jurisdiction of a court created and denomi- 
 nated "The Superior Judicial Court of Texas." The 
 circuit was divided into three districts, designated as 
 the three departments of Texas. It was provided 
 that the Supreme Court should be composed of one 
 judge, one secretary and one sheriff for each district, 
 and in criminal cases, a jury and one prosecuting 
 attorney. The Superior Judge was required to be 
 a citizen in the full exercise of rights, over twenty- 
 five years of age, a lawyer by profession, and a man 
 of probity and science. He was appointive by Con- 
 gress, on nomination by the Governor, en terna, and 
 could not be removed from office except for cause 
 legally established, and his salary was fixed at $3,000 
 per annum. Formalities required at the opening 
 of the Superior Court were, that the sheriffs and 
 constables should be seated on the right of the Su- 
 perior Judge; the primary commissioners on the 
 left ; the prosecuting attorney, the secretary and the 
 lawyers in front, around a table; and that the au- 
 dience should remain standing. The Superior Judge 
 was admonished to open court "by pronouncing a 
 
 iConstitution Coahuila and Texas. Art. Ill, Sec. 172. 
 
4 The Sttpbeme Cottkt or Texas 
 
 discourse analogous to the circumstances, directed 
 principally to the instruction of the judges and 
 officers of justice in the discharge of their respect- 
 ive duties." The act specified particularly that "the 
 dress of etiquette of the Superior Judge shall be 
 black or dark blue, and a white sash with gold tas- 
 sels; and this dress shall be used on all solemn 
 occasions." A novel and interesting feature of the 
 act was the provision that salaries established by it 
 should be paid the first year "with vacant lands sit- 
 uated within the judicial circuit, and at the rate of 
 $100 for each sitio;" from which it appears that the 
 "internal state of the east," like many of its citizens, 
 was "land poor" at that period of its sovereign ex- 
 istence. This act, prescribing trial by jury, and 
 other safeguards of the rights of accused persons and 
 litigants, exhibits a more enlightened regard for the 
 liberties of the people than the despotic government 
 of Mexico therefore had manifested, a recognition 
 probably due to enlightened counsels and sugges- 
 tions of the pioneer patriot and statesman selected 
 as Judge of the court created by its provisions. 
 
 Thomas Jefferson Chambers was appointed Su- 
 perior Judge of the Superior Judicial Court of 
 Texas. A native of Orange County, Virginia, he 
 emigrated to Mexico City in 1826, where he devoted 
 three years to the study of the language, laws and 
 institutions of Mexico, and thereafter removed to 
 the province of Texas. He is described by a con- 
 temporary as "gifted with talents of a high order, 
 whose persuasive manners soon gained the confidence 
 of the Government of the State of Coahuila and 
 Texas, which, added to his devotion to free insti- 
 
The Supreme Court of Texas 5 
 
 tutions, enabled him to do much for her in the days 
 of her infancy." 1 In 1829 he was appointed Sur- 
 veyor General of the province of Texas, and, in 
 conjunction with Antonio Padilla, who for a brief 
 period was Land Commissioner for Eastern Texas, 
 obtained an empressario contract for introducing 
 800 families of colonists to that section. During 
 violent disorders precipitated by the removal of 
 the capital of the State of Coahuila and Texas from 
 Saltillo to Monclova, which was bitterly and vigor- 
 ously opposed by certain factions in the province of 
 Texas, and a disgraceful armed conflict between 
 followers of rival claimants of the office of Gover- 
 nor of the State, constitutional government was sus- 
 pended, resulting in chaotic conditions which ren- 
 dered it impossible for Judge Chambers to organize 
 the court in which he had been selected to preside; 
 and in consequence he was never permitted to as- 
 sume the duties of his office. As witnesses but non- 
 participants in those violent disorders, Jose Vasquez 
 and Oliver Jones, Texas representatives in the Con- 
 gress of Coahuila and Texas, and Judge Chambers 
 were so impressed by the alarming trend of public 
 affairs that, on September 1, 1834, they issued an 
 address to the people of Texas detailing the chaotic 
 condition of their affairs, accompanied by the pro- 
 posal that a congress should be convened at Bexar 
 on the 15th of November following, to consider the 
 political situation confronting their own department 
 of the State, "and, if necessary, form a provisional 
 government." 2 
 
 iSketch of T. J. Chambers, Galveston, 1853. 
 2Yoakum's History of Texas, Vol. 1, pp. 323-4. 
 
6 The Stjpkeme Court of Texas 
 
 This address possesses historical interest as being 
 the first public announcement of the approaching 
 separation of the province of Texas from Mexico, 
 subsequently consummated by the revolution of 1836. 
 Judge Chambers rendered valuable service to Texas 
 during the war of independence which largely con- 
 tributed to its success. He proposed a loan of $10,000 
 to the provisional government, with a tender of his 
 services to visit the United States to procure volun- 
 teers and munitions for the Texas army. These 
 offers were accepted and he was commissioned Ma- 
 jor-General of reserves by the Executive Council. 
 How faithfully and efficiently he discharged the 
 duties of his position is shown in his report to Con- 
 gress, dated June 3, 1837, disclosing that he had 
 dispatched 1,915 volunteers to Texas, and had ex- 
 pended $23,621 of his private funds on behalf of 
 the Texas army. Later he retired from public life, 
 settling in Chambers County, Texas, which he rep- 
 resented in the Secession Convention in 1861. There- 
 after he was an unsuccessful candidate for Governor 
 of Texas. He was killed while sitting in his house, 
 by an assassin whose identity was never discovered. 1 
 
 Although Judge Chambers was prevented from 
 exercising the functions of the office of Superior 
 Judge of the Superior Judicial Court of the province 
 of Texas by disorders presaging the Texas revolu- 
 tion, and notwithstanding he was appointed to the 
 position by the Mexican government, whose author- 
 ity extended over the province, the circumstance that 
 the jurisdiction of the court in which he was selected 
 
 iThrall's History of Texas, Vol. 2, pp. 535-526. 
 
The Supbeme Court of Texas 7 
 
 to preside included that territory alone, appears to 
 entitle him to the honor and distinction of having 
 been the first Chief Justice of Texas. 
 
 The creation of the Supreme Court of the Repub- 
 lic of Texas was authorized and directed by the con- 
 stitution adopted at Washington, Texas, March 17, 
 1836, which provided that the judicial powers of the 
 government should be vested in one Supreme Court, 
 and such inferior courts as Congress should from 
 time to time ordain and establish. It was provided 
 that the court should consist of a chief justice and 
 associate justices composed of district judges, a ma- 
 jority of whom, with the chief justice, should consti- 
 tute a quorum, who should hold their offices for four 
 years, be eligible to re-election, and should at stated 
 periods receive for their services a compensation 
 which should not be increased or diminished during 
 the period for which they were elected. It provided 
 that the State should be divided into convenient 
 judicial districts, not less than three nor more than 
 eight, and for the appointment of a judge for each 
 district, who should be a resident of the same; that 
 the jurisdiction conferred upon the Supreme Court 
 should be appellate, only, and conclusive within the 
 limits of the Republic, and that it should hold an- 
 nual sessions at such places as should be designated 
 by law. Judges of the court were made elective by 
 a joint ballot of the two houses of Congress. Under 
 the system thus created district judges, in addition 
 to their duties as trial judges, were also Associate 
 Justices of the Supreme Court. It was directed that 
 Congress should, as early as possible, introduce by 
 statute, the common law of England, with such 
 
8 The Stjpkeme Court of Texas 
 
 modifications as "our circumstances, in their judg- 
 ment, may require," and that in all criminal cases 
 the common law should be the rule of action. 
 
 In pursuance of the authority conferred by the 
 constitution, the Congress of the Republic, by an act 
 approved December 15, 1836, provided that there 
 should be established in the Republic a court to be 
 styled the Supreme Court of the Republic of Texas, 
 to consist of one Supreme Judge, to be styled the 
 Chief Justice, who should be elected by joint ballot 
 of both houses of Congress, and such judges as 
 should be elected judges of the district courts, who 
 should hold their offices for the period prescribed by 
 the constitution. The salary of the Chief Justice 
 was fixed at $5,000 per annum, payable semi-an- 
 nually. Annual sessions of the court were required 
 to be held at the seat of government on the first 
 Monday in December. It was given jurisdiction 
 to hear and determine all manner of pleas, plaints, 
 motions, causes and controversies, civil and criminal, 
 which should come before it from any court in the 
 Republic by appeal or other process which should 
 be cognizable in said court according to the consti- 
 tution and laws of the Republic, but that no appeal 
 should be granted, nor should any cause be removed 
 to the Supreme Court in any manner whatsoever 
 until after final judgment or decree in the court 
 below, except in cases particularly prescribed by 
 law. By an act of Congress approved December 22, 
 1836, the State was divided into four judicial dis- 
 tricts, a judge for each district being required to be 
 elected by joint ballot of the two houses of Congress, 1 
 
 iLaws of the Eepublic, Vol. 1, p. 198. 
 
The Supreme Court op Texas 9 
 
 two additional districts being created by subsequent 
 enactment. 1 
 
 James Collingsworth was the first Chief Justice 
 of the Supreme Court of the Republic of Texas. He 
 was a native of Tennessee, and held the office of 
 United States District Attorney in that State prior 
 to his removal to Texas. He served with distinction 
 as a member of the Executive Council during the 
 Texas revolution, being chairman of the military 
 committee to whom reports of the commander-in- 
 chief in the field were transmitted. Collingsworth 
 received honorable mention in the official report of 
 Thomas J. Rusk, Secretary of "War, to President 
 Burnet, written on the field of San Jacinto, April 
 22, 1836, as follows: "While I do justice to all in 
 expressing my high admiration of the bravery and 
 gallant conduct of both officers and men, I hope I 
 may be indulged in the expression of my highest 
 approbation of the chivalrous conduct of Major 
 James Collingsworth in almost every part of the 
 engagement." After serving as Secretary of State 
 for a brief period in 1836, Mr. Collingsworth and 
 Peter W. Grayson were commissioned on the 30th of 
 May of that year to proceed to Washington to ask 
 the intervention of the United States in procuring 
 the recognition by Mexico of the independence of 
 Texas, and to use their best efforts to obtain a like 
 recognition by the former country. In 1838 Col- 
 lingsworth was appointed Chief Justice of the Re- 
 public of Texas. Shortly after his appointment he 
 became a candidate for President of the Republic, 
 
 iLaws of the Eepublic, 4 Cong., pp. 176-177. 
 
10 The Supreme Court of Texas 
 
 his opponents being Mirabeau B. Lamar and Peter 
 W. Grayson, in a campaign which was exceedingly 
 bitter and abounding in the harshest personalities. 
 Just prior to the election Collingsworth committed 
 suicide by throwing himself from the deck of a 
 steamer into Galveston Bay, while at about the 
 same date, Peter W. Grayson ended his life by his 
 own hands in an adjoining State. 1 
 
 John Birdsall was elected Chief Justice of the 
 court to succeed Justice Collingsworth. There is 
 no mention of Judge Birdsall by contemporaries or 
 historians of the period, or data obtainable as the 
 basis of a sketch of his life. No sessions of the 
 court were held during the official terms of Collings- 
 worth and Birdsall, an omission probably due to 
 unsettled conditions at the close of the revolution. 
 
 Thomas Jefferson Rusk was appointed Chief Jus- 
 tice of the Supreme Court of the Republic by the 
 Congress of 1838-9. He was born in Pendleton 
 District, South Carolina, December 5, 1803. His 
 father was a tenant of John C. Calhoun, a circum- 
 stance which fortunately resulted in attracting the 
 attention of that distinguished statesman to young 
 Rusk. Through the kindly interest of that powerful 
 patron he secured a position with William Gresham, 
 
 *0f the character and attainments of Judge Collingsworth, the most 
 accurate of historians says : 
 
 "Among the distinguished dead of this year (1838jj may be mentioned 
 James Collingsworth. . . . Collingsworth was the first Chief Justice 
 of the Supreme Court of the Eepublic. He was a man of fine talents, 
 great urbanity, and a devoted and valuable friend to Texas in her 
 struggle. He had a pleasant wit, was a most admirable companion, 
 and of scrupulous integrity. He had emigrated to Texas to avoid a 
 false habit, which unfortunately pursued him to a premature grave." — 
 Yoakum's History of Texas, Vol. 2, p. 350. 
 
The Supbeme Court of Texas 11 
 
 clerk of the Pendleton District, which not only sup- 
 plied sufficient means for his support, but also fa- 
 cilities for the study of law, which he pursued with 
 such diligence that he was shortly admitted to the 
 bar. Thereafter he removed to Clarksville, Haber- 
 sham County, Georgia, where he began the practice 
 of law tin 1832, in his twenty-ninth year. Mr. Rusk 
 was a leading member of his profession in the coun- 
 ties known as the "Gold Region." Seized with the 
 fever of speculation then rife in that section of the 
 State, he invested extensively in the stock of a land 
 company, the managers of which absconded with 
 the revenues and assets of the corporation, leaving 
 him penniless and all but hopelessly involved in debt. 
 Pursuing the fugitives, he overhauled them west of 
 the Sabine River, only to make the discouraging dis- 
 covery that they had squandered their loot in gam- 
 bling and riotous living. Proceeding thence to Na- 
 cogdoches, Texas, he found the inhabitants of that 
 town greatly excited over reports of depredations 
 and atrocities committed upon Americans by Mex- 
 ican brigands in the west. Mounting the platform at 
 an indignation meeting he delivered a vigorous, elo- 
 quent appeal to the assemblage, in which he volun- 
 teered to become one of a company to march to the 
 rescue of his countrymen. Immediately responding 
 to his suggestion, a company was organized and the 
 speaker named as commander to lead it to the scene 
 of the disorders. In the same year, as secretary of 
 a vigilance committee, he formulated a vigorous pro- 
 test against the further introduction of Indians into 
 Texas from the United States. In 1835 he was ap- 
 pointed commissary of the Texas army by the Ex- 
 
12 The Supreme Court or Texas 
 
 ecutive Council. He was in active service before 
 the walls of San Antonio during the siege of that 
 city, where, during several attempts to draw the 
 enemy from his fortified position, at the head of 
 forty cavalrymen, he took position in the open within 
 300 yards of his stronghold and within easy range 
 of a battery of six-pounders, where he remained 
 for twenty minutes. Following the first success of 
 the Texas army at San Antonio, Thomas J. Rusk 
 and J. W. Fannin were co mmi ssioned by the Ex- 
 ecutive Council to procure men and munitions. 
 March 16, 1836, Mr. Rusk was elected Secretary of 
 War. Issuing an appeal to citizens of Texas to 
 march to the defense of the country, he set out from 
 Harrisburg to join the army. He was welcomed in 
 camp as the ablest, safest counselor of Texas in the 
 pending unequal struggle for her independence. Two 
 days before the memorable, decisive and history- 
 making battle of San Jacinto, Secretary Rusk issued 
 a stirring address to the people of Texas. 1 
 
 i"A few more hours," said he, "will decide the fate of our army ; and 
 what an astonishing 1 fact it is that, at the very moment when the fate 
 of your wives, your children, your honors, your country, and all that 
 is dear to a freeman are suspended on the issue of one battle, not 
 one-fourth of the people (men) of Texas are in the army! Are you 
 Americans? Are you freemen? If you are, prove your blood and birth 
 by rallying at once to your country's standard. Your general is at 
 the head of a brave and chivalrous band, and throws himself, sword 
 in hand, into the breach to save his country, and vindicate her rights. 
 Enthusiasm prevails in the army; but I look around and see that 
 many, very many, whom I anticipated would be the first in the field, 
 are not here. Rise at once, concentrate and march to the field! — a. 
 vigorous effort, and the country is safe ! A different course disgraces 
 and ruins you ; and what is life worth with the loss of liberty? May 
 I never survive it !" 
 
 The heroic conduct of Secretary Rusk in the battle of San Jacinto 
 was excelled by none who participated in that important engagement, 
 
The Supreme Court of Texas 13 
 
 General Houston's wound necessitated his resig- 
 nation of the command of the army, when the en- 
 tire army, President Burnet and his cabinet in- 
 cluded, united in an urgent request to Secretary 
 Rusk to assume the office of Commander-in-Chief, 
 with the rank of Brigadier-General, to which he 
 finally assented. In the fall of 1836 he was ap- 
 pointed a member of President Houston's cabinet, 
 in which he served but a few weeks, his private af- 
 fairs necessitating his entire attention at the time. 
 In 1837 he was elected to the Second Congress of 
 the Republic, from Nacogdoches, serving in that po- 
 sition several successive terms. In 1838 he refused 
 the earnest solicitations of his friends to offer for 
 the office of President of the Republic, preferring 
 the election of General Mirabeau B. Lamar to that 
 position. In August of that year he suppressed a 
 rebellion of Mexicans and Indians at Nacogdoches 
 and vicinity, while he devoted the ensuing summer 
 to a successful campaign against the enemies of the 
 Republic. In 1843 he was elected Major-General 
 of militia. In March, 1846, the First Texas Legisla- 
 ture elected him United States Senator, in which 
 position he served with marked distinction. He was 
 
 while to the courage and the 'wisdom of his instant decision was due 
 the victory. "While the Texas columns were advancing 1 towards the 
 enemy's front the General-in-Chief received a wound in his ankle, and 
 immediately called upon the troops to halt, but Rusk, perceiving 1 that 
 to halt at that moment would be certain ruin, rode forward and cried, 
 'Push on boys, push on !' and they did push on under the lead of the 
 gallant Secretary, shouting — 'Remember the iAJamo! Remember Go- 
 liad !' And they won a victory in one hour which secured freedom 
 and prosperity to an empire. It was the mission of Rusk to win the 
 laurels of that day, and for the other men to wear them." — Sketch of 
 T. J. Rusk, Texas Almanac (1856), p. 106. 
 
14 The Supreme Cotjbt of Texas 
 
 chairman of the Postal Committee of the Senate 
 for several terms, and is said to have refused the 
 office of Postmaster-General, tendered him by Pres- 
 ident Buchanan. He also served one term as pres- 
 ident pro tern of the Senate. Of the death of this 
 distinguished Texas citizen, soldier, patroit, and 
 statesman, the eulogy pronounced in the House of 
 Representatives of Texas by Chief Justice Hemp- 
 hill, says: 
 
 "The manner of his death is the only shade on 
 the grand and brilliant picture of his long, glorious 
 and useful life. He had been weak and sick for some 
 time. The death of his wife had been to him a 
 crushing affliction. His grief, acting through the 
 disordered state of his physical system, produced 
 such an increasing degree of gloom and melancholy 
 as to finally produce the catastrophe which has filled 
 the country with lamentation and woe. Let tears 
 of sympathy flow for the sudden collapse of one of 
 the finest mental organizations, striking as it did 
 from his country forever one of its most illustrious 
 and venerable patriots and statesmen." 
 
 Senator Rusk died by his own hands at Washing- 
 ton, D. C, according to one authority, 1 and at Nacog- 
 doches, Texas, as recorded by another. 2 
 
 The decisions of the Supreme Court of the Re- 
 public are contained in Dallam's Report, which com-' 
 prehends all written opinions rendered by its judges 
 from 1840 to 1844, inclusive. Mve brief opinions 
 in causes of minor importance, decided at the Jan- 
 
 iLynch's Bench, and Bar, p. 68. 
 ^Williams' War of Independence. 
 
The Supkeme Court of Texas 15 
 
 uary Term, 1840, represent all that has been pre- 
 served of the judicial labors of Chief Justice Rusk. 
 In these no issues of sufficient moment were involved 
 to disclose the professional learning or judicial 
 acumen of Judge Rusk, and, in consequence, they 
 are wholly insufficient to serve as a basis upon 
 which to predicate an intelligent or fair estimate of 
 his judicial abilities. "They do not display great 
 learning," confesses a contemporary biographer, 
 "but then it is to be recollected that during the first 
 two terms of the Supreme Court of the United 
 States all the judges did not write half so much. 
 The Chief Justice proved himself adequate to the 
 times; if, in his sententious opinions he quoted no 
 authorities, he displayed more wisdom than some 
 of his fellows who quoted from schools and systems 
 which had never been introduced into Texas." 1 With 
 equal propriety and like truth it might have been 
 added that in the infancy of the Republic there were 
 practically no authorities accessible to the court. 
 
 John Hemphill was appointed Chief Justice of the 
 Supreme Court of the Republic, in 1840, to succeed 
 Chief Justice Rusk, who resigned at the end of the 
 January Term of the court of that year. Judge 
 Hemphill was Associate Justice of the court at the 
 time of his promotion. He was one of that exalted 
 trio of Justices which afterwards constituted the first 
 Supreme Court of Texas — Hemphill, Lipscomb and 
 Wheeler — the greatest tribunal, with the possible 
 exception of the Supreme Court of the United 
 States, as presided over by Chief Justice Marshall, 
 
 i"The State Times," quoted in Texas Almanac (1858), p. 108. 
 
16 The Stjpkeme Court op Texas 
 
 that has illumined the most splendid pages of the his- 
 tory of an enlightened judiciary. Judge Hemphill 
 was a lawyer of exceptional professional ability and 
 scholarly attainments. He is the author of many of 
 those able opinions which contributed so much to the 
 enduring reputation of the Supreme Court of Texas 
 and to that admiration and respect accorded it in 
 all jurisdictions. Justice Hemphill was a native 
 of South Carolina. He graduated from Jef- 
 ferson College. In 1826 he entered the practice of 
 law. Emigrating to Texas at an early period of its 
 history, he was appointed one of the first district 
 judges of the Eepublic. In 1842 he was Adjutant 
 General of the Republic, and accompanied General 
 Somerville on the ill-starred Mier expedition. He 
 was a delegate to the convention of 1845, which ac- 
 cepted the ordinance of annexation, and a member 
 of the constitutional convention which adopted the 
 constitution of 1845. In 1858 he was elected United 
 States Senator from Texas. When Texas seceded 
 from the Union, he retired from the Senate and was 
 elected delegate to the Montgomery convention. He 
 was thereafter elected to the Confederate Congress. 
 Death closed his long and useful career at Richmond, 
 Virginia, in 1862. 
 
 District Judges of the Republic, who from time to 
 time were Associate Justices of the Supreme Court 
 by virtue of their offices, were R. E. B. Baylor, Ed- 
 ward T. Branch, Shelby Corzine, Ezekiel W. Cullen, 
 Henry W. Fontaine, Benjamin C. Franklin, John M. 
 Hansford, Anderson Hutchinson, John Hemphill, 
 Richard Morris, John T. Mills, M. P. Norton, Will- 
 iam B. Ochiltree, James Robinson, Richardson A. 
 
The Supeeme Court or Texas 17 
 
 Scurry, John Scott, Anthony B. Shelby, George W. 
 Terrill, E. M. Williamson, R. T. Wheeler, Thomas 
 Johnson, William J. Jones, John B. Jones, William 
 E. Jones, and Patrick C. Jack. As disclosed in pub- 
 lished decisions of the court, only a limited number 
 of these actively participated in the labors of the 
 court, a fact substantiated by an act of the Congress 
 of the Republic penalizing that omission. 
 
 Judge R. E. B. Baylor was a native of Kentucky. 
 In early life he removed to Alabama, where he once 
 represented his district in the United States Con- 
 gress. Emigrating to Texas in the days of the Re- 
 public he was appointed district judge, to which 
 office he was reappointed after annexation, and in 
 which he served until advanced age necessitated his 
 retirement. He was a member of the Constitutional 
 Convention of 1845. Baylor University was named 
 in his honor. He died near Independence, Washing- 
 ton County, in December, 1872. 
 
 Judge Benjamin C. Franklin was a member of 
 Deaf Smith's Spy Company in 1836. As a private 
 soldier he fought in the battle of San Jacinto. He 
 was afterward appointed district judge by President 
 Burnet. Judge Franklin was one of the first settlers 
 on Galveston Island. He represented Galveston 
 County in the State Legislature, and was elected to 
 the State Senate from the district including that 
 county, in 1873, but died before the convening of the 
 Legislature. 
 
 Judge John M. Hansford served in the Congress 
 of the Republic as a member from Shelby County, 
 in 1838, and was Speaker of the House. He died 
 in 1843. 
 
18 The Supreme Court op Texas 
 
 Judge Richard Morris was born in Hanover 
 County, Virginia, December 27, 1815. He received 
 preparatory instruction in Burke High School, Rich- 
 mond, and thereafter took a two years' academic 
 course in the University of Virginia. He studied 
 law in his father's office, attended the law depart- 
 ment of the University for one session, and was ad- 
 mitted to the bar. In 1838 he removed to Texas, 
 engaging in the practice of law at Houston. There- 
 after he removed to Galveston, where he was ap- 
 pointed judge of the First Judicial District, and 
 later judge of the Criminal District Court of the 
 Galveston and Harris district. He died of yellow 
 fever, August 14, 1844. 
 
 James W. Robinson was a native of Ohio. In 
 1835 he was a leading member of the Consultation. 
 Upon the organization of the provisional govern- 
 ment of Texas he was elected Lieutenant Governor. 
 When, as the culmination of a violent clash between 
 Governor Smith and the Executive Council, Smith 
 was expeditiously deposed, Robinson was named as 
 his successor, but Governor Smith peremptorily re- 
 fused to vacate the office or surrender its insignia. 1 
 
 iThe insignia was a brass button on his coat, which happened to be 
 a star, and for want of a seal, was used to make the impression upon 
 public documents dispatched to the United States. That brass button 
 gave birth to the single star, emblem of the new Republic — Thrall's 
 History of Texas, Part 2, p. 605. 
 
 A number of anecdotes are current among the legal fraternity of 
 which Judge Robinson was the occasion. It isi told that on one occa- 
 sion, when holding court in Houston, a man had been convicted of a 
 crime for which the penalty was thirty-nine lashes. A motion was 
 duly made and entered for a new trial, which the judge promised to 
 attend to the next morning. In the meantime he directed the sheriff 
 to whip the culprit and turn him loose. At the opening of court in 
 
The Supreme Court of Texas 19 
 
 Robinson fought as a private soldier in the battle 
 of San Jacinto. When serving as district judge, lie 
 resigned his office rather than preside at the trial 
 of a personal friend charged with a capital offense. 
 In September, 1842, he was one of many members of 
 the court taken prisoner by General Wool at San 
 Antonio. From his prison in Mexico, Robinson wrote 
 General Santa Anna, suggesting terms of an agree- 
 ment between Texas and Mexico, was released by the 
 latter and dispatched with letters to General Hous- 
 ton, which eventually effected an armistice. In 1849 
 Robinson emigrated to California, but being dis- 
 satisfied with conditions there, was returning to 
 Texas when he died at San Diego, in 1853. 
 
 Robert M. Williamson — "Three-Legged Willie" — 
 was a native of Georgia, where he was born in 1806. 
 Afflicted in his youth by a white swelling which per- 
 manently stiffened one of his knees, the use of a 
 wooden leg, necessitated by that misfortune, sug- 
 gested the nickname by which he was familiarly 
 known to his friends and associates. In 1827 he 
 located at San Felipe, Texas, where he engaged in 
 
 the morning the judge listened very patiently to the argument for a 
 new trial. The attorney, seeing an unaccountable merriment in the 
 court room, inquired the cause, when the judge, in the blandest pos- 
 sible manner, informed the gentleman that his client had already 
 received his punishmnet and been discharged. 
 
 On another occasion he perpetrated a grim joke at the expense of a 
 still greater criminal. He was holding court in a town on the west- 
 ern frontier. A man had been clearly convicted of a wilful murder. 
 The judge pronounced the death penalty, the sentence to be carried 
 into execution the next day. But he then remarked to the sheriff that 
 the jail was very uncomfortable and he had better execute him that 
 night. The truth was, the criminal had a large number of friends, 
 and the judge knew full well that he would be rescued during the 
 night.— Thrall's History of Texas, Part 3, p. 606. 
 
20 The Supreme Court of Texas 
 
 the practice of law. He served as Alcalde of that 
 municipality with distinction in 1834. In 1835 he 
 commanded a company in the Indian campaigns, 
 and was a member of the Committee of Safety at 
 the town of Bastrop, where he then resided. He was 
 a member of the General Consultation, and, in 1836, 
 was. appointed district judge. In 1840 he was elected 
 to the Congress of the Republic. He was re-elected 
 as the member from Washington to serve until an- 
 nexation, and thereafter for many years repre- 
 sented that county in the State Senate. He was 
 one of the ablest lawyers of the pioneer days of 
 Texas, noted for his eccentricities, incomparable hu- 
 mor, withering sarcasm, pathos, and eloquence. He 
 was a man of unimpeachable honor and probity of 
 character, generous, unselfish and steadfast in his 
 devotion to his friends. His kindness to all endeared 
 him to the hearts of his countrymen. The most ac- 
 curate of Texas historians 1 says of Williamson: 
 
 "After a thorough and minute investigation of the 
 records and history of Texas, I am constrained to 
 say that Eobert M. Williamson did as much, if not 
 more, than any other man in precipitating and sus- 
 taining the revolution of 1835." 
 
 "Although," says a contemporary, 2 "his oppor- 
 tunities for acquiring wealth and independence were 
 unequalled by those of any man, yet he was of such 
 a generous and improvident nature that he was often 
 embarrassed in his pecuniary affairs. Like Mr. Jef- 
 ferson and Mr. Monroe, and many other great men, 
 
 lYoakum. 
 
 2Sketch of E. M. Williams, Texas Almanac (1861). 
 
The Supreme Court of Texas 21 
 
 he not infrequently felt the iron pressure of 'Res 
 august a domi.' It may be stated as creditable to his 
 integrity, that in the midst of corruption and specu- 
 lation he lived and died in poverty. . . . He was 
 in many respects a remarkable man. He possessed 
 a wonderful hold upon the affections of the masses, 
 over whose passions and sympathies his control was 
 unbounded. The reckless daring of his own char- 
 acter contributed largely to this influence. This, 
 added to a generous and unselfish spirit, and capti- 
 vating manners, made him, wherever known, the idol 
 of the people. Inaccessible to threats or bribes, he 
 was an upright and honest Judge, who unflinchingly 
 administered the law. His intercourse with his 
 brethren of the bar was marked with great courtesy. 
 Toward the younger members he extended a helping 
 hand, and breathed kind words of encouragement. 
 The writer is but one of hundreds who remember 
 gratefully the kindness extended to them in days 
 long past by Judge Williamson. . . . When 
 fully aroused, there was a fire and vigor in his speech 
 that surpassed all description. True, there was a 
 quaintness and eccentricity, but it was all stamped 
 with the originality and power of genius. He was 
 not only a wit of the first class, but a humorist 
 also; and like all great humorists he bore a burden 
 of melancholy which was only enlightened by those 
 sudden sallies, as the storm clouds are illumined by 
 the sheet lightning. In an appeal to the people, 
 and as an advocate before a jury he was unsur- 
 passed. ... In 1857 he had a severe attack of 
 illness which seriously afflicted his intellect. The 
 death of his wife . . . occurred shortly afterward. 
 
22 The Supreme Court of Texas 
 
 Prom these combined shocks his mind never recov- 
 ered until the time of his death, which transpired 
 peacefully on the 22nd of December, 1859, in Whar- 
 ton County. . . . We do not present the subject 
 of this sketch as free from blemish. Far from it — 
 he was mortal and therefore fallible. He had 
 one fault, and a most grievous one it was, 'One of 
 the fears of the brave and follies of the wise.' . . . 
 The fate of our distinguished men has been deplor- 
 able — Collingsworth, Grayson, Rusk and Jones died 
 by their own hands." 1 
 
 Royal T. Wheeler was born in Vermont in 1810. 
 In his youth he located in Ohio, where he was edu- 
 cated, studied law, and was admitted to the bar. 
 In 1837 he removed to Fayetteville, Texas, where he 
 formed a partnership with William S. Oldham, and 
 engaged in the practice of law. In 1839 he located 
 at Nacogdoches, Texas, where he formed a partner- 
 ship with Kendreth Anderson, Vice-President of 
 the Republic. In 1842 he served as district attorney 
 of the then Pifth District, which was noted for the 
 strength of its bar. As practitioner and as judge 
 he was the associate and friend of General Rusk, 
 Governor J. P. Henderson, and the gifted and elo- 
 quent K. L. Anderson, by all of whom he was great- 
 
 1 "May I supplicate for Robert M. Williamson (who, if a gTeat sinner, 
 was also a gTeat sufferer) the kind charity of all Christians, and close 
 this article with the following lines from, the Light-House, which no 
 voice sang so sweetly as his- own: 
 
 "In life's closing hours, when the trembling soul flies, 
 And death stills the heart's last emotion, 
 Oh ! then may the seraph of mercy arise, 
 Like a star on eternity's ocean." 
 
 —Sketch of R. M. Williamson, Texas Almanac (1861). 
 
The Supreme Cotjrt of Texas 23 
 
 ly esteemed. Upon the adoption of the constitution 
 of the State, in 1845, Judge Wheeler was appointed 
 Associate Justice of the Supreme Court. He served 
 with such ability and distinction in this position 
 that, when by an amendment of the Constitution, the 
 office became elective, he was elected without op- 
 position in August, 1851. Again, in 1856, when the 
 salaries of the judges of the court were increased, 
 in common with the bench throughout the State, he 
 resigned his office and again became a candidate for 
 the office and was elected by the people. In De- 
 cember, 1857, when the office of Chief Justice became 
 vacant by the election of Justice Hemphill to the 
 United States Senate, Justice Wheeler was elected 
 without opposition to fill the vacancy. 
 
 Of the character and judicial labors of Justice 
 Wheeler, a distinguished lawyer, 1 who subsequently 
 became a member of the great tribunal which was 
 the scene of his successful labors, says: 
 
 "Hemphill, Lipscomb and Wheeler have now 
 passed away from us. The subject of this imper- 
 fect sketch was the last survivor of that illustrious 
 trio, who constituted the original Supreme Court of 
 Texas. Their names are imperishably connected 
 with the judicial history of our State. They con- 
 stitute the Dii majories of Texas jurisprudence. 
 That the subject of this imperfect sketch was deemed 
 a fit colleague of Hemphill and Lipscomb is in 
 itself no mean tribute to his worth. He was the 
 youngest of the three, and while he did not, perhaps, 
 possess the deep, varied and almost exhaustless 
 
 iJudge C. S. West. 
 
24 The Supreme Court of Texas 
 
 learning, both in the civil and common law, that so 
 eminently distinguished his illustrious predecessor 
 as Chief Justice, nor was he so largely endowed by 
 nature as Judge Lipscomb, with that keen-sighted, 
 everyday, practical common sense, and that iron 
 logic that so abundantly supplied in him the want .of 
 mere book learning ; yet Chief Justice Wheeler pos- 
 sessed other mental faculties of a high order, by 
 the exercise of which he elevated himself to the full 
 level of his great compeers. His conscientiousness, 
 his calm, profound and patient industry, his deep 
 love of truth for its own self, his familiarity with 
 our statute laws and reports, his accurate com- 
 mon law knowledge, especially in the great depart- 
 ment of criminal jurisprudence (in which he sur- 
 passed both his associates) served him in the place 
 of genius, and eminently fitted him for the success- 
 ful discharge of the delicate and exacting functions 
 of the high office to which he was called. During 
 his long judicial career Judge Wheeler frequently 
 had occasion to differ from his brethren upon the 
 bench. Owing, however, to a constitutional sensi- 
 tiveness, which very greatly increased in his latter 
 years, and which made him exceedingly loth to con- 
 troversy, he, on most occasions, contented himself 
 with directing the reporter to note his dissent. At 
 times, however, when his strong conviction of the 
 truth and justice bore down and overcame his con- 
 stitutional abhorrence to debate, he would, in a dis- 
 senting opinion, rich with legal lore, rising even to 
 eloquence in its earnest vindication of truth against 
 precedent, place on record the reasons for his dis- 
 sent. On these occasions he disclosed that, beneath 
 
The Supreme Court op Texas 25 
 
 his modest and unassuming exterior, there slept an 
 iron will and an inflexible purpose that nothing 
 could swerve from the path of duty. When he made 
 these struggles he, more than once, unaided, by his 
 own strong intellect, arrested the current of judicial 
 decision, and by legislative enactment it was made to 
 flow in the channel he had marked out, as the true 
 course of justice. His dissenting opinions in Coles 
 vs. Kelsey, Sylvester vs. Walker, and Snoddy vs. 
 Cage, all mark epochs in our judicial history. These, 
 with many other opinions to be found in the first 
 twenty-six volumes of the reports, fairly entitle 
 Chief Justice Wheeler to be ranked among the emi- 
 nent jurists of our land." 
 
 Patrick C. Jack was a native of Alabama. He 
 came to Texas in 1832. He was a member of the 
 Congress of the Republic in 1837-38 ; and was there- 
 after appointed district judge. He died of yellow 
 fever at Houston, Texas, August 4, 1844. 
 
 William B. Ochiltree emigrated from North Car- 
 olina to Texas in 1839. In 1844 he served as Secre- 
 tary of the Treasury of the Republic. He was a 
 member of the Annexation Convention. Thereafter 
 he held the office of district judge for a number of 
 years, was a member of the Secession Convention 
 in 3861, and delegate to the Montgomery Convention. 
 He died in Jefferson, Texas, December 27, 1867. 
 
 The case of Scott vs. Maynard 1 possesses interest 
 as the first case of trespass to try title which came 
 before the Supreme Court of the Republic. In this 
 case Chief Justice Hemphill construes and applies 
 
 iDallam Report, 399. 
 
26 The Supreme Court of Texas 
 
 the Spanish law defining community property, 
 adopted in Texas by statute. The opinion dis- 
 closes a difficulty in the administration of justice 
 by pioneer courts, accentuated in the lament of the 
 court that there had been "a strange compound of 
 error, and a mixture of different systems of juris- 
 prudence, springing originally from the belief that 
 the lot sold was the separate property of the wife." 
 "It is manifest," says the opinion, "that the prin- 
 ciples of law which governed the case were not dis- 
 cussed before the district court; and from this cir- 
 cumstance the judge was misled to charge principles 
 of law which were not applicable to the case." 
 
 In Morton vs. Gerden, 1 Associate Justice Baylor, 
 in holding unconstitutional a law of the Republic 
 restricting the right of appeal to the Supreme Court, 
 indulges a sentiment which will appeal to the average 
 practitioner : 
 
 "Did the constitution intend that in regard to one 
 class of rights there should be supervision (by ap- 
 peal to the Supreme Court) and in another there 
 should be none? Such discriminating and unjust 
 spirit cannot be deduced from the sacred instrument. 
 It is the nation's panopy! No one ought to be left 
 precluded ; nay, irrevocably doomed to abide the min- 
 istry of justice, by one functionary in the first in- 
 stance." 
 
 In Stockton vs. Montgomery, 2 Justice Hutchins 
 asks and answers the question, "What is the Con- 
 stitution?" 
 
 "It is the basis on which the government rests 
 
 iDallam Report, 480. 
 ^Dallam Report, 473. 
 
The Supreme Court of Texas 27 
 
 and the authority for all law ; and is the commission 
 under which the Legislature, the executive and the 
 judiciary act. It is permanent and not influenced 
 by the temper of the times. Whatever the collision 
 of opposite interests, the virulence of parties and 
 the conspiracies of corruption; public robberies or 
 treason, it continues like Hummaleh or the Andes, 
 amidst and above the storm. If legislative act im- 
 pugn its principles, the act must yield; and when- 
 ever it as brought before the court it must be de- 
 clared void. Nay, the act is inherently nothing." It 
 is not of record that this opinion was adopted by the 
 court, thus justifying the surmise that the court, 
 while endorsing its doctrine, disapproved the man- 
 ner of its expression. 
 
 In Whiting vs. Turley, 1 Justice Hutchins sharply 
 criticised a statute which he construed as requiring 
 judges "to proceed in the first instance to try a case 
 at law, and, if he cannot succeed in the effort, then 
 to ascend to the woolsack and chancel it!" 
 
 iDallam Report, 456.' 
 
CHAPTER II. 
 
 1846-1857. 
 
 Supreme Court of Texas — Sketch of Justice Lipscomb — Pio- 
 neer Statute Construed — Lambeth vs. Turner — Regrettable 
 Practice Condemned — Mason vs. Russell — First Construction 
 of Law of Common Carriers — Chevallier vs. Straham — Ju- 
 dicial Humor — Hays vs. Cage — Forceful Judicial Reason- 
 ing — Bryant vs. Kelton — Dissenting Opinion by Justice 
 Wheeler — Coles vs. Kelsey — Fictitious Action — Smith vs. 
 Brown — Effect of Change of Government on Land Titles — 
 Ancient Mission of San Jose — McMullen vs. Hodge — Dis- 
 senting Opinion by Justice Wheeler — Snoddy vs. Cage — A 
 Sound Precedent— Jones vs. State — The Alamo — San An- 
 tonio vs. Odin — Death of Justice Lipscomb — 0. M. Roberts, 
 Asociate Justice — Sketch of Justice Roberts. 
 
 The State Constitution, adopted August 25, 1845, 
 provided that the Supreme Court should consist of a 
 Chief Justice and two Associate Justices, to be ap- 
 pointed by the Governor on the advice and consent 
 of two-thirds of the Senate; that it should exercise 
 appellate jurisdiction only, co-extensive with the 
 limits of the State, but, in criminal cases, and all 
 appeals from interlocutory judgments, with such ex- 
 ceptions and under such conditions as the Legisla- 
 ture should provide; that said court and the judges 
 thereof should have power to issue writs of Habeas 
 Corpus, and, under such regulations as should be 
 provided by law, issue writs of Mandamus and such 
 other writs as should be necessary to enforce its 
 
The Supreme Court of Texas 29 
 
 jurisdiction, and also to compel a district court to 
 proceed to trial and judgment in any cause. The 
 court was required to hold sessions annually between 
 the months of October and June, inclusive, at not 
 more than three places in the State ; and it was pro- 
 vided that the judges of the court should hold their 
 offices two years and receive a salary of not less than 
 $2,000 per annum. 1 
 
 By an act approved May 12, 1846, 2 the Supreme 
 Court was organized in conformity to constitutional 
 provisions creating it. It provided that the court 
 should hold annual sessions at Austin, Texas. By 
 an amendment approved November 30, 1850, s it was 
 provided that the court should hold sessions at Aus- 
 tin on the second Monday in November, at Galveston 
 on the first Monday in January, and at Tyler on 
 the first Monday in April, while by subsequent 
 amendment, approved December 22, 1851, 4 the court 
 was required to hold sessions during that year at 
 Austin on the second Monday in November, at Gal- 
 veston on the first Monday in February, and at Tyler 
 on the second Monday in April. 
 
 John Hemphill was appointed Chief Justice, and 
 Abner S. Lipscomb and Eoyal T. Wheeler, Associate 
 Justices of the Supreme Court of Texas as thus cre- 
 ated and organized. It is generally conceded by 
 the most capable and conservative authorities that to 
 this court is due the honor and distinction of having 
 been one of the greatest tribunals in the history of 
 
 iConstituticm 1845. Sees. 1, 2, 3 and 8. 
 "Laws of First Leg., p. 249. 
 sLaws of Fourth. Leg., p. 18. 
 «Laws of Fifth Leg., p. 99. 
 
30 The Supreme Court of Texas 
 
 the American judiciary. To the efficient judicial 
 labors of its enlightened Justices, Texas is indebted 
 for the enduring foundation sustaining its judi- 
 cial superstructure. It has inspired the confidence, 
 admiration and respect of the legal profession and 
 tribunals of other jurisdictions, in which its opinions 
 are recognized as among the ablest and most enlight- 
 ened exposition of the principles of the law which 
 are enduring precedents for the protection and pre- 
 servation of the rights and liberties of the people. 
 What was said of the Supreme Court of the United 
 States, with like truth may be said of this court : "It 
 is the august representative of the wisdom, justice 
 and conscience of the people in the exposition of 
 their Constitution and laws; the peaceful and ven- 
 erable arbitrator between citizens in all questions 
 touching the extent and sway of constitutional 
 power." 1 
 
 Justice Abner Smith Lipscomb was born in Abbe- 
 ville District, South Carolina, February 10, 1789. 
 He was educated in the common schools of that 
 State, and read law in the office of John C. Calhoun. 
 Intimate association with that distinguished states- 
 man was an important factor in the formation of 
 young Lipscomb's character, and in establishing 
 tLc foundation of that profound professional learn- 
 ing which in after years placed him in the front 
 rank of distinguished jurists whose names are in- 
 separably connected with the growth and perfec- 
 tion of Texas jurisprudence. In 1811 he was ad- 
 mitted to the bar, and located at St. Stephens, Ala- 
 
 iHorace Binney. 
 
The Stjpkeme Cotjkt of Texas .31 
 
 bama, where he successfully engaged in the practice 
 of law. In 1812 he served in a campaign to suppress 
 Indian hostilities fomented by England in the war 
 of that year, and thereafter served as a member 
 of the Territorial Legislature of Alabama. Upon 
 the organization of the State Government, in 1819, 
 he was appointed Circuit Judge. In 1823 he was 
 chosen Chief Justice of the Supreme Court of Ala- 
 bama, serving with ability and distinction in that 
 position for eleven years. He resigned in 1835, and 
 removed to Mobile, where he resumed the practice of 
 law. In 1838 he was elected a member of the Ala- 
 bama Legislature. In 1839 he resigned that office 
 and removed to Texas. He was appointed Secretary 
 of State by President Lamar. He was a member of 
 the Convention of 1845, and introduced in that body 
 the resolution accepting the terms of annexation 
 submitted by the United States. His opinions are 
 not only distinguished for their judicial learning, 
 but their literary excellence as well. 
 
 In Lambeth vs. Turner, 1 Justice Lipscomb con- 
 strued the act of the Congress of the Republic which 
 provided that no suit, proceeding, judgment or de- 
 cree should be brought, prosecuted or sustained in 
 any court of the Republic, on any judgment or de- 
 cree 6f any foreign nation, state or territory; and 
 which declared that the Republic should not be 
 bound by international law or courtesy to give cre- 
 dence or validity to the adjudications of foreign 
 tribunals whose means of justice were variant and 
 "unknown here." In this opinion the court ex- 
 
 H Texas, 364. 
 
32 The Supreme Couet or Texas 
 
 pressly declined to decide how far the law would 
 have been sustainable in a suit brought on a judg- 
 ment of a sister court, subsequent to the annexation 
 of Texas to the Union, in its supposed opposition 
 to the Constitution of the United States, as the suit 
 was instituted before annexation. The court held 
 that it was the purpose and intent of the law to de- 
 stroy the inviolability which theretofore had been 
 claimed for foreign judgments ; to open to the courts 
 of Texas a free and unlimited inquiry into the con- 
 ditions or cause of the suit; and to apply the rules 
 of such courts, but with no view to prevent the pros- 
 ecution of suits founded on good causes of action. 
 While this construction of the law is correct, there 
 were certain lay critics who differed with the court, 
 and were so uncharitable as to charge that the law 
 was intended to throw the mantle of its protection 
 over certain citizens of Texas who, in their haste to 
 follow the Star of Empire in its westward course, 
 left behind them certain judgment creditors embar- 
 rassingly importunate in demanding their dues. 
 
 In Mason vs. Bussel's Heirs, 1 Chief Justice Hemp- 
 hill vigorously condemned the practice of permitting 
 jurors, by their affidavits, to impeach the validity of 
 their verdicts. "The affidavits," says the opinion, 
 "of several jurors, going to show their own miscon- 
 duct, were presented to the court as grounds in sup- 
 port of the motion. The permitting of such evidence 
 cannot be too strongly reprobated as leading to the 
 improper tampering with the jurors to procure such 
 affidavits after verdict, and further, a juror so 
 
 il Texas, 720. 
 
The Supreme Court of Texas 33 
 
 shamelessly disregarding the obligations of his oath 
 as to be guilty of such irregularities, after a cause 
 has been submitted to him, justly deserves punish- 
 ment and ought to receive it. Such affidavits when 
 offered should only have been received and made a 
 part of the record of the court, as grounds for the 
 punishment of the affiants." In view of the frequent 
 attempts in latter years to resort to this practice, 
 it is regrettable that the precedent established by 
 this case was not accorded that obedience and re- 
 spect which its soundness should have inspired. 
 
 The case of Chevallier vs. Straham 1 is interesting 
 as the first ease involving the law of common car- 
 riers decided by the court. In that case Chief Jus- 
 tice Hemphill held that persons who, at certain pe- 
 riods of the year, known as the "hauling season," 
 engaged in the forwarding business, miming their 
 wagons whenever they met with an opportunity, 
 had none of the characteristics and could not be de- 
 nominated private carriers ; and that all persons who 
 transport goods from place to place for hire, for 
 such persons as employed them, whether usually or 
 occasionally, whether as a principal or an incidental 
 and subordinate occupation, were common carriers 
 and incurred all of their responsibilities. 
 
 There is a delightful touch of humor in Associate 
 Justice Wheeler's opinion in Hays vs. Cage, 2 holding 
 that a party to a suit is not bound by an agreement 
 operating to his prejudice, made under authority 
 of a judicial decision subsequently overruled: 
 
 i 2 Texas, 115. 
 2 S Texas, 501. 
 
34 The Supkeme Court of Texas 
 
 "It may be supposed," says the opinion, "that, 
 as everyone is presumed to know the law, and as 
 ignorance of the law excuses no one, the defendant 
 ought not to be permitted to escape the effect of 
 his admissions, though made under a mistaken belief 
 as to the law. But if the late Supreme Court, of 
 which two of ourselves were then members, may be 
 excused for ignorance of the law, so ought the de- 
 fendant to be. He cannot, however, with justice, 
 be said to have mistaken the law at the time when he 
 made the admission ; for the reason that the decision 
 of the late Supreme Court then was, or at least by 
 all inferior jurisdictions was, to be received as the 
 law until changed by some act of legislation, or over- 
 ruled by the decision of this court." 
 
 A typical illustration of the painstaking research 
 and forceful, profound judicial reasoning for 
 which this court is justly noted, is presented in Jus- 
 tice Lipscomb's able opinion in Bryant vs. Kelton, 1 
 in which, after an exhaustive review of the English 
 and American authorities, he adopts the rule in 
 Twyne's case, holding that the retention of the pos- 
 session of property by the vendor, after a secret sale 
 purporting to be absolute, is not fraud per se. 
 
 In the able dissenting opinion of Associate Justice 
 Wheeler in Coles vs. Kelsey, 2 there is an interesting 
 example of that clear, convincing, judicial reason- 
 ing characteristic of the illustrious trio which then 
 adorned the court. The plaintiff in that case insti- 
 tuted suit on two promissory notes. Defendant's 
 
 il Texas, 415. 
 22 Texas, 542. 
 
The Stjpkeme Couet of Texas 35 
 
 answer set up the bar of the four years' statute of 
 limitations. In the court below plaintiff, without 
 objection, introduced in evidence a letter of defend- 
 ant's, written after the bar of limitations attached 
 to the notes, containing a new promise to pay them, 
 which was relied upon to remove the bar of limita- 
 tions. Prom a judgment in plaintiff's favor, defend- 
 ant appealed. The questions involved in the appeal 
 were, (1) was it necessary for plaintiff to declare 
 upon the new promise? and, (2) if so, did defendant, 
 by failing to except to the petition on that ground, 
 or object to the introduction of the letter in evidence, 
 waive the failure of the petition to declare upon the 
 new promise contained in said letter? In the ma- 
 jority opinion rendered by Justice Lipscomb it was 
 held that plaintiff could not rely upon the new prom- 
 ise without declaring upon it in his petition, and the 
 case was reversed and remanded to permit an amend- 
 ment supplying that omission. In his dissenting 
 opinion Justice Wheeler held that the submission 
 of the case to the court, and subsequently to the jury, 
 without objection by defendant to the sufficiency of 
 the petition or the admissibility of the letter, waived 
 objections that he might have urged to the petition 
 for want of an averment of the subject matter of 
 the letter, and its admissibility as evidence. He de- 
 clared that to reverse the case merely to enable 
 plaintiff to supply the necessary averment was to 
 reverse and remand a case for the sole purpose of 
 supplying that which appeared upon the record as 
 having been waived by one party, and proved with- 
 out objection by another. He believed that when 
 parties had chosen not to make a question, it was not 
 
36 The Supreme Court of Texas 
 
 the province of the court to make one for them, as 
 they may have had the best reasons for not wanting 
 to controvert the point in the court below, and may 
 have acted upon the most deliberate agreement or 
 the most honorable understanding, mutually obliga- 
 tory. 
 
 " Parties are supposed to know their rights," says 
 the dissenting opinion, "and to be able to be capable 
 of conducting their causes without requiring the 
 judges to so far depart from their judicial duties 
 as to become their advisers. And when a party 
 has seen proper to waive an objection to pleadings 
 or evidence which he might have urged, I do not 
 deem it the part of judicial duty to interpose ex- 
 officio to prevent him. That would be, to borrow 
 an expression from Chief Justice Marshall, for the 
 courts to assume the guardianship of adults as well 
 as infants. I conceive it to be the province of the 
 court to adjudicate the matters actually litigated 
 by the parties, and none others; to decide the case 
 in controversy, not to make for them a new and 
 different case, and decide upon matters not in con- 
 troversy. Where there is no controversy, there is 
 no occasion for the interposition of judicial author- 
 ity. ... To entertain and decide the case here 
 upon questions never presented to or decided by the 
 court below is, in so far as the questions considered 
 are thus originally presented in this court, most 
 manifestly the exercise of original jurisdiction, and 
 a departure from the constitutional power of the 
 Appellate Court. . . . But the judgment of that 
 court (the court below) is reversed alone upon a 
 question in respect to which there is no pretense 
 
The Supreme Court of Texas 37 
 
 that it made an erroneous or any decision, or that 
 it was desired or afforded an occasion to make a 
 decision. ... It will not be questioned that, by 
 our constitution, this is strictly an Appellate Court. 
 Yet we do not hesitate to review and reverse a judg- 
 ment upon a question which was never passed upon 
 or presented to the court below." 
 
 The case of Smith vs. Brown 1 possesses interest as 
 a pioneer effort to obtain the opinion of the court 
 touching the constitutionality of law through the 
 medium of a fictitious suit. The alleged suit was 
 founded on the following instrument: "I hereby 
 bind and obligate myself to pay to Josiah Smith the 
 sum of $150, if he furnish at the town of New 
 Braunfels, by the sixth of November next, any law 
 of the State of Texas showing that the next Legisla- 
 ture of Texas will be composed of seventy members 
 in both branches, this 6th of September, 1848." 
 Plaintiff claimed that he performed the condi- 
 tion by producing the law, while the defendant 
 pleaded in confession and avoidance that the law 
 produced was not constitutionally enacted. From 
 the action of the court below in refusing to enter 
 judgment in his favor, plaintiff appealed. In the 
 opinion rendered by Justice Lipscomb it was held 
 that it was the manifest intention of the parties to 
 obtain a judicial decision on the constitutionality 
 of the apportionment law, not founded upon a bona 
 fide transaction; that it was either an entire fiction, 
 or a wager designed to effect the same object. As 
 will hereafter appear, this precedent did not discour- 
 
 13 Texas, 371. 
 
38 The Supreme Court of Texas 
 
 age a resort to similar tactics during reconstruction. 
 In McMullen vs. Hodge 1 there is an able and in- 
 structive exposition of the legal effect of a change of 
 government on land titles perfected when Texas 
 won its independence, as well, also, as an interesting 
 reference to historical incidents connected with the 
 ancient Mission of San Jose, and the status of its 
 Indian protegees. Appellant sought to recover twenty 
 leagues of land, his claim being based upon a pur- 
 chase of the same from certain Indians alleged to 
 have been descendants of the Indians of the Mission 
 San Jose, in Bexar County, which were alleged to 
 have been granted them by the king of Spain in 
 1776, for a consideration of $150, "sin media annata, 
 on account of their being of the population of said 
 mission, ... by way of sale for their labors, 
 pastures, and other purposes, without the right of 
 alienating, conceding, or selling any part thereof, 
 without the superior license of the Supreme Gov- 
 ernment of the kingdom, under penalty of annull- 
 ing this sale, without prejudice to his majesty or a 
 third party." Defendant claimed title to a part 
 of the land under a headright granted him by the 
 Republic of Texas. From the judgment of the court 
 below in favor of defendant, plaintiff appealed. Jus- 
 tice Lipscomb in delivering the opinion of the court, 
 in disposing of appellant's contentions that by the 
 revolution which separated Texas from Mexico, all 
 titles to land previously obtained were annulled ; that 
 none of them in propria vigore, could have a stand- 
 ing in court; and that to give them life and energy 
 
 15 Texas, 44. 
 
The Supreme Court of Texas 39 
 
 required the sanction of the new government ; admit- 
 ting that the doctrine had once had standing in the 
 jurisprudence, though rarely openly asserted, of 
 England, but that it had long since become obsolete, 
 said : 
 
 "We are sincerely persuaded that a judicial rec- 
 ognition by this court of its resuscitation and its 
 vital influence on the rights of property would shock 
 the civilization of the nineteenth century. In the 
 early ages, when the rights of the common masses 
 were but little considered and cared for, and all 
 power and all right was permitted to be deposited 
 in an individual personal sovereignty, it is a melan- 
 choly fact that the doctrine was too well sanctioned 
 by the practice of kings and princes of those times. 
 Then the houses and lands, flocks and herds, hus- 
 bands and wives, and children of a conquered coun- 
 try became the spoil of the heartless conqueror. That 
 age has passed away, and a milder and more enlight- 
 ened one has succeeded. The masses of the people 
 have felt their strength, and made the tyrants feel it, 
 too, and in this moral regeneration a more elevated 
 sense of right, of justice, and the laws of humanity 
 has asserted an ascendancy over the cruelty and 
 despotism of the past. It instructs and commands 
 in language that will be obeyed the commanding 
 general that he shall use no unnecessary rigor even 
 to the prisoners taken in battle; that to peaceful 
 citizens, not found in the ranks of war, he is to ex- 
 tend the arm of protection to his person and prop- 
 erty; that he is to make no innovation upon the laws 
 and customs, only such as are necessary to the se- 
 curity of the army and retention of the territory ac- 
 
40 The Supkeme Court of Texas 
 
 quired. On this subject public opinion, in almost 
 every civilized community, has proven one of the 
 most humane and beneficial portions of the law of 
 nations. . . . It is indeed a principle that seems 
 to pervade the whole social relations of man that 
 laws, customs, and usages, when once established, 
 shall continue until abrogated by the introduction 
 of new ones — our sympathies to such influences and 
 reason approve them as just and right ; and in truth 
 it is hardly possible to conceive of a civilized people 
 existing where all laws and customs and all the 
 elements of the social relations have been dissolved. 
 Old customs and habits must prevail until new ones 
 have been established. In the case of conquest it 
 is undoubtedly true that it is in the power of the 
 conqueror to destroy all the rights of the conquered, 
 but in doing so the most flagrant outrage would be 
 done to the moral sense of the age, and such would 
 never be presumed to have been perpetrated without 
 the most positive and explicit affirmation of its au- 
 thor, and when avowed would most justly place him 
 beyond the pale of civilization. So in the case of 
 peaceful change of government by the people assem- 
 bled in convention for the purpose of forming a new 
 Constitution as the fundamental law for the pro- 
 tection of the three great objects of all governments 
 based on the rights of man — life, liberty and prop- 
 erty. It would be in the power of such convention 
 to take away or destroy individual rights, but such 
 an intention would never be presumed; and to give 
 effect to a design so unjust and unreasonable would 
 require the support of the most direct, explicit af- 
 firmative declaration of such intent. . . . The 
 
The Supreme Court of Texas 41 
 
 great fathers of the English jurisprudence built up 
 a judicial system eminently adapted to sustain the 
 whole object of the feudal tenures; with them a re- 
 gard bordering on idolatry was inculcated for the 
 prerogative rights of the crown. It was supposed 
 to be the source of not only of all titles to land, but 
 of every other right or privilege enjoyed by the sub- 
 ject, and this fount and head of all was called the 
 sovereign power. It was a corporeal and personal 
 sovereignty, vested in a particular individual, the 
 right of eminent domain belonged to that individual 
 without reference to the will of his subjects. All the 
 land not granted by him or his ancestors, and that 
 (which) became forfeited for offenses or reverted 
 on failure of the heirs of the original grantees, was 
 vested in him by virtue of the royal prerogative of 
 eminent domain. He granted or regranted with a 
 liberal if not prodigal hand to his courtiers, who 
 were, perhaps, the very worst of his subjects ; such as 
 had ingratiated themselves into his favor by flat- 
 tering his vanity or catering to the indulgence of his 
 guilty and depraved passions. The humble and 
 lowly but meritorious subject seldom received his 
 bounty. But all were taught to look to the crown 
 as the source of all rights and titles, and as the bul- 
 wark of social order. The landholder was instructed 
 by the sages of the law that if the king was de- 
 throned by a successful revolution all titles would be 
 abolished from the failure of the source from which 
 they emanated; that when the fountain failed the 
 cisterns supplied from it were dried up. It was 
 a part and parcel of a system than which none has 
 
42 The Supreme Court of Texas 
 
 ever been devised more eminently calculated to 
 perpetuate hereditary monarchy." 
 
 The court held that if an affirmative act of the 
 Republic of Texas were necessary to the validity 
 of titles perfected when Texas was a province of 
 the Mexican Confederation, it had been performed 
 by the Convention as well as by act of the Congress 
 of the Republic. 
 
 Colonel Navarro's testimony in the record of 
 the cause, describes the mission system and condi- 
 tions which prevailed at the Mission San Jose when 
 he first knew it. At that time there were about 600 
 Indians there, who were afterward killed, died, 
 or went away. They decreased yearly, until the last 
 he knew of them there were only ten or fifteen left. 
 The Indians in the village were in a state pupilage, 
 under the control and guidance of the fathers. They 
 owned no property, all their property being held 
 in common, the fathers receiving and selling the 
 product of the Indians' labors. The property of 
 the mission was held in los manus mortuous or mort- 
 main. All the missions on the San Antonio River 
 were extinguished by the government of Mexico in 
 the year 1822 or 1823, and the lands and property 
 appertaining to them were distributed. He was 
 commissioned by the Mexican government to assist 
 in the distribution of the lots and solares near the 
 mission, and pertaining thereto, natives being pre- 
 ferred in such distribution. On the extinction of 
 the missions all the mission property reverted to the 
 public, and became subject to distribution as other 
 public property. Witness, afterwards, as commis- 
 sioner for the government, made a title to Vera- 
 
The Supreme Court of Texas 43 
 
 mendi to six leagues of land formerly belonging to 
 the Mission Refugio. When the missions were ex- 
 tinguished the mission property was delivered over 
 to the ordinari. The missions in the valley of the 
 San Antonio River were under the patronage and 
 protection of the Order of Guadalupe or Guada- 
 lupians, and were founded by the brothers for the 
 propagation of the faith. 
 
 Colonel Erasmus Seguin testified that the mission 
 Indians lived in community under the control and 
 direction of the fathers, who received the product 
 of their labors. At the end of ten years the Indians 
 were considered as having been converted, and after 
 a probation of two years more they were permitted 
 to leave the mission, and were then considered as 
 entitled to the privileges of citizenship. Before 
 their conversion and the expiration of the two years' 
 probation, they owned no separate property, but 
 everything was in community, under the control 
 of the fathers. After their conversion Indians were 
 given a suerte or lot of ground, and title made to 
 them in their own names, which they could sell, or 
 any of their property, as any other citizen. 
 
 The court held that at the date of the grant the 
 Indians could not alienate their possessions without 
 consent of the government, and there being no evi- 
 dence of such consent, their sale was void. 
 
 The dissenting opinion of Justice Wheeler, in 
 Snoddy vs. Gage, 1 as was aptly observed by a con- 
 temporary, 2 "marked an epoch in our judiciary." 
 
 15 Texas, 106. 
 2Judge C. S. West. 
 
44 The Supreme Court op Texas 
 
 The majority opinion held that where a debt was 
 contracted in a foreign country by one subsequently 
 removing to Texas, the running of the statute of 
 limitations was not suspended until his arrival, but 
 ran against the action from the accrual of the de- 
 mand, basing this conclusion on a construction of the 
 statute which excluded from its provisions persons 
 who had never resided in Texas, and hence could not 
 absent themselves from the State or "return" to it 
 within the meaning of the law. Justice Wheeler, in 
 his dissenting opinion, after reviewing numerous, 
 authorities sustaining the contrary view to that ex- 
 pressed by the majority, says: 
 
 "Without entering upon any discussion respect- 
 ing the reasonableness of the adjudication or in- 
 tending to resort to the argumentum ad dbsurdum, 
 I may be permitted to advert to one consequence of 
 the new construction, which is that a debtor resid- 
 ing in a State where the period of limitation is 
 double that of our law, when the period of the law 
 of his domicile shall have but half elapsed, may 
 abscond to this State, and his legal liability and the 
 plaintiff's right of action will be effectually and 
 forever barred the moment the absconding debtor 
 comes within the influence of our laws ; * and this 
 though his creditor be a citizen of this State. Can 
 it be supposed that the Legislature ever intended 
 such a consequence? that it was actually intended 
 that the plaintiff's right of action should be barred 
 in our courts before it ever had any existence? 
 . . . Although, in my opinion, the construction 
 of the statute which has hitherto prevailed, and to 
 which I adhere, is based upon reason as well as 
 
The Supreme Court oe Texas 45 
 
 authority, and is not less certainly supported by the 
 one than the other, it would at least be surperfluous 
 if not even presumptious in me to enter upon a 
 formal vindication of the reasonableness of a series 
 of adjudications so numerous, and proceeding from 
 sources of so high authority. And if, in my con- 
 ception, it did admit of doubt what construction 
 ought originally to have prevailed, if I may be per- 
 mitted to adopt the language and sentiment of Mr. 
 Justice Baldwin on the occasion of an inquiry not 
 unlike the present: 'It sufficed for this case to show 
 by a brief reference what the law for more than a 
 century has been and now is, without ever so far 
 departing from what I deem my judicial duty as to 
 even inquire what it ought to be; as if it was in 
 my power to abrogate or vary from its rules on this 
 or any other subject. "Where a point is decided by 
 adjudged cases, or laid down as settled in the books 
 of acknowledged authority, I take it and feel bound 
 to act upon it as the common law, which is infused 
 into our jurisprudence, unless some act of the Leg- 
 islature or some decision of this court prescribes 
 another rule. When this court declares that. 'we 
 are entirely content to administer the law as we 
 find it, ' I feel bound to endeavor to find it, and when 
 found to follow it in all its course. And in search- 
 ing among the fountains rather than the rivulets of 
 the law for its true principles, I apprehend that 
 there can be no safer guide than its precedents and 
 adjudications, which, from ancient times, have em- 
 bodied and preserved unchanged those principles 
 which time has consecrated by the certainty of the 
 
46 The Stjpkeme Cotjet of Texas 
 
 law, and the security and repose of which an ad- 
 herence to its rules afford to the rights of property 
 and person.' 1 Finally (in the language of Chancel- 
 lor Kent), 2 'If the Gordian knot is to be cut, we 
 ought at least to call for the dignus vindice nodus. 
 There ought to be an object befitting so bold a prec- 
 edent.' " 
 
 In Jones vs. State/ Justice Lipscomb, in sustaining 
 counsel's contention that the drinking of ardent spir- 
 its by the jury at the trial in the court below was 
 sufficient ground for a reversal of the case, an- 
 nounced the following principle of law supported by 
 a well-known and convincing authority : 
 
 "The weight of authority seems to be against mak- 
 ing the single fact of a jury drinking ardent spirits 
 per se a sufficient ground for setting aside the ver- 
 dict. It is treated as any act of misconduct; that 
 if furnished by a party, or if it had any influence 
 upon the jury in finding their verdict, it would be 
 grounds for setting it aside. We, however, with due 
 respect for the judges who have maintained this 
 doctrine, are constrained to depart from their opin- 
 ions, and we believe that the view they have taken 
 of the effect of ardent spirits on the feelings, and 
 also the mind, have been superficial and not at all 
 philosophical. Every day's experience must satisfy 
 us that it is impossible to lay down a rule as to how 
 much can be drank without impairing the qualifi- 
 cations of a juror for the discharge of the trust con- 
 
 12 Peters (U. S.) Rep. 626. 
 26 Johns Keport, 436. 
 813 Texas, 181. 
 
The Supreme Court of Texas 47 
 
 fided in him. Its effects have well been described by- 
 Scotland's most popular bard: 1 
 
 " 'Inspiring' bold John Barleycorn ! 
 What danger thou can'st scorn ! 
 Wi' tipenny we fear nae evil ; 
 Wi' usque bae, we'll face the devil.' 
 
 "Yes, it is but too true that it will make a man 
 bold and reckless, not only of consequences, person- 
 ally, but also of the rights of those whose life and 
 most valuable interests, property and reputation, 
 are at stake; and its effect is so different on differ- 
 ent men that it would be dangerous in the extreme 
 to attempt to lay down any rule by which it could 
 or should determine whether a juror had drank too 
 much or not, and the only safe rule is to exclude it 
 entirely." 
 
 The opinion of Justice Lipscomb in San Antonio 
 vs. Odin, 2 contains interesting historical data relat- 
 ing to the Alamo. In sustaining a land grant to the 
 Catholic Church by the Congress of the Republic 
 of Texas, the opinion says: 
 
 "Prom the statement of facts it appears that the 
 city of San Antonio was founded about the year 
 1730. The corner stone of the Alamo was laid on 
 the 13th of May, 1744. This mission, as well as 
 others in the valley of the San Antonio River, was 
 erected by order of the king of Spain, for the pur- 
 pose of civilizing the Indians. The missions were 
 under the charge of the Franciscans, or friars of that 
 order, which was an order independent of the church. 
 
 iRobert Burns. 
 215 Texas, 539. 
 
48 The Stjpeeme Couet of Texas 
 
 The mission of the Alamo was formerly known as 
 the Mission Valerio, and was secularized in 1794. 
 After the secularization, the Indians remaining were 
 sent to the missions of Ooncepcion and San Jose. 
 None of the property pertaining to this mission was 
 ever distributed by order of the government, except 
 a few suertes assigned to the Indians. The friars 
 continued to occupy the buildings until 1801, when 
 the Spanish soldiers took possession of the build- 
 ings and continued to occupy them until 1835. . . . 
 In the year 1794, after the secularization of the 
 missions, the baptismal registry of births and deaths 
 of this mission was delivered over into the hands of 
 the curate of Bexar, and the people of the mission 
 became subject to his jurisdiction. From 1808 to 
 1835 there was a separate registry kept by the com- 
 pany stationed at the Alamo, for the births, deaths, 
 and baptisms of said company. From the year 1801 
 to 1835 mass was frequently celebrated at intervals 
 of from eight to ten days, and other religious rites, 
 such as baptisms, burials and marriages. The part 
 of the building originally intended for the church 
 was never completed; it never had a roof. One of 
 the rooms in another part of the building was fitted 
 up as a chapel and used as such. The Mission of the 
 Alamo is situated within the limits of San Antonio. 
 In 1827 the Secretary of the Treasury of Mexico or- 
 dered one Erasmo Seguin to make an inventory of 
 the property belonging to the national government 
 of Mexico in Bexar. He then included these build- 
 ings in the inventory and forwarded them to the 
 treasurer. In 1823 an order was issued by the gov- 
 ernment of Mexico for the sale of the houses, lots, 
 
The Supreme Court of Texas 49 
 
 mills and lands pertaining to the extinguished mis- 
 sions of San Jose, Concepcion, San Juan and Es- 
 pado, and the property was sold, but the conventual 
 houses were reserved from sale, except the convent 
 attached to the Mission San Jose, which was sold. . . . 
 After the year 1835, these buildings were vacant and 
 in a very dilapidated condition, and so remained 
 until 1841, when there were two or three families 
 living in, or occupying different rooms. They took 
 possession without the consent of anyone. After 
 being there two months they were told by the Bishop 
 at San Antonio that the property belonged to the 
 church, and were requested to occupy and take care 
 of the same for the church. These families remained 
 there ten months afterwards and then left. About 
 the beginning of the year 1847, the quartermaster of 
 the United States army took possession of the Alamo 
 buildings and claimed them as belonging to the 
 United States government, but, in April of the same 
 year, acknowledged to hold them as tenant of the 
 Bishop of Texas. The fact that the government held 
 as tenant was not known to the public until about 
 eighteen months before the commencement of this 
 suit. The bishop had an agent in San Antonio in 
 1841, but his agency was not publicly known, but he 
 did exercise general control over it." 
 
 Justice Lipscomb died during the session of the 
 Supreme Court at Austin, November 30, 1856. Oran 
 M. Roberts was appointed Associate Justice of the 
 court to fill the vacancy created by that melancholy 
 event. 
 
 Justice Roberts was born in Laurens District, Al- 
 abama, on the 8th of July, 1815. Obe Roberts, his 
 
50 The Supkeme Coukt op Texas 
 
 father, removed to Ashville, North Alabama, where 
 he died when young Roberts was ten years old. His 
 father's cherished desire, in which he shared, was 
 that his son should enter the legal profession, but 
 unfortunate complications in the administration of 
 his father's estate necessitated the postponement of 
 the fulfillment of that ambition. Following the death 
 of his father, his mother removed to a small farm, 
 where her son labored until his sixteenth year. He 
 acquired the rudiments of an education in a school 
 conducted in a log school house during the winter 
 months. It was there that a minor incident occurred 
 which changed his career. Becoming thoroughly dis- 
 gusted with the stubbornness of a mule he was work- 
 ing, he left the field and announced to his mother 
 that he would never attempt to drive it again, but 
 would quit the farm and prepare for college. Not 
 even his mother's suggestion that he, himself, and 
 not the mule, was the stubborn one, discouraged his 
 settled purpose. Through kindly aid extended him 
 by his brother-in-law, Robert Bourland, a prosper- 
 ous blacksmith, and Ralph Lowe, afterwards a judge 
 of the Supreme Court of Iowa, he entered the Uni- 
 versity of Alabama, from which he graduated in 
 1836, in his twenty-first year. Thereafter he was 
 employed by Judge Ptolomey Harris of St. Stephen, 
 as tutor to his children, where he was extended the 
 privilege of reading his employer's law books, his 
 professional studies being thereafter completed in 
 the office of William P. Chilton of TaUadega, who 
 afterwards became a judge of the Supreme Court 
 of Alabama. December 12, 1837, he was admitted 
 to the bar and located at Ashville. In 1838, when 
 
The Supreme Court of Texas 51 
 
 twenty-four years old, he was elected Eepresentative 
 in the Alabama Legislature. In 1840 he removed to 
 the Republic of Texas, settling at San Augustine, 
 where he engaged in the practice of law, and was 
 early recognized as one of the ablest lawyers 
 of the strong bar of the Republic, composed of such 
 lawyers as Thomas J. Rusk, R. A. Scurry, Richard 
 S. Walker, J. Pinckney Henderson, Thomas Jen- 
 nings, W. B. Ochiltree, D. S. Kaufman, Royall T. 
 Wheeler, George W. Terrell, and John H. Reagan. 
 He was appointed district attorney by President 
 Houston, and, in 1845, appointed district judge by 
 Governor Henderson. At the close of the Civil War 
 he was elected United States Senator from Texas, 
 but was not permitted to serve because an "un- 
 pardoned rebel," and an "impediment to reconstruc- 
 tion." Prom 1868 to 1870 he served as instructor in 
 the science of government in the Gilmer, Texas, 
 high school. In 1878 he was elected Governor of 
 Texas, and was re-elected in 1880. Prom 1882 to 
 1892 he was professor of law in the University of 
 Texas. 
 
 Justice Roberts was one of the ablest jurists whose 
 efficient services contributed to the upbuilding, ad- 
 vancement and perfection of our judiciary. "He 
 was a great and pure man," says a distinguished 
 contemporary, "who in the midst of a free people 
 devoted his energies to secure their civil rights and 
 liberties." The imperishable record of his long and 
 most distinguished services and efficient labors as a 
 Justice of the Supreme Court of Texas, attest the 
 merited reputation of Judge Roberts as one of the 
 greatest judges who has adorned our Supreme Court, 
 
52 The Supkeme Cotjkt of Texas 
 
 while his services as Governor of Texas entitle him 
 to the distinction of having been the ablest states- 
 man who has contributed to the cause of good gov- 
 ernment. No official connected with the enviable his- 
 tory of Texas enjoyed to a greater degree the confi- 
 dence, admiration and profound respect of friends 
 and adversaries alike. Even the most bitter and un- 
 compromising opponents of his opinions and policies 
 conceded his conscientious sincerity, unimpeachable 
 integrity of character and unswerving honor. Those 
 who differed with him always retained that confidence 
 in him which General Houston, a strong anti-seces- 
 sionist, voiced when asked his opinion respecting 
 the probable action of the secession convention. "I 
 don't know what they will do," General Houston 
 replied, "but Eoberts is honest." Judge Roberts 
 possessed to an eminent degree that democratic sim- 
 plicity in personal manner and bearing toward per- 
 sons in all stations of life, which is the attribute of 
 true greatness, and which made him a typical speci- 
 men of that rarest and most admirable of charac- 
 ters, the true Southern gentleman of the olden time. 
 To a distinguished contemporary, friend and inti- 
 mate associate 1 of Justice Roberts we are indebted 
 for the following description of his personal appear- 
 ance, his methods of work, and most excellent char- 
 acter : 
 
 "Judge Roberts was of dark complexion, five feet 
 and eleven inches high, . . . symmetrical in pro- 
 portions, even in advanced age, and graceful and 
 erect in carriage. Though his eyebrows remained 
 
 iJudge A. W. Terrell. 
 
The Supreme Court of Texas 53 
 
 black to the last, the hair of his head and beard be- 
 came white when he was thirty years old. My op- 
 portunities, as reporter of his decisions through ten 
 volumes, enabled me to know much of his methods. 
 The mental process through which he reached his 
 conclusions was so methodical and exact that I do 
 not remember an instance in which he ever rewrote 
 an opinion. They were often interlined, but never 
 except to express more forcibly an idea already con- 
 veyed. Even in advanced age he could pass at once 
 from mental labor which deeply interested him to 
 a cheerful and animated conversation on everyday 
 affairs. This admirable temperament, which sub- 
 jected his mental activities to his will, secured for 
 him quickly the benefit of needed repose. As a 
 speaker he was not fluent, but his earnest manner 
 convinced the hearer of his sincerity and always 
 commanded attention. In a long life, no man who 
 ever knew him ever doubted his integrity, or be- 
 lieved that he could do a dishonorable act. So posi- 
 tive and uncompromising was he in advocating what 
 he believed to be right that he could not escape cen- 
 sure ; but even his most prejudiced adversary never 
 doubted his sincerity of purpose. Perhaps the high- 
 est tribute to his personal character is found in the 
 fact that though he never speculated in business, 
 and was economical, yet after a long and eventful 
 life, during which many opportunities existed for 
 the easy acquisition of wealth, he died a poor man." 
 As one of several impecunious law students who, 
 in the declining days of Judge Roberts' illustrious 
 career were objects of his kindly interest and ben- 
 eficiaries of his invaluable assistance in their studies, 
 
54 The Supreme Court of Texas 
 
 and to whom, in hours which should have been de- 
 voted to needed repose, he gratuitously repeated law 
 lectures delivered to his classes in the University of 
 Texas, the writer is pleased to here record his grate- 
 ful acknowledgment and sincere appreciation of a 
 noble sacrifice which shall never be forgotten. 
 
CHAPTER III. 
 
 1857-1864. 
 
 Royall T. "Wheeler Succeeds Chief Justice John Hemphill — 
 James H. Bell Succeeds Royall T. "Wheeler as Associate 
 Justice — Sketch of Justice Bell — Clear Judicial Reasoning 
 of Justice Roberts — Howze vs. Howze — Dissenting Opinion 
 in State vs. Cain — De Blane vs. Lynch — Book of Leviticus 
 and Twenty-sixth Psalm as Authorities — "Not as Fearing 
 Her Cause, but as Suspecting Her Judge" — United States 
 vs. Hickory — An Important Decision — City of Galveston vs. 
 Menard — Early Example of a Modern Tendency — State vs. 
 Southern Pacific Company — A Fetching Illustration — Hous- 
 ton Tap & Brazoria Railway Co. vs. Randolph — George F. 
 Moore Succeeds Associate Justice Roberts — Sketch of Jus- 
 tice Moore — Ex Parte Coupland — Refined Art of Faint 
 Praise — Denunciation of Military Encroachment Upon Civil 
 Tribunals — State vs. Sparks — State vs. Sparks and Ma- 
 gruder. 
 
 Chief Justice Hemphill was elected United 
 States Senator in December, 1857, the vacancy thus 
 caused being filled by the appointment of Royall T. 
 Wheeler as Chief Justice, and James H. Bell as As- 
 sociate Justice to succeed Justice Wheeler. 
 
 James Hall Bell was born at Bell's Landing — 
 now Columbia — Brazoria County, Texas, on Jan- 
 uary 2, 1825. In 1837 he entered St. Joseph's Col- 
 lege, Bardstown, Kentucky, but returned to Texas 
 on the death of his father in 1838. In 1839 he en- 
 rolled as a student of Center College, Danville, Ken- 
 
56 The Supreme Court of Texas 
 
 tucky. In 1842, during unsettled conditions in 
 Texas incident to the capture of San Antonio by- 
 General Wool, he was compelled to return before 
 completing his studies in that institution. He served 
 in General Somerville's command in repelling the 
 Mexican invasion. Thereafter he studied law in the 
 office of William H. Jack, one of the leading lawyers 
 of Texas at that period. In 1845 he became a stu- 
 dent in the law department of Harvard University, 
 where he enjoyed the valued privilege of receiving 
 instruction from Greenleaf and Story, the eminent 
 law writers, who were then professors in that in- 
 stitution. There he not only mastered the science 
 of law, but the Latin, French, and Spanish lan- 
 guages as well. In 1847 he returned to Texas, 
 formed a law partnership with Robert J. Towns, 
 and engaged in practising law at Brazoria. There- 
 after he devoted several years to the management 
 of his plantation. In 1853 he resumed the practice, 
 in which he was very successful. In 1856 he was 
 elected district judge of the First Judicial District, 
 then composed of Galveston, Brazoria, Fort Bend, 
 Austin, Fayette, Colorado, Wharton, and Matagorda 
 counties. He was an uncompromising opponent of 
 secession, but rendered valuable service to the peo- 
 ple of Texas on the occasion of the refusal of Gov- 
 ernor E. J. Davis to surrender the office of Governor 
 to Richard Coke, who had been elected to succeed 
 the former. The failure of President Grant to in- 
 terfere in behalf of the Davis faction during that 
 dangerous disturbance has been ascribed to the ac- 
 tion of Judge Bell in proceeding to Washington 
 
The Supreme Court of Texas 57 
 
 and presenting the controversy to the Federal au- 
 thorities in its true aspect. 
 
 "The character of Judge Bell," says an able and 
 eloquent contemporary, 1 "was a fine blending and 
 arching over of a rough-hewn exterior, toughened 
 by contact with the varied and heterogeneous ele- 
 ments of colonization, strengthened by the inspiring 
 surroundings of primitive nature, and chastened 
 by the innate qualities of a perfect gentleman, bur- 
 nished and developed by the influences of a thor- 
 ough education and the arts of refined society. Born 
 in a tent on the banks of the Brazos, surrounded 
 by lawless Mexicans, and, at no great distance, by 
 the fiercest of all tribes of American Indians, his 
 infancy and youth were passed amid all the dangers 
 and excitement that characterize the varied and 
 shifting scenes of frontier life. He saw civilization, 
 as it were, walk forth from the colony of Austin, 
 plant its habitations here and there in the deep wilds 
 and far away over the boundless plains, and strew the 
 seeds of cereal verdure upon the ancient burial 
 mounds of the Comanches. Swaddled in the leafy 
 groves of primeval settlement, he was born and 
 reared in Texas, and grew with her until he wore the 
 proud ermine of a great State. Such a life engen- 
 ders two extremes — a degraded lawlessness, or the 
 development of the noblest qualities of manhood. 
 It had the latter effect upon Judge Bell. A deep 
 sense of honor, an abiding love of truth and jus- 
 tice, a poetic view of nature, lofty philanthropic 
 aspirations, and fondness for the higher amenities of 
 
 iGeorge Goldthwaite. 
 
58 The Supreme Court of Texas 
 
 life, were clearly impressed upon his mind and heart, 
 and became the ruling elements of his character. 
 Time nourished and strengthened the combination 
 until it ripened into the pure man and patriot, the 
 accomplished scholar and learned judge, the emi- 
 nent citizen exercising a salutary influence upon 
 all the relations of life. . . . His reported de- 
 cisions are enduring monuments of his capacity and 
 purity. His original method of rendering his opin- 
 ions is a unique model of judicial exposition. His 
 custom was to open the door of the case at once, an- 
 nounce his opinion at the start, and then proceed 
 to assign his grounds by proof rather than inference, 
 which indeed is the proper logic of the advocate, 
 and is surely more satisfactory than to suspend the 
 conclusion through a long series of premises and 
 obiter dicta." 
 
 "The efforts of Judge Bell to avert the war," says 
 an eminent Judge, 1 "was perhaps the most heroic 
 effort of his life, and manifested a self-sacrifice and 
 patriotism which could not be suspected. It mani- 
 fested his fitness for the highest and most sacred 
 trusts. Failing in this effort, he went on in the 
 faithful discharge of his duties as a judge of this 
 court, and when the desolation of the State was as 
 complete as arbitrary military power could make it, 
 he gave most efficient aid in securing the restoration 
 of civil government. For his devotion to duty, high 
 character, learning, and courage, we honor his mem- 
 ory and would perpetuate it." 
 
 iChief Justice John W. Stayton. 
 
The Supreme Court op Texas 59 
 
 The case of Howze vs. Howze, 1 otherwise of minor 
 importance, admirably illustrates the convincing ju- 
 dicial reasoning which was a distinctive feature of 
 Justice Roberts' opinions. The case involved the 
 construction which should be given the following 
 clause of a will: "I give and devise to my beloved 
 wife, Sarah Howze, the settlement of land on which 
 I live in Rusk County, Texas, containing about three 
 hundred and sixty-nine acres, for a home during 
 her lifetime. I also give and devise to her as long 
 as she lives, the following negroes, to- wit : Primera 
 and Hanna and her children; also, all of my house- 
 hold and kitchen furniture, and all of my stock of 
 different kinds, together with ample provisions for 
 one year." 
 
 The court below held that the words, "all of my 
 stock, of different kinds," passed a wagon, as well 
 as a yoke of oxen, to the legatees. 
 
 "It is contended," says Justice Roberts, "that 
 the farm having been given for a home, the words, 
 "all my stock, of different kinds," conveys the idea 
 that all horses, oxen, cattle, farming utensils and im- 
 plements of husbandry, necessary to carry on the 
 farm, were given to the wife. . . . The cardinal 
 rule in the construction of wills is to follow the in- 
 tention of the testator. The circumstances which 
 surround the testator, his condition and habits of 
 life, his occupation, the nature and extent of the 
 property bequeathed; whether the whole or only a 
 part of it; the country in which he lived, and the 
 like, are all legitimate objects of consideration in 
 
 119 Texas, 554. 
 
60 The Stjpreme Coubt of Texas 
 
 reading his will, as he intended it should be under- 
 stood. It has been said that 'it is vain to look to 
 the books for precedents to aid us in arriving at a 
 correct conclusion as to the intent of the testator. 
 This duty must be performed by every court for 
 itself in each particular case.' 1 Notwithstanding 
 this may generally be true, it would certainly be 
 more satisfactory to find a construction of the same 
 words in any of the sister States, particularly where 
 similarity of expression, habits of life and character 
 of property would render it authoritative. Hence 
 some research has been made into the decisions of 
 Georgia (where the will was made), Alabama, Mis- 
 sissippi, Tennessee and Kentucky." Calling atten- 
 tion to the fact that the testator had given the 
 legatee the farm, to be her home for life, with the 
 expectation that she would rear the children he had 
 by her, which favored the conclusion that he might 
 have intended that she should have the wagon and 
 other farming implements ; that the will, in connec- 
 tion with the inventory, disclosed that he had given 
 his children by a former wife a negro each, worth 
 $500; that there were about sixteen negroes at the 
 time of his death, one-half of whom were not dis- 
 posed of; that a negro of the same value was to be 
 given to the rest of the children, as they should 
 arrive at maturity; that his widow, who was exe- 
 cutrix, and his son, who was executor, should have 
 charge of the surplus property not specifically be- 
 queathed, so as to make proper provision for the 
 younger children as they grew up ; and that all prop- 
 
 lOook vs. Weaver, 12 Ga., 50. 
 
The Supreme Court of Texas 61 
 
 erty except that given to his wife was to be equally 
 divided between the children; the court concluded 
 that it was not improbable that the farm left to 
 the wife would be used for the maintenance and 
 support of such children. "In that event," says 
 the opinion, "the establishment which he designed to 
 be kept up for the benefit of the minor children would 
 need a wagon and other implements of husbandry 
 as much as it had in his lifetime. ... It is 
 reasonable to suppose that he would more likely 
 wish his children to have the benefit of the wagon 
 and other implements than his widow, having made 
 for her a specific provision, and secured it to her 
 beyond contingency. . . . Descending from the 
 general context to the particular sentence, 'all my 
 stock, of different kinds,' the probabilities still 
 greatly increase in favor of the children and against 
 the widow. The question is, what would a farmer 
 of moderate means in this State or in Georgia mean 
 by the expression 'all my stock, of different 
 kinds?' Would he mean a wagon? We think not. 
 That expression is almost universally the appropri- 
 ate designation of domestic animals on and about 
 a farm. And among farmers of moderate means it 
 would generally be applied only to cattle, sheep, hogs 
 and goats, and not to animals for the team or saddle, 
 such as horses, mules and oxen. This would be 
 variant in different localities, just in proportion to 
 the amount and character of stock raised. . . . 
 Appellee's counsel furnishes us with an English con- 
 struction of the phrase 'farm stock,' which shows 
 that it has been held to mean, not only all movable 
 property upon and belonging to the farm, but also 
 
62 The Supreme Cotjet op Texas 
 
 growing crops. If stock in the will was used with 
 this meaning, it would comprehend the household 
 and kitchen furniture, and also the provisions for 
 one year that are specified in the same sentence. 
 Therefore the force of this analogy is weakened 
 on the same principle that an argument defeats it- 
 self which proves too much. And the same may be 
 said of another phrase furnished, 'live and dead 
 stock,' which is construed to include 'corn, hay, 
 straw, carts, etc. The great objection to these anal- 
 ogies as authority is, that those expressions are not 
 in use among the mass of the people, and if they 
 should happen to be used, it is an exotic imported 
 into this country. ... It may be an omission 
 on the part of the testator that he did not include 
 the wagon and other farming implements in this 
 bequest to his wife. But unless the import of the 
 words used by him in the will, considered with all 
 their relations to other parts and the subject matter 
 of the bequest will justify it, we cannot supply the 
 omission." 
 
 In Gain vs. State, 1 Justice Roberts rendered a 
 strong dissenting opinion, holding that the act of 
 the Legislature adopting the Penal Code, passed on 
 the 28th day of August, 1856, and taking effect 
 April 1, 1857, repealed an act passed on the 2nd day 
 of February, 1856, which became effective on the 
 first Monday in the following April, making it a 
 criminal offense to retail intoxicating liquors in 
 quantities less than a quart, without a license. He 
 
 ISO Texas, 355. 
 
The Supreme Coxjet or Texas 63 
 
 concludes his able discussion of the point involved in 
 the following convincing manner : 
 
 "Two bodies cannot occupy the same space at the 
 same time, so the code, being adopted, became a sub- 
 stitute for the common law and all its perfecting 
 and amending statutes, which were passed prior to 
 the code; the liquor law of the 2nd of February, 
 1856, being one of them, was repealed by the code. 
 Those passed after the code must stand, though not 
 in harmony with it, because they are the last expres- 
 sion of the legislative will, and cannot therefore be 
 disregarded by force of what is intended in the code, 
 which is as to them an anterior law. If it be said, 
 on the one side, that there is no precedent for this, 
 it may be answered on the other, that there is per- 
 haps no similar case to be found where a criminal 
 code has been adopted, assuming to embrace all the 
 law on the subject. And, therefore, the question 
 must be resolved on principle. Penal laws should 
 not only be plain, but they should be plainly not re- 
 pealed when they are enforced; especially if they 
 belong to the class of offenses mala prohibitis." 
 
 In Be Blane vs. Lynch, 1 Justice Bell cites the twen- 
 ty-first chapter of Leviticus and the sixty-seventh 
 Psalm approvingly, as sound precedents defining 
 the meaning of the word "increase" as applied to 
 land. While conceding that the construction of the 
 term was sound as applied to the facts therein con- 
 sidered, he denied that it could be applied to crops 
 grown on land the separate property of the wife, 
 under the Texas statute, without leading to results 
 
 123 Texas, 28. 
 
64 The Supkbme Cotjkt of Texas 
 
 "wholly inconsistent with the recognized principles 
 of law upon which the system of community prop- 
 erty is based." From this it reasonably appears 
 that while he conceded that the Bible is admittedly 
 the soundest authority upon the several questions 
 of which it so admirably treats, he recognized that 
 it should be cited with caution. The wisdom of that 
 conclusion is admirably illustrated in the subsequent 
 case of Hickory vs. United States? in which Justice 
 White condemned the charge of a trial judge which 
 instructed the jury that concealment upon the part 
 of the accused had been considered by the law, since 
 Cain killed Abel, as an evidence of guilt; and that 
 it "was a truth recognized by the law that 'the 
 wicked flee when no man pursueth, but the innocent 
 are as bold as a lion.' " Supporting his contention 
 that the flight was a presumption of fact — not of 
 law — and merely a circumstance tending to increase 
 the probability of the guilt of the accused, Justice 
 White cited the case of Dr. Fuller, who gave the 
 following quaint excuse for running away from Lon- 
 don when charged with treason: 
 
 "And if any man taxes me as Laban taxed Jacob, 
 'Wherefore didst thou flee away secretly without 
 taking solemn leave?' I say with Jacob to Laban, 
 'Because I was afraid.' " "And that plain dealing 
 patriarch," says Justice White, "who could not be 
 accused of purloining a shoe latchet of other men's 
 goods, confessed himself guilty of that awful felony 
 that he 'stole away' for his own safety; seeing that 
 truth may sometimes take corners, not as fearing 
 
 1160 United States, 416-417. 
 
The Stjpkeme Cotjkt or Texas 65 
 
 her cause, but as suspecting her judge." The sting- 
 ing rebuke in the last sentence of the above is fully- 
 appreciated when it is recalled that the late Judge 
 Parker, of the United States District Court, who 
 delivered the charge criticised, was wont to boast of 
 the more or less questionable distinction of having 
 pronounced the death sentence upon a greater num- 
 ber of accused persons than any judge who ever sat 
 upon the bench. 
 
 An important opinion was rendered by Justice 
 Roberts in City of Galveston vs. Menard? in which 
 it is held that the rule of the civil law restricting the 
 boundaries of grants by sovereign authority on the 
 shores of seas or bays, to the highest tide in winter, 
 and also the rule of the common law restricting them 
 to the line of ordinary high tide, could be extended 
 below the points specified, where the nature and 
 purpose of the particular grant clearly indicated 
 that such was the intention of the parties thereto. 
 The principal point involved in this case was whether 
 a grant by the Republic of Texas to Menard of a 
 league and labor of land on and including the east 
 end of Galveston Island conferred the shore right 
 to certain flats south of the channel and the bay. 
 It was held that the grant conveyed such right to 
 the grantee, notwithstanding said flats were below 
 the highest tide in winter, as well as below ordinary 
 high tide, because it appeared that it was the inten- 
 tion of the parties to the grant that a town was to 
 be built thereon which should be a port of entry; 
 the grant being made large enough to include that 
 
 123 Texas, 349. 
 
66 The Supreme Court op Texas 
 
 part of the island nearest the bar, and where the 
 channel of the bay approached nearest the edge of 
 tidewater, thus admitting of the construction of 
 wharves for the accommodation of ocean-going com- 
 merce. 
 
 Justice Roberts' opinion in State vs. Southern 
 Pacific Railroad Company, 1 discloses the tendency 
 of private corporations, as early as 1859, to adopt 
 what has since become the fixed policy of no incon- 
 siderable number of them. In explaining the reason 
 for the adoption of that clause of the Constitution 
 which provided that two-thirds of the Legislature 
 should have power to revoke and repeal the charters 
 of all private corporations by making compensation 
 for their franchises, the opinion says: 
 
 "The history of corporations in the United States 
 exhibits the increasing tendency of capital to seek 
 employment under their protection, as the only 
 avenue left in this country of equal rights, to spe- 
 cial and exclusive privileges, and the most persistent 
 efforts to assert, maintain and perpetuate those priv- 
 ileges, in entire independence of the power and con- 
 trol of the State creating them, by appealing to the 
 Federal judiciary. Corporations have even contested 
 the right of eminent domain in the State, and 
 claimed an exemption from the operation of this 
 high power to which all other property is subject. 
 To forestall, in part, such pretensions this clause was 
 inserted in the Constitution. It is intended as a 
 direct assertion of supremacy by the State over 
 them, at discretion, subject only to the conditions of 
 
 124 Texas, 80. 
 
The Supreme Court of Texas 67 
 
 a two-thirds vote of the Legislature, and the pay- 
 ment of the franchise revoked." The rapid growth 
 and development of this tendency, as well as the 
 litigious strife which has attended it, are matters 
 of common history with which citizens are familiar. 
 The oft repeated, vigorous efforts of many corpora- 
 tions to utilize the Federal judiciary as a sanctuary 
 to escape restrictions imposed by State legislation, 
 have been equalled only by like determined efforts 
 of the State to circumvent that practice. Additional 
 interest attaches to this case by reason of the ex- 
 pression therein of the personal opinion of Justice 
 Roberts that the charter was not a contract within 
 the meaning of the Constitutional provision inhib- 
 iting the impairment of the obligation of contracts, 
 the leading cases of Fletcher vs. Peck and Bart- 
 mouth College vs. Woodward to the contrary not- 
 withstanding. 
 
 In Houston Tap & Brazoria Railway Company vs. 
 Randolph, 1 there is a fetching illustration employed 
 by Justice Roberts, of the consequences of a disre- 
 gard of an elementary rule governing the exercise of 
 constitutional powers and jurisdiction by co-ordi- 
 nate departments of the State government. 
 
 "The officers of each department," says the opin- 
 ion, "are chosen by the people, with reference to 
 their capacity and general fitness to discharge the 
 peculiar duties of that department. They (the 
 people) have a right to expect that the respective 
 duties allotted to each department shall be per- 
 formed by those they have chosen to perform them. 
 
 124 Texas, 337. 
 
68 The Supkeme Cottkt of Texas 
 
 They would be not a little surprised to find that all 
 the chief executive officers, the Governor and heads 
 of departments, elected by the whole people of the 
 State, were summoned before the district court of 
 Travis County and required there to contest the pro- 
 priety of any of their official acts, done within the 
 scope of their authority, and perchance, after a te- 
 dious struggle, the facts in issue being tried and 
 determined by a jury of twelve men, citizens of 
 Travis County, and compelled, under the penalty of 
 attachment and imprisonment for contempt, to do an 
 act, which they had refused to do, acting under their 
 oath of office, and under a sense of responsibility to 
 their constituents. If the court assumes to act, it 
 must carry out its judgment. What is the conse- 
 quence ? The Governor is required to sign a patent 
 to land. It is a mere ministerial act by writing his 
 name ; the right of the plaintiff has been made clear 
 in the district court; and the reasons given by the 
 Governor for his refusal are not deemed sufficient by 
 the district judge. The Governor, under a sense of 
 duty, and to resist aggression upon his official rights, 
 is obstinate and will not obey the mandate of the 
 court, — will not write his name officially, as Gov- 
 ernor of the State of Texas,' upon compulsion; the 
 sheriff of Travis County must enter the Governor's 
 mansion with his posse, and take possession of the 
 Governor and put him in jail, and keep bim there 
 until he will write his name upon the land patent. 
 If some of the numerous creditors of the State (and 
 numerous they may be, if they are not now) are 
 refused payment of their demands at the treasury, 
 they may send the Comptroller and the Treasurer of 
 
The Supreme Court of Texas 69 
 
 the State to keep company with the Governor. But 
 suppose that, actuated by our traditional venera- 
 tion for the law, and those who administer it, these 
 high functionaries of the executive department yield 
 their judgment, obey the mandate, sign the patent, 
 settle the account, pay the claim out of the treasury ; 
 who administers the law, they, or the district judge % 
 Who 'take care that the laws are faithfully exe- 
 cuted;' the Governor or the district judge? Surely 
 not the Governor if he must obey the mandate of 
 the court in the performance of his official duty. 
 . . . A recognition of such appeal would render 
 the judiciary not co-ordinate, but superior, to the 
 executive department; contrary to the plain design 
 of the Constitution." 
 
 In 1862 Associate Justice Roberts resigned to ac- 
 cept the position of colonel of the Eleventh Texas In- 
 fantry of the Confederate army. George Fleming 
 Moore, then serving as colonel of the Seventh Texas 
 Cavalry, Confederate army, was elected to fill the 
 vacancy. 
 
 Judge Moore was born in Elbert County, Georgia, 
 July 17, 1822. In his youth his family removed to 
 Alabama, where he attended the university of that 
 State, as also the University of Virginia, though 
 he was a graduate of neither. He began the study 
 of law in his eighteenth year, and was thereafter 
 licensed to practice by Judge Shortridge, circuit 
 judge of Alabama. At that time he was distinguished 
 for the taciturn, retiring disposition and devotion to 
 study that characterized him in later life. In 1846 
 he removed to Texas, locating dn Austin in 1854. 
 Thereafter he settled at Nacogdoches, where he re- 
 
70 The Supreme Cotjet of Texas 
 
 sided until his appointment as reporter of the Su- 
 preme Court of Texas, when he returned to Austin 
 and formed a partnership with Richard S. Walker. 
 Prom 1867 to 1874 he successfully engaged in the 
 practice of law in Austin. Judge Moore was noted 
 for his unaffected simplicity, modesty of personal 
 bearing, gentility of manner in his intercourse with 
 men, and the absence of that haughtiness assumed 
 by inferior persons in superior positions. He was 
 a distinguished advocate who relied upon diligent 
 study and the mastery of cases, rather than eloquent 
 appeals to courts and juries for the success which 
 crowned his professional labors. His clear under- 
 standing of points involved in his cases, his con- 
 cise logic and convincing reasoning were bulwarks 
 against which sophistry and empty eloquence spent 
 themselves in vain. Such was his remarkable mem- 
 ory that it was said of him that no one ever saw 
 him take a note of testimony during the most pro- 
 tracted trial, however complicated the facts or nu- 
 merous the witnesses. He is justly ranked with the 
 ablest Judges of the Supreme Court of Texas whose 
 judicial labors have enriched and enlightened our 
 judiciary. He enjoyed the reputation among his 
 brethren of the bench of being the best chancery 
 lawyer in Texas. It was conceded by his contem- 
 poraries that no jurist, living or dead, did more 
 than he to settle on a permanent basis vexed ques- 
 tions of land law, arising under our complex sys- 
 tem. "So long," says an eminent Judge, 1 "as the 
 bench and bar of Texas shall reverence those de- 
 
 iChief Jusitce A. H. Willie. 
 
The Supreme Court op Texas 71 
 
 cisions of her Supreme Court, which are founded 
 upon correct principles of law and equity and en- 
 forced by unswerving logic; decisions which have 
 settled rights and titles according to the very truth 
 and justice of the case, so long will the name of 
 George E. Moore be venerated as one of the most 
 learned, able and eminent of those who have ex- 
 pounded the laws of the State and given its judiciary 
 an honored rank amongst the courts of the American 
 Union." 
 
 In Ex parte Goupland, 1 the majority opinion of 
 the court, rendered by Justice Moore, and the dis- 
 senting opinion of Justice Bell, are able and in- 
 structive discussions of the constitutional authority 
 then vested in the State to raise troops under the 
 Confederate conscription law for participation in 
 the Civil War. To his confessed intemperate denun- 
 ciation of martial law in this case, counsel for appli- 
 cant, 2 and reporter of subsequent volumes of the 
 Texas reports, ascribed his imprisonment as a victim 
 of that law. 3 It is lamentable that this incident, 
 added to differences of opinion respecting the then 
 paramount issue of secession, ruptured long stand- 
 ing amicable relations which had existed between 
 the reporter and several Justices of the Supreme 
 Court — particularly Justice Wheeler — and was pro- 
 ductive of a preface to a succeeding volume of the 
 Texas reports in which he criticised secessionist 
 members of the court in an adroit, polished and po- 
 
 136 Texas, 387. 
 2 Georg , e W. Paschal. 
 3Preface, 28 Texas, VII. 
 
72 The Supreme Court of Texas 
 
 lite manner, more complimentary to his literary style 
 than his sense of propriety and good taste. 
 
 The able, courageous, and vigorous opinions of 
 Justice Moore in State vs. Sparks 1 and State vs. 
 Sparks and Magruder, 2 denouncing military en- 
 croachment upon the Constitutional jurisdiction and 
 powers of civil tribunals, reflect credit upon the 
 learning and courage of the distinguished Justice 
 who announced them. The cases originated in the 
 capture by defendant Sparks, military commandant 
 of Confederate forces at Austin, Texas, of certain 
 prisoners then in the custody of the sheriff of Travis 
 County by virtue of an order of the Supreme Court, 
 pending the hearing by it of a writ of habeas corpus. 
 The prisoners had been brought before the court 
 and an answer filed by a lieutenant, stating that 
 they were held in his custody at the date of the ser- 
 vice of the writ, as commandant of the military post 
 of San Antonio, by order of Major-General J. Bank- 
 head Magruder, commandant of the military district 
 of Texas, New Mexico and Arizona, on charges of 
 treason and conspiracy against the Confederate 
 States. Thereupon the court, for the purpose of 
 notifying Major-General Magruder of the issuance 
 of the writ, believing from the nature of the answer 
 that he was the real respondent, postponed the hear- 
 ing until he could present his answer ; the prisoners 
 in the meantime being remanded to the custody of the 
 sheriff of Travis County. Thereafter counsel ap- 
 peared on behalf of Major-General Magruder and 
 
 127 Texas, 627-635. 
 227 Texas, 705-715. 
 
The Supreme Coukt of Texas 73 
 
 filed an answer stating that the prisoners were held 
 by his order as commandant of the military district 
 upon charges of treason and conspiracy against 
 the Confederate States. Upon application of his 
 counsel the hearing was continued until a later date, 
 when, all parties being present, a motion was filed 
 by counsel for Major-General Magruder to remand 
 the prisoners to the custody of the military author- 
 ities. The motion was supported by an affidavit of de- 
 fendant Sparks, stating that the prisoners had been 
 arrested by order of Lieutenant-General Smith, com- 
 mandant of the Trans-Mississippi department, to be 
 detained as prisoners under the provisions of an 
 act of the Confederate Congress suspending the writ 
 of habeas corpus, which order Major-General Ma- 
 gruder was compelled to execute. Accompanying 
 the motion was a letter from Major Sparks to the 
 court reciting substantially the same facts, and re- 
 questing the delivery of the prisoners to him; also 
 a letter from Edmond P. Turner, A. A. G., to re- 
 spondent's counsel, stating that he had been in- 
 structed by Major-General Magruder to say, "that 
 he wishes you to represent to the Honorable Judges 
 of the Supreme Court, now in session in Austin city, 
 that in directing the commanding officer at Austin 
 to detain the prisoners who were before the court, 
 and to remove them to Houston, no disrespect or dis- 
 courtesy was intended; but that he acted under the 
 law of Congress, and in accordance with the order of 
 the Lieutenant-General commanding the department. 
 Upon presentation of this motion to the court, on 
 application of counsel for applicants, the hearing 
 was postponed until the following day. On that day, 
 
74 The Supreme Couet of Texas 
 
 and shortly before adjournment of the court, the 
 prisoners were forcibly wrested from the sheriff 
 by a detachment of armed soldiers, under an order 
 of the defendant Sparks. Upon these facts being 
 shown to the court by an affidavit of the sheriff, the 
 court immediately issued writs commanding him to 
 take said prisoners into his custody, and also to at- 
 tach the said Sparks and bring him before the court 
 to answer for the contempt committed against it 
 by his wrongful and forcible infringement of its au- 
 thority in taking the prisoners out of its custody 
 and from under its control. The writs being ex- 
 ecuted, on the following day the defendant Sparks 
 filed his answer, alleging that he had received an 
 order from Major-General Magruder, stating that 
 he had been ordered by Lieutenant-G-eneral Smith, 
 commanding the Trans-Mississippi Department, to 
 detain as prisoners the persons referred to as in 
 charge of the sheriff ; and having previously received 
 orders from the said Major-General Magruder to 
 place the escape of said prisoners beyond doubt by 
 placing a sufficient guard over them, and having 
 once furnished a guard which was rejected by the 
 sheriff, and feeling, under the orders of the officers 
 having a right to order him, that he was held by 
 them responsible for the safety and protection of 
 said prisoners; being of the opinion that they were 
 then constructively in the possession of the military; 
 being ordered to disregard the then existing writ 
 of habeas corpus, or any writ which might subse- 
 quently be issued ; meaning no contempt of the court, 
 but having a desire to discharge his duty as an officer 
 in obedience to orders ; and having first requested the 
 
The Supreme Court of Texas 75 
 
 court to remand the prisoners to the military author- 
 ities through him, and the court having declined to 
 act on his request, but took it under advisement until 
 the next day, he felt it his duty to act as he did in 
 taking the prisoners. Attached to this answer was 
 an order from Major-General Miagruder, which after 
 reciting the act of the Confederate Congress sus- 
 pending the writ of habeas corpus, ordered Major 
 Sparks to disregard the writ issued on application 
 of the prisoners, and any other writ which the court 
 should subsequently issue, and retain the custody 
 of said prisoners. 
 
 "The facts we have recited," says the opinion, 
 "show that the prisoners heretofore named were in 
 the court, acting through its ministerial officer, for 
 their judicial action in a matter with which they are 
 charged by the Constitution and laws of the State. 
 It certainly needs neither argument nor authority 
 to show that there is no officer or tribunal, civil or 
 military, known to the law of the land, that could, 
 without a violation of law and a contempt of this 
 court, forcibly take from under its control, and with- 
 out its consent, said prisoners until final adjudication 
 of the court upon the matters before it. . . . The 
 continuance of a question by the court, that it may 
 be correctly determined by the aid of proper reflec- 
 tion and the examination of precedent and authority, 
 can only be regarded as a justification or extenua- 
 tion of such an act as was committed by the defend- 
 ant, when the civil tribunals of the country sit merely 
 for the purpose of registering the edicts of the mil- 
 itary authorities. The presentation of such matter 
 in an answer is rather an aggravation than an ex- 
 
76 The Stjpkeme Court of Texas 
 
 tenuation of an outrage committed upon the author- 
 ity of the court. Nor can an illegal act be justified, 
 no matter how high the source from which it ema- 
 nates, by an order from superior authority. Mili- 
 tary officers are bound to obey all legal orders by 
 those by whom they are commanded. But there is 
 nothing better settled, as well by the military as the 
 civil law, than that neither offijcers nor soldiers are 
 bound to obey any illegal order of their superior 
 officers ; but, on the contrary, it is their bounden duty 
 to disobey them. The soldier is still a citizen, and 
 as such is always amenable to the civil authority. 
 We are of the opinion, therefore, that the order of 
 Major-General Magruder can furnish the defendant, 
 Major Sparks, no justification for his forcible in- 
 terference with the jurisdiction of this court, and 
 setting at naught its lawful orders. If, however, 
 he was in truth acting, as he claims, in obedience to 
 the orders of the major general commanding this 
 military district, it would certainly go far to excuse 
 him. While the officer must not obey an unlawful 
 order of his superior in command, yet, as in all 
 cases where he declines obedience to it he acts at his 
 peril, much indulgence should be shown in extenua- 
 tion of his obedience to such orders from those he 
 is ordinarily bound to obey. Especially should this 
 be so when the orders come to bim from such high 
 authority as that from which the one now in question 
 is claimed to emanate. But if these considerations 
 extenuate the act of Major Sparks, they do so only 
 by inculpating Major-General Magruder. If the act 
 was done in obedience to his order he is the principal 
 offender. Those by whom he has, if this be so, per- 
 
The Supreme Court of Texas 77 
 
 petrated so glaring and palpable an outrage upon 
 the law and the authority of this court, are alike 
 subordinate in criminality, as inferior in rank. But 
 the high position of this officer and the important 
 duties with which he is entrusted by the country 
 forbid that we should indulge the supposition, 
 in a state of case upon which he has not 
 been heard, that 'he has converted the means 
 of discipline, intended for the defense of order, into 
 a means of disturbing that order, and thus has 
 turned the instrument against the power that ought 
 to wield it ; for it is the civil government alone that 
 stands for the State, and the military is only an 
 instrument that it uses as its judgment requires.' 
 Better far would it have been for the prisoners 
 who are in custody of the court, though doubly 
 guilty beyond all that has been charged against them, 
 to go unwhipped of justice than for the civil author- 
 ities of the State to be subordinated to military con- 
 trol, and made dependent upon the latter for the 
 exercise of their legitimate functions." 
 
 The court transferred the cause to Tyler, where 
 Major-General Magruder was cited to appear and 
 purge himself of contempt of court. In the opinion 
 rendered in the case at the Tyler term, Justice 
 Moore says: 
 
 "We trusted, however, that it was only necessary 
 to give Major-General Magruder an opportunity of 
 being heard to relieve him from so disreputable an 
 imputation and the court from the painful duty of 
 pronouncing the highest military officer of this de- 
 partment guilty of using the authority with which 
 he has been entrusted for the public welfare and 
 
78 The Supkeme Cotjet of Texas 
 
 the defense of the State, as a means of violating the 
 law, interfering with and contemning the authority 
 and process of its courts, and thus violating social 
 order, which he should have been the first to have 
 upheld and sustained. The answer of Major-Gen- 
 eral Magruder, instead of exculpating him, places 
 him, if possible, in a still more unenviable light than 
 did the facts previously developed in the record. 
 . . . The pretext upon which Major-General Ma- 
 gruder undertakes to justify his interference with, 
 and attempting to set at naught the authority of 
 the court is mainly based upon the startling ground 
 that the court does not acquire jurisdiction of the 
 persons of the applicants for a writ of habeas corpus, 
 pending the hearing on its return. . . . The an- 
 swer, we believe, presents only the additional fact 
 that the defendant, when he gave the orders to his 
 subordinate officer to wrest from the court the pris- 
 oners who were in its custody, to disobey the man- 
 date by which they were held, or any writ it might 
 issue, and to remove them, under military escort, to 
 such place as he might direct, at the same time 
 caused a letter to be addressed to the court, in 
 which he assured it that he intended no contempt of 
 the court, but entertained for it the most profound 
 respect; that it was his pleasure, at all times, to 
 sustain the civil authorities ; and that it was also his 
 studious desire to avoid all conflict between the mil- 
 itary authorities and civil tribunals. Similar man- 
 ifestations of exquisite politeness by criminals, while 
 engaged in violating the law, will, perhaps, readily 
 suggest themselves to readers of fictitious literature, 
 
The Stjpreme Cotjkt of Texas 79 
 
 but we doubt if its parallel can be found in the dry- 
 details of judicial proceedings." 
 
 The court regretted that the situation of the coun- 
 try, and the services required of Major-General Ma- 
 gruder at that crucial period, made it inadvisable 
 to punish him for his offense by fine or imprison- 
 ment, and, in consequence, discharged the rule by 
 entering a judgment against him for the cost of the 
 proceedings. 
 
CHAPTER IV. 
 
 1864-1874. 
 
 Death of Chief Justice Wheeler— Oran M. Roberts, Chief 
 Justice — Reuben A. Reeves Succeeds Associate Justice Bell — 
 Constitution of 1866 Increases Number of Justices to Five — 
 Richard Coke, S. P. Donley, A. H. Willie, George F. Moore, 
 and George W. Smith Elected Justices — Sketches of the 
 Justices — Their Removal as "Impediments to Reconstruc- 
 tion" — Amos Morrill, A. H. Latimer, C. Caldwell, Livingston 
 Lindsay and A. J. Hamilton Appointed Justices — Sketches 
 of Justices Morrill, Hamilton and Lindsay — Fruits of Mil- 
 itary Despotism — New Rule on the Weight of Evidence — A 
 Critical Reporter — Constitution of 1869 Reduces Number 
 of Justices to Three — "Caveat Emptor!" — Moses B. Walker 
 Succeeds Justice Hamilton — James Denison Succeeds Jus- 
 tice Caldwell — Reorganization of Court Under Constitution 
 of 1869 — Lemuel D. Evans, Presiding Judge — Wesley Og- 
 den and Moses B. Walker, Associate Justices — Sketch of 
 Justice Evans — Justice Ogden Succeeds Presiding Judge 
 Evans — J. D. McAdoo Succeeds Justice Ogden — Ex-Parte 
 Rodriguez — The ' ' Semicolon Case ' ' — The ' ' Semicolon Court ' ' 
 — Crowning Infamy — Prostitution of an August Tribunal — 
 Merited Ostracism — Just Oblivion. 
 
 The long, useful and most distinguished judicial 
 career of Justice Wheeler was ended by his lamented 
 death in Washington County, Texas, in April, 1864. 
 A contemporary, 1 who had once highly esteemed but 
 had become estranged from him through differences 
 in political opinions, attributed his death to melan- 
 
 iGeorge W. Paschal. 
 
The Supkeme Coukt of Texas 81 
 
 cholia and remorse from the consciousness of having 
 espoused the wrong side of the secession issue which 
 had but lately engrossed the attention of his coun- 
 trymen — to the tortures of a guilty conscience which 
 drove him to end his life by his own hands! 1 It is 
 impossible, of course, to refute statements based ex- 
 clusively upon the belief of an individual, derived 
 from alleged facts not disclosed. Suffice it to say 
 that none of the distinguished biographers who has 
 enlightened us with a sketch of that great jurist 
 mentions the cause noted by this authority as con- 
 tributing to his death. 
 
 Oran M. Roberts, then in the field commanding his 
 regiment, was elected Chief Justice to fill the va- 
 cancy caused by the death of Justice Wheeler. At 
 the same election Eeuben A. Reeves defeated Asso- 
 ciate Justice Bell. 
 
 The State Constitution, adopted in June, 1866, 
 provided that the Supreme Court should consist of 
 five Justices, any three of whom should constitute 
 a quorum; that they should be elected by the quali- 
 fied voters of the State at a general election for 
 State and county officers ; that they should elect from 
 their own number a presiding officer, to be styled 
 the Chief Justice; that they should be thirty-five 
 years of age at the time of their election; should 
 hold their office for ten years, and that each of them 
 should receive a salary of at least four thousand 
 dollars, which should not be increased or diminished 
 during their term of office. 2 At an election held on 
 the first Monday in August, 1866, George F. Moore, 
 
 iPreface, 38 Texas, VTI. 
 
 2Acts of Eleventh Legislature, p. 11. 
 
82 The Supreme Court or Texas 
 
 Richard Coke, S. P. Donley, A. H. WilMe, and 
 George W. Smith were elected Justices of the court, 1 
 George P. Moore being chosen Chief Justice in 
 the manner provided by the Constitution. 
 
 Richard Coke was born in Virginia in 1829. He 
 graduated with honor at William and Mary College 
 in 1849. In 1850 he was admitted to the bar, and 
 removed to Waco, Texas, where he successfully en- 
 gaged in the practice of law. He was appointed 
 District Judge in 1865, in which position he served 
 with distinction. In 1873 he was elected Governor 
 of Texas. Although he was elected by a majority of 
 over 50,000, the reconstruction regime — composed of 
 resident negroes, non-resident carpet-baggers, mili- 
 tary adventurers, camp-followers and soldiers of for- 
 tune, who had subverted representative government 
 in Texas and destroyed the liberties of the people, 
 acting through its political head, Edmund J. Davis, 
 by virtue of an infamous decision of a partisan Su- 
 preme Court, composed of foreign scalawags and 
 military satellites, holding the election void — opposed 
 by a show of military force the inauguration of Gov- 
 ernor Coke, and the assembling of the Legislature 
 elected at the same election. This action was the 
 expiring effort of an infamous regime to perpetuate 
 its maladministration, which it had sought to uphold 
 by dispatching military forces composed largely of 
 negroes, and known as "State Police," to political 
 meetings for the purpose of intimidating Demo- 
 cratic speakers and candidates during the progress 
 
 iHaving 1 been twice elected as a member of the court, Judge Roberts 
 did not offer' for re-election. 
 
The Supreme Court of Texas 83 
 
 of the campaign. Perhaps at no time in the history 
 of Texas was there ever exhibited by its patriotic 
 citizens such courage as that displayed, in defying 
 armed ruffians and murderers who sought to throttle 
 free speech by their menacing presence. Although 
 Governor Davis issued a proclamation prohibiting 
 the assembling of the incoming Legislature, it con- 
 vened at the date prescribed by law, in the Capitol at 
 Austin, while an armed force, assembled by Davis 
 for forcibly resisting its meeting, mounted guard 
 in the basement below the legislative halls and in the 
 Governor's office. Citizens of Austin armed them- 
 selves and came to the support of the Democratic 
 Governor and Legislature. Governor Coke, in a 
 message to the Legislature in January, 1875, thus 
 describes the memorable event : 
 
 "The circumstances under which you assemble are 
 auspicious. How striking the contrast with those 
 which surrounded your first convention, one year 
 ago. Then darkness and gloom brooded over the 
 land, and over the hearts of the people. Forebod- 
 ings of danger to popular liberty and representative 
 government caused the stoutest and most patriotic 
 among us to tremble for the result. A conspiracy, 
 bolder and more wicked than that of Catiline against 
 the liberties of Rome, had planned the overthrow of 
 free government in Texas. The Capitol and its pur- 
 lieu were held by armed men under the command 
 of the conspirators; and the treasury and depart- 
 ment offices, with all the archives of the government, 
 were in their possession. Your right to assemble in 
 the Capitol, as the chosen representatives of the 
 people, was denied, and the will of the people scoffed 
 
84 The Supreme Court of Texas 
 
 at and defied. The floors of the halls in which you 
 now sit had been examined by the conspirators, and 
 it had been ascertained that the armed force en- 
 trenched in the basement beneath could pierce them 
 with their missiles if necessary to attack you. The 
 President of the TJtoited States was being implored 
 to send troops to aid in overthrowing the government 
 of Texas, chosen by her people by a majority of over 
 fifty thousand. The local and municipal officers 
 throughout the State, in sympathy with the infamous 
 designs of these desperate and unscrupulous revo- 
 lutionists, taking courage from the boldness of their 
 leaders at the capital, were refusing to deliver to 
 their lawfully elected successors the offices in their 
 possession. A universal conflict of jurisdiction and 
 authority, extending through all the departments of 
 government, embracing in its sweep all the territory 
 and inhabitants of the State, and every question 
 upon which legislaive government is called to act 
 was imminent." 
 
 . It is well known history that upon the refusal of 
 President Grant to aid the conspirators they ceased 
 further resistance to the inauguration of Governor 
 Coke and the assembling of the legislative represent- 
 atives of the people. 
 
 In 1876 Governor Coke was re-elected, but a 
 month after his second inaugural was elected Uni- 
 ted States Senator. He assumed the duties of that 
 office on March 4, 1877, and served with distinction. 
 A giant in intellect and physique as well, a states- 
 man and patriot unexcelled in courageous devotion 
 to his country and to Constitutional government, 
 he was the most heroic figure which has appeared 
 
The Supreme Court of Texas 85 
 
 upon the stage of political action in Texas or else- 
 where. His pre-eminent public services to the State 
 in the darkest, most despairing hours of its existence 
 will be gratefully remembered by a liberty-loving 
 people so long as the glorious record of his cour- 
 ageous, successful defense of his State and country- 
 men against the outrages and oppressions of ex- 
 otic conspirators and despotic renegades shall re- 
 main the brightest page in the political history of 
 Texas. 
 
 Asa Hoxie Willie was born in Washington County, 
 Georgia, October 11, 1829. Left fatherless in his 
 fourth year, his early training and education were 
 supervised by his mother, whose superior attain- 
 ments and maternal solicitude enabled her to prop- 
 erly perform that important task by educating him 
 in the Washington, Georgia, Academy. In 1846 he 
 removed to Texas and became a member of the fam- 
 ily of his maternal uncle, Dr. A. Hoxie, then resid- 
 ing at Independence, Texas. He studied law under 
 his brother, James Willie, in Brenham, during the 
 year 1848, and in 1849 was admitted to the bar un- 
 der a special act of the Legislature removing the 
 disabilities of his minority. Forming a partner- 
 ship with his brother, he engaged in the practice of 
 law at Brenham until 1857, when he removed to Aus- 
 tin to assist his brother in his duties as Attorney- 
 General of Texas and as Commissioner for the cod- 
 ification of the State laws. In 1858 he located at 
 Marshall, where he formed a partnership with his 
 brother-in-law, Alexander Pope. He removed to 
 Galveston in 1866, which thereafter became his per- 
 manent residence. Members of the bar and Justices 
 
86 The Supreme Court op Texas 
 
 of the Supreme Court with whom he served concur 
 in their high estimates of Judge Willie's judicial 
 abilities and most excellent character. His exten- 
 sive personal popularity is attested in the circum- 
 stance that he was elected Chief Justice in 1882 by 
 a majority of 190,000 out of a total vote of 200,000. 
 
 "Judge Willie," says a distinguished member of 
 the court, 1 "was a conspicuous figure in the history 
 of the jurisprudence of Texas. . . . His opin- 
 ions, thoroughly considered, carefully prepared, and 
 happily expressed, exhibit the marks of a learned, 
 discriminating and well balanced judge. They are 
 'a fair and lasting monument to his memory.' Hav- 
 ing served with Judge Willie on the bench I feel 
 that I should say that no one could be more cour- 
 teous and kindly toward his associates; without 
 pride of opinion himself, he was always considerate 
 of their opinions, and in consultation always showed 
 himself a patient, dispassionate and impartial judge. 
 In social life Judge Willie was the most genial of 
 men. Great as must be our admiration for him as a 
 jurist, the esteem of those of us who knew him per- 
 sonally is greater." 
 
 Stockton P. Donley was born in Howard County, 
 Missouri, May 27, 1821. He received his education 
 in Kentucky, and upon being admitted to the bar 
 removed to Texas in 1846, locating at Clarksville, 
 Texas. The year following he located at Rusk, 
 where he formed a partnership with James M. An- 
 derson, and engaged in the practice, attaining dis- 
 tinction in the criminal branch of the law. In 1853 
 
 iChief Justice Gaines. 
 
The Supeeme Court of Texas 87 
 
 lie was elected district attorney of the Sixth Judi- 
 cial District. He removed to Tyler in 1860, and in 
 1861 enlisted as a private soldier in Gregg's regi- 
 ment. He was promoted to the rank of lieutenant 
 for distinguished action at the siege of Fort Don- 
 elson, where, with his entire command, he was cap- 
 tured by the enemy. Thereafter he was exchanged 
 and assigned to post duty, in which he served until 
 the proclamation of peace. In 1868 he formed a law 
 partnership with Judge Oran Ml Eoberts, and 
 later with John L. Henry — business relations which 
 attest his professional learning and prestige at the 
 bar. 
 
 On September 10, 1867, George P. Moore, Chief 
 Justice, and Associate Justices Richard Coke, S. P. 
 Donley, A. H. "Willie, and George "W. Smith were 
 removed from office by an order of the military com- 
 mandant of the district of Texas, as "impediments 
 to reconstruction," and Amos Morrill, A. H. Lat- 
 imer, C. Caldwell, Livingston Lindsay, and A. J. 
 Hamilton appointed in their stead, Hamilton's ap- 
 pointment being made on the 4th of November of 
 that year. Morrill was designated Chief Justice of 
 the court as thus organized. In a list of these Jus- 
 tices, given by one authority, 1 the name of B. J. 
 Davis appears as one of the appointees, which prob- 
 ably was error, or if correct he was superseded by 
 Hamilton before the assembling of the court, as 
 the former's name is not mentioned in the list of 
 Justices in the official report. 
 
 This was the culminating act of a despotic regime 
 
 lOran M. Roberts. 
 
88 The Supreme Court or Texas 
 
 in the subversion of constitutional government and 
 the destruction of the liberties of a defenseless peo- 
 ple by an ignoble conqueror; the crowning outrage 
 of a series of a like nature, tragic events in the 
 darkest and most despairing days of reconstruction 
 in Texas. So expeditious was the work of the mili- 
 tary authorities in suppressing Constitutional civil 
 government, that practically all judicial and minis- 
 terial officers of the State had been removed by the 
 end of September, 1867. As in all instances in which 
 the administration of the laws by civil courts failed 
 to conform to the preconceived ideas of law and 
 justice entertained by the local military command- 
 ant, the cases were removed by him to the military 
 tribunals and the offending judges removed from 
 office, it may readily be seen that the mailed hand 
 of military despotism then rested heavily upon the 
 civil judiciary. These military tribunals, estab- 
 lished under the authority of the Federal recon- 
 struction act of the National Congress, were com- 
 posed of military officers, ordinarily from five to 
 seven in number, designated by the commanding 
 officer, and clerks, bailiffs, and stenographers to re- 
 port the proceedings. The trial, while similar to 
 that of an ordinary court martial, was conducted in 
 a measure in accordance with the rules of evidence 
 and laws governing the crime of which the prisoner 
 was charged. Accused persons were allowed counsel 
 to conduct their defense, while the prosecution was 
 conducted by a judge advocate. Oral argument was 
 not permitted on the whole case at the conclusion 
 of the evidence, but was required to be submitted in 
 writing, read to the tribunal and left in its custody. 
 
The Supreme Court of Texas 89 
 
 Arrests were made, and witnesses summoned both 
 for the prosecution and defense by a subordinate 
 officer, and witnesses were brought to the court at 
 the expense of the government. Bail was in the 
 discretion of the commander who ordered the trial, 
 but was seldom granted. Pending trial, prisoners 
 were confined in stockades under strong military 
 guard for safekeeping. The court was the judge 
 of the admissibility and the weight of the evidence. 
 
 "On the subject of the weight of the evidence, 
 judge advocates had and used a book purporting to 
 have been written by Judge Advocate-General Holt 
 at Washington, in which the rule of evidence was 
 laid down in substance, that the evidence of one 
 good, loyal citizen should have more weight than that 
 of any number of known rebels." 1 
 
 A reliable authority concedes, however, that offi- 
 cers of the tribunals were generally gentlemen who 
 acted under a high sense of honor, were possessed of 
 practical judgment in human affairs, and that it 
 could be said to their credit that usually they be- 
 lieved in allowing a course of proceeding that en- 
 abled innocence to be vindicated when it really ex- 
 isted. 
 
 Amos Morrill was born in Salisbury, Massachu- 
 setts, August 25, 1809. In his youthful employment 
 as schoolmaster he acquired sufficient means to at- 
 tend Bowdoin College, from which he graduated in 
 1834. Thereafter he removed to Nashville, Tennes- 
 see, and later to Murfreesboro, where he engaged 
 in teaching school for two years. He subsequently 
 returned to Massachusetts, studied law in the office 
 
 lComprehensive History of Texas, Vol. 2, p. 173. 
 
90 The Supreme Court op Texas 
 
 of Robert Cross, at Amesbury, and after mastering 
 the "rudiments of common law" removed to Texas, 
 locating at Clarksville, where he practised law. In 
 1856 he came to Austin, where he was associated 
 with A. J. Hamilton in the practice. He was a bitter 
 opponent of secession, and an uncompromising 
 Unionist. At the outbreak of the Civil War he 
 refugeed in Mexico. Returning from thence to Mas- 
 sachusetts, during the last year of the war he was 
 connected with Federal employment in the New 
 Orleans custom house, where "he anxiously awaited 
 the time when he could return to his home in Texas. ,n 
 
 At the close of the war he returned to Austin. In 
 1872 he was appointed United States District Judge 
 of the Eastern District of Texas, and settled in Gal- 
 veston. Ill health necessitating his resignation from 
 the bench in October, 1883, he returned to Austin, 
 where he died March 5, 1884. 
 
 Livingstone Lindsay was born in Orange County, 
 Virginia, on October 16, 1806. His grandfather, 
 who emigrated from Scotland, was a pioneer settler 
 of the State of Virginia. The parents of Judge 
 Lindsay were devoted members of the Episcopal 
 church, as is shown in the circumstance that his 
 mother, in his infancy, carried him on horseback 
 ■forty miles to the nearest church of that denomina- 
 tion to receive the rites of baptism. He was edu- 
 cated in the University of Virginia, at Charlotts- 
 ville, and upon graduating from that institution 
 removed to Hopkinsville, Kentucky, where he stud- 
 ied law, was admitted to the bar, and engaged in the 
 
 iLynch's Bench and Bar of Texas, p. 153. 
 
The Supreme Court op Texas 91 
 
 practice for a short time. Thereafter he removed 
 to Princeton, Kentucky, where he resided for many- 
 years, being employed for several years as an in- 
 structor in the college at that place. In 1860 he 
 removed to Texas, locating at LaGrange, Texas, 
 where he engaged in the practice of law. In the 
 latter years of his life he was District Judge of the 
 district then composed of Colorado, Fort Bend, 
 Washington, Austin and Wharton counties. His 
 last public service was in the capacity of County 
 Attorney of Fayette County. He died at La- 
 Grange, Texas, in 1892, at the advanced age of 87 
 years. With the possible exception of Justice Ham- 
 ilton, whose active service upon the court was lim- 
 ited, Justice Lindsay was the ablest member of the 
 Supreme Court as constituted during the period of 
 his judicial labors. It is distinctly creditable to the 
 good name and memory of this able and upright 
 judge that none of his opinions is marred by re- 
 flecting the passions and prejudices of contending 
 political factions which prevailed during the un- 
 happy period immediately succeeding the Civil War. 
 Andrew Jackson Hamilton was born in Madison 
 County, Alabama, January 28, 1815. He was edu- 
 cated in the common schools of that State. In 1846 
 he removed to Texas, locating at LaGrange, where 
 he successfully engaged in practising law. In 1849 
 he was appointed Attorney-General by Governor 
 Bell, when he removed to Austin, which was there- 
 after his permanent home. He represented Travis 
 County in the State Legislature in 1851, and also 
 in 1853. He was presidential elector on the Buch- 
 anan ticket in 1856. In the political campaign of 
 
92 The Supreme Court of Texas 
 
 1859, as an independent candidate, he defeated T. N". 
 Waul, Democratic nominee for Congress. In 1861 
 he was elected to the State Senate, but as Texas had 
 then aligned itself with the Confederacy, he declined 
 to qualify for that office. In 1862 he journeyed to 
 Washington, via Mexico, and was immediately ap- 
 pointed brigadier-general in the Federal army. In 
 1865 he was appointed Provisional Governor of 
 Texas by President Johnson. In the political cam- 
 paign of 1870 he was the Conservative candidate 
 for Governor against E. J. Davis, but was defeated 
 by the latter. He died in Austin in April, 1875. 
 
 He is described as "an able advocate at the bar, 
 an animated, earnest, and impressive speaker," 
 whose "oratory was logical, persuasive and forcible 
 to a degree that few speakers in Texas, if any, have 
 ever been able to excel, and possessed a genial man- 
 ner that rendered him personally popular with all 
 classes." He was among the ablest men who have 
 figured in Texas history. Of strong convictions, he 
 was the most formidable of the opponents of seces- 
 sion and the ablest adviser of the reconstruction 
 regime in its military rule in Texas. While his 
 policies and actions in those unhappy days have been 
 subjected to severe censure, both by historians and 
 those who suffered from his power, no friend, enemy 
 or adversary has failed to concede him the most 
 splendid abilities and forceful personality of any of 
 those aligned with him in the advocacy of policies 
 he espoused and so ably defended. 
 
 Between his appointment, on November 7, 1867, 
 and his retirement from the bench, between the 
 Tyler and Austin session of the court in 1869, it 
 
The Supkeme Court of Texas 93 
 
 appears that Justice Hamilton served actively on 
 the court for only one session — the Tyler term, 1869. 
 As he was a member of the Constitutional Con- 
 vention of that year, in which he rendered the State 
 distinguished service in opposing the "iron-clad 
 oath," proposed by radical members of his party 
 in that body, 1 it is presumed that his able services 
 at that time were more valuable in the political 
 field than in the circumscribed limits of the forum. 2 
 The professional attainments of the Justices of 
 the court as then constituted, appear to have sig- 
 nally failed to impress the official reporter charged 
 with the duty of giving its opinion's publicity. 
 While due allowance should be made for his personal 
 estimate of Judges who but lately had removed 
 him from office, official documentary evidence sub- 
 mitted in support of his convictions is somewhat 
 convincing. 3 
 
 lOran M. Roberts, Comprehensive History of Texas, pp. 32-54. 
 
 2lb., p. 176. 
 
 3"Tlie State of Texas: In the Supreme Court of Texas Austin 
 November 4th. A. D. 1869 Present. Hon. Ch. Jus. Morill & Asso. Jus. 
 Lindsay & Latimer. It is ordered by the court that the reporter of 
 the decisions, in reporting' the statement of facts, shall state so much 
 only as may be absolutely necessary to show upon what the opinion 
 is based ; and that whenever the opinion includes this statement, that 
 no further statement be published; also that the briefs of counsel as 
 published in the reports be limited to the legal points and the author- 
 ities cited." This specimen, which is printed just as written, shows 
 what would have been the character of my books had their order been 
 obeyed. . . . Had I desired to retaliate, I should have printed these 
 gentlemen's opinions just as they wrote them, and have left them to 
 take care of their own literary fame. But could I have allowed them 
 thus to try their own hands at reporting, I should have spared them 
 after I saw the effect which the learned Chief Justice's opinions, after 
 leaving the hands of an experienced proof reader, had upon his nerves. 
 I thought he was satisfied with his own powers of narrative and rhet- 
 
94 The Supreme Court of Texas 
 
 The fact that the Judges thus criticised left the 
 court before the publication of the volume containing 
 the reporter's criticism, probably forestalled con- 
 tempt proceeding in which more than one judicial 
 skeleton would likely have been exhibited to an 
 admiring public. 
 
 The Constitution of 1869 provided that the Su- 
 preme Court should consist of three Judges, any 
 two of which should constitute a quorum, to be 
 appointed by the Governor by and with the ad- 
 vice and consent of the Senate, for a term of nine 
 years; that the judges first appointed under such 
 constitution should be classified by lot, so that the 
 term of one of them should expire at the end of 
 every three years, and that the judge whose term 
 should first expire, should be presiding judge. Ap- 
 peals to the Supreme Court in criminal cases were 
 not permitted unless, upon an inspection of the 
 transcripts and records, a judge thereof believed 
 that some error had been committed by the trial 
 judge. It was provided that the court should hold 
 annual sessions at the State capital only. Salaries 
 of justices of the court were fixed at not less than 
 $4,500 per annum, which should not be increased 
 or diminished during their term of office. 1 Upon 
 the adoption of this constitution, the provisional 
 government sold the Supreme Court library at 
 
 oric, and, as requested by himself, I corrected his inaccuracies, as 
 every experienced editor always does with inexperienced writers. I 
 only regret that the new reporter, whoever he may be, should fall 
 heir to a few of the brilliant opinions which I had hoped to have the 
 honor of giving the public. Farewell, provisionals. Requie&cat in 
 pace. — George W. Paschal, Preface 31st Texas. 
 lArticle V, Sec. I, Const. 1869. 
 
The Supreme Cotjet of Texas 95 
 
 Galveston to a St. Louis book dealer, and would 
 have sold the one at Tyler but for the suggestion 
 of the lawyers to the prospective purchaser that he 
 "might not find the books." 1 
 
 Justice Hamilton resigned in November, 1869, 
 and on December 1st of that year, Moses B. Walker 
 was appointed to fill the vacancy. On February 
 21, 1870, Justice Caldwell was removed by the 
 commandant of the military district of Texas, and 
 James Denison appointed as his successor. It is 
 noted that the apointment of Walker was made 
 "while yet he was colonel in the army." 2 
 
 The Supreme Court as organized under the Con- 
 stitution of 1869, was composed of the following: 
 Lemuel D. Evans, Presiding Judge; Wesley Ogden 
 and Moses B. Walker, Associate Justices. This 
 court entered upon its judicial labors on the first 
 Monday in December, 1870. 
 
 Lemuel Dale Evans was born in Tennessee in 
 1810. In 1843 he removed to Texas, locating in 
 Fannin County. In 1845 he was elected delegate to 
 the .Annexation Convention. He was elected to 
 Congress from the Eastern District of Texas in 
 1855. He opposed secession and vigorously cham- 
 pioned the Union, but rendered valuable service in 
 connection with A. J. Hamilton, and other conserva- 
 tives of his party, in defeating the disfranchisement 
 'of citizens who could not subscribe to the "iron- 
 clad" oath prescribed by Federal authority. In 
 1875 Mr. Evans was appointed United States Mar- 
 
 iComprehensive History of Texas, Vol. 2, p. 195. 
 ^George W. Paschal. 
 
96 The Sttpkeme Cottkt of Texas 
 
 shal for the Eastern District of Texas, in which 
 office he served until his death on July 1, 1877. 
 
 In a spirited address delivered in the Convention 
 of 1845, he declared that he candidly believed "the 
 whole contrivance of courts of judicature is a 
 fraud upon the community;" that the whole system 
 "is an invention of the darker ages of the world 
 and productive of the greatest injury." He de- 
 clared that there was "no question of right or wrong 
 which a savage is not as competent to decide as the 
 ablest judge of the land; no question which affects 
 the rights of property or the person, which the un- 
 tutored savage can not determine as well as a Storey 
 or a Marshall. And why? Because questions of 
 right and wrong depend upon feeling, and not upon 
 reason. A man who feels right, no matter how 
 uncultivated his mind may be, is as good a judge 
 of such matters as the most learned men that ever 
 sat upon the bench." He declared that any man 
 who taught country schools, and understood common 
 laws of syntax was as well qualified to understand 
 the constitutionalty of a law as a Daniel "Webster. 
 He further contended that the ablest men in England 
 and the United States had ascertained to a mathe- 
 matical certainty that the fees of lawyers and the 
 costs exceeded greatly the value of the things in 
 controversy. In view of these alleged facts, he con- 
 tended that courts and lawyers should be suppressed 
 in favor of tribunals for the abitrament of all human 
 differences in conformity to the benign principle of 
 the Golden Rule. 
 
 In September, 1873, Presiding Judge Evans re- 
 tired from the court at the expiration of his term, 
 
The Stjpkeme Cotjet of Texas 97 
 
 and Justice Ogden was promoted to that position, 
 while J. D. McAdoo was appointed Associate Justice 
 to fill the vacancy thus caused. 
 
 It was reserved to the court as thus organized 
 to place the only blot upon the pure, honored and 
 exalted reputation of the Supreme Court of Texas 
 which has marred the splendor of its history from its 
 creation to the present time. In the judicial annals 
 of no other country has there ever been a more la- 
 mentable, shameless prostitution of a court of justice 
 to the interest of lawless political conspirators 
 against constitutional government, the right of suff- 
 rage, and the liberties of a free people than that dis- 
 closed in Ex-Parte Bodriguez, 1 decided by this court. 
 
 The State election held on December 2, 1873, was 
 the most memorable in the history of Texas. In 
 that election the Republican ticket headed by B. J. 
 Davis, Governor, and candidate for re-election, was 
 opposed by a Democratic ticket under the leader- 
 ship of Richard Coke, Democratic nominee for 
 Governor in opposition to Davis. Citizens of Texas 
 who had long suffered from radical military rule 
 under an infamous carpet-bag regime, courageously 
 rallied to the support of the Democratic ticket for 
 the restoration of constitutional government and 
 the overthrow of Republican misrule; while an in- 
 considerable number of white Republicans and prac- 
 tically all of the recently enfranchised negroes of 
 the State vigorously championed the cause of Davis. 
 Unterrified by the menacing presence of the State 
 Police under the command of Davis, posted by his 
 
 139 Texas, 706. 
 
98 The Supreme Cotjbt or Texas 
 
 orders at the principal voting places to intimidate 
 Democratic voters, the great body of the reputable 
 citizenship of the State marched to the polls and 
 registered its condemnation of the rule of lawless 
 politicians and exotic adventurers which threatened 
 the ruin of the State and subversion of the liberties 
 of its people. The result was an overwhelming 
 victory for the Democratic ticket, which was elected 
 by a majority of over 50,000 votes. "After the 
 election," says a reliable authority, "when it was 
 discovered that the Democratic ticket had been 
 elected by a large majority, something had to be 
 done to enable Governor Davis to hold the office of 
 Governor." 1 Out of this necessity originated the 
 Rodriguez case. 
 
 On the 16th of September, 1873, one Joseph Rod- 
 riguez, a Mexican, applied to Wesley Ogden, Pre- 
 siding Judge of the Supreme Court, for a writ of 
 habeas corpus, alleging that he was illegally re- 
 strained of his liberty in Travis County, by a deputy 
 sheriff of Harris County, Texas. The writ im- 
 mediately issued, and the next day John Price, a 
 deputy sheriff of Harris County produced the body 
 of Rodriguez in court, admitting in his return that 
 the arrest and detention of the prisoner under his 
 authority as deputy under one A. B. Hall, sheriff 
 of Harris County, and that he detained the prisoner 
 under authority of a warrant issued by John Mc- 
 Donald, a justice of the peace of Harris County, 
 upon a charge of illegally voting more than once at 
 the election held on December 2, 1873. The State 
 
 iO. M. Boberts' Comprehensive History of Texas, Vol. 2, p. 198. 
 
The Supreme Court of Texas 99 
 
 was represented on the habeas corpus hearing by 
 Frank M. Spencer, district attorney for Harris 
 County, appointed by reason of the absence of the 
 attorney general, and a bar committee composed of 
 George F. Moore, M. A. Long, C. S. West, Thomas 
 E. Sneed, W. M. Walton, and A. W. Terrell. Coun- 
 sel for the State filed a motion alleging that the court 
 had no jurisdiction to try the case, because they were 
 informed and believed, and charged the fact to be, 
 that the case was fictitious, or essentially so, origi- 
 nally instituted and prosecuted not in the interest of 
 the prisoner in fact, but in behalf of certain other 
 persons to extort from the court an opinion as to 
 the constitutionality of an act regulating elections, 
 approved on the 31st of March, 1873. The court 
 was asked to diligently inquire into the facts con- 
 tained in an affidavit of George Goldthwaite, at- 
 tached to the motion in support thereof, to the end 
 that fraud might not be practised upon the court, 
 the law violated, and the course of justice diverted 
 to the accomplishment of individual purposes, illegit- 
 imate in character, and which, known, should not be 
 recognized or aided by courts of law and justice. It 
 was alleged that counsel was informed and be- 
 lieved that there was no case pending against the 
 prisoner, that no warrant had been legally issued 
 for his arrest and that he was never legally arrested. 
 The affidavit of George Goldthwaite, in support 
 of the motion stated, in substance, that deponent 
 was informed that A. B. Hall had employed A. J. 
 Hamilton to attend the criminal cases then about 
 to be brought with a view to testing the constitu- 
 tionality of the election law and the legality of the 
 
100 The Supreme Coitkt op Texas 
 
 late election; that deponent had been informed by- 
 one Geronimo Perez that the prisoner had been for 
 a month or six weeks in the employ of A. B. Hall; 
 that John Price, the officer who made the arrest was 
 known to affiant to have been in the employ of A. 
 B. Hall, being his deputy; that the said Hall was a 
 defeated candidate for sheriff of Harris County; 
 that affiant believed that the said Hall was paying 
 all the expenses incident to the hearing, and the 
 said Hall, as affiant believed, paid the expenses of 
 John W. McDonald, a witness, to come from Hous- 
 ton to Austin, to attend the hearing, the money for 
 that purpose being paid the witness by Hall, in the 
 presence of R. O. Love, of Harris County. Mr. 
 Spencer, counsel for the State, in support of the 
 motion, stated that as district attorney for the 
 county in which the alleged offense was committed, 
 he had, in connection with the grand jury, carefully 
 examined the charge against the prisoner; that no 
 indictment had been returned ; that he was convinced 
 that the process of law had been prostituted in mak- 
 ing the arrest, to the accomplishment of individual 
 purposes, and this with the consent of the prisoner, 
 whose arrest he believed to be simulated and not 
 real. He urged the court's permission to expose 
 the fraud, asking him to procure witnesses; and if 
 this were not allowed, he asked as the law officer 
 for the State appointed for the purpose of the trial, 
 that Rodriguez should be discharged from custody. 
 
 M. A. Long, of counsel for the State, in the course 
 of his argument in support of the motion said : 
 
 "The honor of the State, the honor and fair fame 
 of the judicial department of her government, the 
 
The Supreme Court op Tis^BiA^ v>101 
 
 honor and reputation of this tribunal of final re- 
 sort, and the honor and reputation of the present 
 incumbents of the bench of this august tribunal, not 
 only for ability and legal learning, but for purity, 
 impartiality and fairness, seem to be more or less 
 involved in the decision of this motion. * * * 
 When the singular manner in which the case has 
 been brought before this court, and all the suspicious 
 circumstances already disclosed, are carefully con- 
 sidered, this court is not only justified in believing 
 counsel sincere in their conviction of being able to 
 obtain the proof, but they are also sufficient to arouse 
 in the mind of the court very strong suspicions — if 
 not convictions — that an attempt is being made to 
 impose upon its legitimate jurisdiction by aiming 
 to extort from this court a political dictum for 
 party purposes upon a fictitious case — a gross con- 
 tempt of any court, demanding prompt punishment. 
 . . . Even if the court possessed constitutional 
 power to decide the question here sought to be pre- 
 sented . . . such power could only legally be 
 exercised in the determination of a real, and not a 
 fictitious case. To attempt its exercise in a fictitious 
 case would plainly amount to an attempt to usurp a 
 power not conferred by the constitution upon this 
 court, which would as plainly amount to a high 
 crime worthy of impeachment. If it is said in op- 
 position to this suggestion, that upon the trial of an 
 impeachment it would be very difficult, if not im- 
 possible, to prove that this court knew the case to 
 be fictitious, and therefore did not wilfully and 
 corruptly attempt to usurp a power not granted in 
 the constitution, still it is to be considered whether 
 
102 The Supreme Court of Texas 
 
 a refusal to hear proof upon the very point in 
 question would not amount to that kind of wilful 
 ignorance which neither law nor reason will tolerate. 
 Wilful ignorance is, in all judicial tribunals, re- 
 garded as equivalent to guilty knowledge — no better, 
 indeed, than a fraudulent and corrupt evasion or 
 subterfuge — an aggravation rather than a mitiga- 
 tion of guilt. ... I feel it to be my duty to this 
 court to earnestly protest against this attempt to 
 bring down the judicial ermine to the level of trick 
 and device, to stain it in the cesspool of fraud and 
 party politics. For the honor of the court and the 
 State I speak." 
 
 Upon the overruling of the motion by the court, 
 Mr. Spencer said: "I cannot longer represent the 
 State under the circumstances, and now respectfully 
 announce my withdrawal from the case." 
 
 Counsel for the prisoner thereupon filed a motion 
 asking the discharge of the prisoner upon the ground 
 that the return to the writ of habeas corpus showed 
 no just or legal cause for his further detention. 
 Counsel for the State moved the court to strike the 
 motion of State's counsel from the record, which 
 the court promptly overruled. 
 
 A. W. Terrell, of counsel for the State, delivered 
 an able and forcible argument at the close of the 
 evidence in the main case. 
 
 "I will not comment," said he, "upon the testi- 
 mony of the miserable creatures placed upon the 
 stand by order of the court, who testified to their 
 own infamy while attempting to make a case against 
 Eoderiguez. Two of them in Houston yesterday — 
 in Austin today — accidental bystanders, listening to 
 
The Supreme Coubt of Texas 103 
 
 proceedings conducted in a language which they 
 could not understand! How came they here? Who 
 brought them? They came without process, and I 
 say in my place, that none of the counsel represent- 
 ing the State knew even of their existence until 
 they were placed upon the stand at the suggestion 
 of Judge McDonald and by order of this court." 
 
 This causes one to indulge in speculation as to 
 about what counsel would have said of the witnesses, 
 had he really undertaken to discuss them. In the 
 course of a lengthy review of numerous authorities, 
 Mr. Terrell said : 
 
 "If one single case can be found, from the earliest 
 dawn of American jurisprudence until now, in which 
 any court has ever held illegal an act under which 
 a legislature was chosen, and under a constitution 
 like ours, I will admit that I have misunderstood 
 the theory of our government. If the Legislature 
 can hold the general election law constitutional by 
 seating its members, and this court can construe 
 it as unconstitutional in passing upon the election 
 of other officers, the constitution will cease to be 
 a bond of order, and become a bond of anarchy. The 
 absence of such claim of power for the courts, until 
 now, for so long a period and through so much 
 partisan strife, should be conclusive against its 
 exercise." 
 
 Addressing himself to the attitude of one of the 
 counsel for the prisoner, 1 Mr. Terrell said : 
 
 "Three times have the people of Texas since the 
 surrender attempted to establish civil government. 
 
 ^Hamilton. 
 
104 The Supreme Court of Texas 
 
 Once they were remanded by the Federal power to 
 a condition of territorial vassalage ; once, if we may 
 believe the eloquent adversary, they were defrauded 
 of their choice by a military commander; and now 
 he himself leads the van in the third assault, and 
 attempts, by the more insidious approaches of ju- 
 dicial construction, to stifle again the popular voice 
 and substitute a reign of anarchy. Why, on the 
 very eve of the meeting of the people's representa- 
 tives, is this strange haste shown to test this ques- 
 tion ? Why does counsel for Rodriguez assume upon 
 the facts the position of a prosecutor? These are 
 questions which all can answer. . . . By as much as 
 the blessings of social order, now in jeopardy, are the 
 dearest man can enjoy upon earth, by as much I 
 earnestly ask you to consider well the judgment 
 you are about to render. Your province is to pre- 
 serve and build up, not to destroy. Let not anarchy 
 take the place of order, and violence supplant quiet 
 and security." 
 
 Mr. Hamilton, of counsel for the applicant, after 
 discussing authorities believed to sustain his con- 
 tention that the court possessed jurisdiction of the 
 case and constitutional power to declare the election 
 void in the case at bar, said : 
 
 "Gentlemen on the other side have gone outside 
 of the constitutional question, and called our at- 
 tention to the 50,000 Democratic majority, the over- 
 whelming expression of the will of the people, and 
 the grave consequences likely to arise from opposing 
 that expressed will. Are we here for the purpose 
 of trying the Democratic or Republican parties ? Is 
 the question before the court as to which is the 
 
The Supreme Court op Texas 105 
 
 strongest party? Were I to make such an argument, 
 I should bow my head in submission were your 
 honors to stop me, rebuke me, and even fine me. 
 I am said to be here surreptitiously, to hurt some- 
 body who may have been elected. I do not know 
 what effect a decision in our favor may have upon 
 the cases of persons recently elected. I do not know, 
 and I care as little as I know. If I did know, I 
 should fearlessly do my duty in the premises. . . . 
 I am charged with opposing and disturbing these 
 gentlemen and their partisan friends in the past, 
 and now they say I am here again for the same 
 purpose. I do not take my lessons in patriotism 
 from gentlemen, who, in 1861, were members of a 
 mere mob, styling itself a state convention, which 
 was called by about forty persons, and which gloried 
 in overthrowing the State government and tearing 
 down the United States flag. I never fought against 
 the flag of my country. Neither did I learn these 
 lessons in a foreign land, in Mexico, under a carpet- 
 bag emperor, who was afterwards shot for inter- 
 fering with the constitutional rights and liberties 
 of a free people. As to the indirect interest your 
 honors are charged by opposing counsel with having 
 in the decision of this question, it seems to me that 
 they have sought to appeal to your timidity, to your 
 cowardice. But I am satisfied that the gentlemen 
 who fill this honorable bench are men — physically, 
 intellectually, morally — who will scorn such un- 
 worthy flings and do their duty regardless of all 
 outside influence. You are told that society will 
 be disrupted, and that anarchy and revolution will 
 follow, if your decision should be in accordance with 
 
106 The Supreme Court of Texas 
 
 our argument. It would have been well had these 
 gentlemen been equally solicitous a few years ago 
 about the peace of society and the disruption of the 
 government." 
 
 The constitutional question involved in the case 
 grew out of the construction of the act of March 
 31, 1873, in its relation to the provisions of Article 
 III, Section 6, of the Constitution of 1869. The 
 act provided that each precinct of the justices of 
 the peace of the counties of the State, as then estab- 
 lished should constitute an election precinct, 1 and that 
 "all the election in this State shall be held for one 
 day, only at each election, and that the polls shall be 
 open on that day from eight o'clock a. m. to six 
 o'clock p. m." 2 Article III, Section 6, of the 
 constitution provided: "All elections for State, 
 district, and county officers shall be held at the 
 county seat of the several counties, until otherwise 
 provided by law; and the polls shall be open for 
 four days, from eight o'clock a. m. until four o'clock 
 p. m. of each day." 8 
 
 In the lengthy opinion of the court delivered 
 by Justice Walker, it was held that the election was 
 void, and that Rodriguez should be discharged be- 
 cause he was not guilty of any offense in voting 
 more than once at an illegal election; that the con- 
 vention in framing the election provision of the 
 constitution had two objects in view, the first of 
 which was that elections should be held at the county 
 seats, and the second was that the polls should be 
 
 iGeneral Laws 13th Leg., p. 20. 
 
 2IJ>., p. 23. 
 
 sLaws of Texas ( Gamaliel's Ed.), Vol. 7, p. 7. 
 
The Supreme Court of Texas 107 
 
 kept open for four days; that it was certain that 
 the convention intended the two objects to be 
 distinct and independent of each other, by the fact 
 that there was a semicolon placed between them; 
 that the permission given the Legislature in that 
 section of the constitution to change the voting 
 places, did not extend beyond the semicolon, nor 
 empower it to change the time the polls should re- 
 main open, from four days to one. 
 
 While the evidence in the case was conflicting, the 
 official poll lists contradicted the testimony of wit- 
 nesses tending to prove that Rodriguez voted more 
 than once at the election, as they failed to 
 disclose that important fact, and were certainly en- 
 titled to more weight than the evidence of witnesses 
 conveniently "discovered" among spectators at a 
 trial conducted 167 miles from the scene of the 
 alleged occurence, not present in response to the 
 command of judicial process, wholly unknown to 
 counsel for the State, and placed upon the witness 
 stand by order of the court. The indecent haste 
 which characterized the hearing, disclosed in the 
 peremptory refusal of the court to grant counsel 
 for the State a reasonable postponement of the trial 
 to procure witnesses from Houston to attend a hear- 
 ing at Austin of habeas corpus writ issued the day 
 before; the application to the Supreme Court at 
 Austin for relief which the resident district judge at 
 Houston was equally empowered to grant; the sig- 
 nificant circumstance that a common Mexican of- 
 fender was enabled to command the services of an 
 array of distinguished counsel, including one of the 
 ablest in the State, who had but recently served as 
 
108 The Supreme Court of Texas 
 
 its provisional Governor; the invocation of the rule 
 prohibiting the disclosure of communications be- 
 tween attorney and client by one of the counsel for 
 applicant, when asked to disclose the name of the 
 person who employed him in the case, the offer of 
 another of his counsel to answer that question should 
 the court permit him to do so, and the prompt 
 action of the court in declining to grant such per- 
 mission are potent circumstances sufficiently con- 
 vincing that matters of graver importance than 
 the mere illegal restraint of a Mexican were involved 
 in the case, and that it was a lawless attempt to 
 expeditiously obtain a decision of the court of last 
 resort through the medium of a fictitious case. The 
 novel circumstance that the position of counsel 
 became reversed in this remarkable trial — counsel 
 for the State vigorously championing the cause, 
 proving the innocence of the prisoner, and demand- 
 ing his discharge; while counsel for the prisoner 
 with equal vigor asserted his guilt and resisted his 
 discharge, as well as the fact that the Mexican and 
 his cherished liberty were all but forgotten in the 
 heat of the controversy, leave no lingering doubt in 
 the mind of any unprejudiced person of the real 
 purpose of the proceeding. 
 
 "This decision," says an authority 1 in commenting 
 on the Rodriguez case, "was in harmony with that 
 administration, but deserves to be noticed as stand- 
 ing in disharmony with every other decision that 
 was ever pronounced by our Supreme Court in, 
 this : that no one except a few officers interested in 
 
 iO. M. Roberts' Comprehensive History of Texas, Vol. 2, p. 201. 
 
The Supreme Court of Texas 109 
 
 it ever paid any respect to its binding authority; 
 no lawyer would ever cite it as authority in any 
 court; no judge would ever refer to it as a judicial 
 precedent ; and therefore it stands solitary and alone 
 upon the records of that court, to be remembered 
 only with the regret that any such a decision was 
 made by a court that has uniformily possessed the 
 confidence of the people of Texas. It is known 
 in our judicial history as the 'Semicolon Decision,' 
 and the judges who rendered it are known among 
 lawyers as the 'Semicolon Court.' So odious has it 
 been in the estimation of the bar of the State, that 
 no Texas lawyer likes to cite any case from the 
 volumes of the Supreme reports which contain the 
 decisions of the court that delivered that opinion, 
 and their pages are, as it were, tabooed by the com- 
 mon consent of the legal profession." 
 
 This decision was responsible for the action of 
 Governor E. J. Davis in offering armed resistance to 
 the inauguration of Governor Coke, and the assem- 
 bling of the Democratic Legislature elected by the 
 people, so graphically outlined in the latter 's message 
 to that body and which, for a time, threatened the 
 precipitation of an armed collision between con- 
 tending factions, the far-reaching tragic conse- 
 quences of which would have been appalling. 
 
CHAPTER V- 
 
 1874-1885. 
 
 Amendment to Constitution of 1869 Increases Number of 
 Justices of Supreme Court to Five — 0. M. Roberts, Chief 
 Justice; Reuben A. Reeves, Thomas J. Devine, George F. 
 Moore, and "William Pitt Ballinger, Associate Justices — 
 Peter W. Gray Succeeds Justice Ballinger — R. S. Gould 
 Succeeds Justice Gray — Sketch of Justices — Bledsoe vs. 
 International & Great Northern Railroad Company — Keuch- 
 ler vs. Wright — Able dissenting Opinion by Chief Justice 
 Roberts — Horbach vs. State — "Hip-Pocket-Movement" Self- 
 Defense — John Ireland Succeeds Justice Devine — Sketch of 
 Justice Ireland — Yaney vs. Batte — Justice Moore's Dissent- 
 ing Opinion — Texas Land Company vs. "Williams — Model 
 Brief — Justice Moore Succeeds Chief Justice Roberts — M. 
 F. Bonner Elected Associate Justice — Sketch of Justice 
 Bonner — Ex-Parte Towles — Peck vs. San Antonio — "Semi- 
 colon Court" Overruled — Henderson vs. Beaton — Stone vs. 
 Brown — Milliken vs. City Council of "Weatherford — Hu- 
 mane Decision — Justice Gould Succeeds Chief Justice Moore 
 — John "W. Stayton Appointed Associate Justice — Sketch of 
 Justice Stayton — Ball, Hutchins & Company vs. Lowell — 
 Dissenting Opinion by Justice Stayton — Asa H. "Willie Suc- 
 ceeds Chief Justice Gould — Sketch of Justice "Willie — 
 Charles S. "West Succeeds Justice Bonner — Sketch of Jus- 
 tice "West — Houston & Texas Central Railroad vs. Simpson 
 — First of the "Turn-Table" Cases — Faulkner vs. House — 
 "Public History" — Jones vs. George — Belo vs. "Wren. 
 
 An amendment to the Constitution of 1869, adopt- 
 ed December 2, 1873, 1 provided that the Supreme 
 Court should consist of one chief justice and four 
 associate justices, appointive by the Governor with 
 
 lActs of 14th Legislature, p. 23. 
 
The Supreme Court of Texas 111 
 
 the advice and consent of the Senate, who should 
 hold their offices for the term of nine years: that 
 vacancies should be filled by appointment of the 
 Governor for unexpired terms; and that the court 
 should hold annual sessions at the capital and two 
 other places in the State. 
 
 On January 27, 1874, Governor Coke appointed 
 the following justices of the Supreme Court: Oran 
 M. Roberts, Chief Justice ; Reuben A. Reeves, Thom- 
 as J. Devine, George F. Moore, and William P. 
 Ballinger, Associate Justices. Justice Ballinger 
 was commissioned February 3, 1874, and resigned 
 the same day. Peter W. Gray was commissioned 
 on February 11, 1874. Justice Gray resigned on 
 April 13, 1874, and, on May 5, 1874, R. S. Gould 
 qualified as his successor. 
 
 By an act approved February 24, 1874, 1 it was 
 provided that the Supreme Court should hold its 
 sessions once in every year at Austin, Galveston, 
 and Tyler. 
 
 Thomas J. Devine was born of Irish parentage, 
 at Halifax, Nova Scotia, in 1819. In 1835 he re- 
 moved to Tallahassee, Florida, where he spent three 
 years acquiring a common school education, and 
 a knowledge of the Latin anc 1 French languages. 
 From 1838 to 1840, he studied law in the office of 
 Judge Perkins Smith, of Woodville, Mississippi, 
 who was afterwards Chief Justice of that State. 
 In the autumn of 1840 Mr. Devine entered the law 
 department of the Transylvania University at Lex- 
 ington, Kentucky. In 1844 he removed to Texas, 
 
 lActs of 14th Legislature, p. 13. 
 
112 The Supreme Court of Texas 
 
 and shortly thereafter located at San Antonio. He 
 was elected city attorney of San Antonio in 1845, 
 serving in that position until he was elected district 
 judge, in 1851. Referring to the valuable services 
 rendered by him to the city of San Antonio, a con- 
 temporary 1 says : 
 
 "A combination of wealthy and influential citi- 
 zens sought to appropriate the eight leagues of 
 land surrounding San Antonio which had been 
 granted to the city by the King of Spain. During 
 the revolution of Arrendondo, early in the century, 
 the grant was buried on the eve of battle by the 
 city fathers; and all who knew its secret burial 
 place were killed in a battle fought on the Medina. 
 More than twenty years afterwards it was found, 
 and the faded writing, rendered illegible by time, 
 was restored by Antonio Navarro and Juan Seguin. 
 The grant was finally destroyed by the troops of 
 Santa Anna when the Alamo fell. To the laborious 
 search of Judge Devine San Antonio is indebted 
 for the establishment of that crown grant to more 
 than 30,000 acres of land. On the final trial before 
 me in 1858 or 1859, the controlling case was tried, 
 when with the city records and archives from the 
 Missions, the strange and romantic story of San 
 Antonio was revealed." 
 
 Judge Devine served upon the district bench with 
 marked distinction until 1861, when, after having 
 been a delegate to the Secession Convention, he was 
 appointed a Confederate States judge. During the 
 dark days of reconstruction succeeding the Civil 
 
 i Judge iA. W. Terrell. 
 
The Supreme Court of Texas 113 
 
 "War, lie was thrown into prison for espousing the 
 cause of his countrymen against military oppression, 
 where he remained for months, "guarded by bay- 
 onets in the hands of newly enfranchised negroes." 
 It is said by his brother Judges and the bar that 
 Judge Devine was chiefly distinguished for his 
 broad, comprehensive common sense, which he 
 brought to the solution of all questions of first 
 impression; grasping, as if by intuition, the justice 
 in each case, and for exhibiting little patience when 
 technical difficulties were interposed to obstruct the 
 course of justice. Contemporaries who knew him 
 best have been pleased to record Judge Devine 's 
 distinguished public services to his country in the 
 lowering days of the Republic, in the darkest hours 
 of reconstruction when, in sorrow and deepest 
 humiliation, all seemed lost; as also how, when old 
 age was upon him, he labored with the strength 
 and zeal of youthful manhood "to rebuild the broken 
 altars of constitutional government and restore to 
 the people the power to choose and install their own 
 public servants." 1 Few briefer, well-merited tri- 
 butes have been paid to deserving men than that 
 bestowed upon Judge Devine by one of our ablest 
 jurists: 2 "A statesman who never sought political 
 preferment, in whose wisdom and counsel, in sun- 
 shine and in storm, it was safe to trust; a jurist 
 learned and patient, a lover of justice, absolutely 
 fearless in the discharge of duty and without re- 
 proach; a patriot in whose great heart love of 
 
 177 Texas, vii. 
 
 2Chief Justice John W. Staytom 
 
114 The Supreme Court of Texas 
 
 country reigned supreme and counted no sacrifice 
 too great to make for her welfare." 
 
 "William Pitt Ballinger was born in Barboursville, 
 Kentucky, on the 25th of September, 1825. His 
 education was acquired in the common schools at 
 Barboursville and St. Mary's College, Lebanon, 
 Kentucky. In 1845 he removed to Galveston, Texas, 
 where he studied law in the office of James Love. He 
 served in the Mexican War as a private soldier in 
 General Albert Sydney Johnston's regiment, being 
 afterwards promoted to the rank of first lieutenant. 
 Returning to Galveston in 1847, he was admitted to 
 the bar, and became a member of the law firm of 
 Jones & Butler, then one of the leading firms of 
 that city. In 1850 he was appointed United States 
 District Attorney of the District of Texas. Through 
 disinclination to be connected with the administra- 
 tion of Governor E. J. Davis, he refused an appoint- 
 ment to a position on the Supreme Court tendered 
 him by that official in 1871. He was a member of 
 the Constitutional Convention of 1875, and vigor- 
 ously opposed the provision in the constitution form- 
 ulated by that convention which provided for the 
 election of members of the Supreme Court, believing 
 that it would subject that tribunal to the baneful 
 influence of politics and corrupt politicians, and 
 thereafter voted against the adoption of the constitu- 
 tion for that reason. He was highly recommended to 
 Rutherford B. Hayes — who purloined the office of 
 President of the United States from Samuel J. 
 Tilden in 1875 — for appointment to the vacancy 
 upon the Supreme Court of the United States, 
 caused by the resignation of Justice Davis. In 1879 
 
The Supreme Court or Texas 115 
 
 he refused an appointment as member of the Com- 
 mission of Appeals tendered him by Governor 
 Eoberts. Judge Ballanger was one of the ablest 
 lawyers the Texas bar has known. 
 
 Peter W. Gray was born in Fredericksburg, Vir- 
 ginia, in 1819. His father removed to Texas in the 
 early days of its history. In 1837 young Gray per- 
 formed his first public service as Clerk of the House 
 of Representatives of the First Congress of the Re- 
 public. Thereafter, in 1841, he was elected district 
 attorney. In 1846 he served with distinction as a 
 member of the First Texas Legislature, his notable 
 achievement in that body being the formulation of 
 the Practice Act enacted at that session, of which it 
 was said: 1 "The profession and people of Texas 
 are more indebted to Peter W- Gray and R. T. 
 Wheeler for our present comparatively clear and 
 intelligible system of pleading and procedure, than, 
 perhaps, to any other persons. After the passage 
 of the act in 1840, adopting the common law but 
 rejecting its system of pleadings, owing to the un- 
 congenial marriage of two such repugnant systems 
 as the civil and common law, the profession of Texas 
 was left to struggle often with more difficulty as to 
 how to reach the merits of the matters in contro- 
 versy between the parties than to discuss and bring 
 them to a fair adjudication when fairly placed 
 before the court. In this state of outlawry of plead- 
 ing and procedure, there often occurred the most 
 annoying and ridiculous struggles .between bur 
 
 iT. J. Jennings. 
 
116 The Supreme Court or Texas 
 
 ablest lawyers. 1 . . . Our law of pleading re- 
 mained an this crude, unsettled, and uncertain con- 
 dition until the meeting of the first Legislature of 
 the State of Texas in February, 1846, when the dis- 
 tinguished gentleman (Peter W. Gray) brought 
 order out of chaos and light out of darkness by 
 preparing and causing to be passed our well known 
 Practice Act of 1846, which initiated and led to our 
 present system of pleading and procedure, which, I 
 think we may say, without undue partiality for 
 our own work, for the furtherance of justice (the 
 object of all law) is the most perfect among the 
 nations of the earth, old or young. In carrying out 
 this work which Gray initiated, Judge Wheeler bore 
 the most conspicious part, as all the earlier de- 
 cisions of our Supreme Court, on matters of plead- 
 
 i"The speaker called attention to several incidents, presenting- in a 
 striking manner these former combats. A suit was brought in the 
 district court of San Augustine County in favor of an administrator 
 de bonis non against his predecessor in office, calling him to account 
 for alleged misdeeds. Mr. Gould, for the plaintiff, had thrown to- 
 gether all the common counts of Chitty's Pleadings, and had stated 
 just facts enough to show what the plaintiff desired. R. T. Wheeler, 
 for defendant, interposed twenty-seven special exceptions to the peti- 
 tion, amounting altogether to the assertion that the matters complained 
 of in plaintiff's petition were not cognizable in a court of law, but in 
 a court of equity. After Judge Wheeler had made a very elaborate 
 argument in support of his exceptions, and the plaintiff's counsel had 
 responded by a solemn and impressive silence, and when the judge 
 had proceeded far enough in delivering his opinion to indicate that he 
 was about to sustain the exceptions, some one whispered to Gould, 
 'Say, why don't you tell him there that this is a court of equity, if 
 need be.' Mr. Gould arose, begged pardon of the court for the inter- 
 ruption, and said what had been suggested to him ; to which his honor 
 replied, 'Well, now, perhaps you are right, I hadn't thought of that;' 
 and arising to his feet said, 'Gentlemen, I will now take my seat upon 
 the wool-sack, and as chancellor, I overrule the defendant's excep- 
 tions.' " — Fortieth Texas, vi. 
 
The Supreme Court of Texas 117 
 
 ing and procedure delivered by him, will testify." 
 As district judge of the Houston district, Judge 
 Gray established the enviable reputation of being — 
 as was conceded by the best judge of judicial quali- 
 fications the State has ever known — "the very best 
 district judge that ever sat upon the district bench 
 in Texas." 1 This opinion was shared by many 
 able contemporaries, as well as those most dis- 
 tinguished justices of the "old court," Hemphill, 
 Wheeler and Lipscomb. No other judge connected 
 with the judiciary of Texas at any period of its his- 
 tory has received a like unqualified tribute to his 
 professional learning and acumen from the greatest 
 members of his enlightened profession. The death 
 of Judge Gray, which occurred at Houston, Texas, 
 October 3, 1874, marked the passing of one of the 
 most distinguished citizens and lawyers whose public 
 services have contributed to the growth and perfec- 
 tion of our State judiciary. 
 
 Robert Simonton Gould was born in Iredell Coun- 
 ty, North Carolina, on December 16, 1826. Left 
 fatherless at the age of seven years, his education 
 devolved upon his mother, whose self-sacrifices and 
 untiring labors were rewarded by the accomplish- 
 ment of that important duty under the most adverse 
 and trying circumstances incident to poverty. She 
 removed to Tuscaloosa, Alabama, with the view to 
 giving her son educational advantages afforded by 
 the University of Alabama, which he entered in his 
 fourteenth year, and from which he graduated in 
 1844. In the following year he studied law, but 
 
 iChief Justice Roberts. 
 
118 The Supreme Court or Texas 
 
 shortly afterwards became an instructor in mathe- 
 matics in the university, to the duties of which he 
 added the additional labors of a continuance of his 
 professional studies. In 1849 he was admitted to the 
 bar and engaged the practice of law at Macon, 
 Mississippi, in copartnership with Ex-Governor J. 
 L. Martin. In 1850 he settled at Centerville, Leon 
 County, Texas, where he engaged in the practice. 
 He was elected District Attorney of the Thirteenth 
 District in 1853, in which position he served two 
 terms, and thereafter resumed the practice of law. 
 He was a member of the Secession Convention in 
 1861, and was subsequently elected District Judge 
 of the Thirteenth District He resigned that office 
 in 1862 to enter the Confederate army as captain of 
 his company. Thereafter he became mag or of 
 Gould's Batallion. He participated in the battles 
 of Mansfield, Pleasant Hill, and Jenkins* Ferry, 
 and was wounded in the latter engagement. At the 
 close of the war he resumed the practice of law. 
 In 1866 he was re-elected Judge of the Thirteenth 
 District, and, in 1867, was removed from that office 
 by the military authorities as an "impediment to 
 reconstruction." He thereafter retired to a farm 
 where he remained for two years. In 1870 he located 
 in Galveston, where he resumed the practice. He 
 was esteemed by those who knew him as an ideal 
 citizen, a painstaking and fearless officer, a brave 
 soldier, eminent lawyer, profound judge, learned 
 teacher of the law, and a Christian gentleman. 1 The 
 latter days of his life were devoted to duties as 
 
 198 Texas, v, ri. 
 
The Supreme Court of Texas 119 
 
 law professor of the University of Texas, in con- 
 junction with Oran M. Roberts, senior professor in 
 that department. As an instructor he was most 
 painstaking and patient, but firm in exacting of 
 students a thorough study and understanding of the 
 principles of the law. Hundreds of students who 
 were so fortunate as to profit by his instruction 
 during the fifteen years of his service in the Uni- 
 versity, gratefully acknowledge his superior abil- 
 ities, and revere the memory of a most kindly 
 instructor whose interested labors contributed so 
 abundantly to their professional learning. 
 
 Two cases decided by this court are the ablest 
 expositions of the law Of mcmda/mus in its ap- 
 plication to the executive heads of State government 
 which have been formulated in the Supreme Court of 
 Texas. Containing a review and careful analysis 
 of leading authorities and precedents on the sub- 
 ject, they are interesting in the disclosure of the 
 strongest members of the court differing in their 
 views upon important questions involved in the 
 cases, and supporting their respective contentions by 
 able arguments and exhaustive reviews of numerous 
 authorities. 
 
 In Bledsoe vs. International & Great Northern 
 Railroad Company? Special Justice Ferris, follow- 
 ing the rule announced by Justice Roberts in Hous- 
 ton Tap & Brazoria Railroad Company vs. Ran- 
 dolph, 2 held that the countersigning of certain rail- 
 road bonds by the State Comptroller was not a 
 
 140 Texas, 537. 
 234 Texas, 317. 
 
120 The Supreme Court of Texas 
 
 clerical or ministerial duty, the performance of 
 which could be compelled by mandamus. Justices 
 Eeeves and Devine dissented from the majority 
 opinion, the former, among other grounds, because 
 the duty of the Comptroller in the instance case was 
 ministerial, involving the exercise of discretion 
 which could be compelled by mandamus; while the 
 latter based his dissent upon his conviction that no 
 power was vested in any branch of the executive 
 departments of State government to refuse or fail 
 to act in any case where the duty to be performed 
 was required by a plain, positive, peremptory con- 
 stitutional enactment. He asserted that the power 
 of the court to grant the writ of mandamus had 
 never been denied by the Supreme Court of Texas, 
 whenever the facts brought the particular case 
 within the letter and reason of the law, saving in 
 the one solitary case of Houston Tap Brazoria Bail- 
 road Company vs. Bcmdolph, which, in so far 
 as it declared the inability of the court to issue 
 the writ of mandamus to the heads of departments 
 or bureaus, he conceived to have been overruled by 
 the subsequent case of Houston & Great Northern 
 Bailroad Company vs. Commissioner of the General 
 Land Office. 1 
 
 In Kuechler vs. Wright, 2 the question in the pre- 
 ceding case was again involved. The majority opin- 
 ion rendered by Associate Justice Moore, holding 
 that mandamus would lie to compel the Commis- 
 sioner of the General Land Office to perform a 
 
 136 Texas, 399. 
 240 Texas, 610. 
 
The Supreme Court of Texas 121 
 
 mere ministerial duty and that so much of the 
 opinion of Justice Roberts in Houston Tap & Bra- 
 zoria Railroad Company vs. Randolph, as denied 
 the right of the court to issue writs of mandamus 
 to the heads of the executive departments of the 
 State government, was a decision of a point not 
 necessary to the disposal of the case, hut the sug- 
 gestion by the court in, the opinion of a matter which 
 had not been discussed by counsel; that if it could 
 be considered an authoritative decision upon that 
 point, it had been repudiated in several subse- 
 quent cases, including Houston & Great Northern 
 Railroad Company vs. Commissioner of the General 
 Land Office. 
 
 Those who may be interested in one of the ablest 
 opinions rendered by one of the greatest judges 
 of the Supreme Court of Texas, in combatting the 
 able opinions of his distinguished brother Justices, 
 will find it in the dissenting opinion of Chief Jus- 
 tice Roberts in the Keuchler case. For vigor, 
 clearness, strength, and masterly treatment of the 
 points involved, it is probably unequalled in the 
 history of our judiciary. 
 
 In this opinion Chief Justice Roberts announced 
 his inability to concur in the majority opinion, 
 for the following reasons : 
 
 "1. A mandamus cannot be legally issued to any 
 one of the heads of the executive department of the 
 State of Texas to compel him to exercise any power 
 in the performance of any official function confided 
 to him as such executive officer by the constitution 
 and laws of this State. 
 
 '2. That the issuing of the patent under the law 
 
 nt 
 
122 The Supreme Court of Texas 
 
 and facts as presented in this case is the exercise 
 of a power in the performance of such an official 
 function so confided to him. 
 
 "3. That the Commissioner of the General Land 
 Office, under and by virtue of the constitution of the 
 State of Texas adopted in 1869, and the laws of 
 the State consistent therewith, is one of the heads 
 of the executive department in the government of 
 the State of Texas." 
 
 Following a masterly review and convincing dis- 
 cussion of the authorities bearing upon the points at 
 issue, Justice Roberts concludes his opinion as 
 follows : 
 
 "The authority for the exercise of this power, 
 assumed by courts to control the conduct of the 
 heads of the executive department, in the isolated 
 and exceptional instance of what is called a minis- 
 terial act, however it may have since been extended 
 in many of the states, from a difference of opinion 
 as to what constitutes such an act, is founded on 
 and traceable to the dictum contained in the opinion 
 of the Supreme Court of limited States in 1803, in 
 the case of Marbury vs. Madison. It was delivered 
 by Chief Justice Marshall, who is universally re- 
 garded, it is so believed, as the greatest lawyer 
 America has produced. And that was emphatically 
 a lawyer's opinion. 
 
 "Why, it may be asked, should the courts con- 
 tinue to follow in the train of a line of decisions that 
 originated in a useless dictum that seeks to make 
 such an infinitesimal exception to a broad and gen- 
 eral rule, and thereby break down a general princi- 
 ple by a breach that opens the door of intrusion and 
 
The Supreme Court of Texas 123 
 
 gives the intruder the right to determine the extent 
 of his power to intrude through the breach he has 
 assumed himself to make; making an exception of 
 the exact limits and boundaries of which the ablest 
 jurists have never been able to convey a definite 
 idea with anything like consistency and uniformity, 
 which is liable at any time to produce internal con- 
 flict and confusion, and which has almost continually 
 been adopted with dissent and dissatisfaction? 
 
 "The circumstances and remarkable juncture of 
 public affairs under which that dictum appeared in 
 the opinion thrust themselves into the estimate of 
 its weight and authority, as no practical purpose 
 can be found in the opinion itself for so labored an 
 argument to prove what was not necessary to decide 
 the case. As to all that part of the opinion not re- 
 lating to the appellate jurisdiction of the court 
 (which was the real matter in issue), it is a most 
 ingenious argument, made gratutiously in a judicial 
 decision under the sanction of the highest judicial 
 tribunal of the country, thereby attempting to give 
 to it the sanctity of the judicial ermine — unassail- 
 able from habitual and traditional respect — to stand 
 in a high place as a' perpetual memorial of the as- 
 sumed outrageous abuse of official authority in the 
 alleged deprivation of a private right of a citizen 
 by the executive department of the government of 
 the United States, then in power. 
 
 "Mr. Madison, then secretary of state under Pres- 
 ident Jefferson, who stood pre-eminent among the 
 great men who framed the constitution, and who 
 may be supposed to have understood its meaning, 
 and to have designed its preservation equally with 
 
124 The Stjpbeme Couet op Texas 
 
 any one else, treated this effort on the part of the 
 court to interfere with his official conduct with — 
 silence (not to use a stronger term), in not answering 
 it. Still he was not attached for contempt for not 
 making a return to the writ or otherwise making an 
 answer in court; but instead of that, as appears 
 from the report of the case, some of the clerks of 
 the secretary's office were picked up and brought 
 into court, from whom, it may be presumed, the 
 facts were established upon which the argument in 
 that part of the opinion was founded. It was surely 
 not necessary to ascertain any fact whatever except 
 the application itself of the relator, Marbury, to 
 ascertain that it was an original suit and not an 
 appeal, upon which fact alone the case was based 
 and the judgment rendered. And I borrow from 
 him the reason why such an opinion so delivered 
 should not be followed as a precedent, which is con- 
 tained in the same opinion; that this is, or at least 
 should be made to be, what he says it has been 
 termed, 'a government of laws and not of men' ; and 
 I will presume to add that it is high time that the 
 judicial idolatry for a name, however great and 
 deserving, by which a dictum of any court has been 
 made the law of the land should begin to cease in 
 this country. 
 
 "I will close this opinion in the words of Sir 
 William Blackstone, equally eminent for his great 
 learning and for his profound knowledge of the sci- 
 ence of law and of government, as fully expressing 
 my own mature convictions as applicable to this and 
 to all such cases, which is that 'nothing is more to 
 be avoided in a free Constitution than uniting the 
 provinces of a judge and a minister of State.' " 
 
The Supeeme Court of Texas 125 
 
 The ease of Horbach vs. State, 1 decided by this 
 court, has been subjected to the unjust criticism of 
 being the cause of the acquittal of more murderers 
 in Texas than any decision rendered by its courts, in 
 its supposed approval of the "hip-pocket-movement" 
 type of self-defense, the popularity, growth and 
 perfection of which has been a reproach to a certain 
 class of lawyers, rather than to the courts of the 
 country. Whatever of lamentable consequences have 
 followed this decision are believed to have been due to 
 the improper application of the facts of that case to 
 others to which they were never intended to apply, 
 and to the erroneous conception or deliberate mis- 
 construction of the law as therein announced by the 
 learned Chief Justice who rendered the opinion in 
 the Horbach case. Briefly stated, the facts dis- 
 closed in the case were that one Thomas, who was 
 intoxicated, engaged in a controversy with persons 
 with whom he was drinking in a saloon as to whether 
 he owed for certain drinks which had been served to 
 the party, in the course of which the defendant, 
 Horbach, entered the saloon. Thereupon Thomas 
 asked Horbach if he (Thomas) owed for the drinks, 
 and upon being answered in the affirmative, began to 
 abuse Horbach by heaping upon h i m curses and 
 epithets of a grossly insulting, outrageous nature. 
 Horbach sought to pacify Thomas by agreeing with 
 him touching the matter of who owed for the drinks, 
 which but increased the anger of Thomas, who there- 
 upon called Horbach "a damned lying son of a ," 
 
 143 Texas, 346-247. 
 
126 The Supreme Court of Texas 
 
 at the same time gesticulating in a violent, angry- 
 manner. Horbach, after twice demanding of 
 Thomas what he meant, to which Thomas responded 
 by repeating the epithets and gesticulations, and, 
 finally, stepping back with his right foot, threw 
 his right hand behind him, pushing back the skirt 
 of his coat, when instantly Horbach presented his 
 pistol with both hands and, firing, shot Thomas 
 in the head, killing him. Upon examination of 
 Thomas' body no weapons were found upon it. 
 
 At the trial in the court below, Horbach 's counsel 
 sought to prove by questions to witnesses that 
 Thomas was in the habit of carrying deadly weap- 
 ons, and that Thomas, when intoxicated, was a 
 quarrelsome and dangerous man. Objections inter- 
 posed by the State to these questions were sustained 
 by the court. "With the exception of a ruling of the 
 trial court on a question of procedure in selecting 
 jurors, the only point involved on appeal and decided 
 by the Supreme Court in the case was, that under 
 the facts disclosed in the record, the trial court erred 
 in refusing to admit the evidence of Thomas' habit 
 of carrying arms and his dangerous disposition when 
 intoxicated — a ruling based upon an elementary 
 principle of criminal law, supported by an unbroken 
 line of decisions. The court, of course, did not in- 
 timate its opinion of the weight or sufficiency of 
 the proffered evidence as excusing or justifying the 
 defendant, Horbach, in taking the life of Thomas. 
 Upon the contrary, it expressly declared, "There is 
 no occasion here to give the least intimation of opin- 
 ion as to the weight of this evidence, as establishing 
 one conclusion or another in reference to the guilt or 
 
The Supreme Court of Texas 127 
 
 innocence of the defendant." It conclusively ap u 
 pears from the record of the case that it is in no 
 respect an authority indorsing or approving the 
 "hip-pocket-movement" theory of self-defense, the 
 modern refinement and popularity of which are due 
 to the methods of certain practitioners of the crim- 
 inal branch of the law, and not to the decisions of the 
 superior courts of the country. The facts in the 
 Horbach case are sufficiently harrowing to the aver- 
 age juror's sense of fairness and justice to place his 
 mind in a receptive attitude to the justice and po- 
 tency of the "hip-pocket-movement" self-defense 
 plea, a fact which has not escaped a class of prac- 
 titioners which has profited by it from time to time. 1 
 It is, perhaps, necessary to state in this connection 
 that the foregoing is not intended as a denial of the 
 soundness or a criticism of the well-known rule of 
 criminal law, that one who actually believes his life 
 to be endangered by the action of his adversary is 
 justified in acting upon a state of facts reasonably 
 indicating the present purpose of such adversary 
 to take his life, regardless of whether such was the 
 real intention of his assailant. 
 
 On September 2, 1875, Associate Justice Devine 
 resigned, and on September 6th, 1875, the vacancy 
 was filled by the appointment of John Ireland. 
 
 John Ireland was born in Hart County, Kentucky, 
 January 21, 1827. He was educated in the common 
 schools of his native State. In 1847 he served as 
 
 illlustrative of this was the attempt of counsel, in a ease tried in 
 Western Texas, to read the Horbach case to the jury, and, upon being 
 stopped by the court, naively observed, "Then, your honor, I will read 
 it to the court in the hearing' of the jury !" 
 
128 The Supreme Court of Texas 
 
 deputy sheriff and constable, respectively, in Hart 
 County. He studied law in the office of Robert D. 
 Murray and Henry D. Wood, at Mumford, Ken- 
 tucky, and was admitted to the bar the year follow- 
 ing. In 1853 he removed to Texas, locating at San 
 Antonio, where he formed a partnership with N. O. 
 Green, and engaged in the practice of law for a 
 short time, when he removed to Seguin, Guadalupe 
 County, which became his permanent home. At the 
 outbreak of the Civil "War he volunteered as a pri- 
 vate soldier in the army of the Confederacy, being - 
 promoted successively to the ranks of lieutenant, 
 captain, major, and lieutenant-colonel. He was a 
 member of the Constitutional Convention of 1861, 
 as also a member of the Constitutional Convention 
 of 1866. He was thereafter elected to the office 
 of District Judge, but, in 1867, was removed from 
 office by the military authorities as an "impediment 
 to reconstruction." In 1873 he was elected Repre- 
 sentative in the Thirteenth Legislature, and was 
 thereafter elected State Senator, and served in the 
 Fourteenth Legislature. In 1882 he was elected 
 Governor of Texas, his administration of the du- 
 ties of that office being characterized by firmness 
 and efficiency unexcelled by any chief executive who 
 has held that position. During his administration 
 serious disorders and violent conflicts arose over the 
 "free grass" issue, through the insistence of many 
 misguided citizens that it was their lawful right to 
 pasture their stock upon lands of the State and priv- 
 ate owners without making compensation for the use 
 of them; while numerous bands of fence-cutters 
 openly defied the right of such owners to fence their 
 
The Supreme Court or Texas 129 
 
 property, and the power of constituted authorities to 
 prevent the lawless destruction of such fences. Gov- 
 ernor Ireland's fearless enforcement of the laws for 
 the protection of property rights effectually sup- 
 pressed the activities of those politically powerful 
 offenders. When, during his term of office, the 
 United States government proved remiss in properly 
 protecting the frontiers of Texas from lawless forays 
 of Mexican thieves and bandits, he declared his 
 intention of suppressing them by the employment 
 of Texas troops, which he would have accomplished 
 but for a change in the Federal administration which 
 made that course unnecessary. It is creditable to the 
 people of Texas that Governor Ireland, although 
 opposed by powerful factions, whose lawlessness he 
 had so vigorously and successfully opposed in the 
 enforcement of law and order, was re-elected to 
 the office of Governor by a majority of over 100,000 
 votes. He was a man of unimpeachable honor and 
 integrity of character, unequalled courage, firm in 
 his convictions, austere and dignified in bearing, 
 and unswerving in his devotion to law and justice, 
 regardless of consequences. "As a friend he was 
 as true as steel and as gentle as a woman." 1 
 
 The Constitution of 1876 reduced the number of 
 justices of the Supreme Court to three, and, at the 
 ensuing election held thereunder, Oran M. Roberts 
 was elected Chief Justice, and George F. Moore 
 and Robert S. Gould, Associate Justices. 
 
 In Yancy vs. Batte, 2 in an opinion rendered by 
 
 iJustiee Denman, 
 248 Texas, 46. 
 
130 The Supreme Court of Texas 
 
 Associate Justice Gould, it was held that where a 
 husband and wife acquired certain lands which were 
 community property, and which were conveyed by 
 the husband to a purchaser after the death of the 
 wife, that the heirs of the wife, after the death of 
 the husband, could recover one-half of such lands 
 from the vendee of the husband, who was inno- 
 cent purchaser for value without notice of the claim 
 of heirs. Associate Justice Mbore rendered a strong 
 dissenting opinion in the case in which he ably 
 presented the contrary view to that expressed in 
 the majority opinion. 
 
 "When the opinion of the court affirming the 
 judgment of the District Court in this case was 
 read," says Justice Moore, "I made an oral state- 
 ment of some of the grounds of my dissent from 
 this judgment. In doing so, I had occasion to say 
 that, in my opinion, there probably existed in the 
 minds of my brethren, as well as that of many mem- 
 bers of the bar, a misconception of the points hereto- 
 fore decided by this court in this class of cases. That 
 it could not, as I thought, be justly said the court 
 had, or in fact had ever, attempted to settle the 
 general and fundamental principles by which con- 
 troversies between heirs of the deceased wife and 
 purchasers from the surviving husband, of commu- 
 nity property, were to be determined. That the 
 cases which were supposed to have done so, were 
 decisions of the particular phase of the question 
 suggested by the record, or most prominently pre- 
 sented by the counsel for both parties. That while 
 in several of the cases the power of the surviving 
 husband to sell community property for the pay- 
 
The Supreme Court of Texas 131 
 
 ment of debts with which it was properly charge- 
 able was fully recognized, — which principle, if prop- 
 erly applicable to the facts shown in this case, should 
 lead to its reversal, — still there were other questions 
 of equal or greater importance for the determina- 
 tion of the court in such controversies, which, as I 
 thought, were still undetermined; or, if determined, 
 this had certainly not been done 'on solemn argu- 
 ment and mature deliberation.' 1 And therefore, we 
 were not bound to adhere to and follow such de- 
 cisions, if, on examination, they proved to be un- 
 sound, as well as contrary to public policy, and ab- 
 solutely ruinous to the best interests of society in 
 general." 
 
 He insisted that the character of the wife's inter- 
 est in the community property was an equitable in- 
 terest ; that this right was subordinate to that of the 
 executor or administrator, and that so must be that 
 of the heirs of the wife to the proper and necessary 
 appropriation of it by the surviving husband to 
 the payment of debts with which it was chargeable; 
 the heirs being only entitled to an interest in the re- 
 mainder of the community property after the pay- 
 ment of all liabilities against it. As heirs could not 
 demand any part of community property from the 
 surviving husband until the debts with which it was 
 chargeable were paid, that in a suit by the heirs of 
 the wife against the purchaser of such property from 
 the surviving husband, the burden should devolve 
 on them to prove their right to the property claimed 
 by them. He further contended that if the pur- 
 
 iKent's Camm, 476. 
 
132 The Supreme Court op Texas 
 
 chaser from the husband did not get the legal title, 
 if he could establish that he was a purchaser for 
 value from a person having or apparently holding 
 the legal title, and having authority to sell without 
 notice of the rights of the heirs of the wife, his 
 equity would be superior to that of the heirs, and 
 they could not recover. After reviewing the au- 
 thorities supporting the majority opinion, Justice 
 Moore continues : 
 
 "Having gone through the cases cited and relied 
 by the court, I ask, with all due respect, in which 
 of them have the points upon which we differ been 
 decided? In what case, by any just rule of con- 
 struction, can it be said that the question, whether 
 the wife acquires by reason of the law of community, 
 the legal title by a deed to the husband, has been 
 presented in the record, argued by counsel, or con- 
 sidered and decided by the court? It has, unques- 
 tionably, been repeatedly held that the surviving 
 husband has power to settle up the community, ad- 
 just and discharge its liabilities. His power to sell 
 property to pay valid claims against it is fully recog- 
 nized in this case, and in Johnson vs. Harrison. 1 But 
 when and where has it been said that the purchaser 
 must be prepared to sustain his title by proofs that 
 there were such debts ? Which of these cases deter- 
 mines that a purchaser in good faith, for a valuable 
 consideration, from one holding the legal title, or 
 the apparent legal title, with no knowledge or op- 
 portunity of learning that any other persons claim 
 an interest in the land, is not entitled to protection 
 
 148 Texas, 257. 
 
The Supreme Court or Texas 133 
 
 against the heirs of the wife, whether they are adults 
 or minors? ... I certainly would not lightly 
 disturb a line of decisions, or even a single well- 
 considered case which has become a rule of property. 
 But if it is the duty of this court to follow precedents 
 and respect decisions, it is frequently equally neces- 
 sary to examine them without fear, and revise them 
 without reluctance. If the cases referred to have 
 gone to the extent thought by the court, they have 
 not, and from their very nature can not, become a 
 rule of property, but must continue, so long as the 
 court is controlled by them, to unsettle it. They will 
 be a source of continued disturbance to society, and 
 lead to the stirring up of strife and litigation, over 
 stale and long-forgotten transactions, after the 
 parties by whom they should have been settled have 
 passed away, and after the property involved has 
 passed through many different hands, who know 
 nothing of the facts and circumstances connected 
 with them, and who have no opportunity of learning 
 the truth in relation to them. They can but be foun- 
 tains of fraud and perjury, poisoning the minds of 
 children, inculcating lessons of selfish distrust and 
 disrespect, in place of reverence, filial affection, and 
 domestic harmony. Such a train of decisions, when 
 fully approved by this court, must cast a cloud upon 
 almost every title to land in the State, and when gen- 
 erally known reduce the value of real estate, em- 
 barrass its transfer, obstruct settlement, retard im- 
 provement, drive away emigration, alarm capital, 
 and produce general uneasiness and disquiet, with 
 all the attendant evils and consequences resulting 
 where men are made to feel insecure in their prop- 
 
134 The Supreme Cotibt or Texas 
 
 erty and homes. That such must be the general 
 effect cannot be controverted. With the most dil- 
 igent inquiry and examination that is practically 
 possible, the most patient attorney, when called upon 
 to examine a title, will be unable to say, in one in- 
 stance out of ten, that it is unquestionably perfect, 
 or advise a client that he may purchase without dan- 
 ger that he may not at any moment find himself 
 involved in a suit for one-half the land with people 
 of whom he has never heard, though he has the very 
 title in his hand which, the court hold, gives the 
 parties suing him the legal title to half the land. It 
 is practically impossible, by any reasonable inquiry, 
 for the most prudent purchaser to learn the domes- 
 tic relations of every party through whom land has 
 passed. If possible, it would be quite difficult to 
 do this if all such parties resided in the immediate 
 vicinity of the land. But when it is remembered 
 that many of them may have lived in widely differ- 
 ent localities, it evidently would be a vain under- 
 taking. And what prudent man would buy land 
 if he knew that he could be called upon at any time 
 during the next twenty or thirty years if any one of 
 the parties through whom his title comes was mar- 
 ried when he purchased, but a widower when he sold 
 it, to show that there were debts against the com- 
 munity estate of such vendor and his former wife 
 when he sold the land ; that such sale was made with 
 the honest purpose of paying these debts, and that 
 the vendor had justly accounted to his wife's chil- 
 dren for all their interest in the community estate? 
 Such suits as these have certainly never been re- 
 garded with any peculiar favor by the courts, and 
 
The Supreme Court or Texas 135 
 
 are not to be encouraged. They have, indeed, been 
 reprobated in the strongest terms in this and other 
 courts, and are not to be encouraged. Much too of- 
 ten there is found in the record strong ground for 
 suspecting that the heirs of the wife are used by 
 others as instrumentalities in branding their father 
 with fraud, to enable such parties to make an in- 
 iquitous and unconscionable speculation out of a 
 party who has been entrapped into the purchase of 
 a defective title. The record in this case exhibits 
 strong suspicion that such is the character and ob- 
 ject of this suit. I have not time to comment upon 
 the facts; but the statement by the reporter will no 
 doubt set them out sufficiently full for this phase 
 of the case to be properly understood and appreci- 
 ated. ... As there was nothing in the record 
 or elsewhere to put the purchaser on notice of the 
 title of the heirs, the case is not similar to that of 
 the heirs of party holding by deed. True, the title 
 of the heir in such case may not be registered, yet 
 the party in whom the record shows title being dead, 
 a subsequent purchaser cannot be deceived. Here 
 the party to whom the conveyance was made still 
 holds the deed, and sells the land. Should not equity, 
 under such circumstances, aid a bona fide purchaser 
 against the heir, not of the party to whom the land 
 was conveyed, but the heir of another party whose 
 interest is not shown by the record or suggested by 
 the chain of title exhibited to the purchaser?" 
 
 In Texas Land Company vs. Williams, 1 Chief Jus- 
 tice Roberts gives a working model for the guidance 
 
 148 Texas, 602. 
 
136 The Supreme Court of Texas 
 
 of the legal profession in the preparation of briefs, 
 under then existing rules of the Supreme Court, 
 which from its publication to the present time has 
 been a valuable aid to lawyers in the important work 
 of briefing causes in the superior courts. 
 
 Chief Justice Roberts resigned in 1878, and Asso- 
 ciate Justice Moore, who had resigned August 27, 
 1878, to take effect October 1, 1878, was elected Chief 
 Justice November 5, 1878; and at the same election 
 Micajah H. Bonner was elected Associate Justice. 
 Chief Justice Roberts having resigned prior to the 
 Tyler term, 1878, George F. Moore and Micajah H. 
 Bonner acted as Chief Justice and Associate Justice, 
 respectively, under appointment of the Governor 
 during the Tyler term, 1878, and a portion of the 
 Galveston term, 1879. 
 
 Micajah H. Bonner was born in Greenville, But- 
 ler County, Alabama, on the 25th of January, 1828. 
 In 1836 his family removed to Holmes County, Mis- 
 sissippi, where he was educated in the common 
 schools of that State, finishing with an irregular 
 course in La Grange College, Kentucky. He was 
 admitted to the bar on the 5th of December, 1848, 
 and removed to Texas in 1849, settling at Marshall, 
 where he engaged in practising law in an office "built 
 by his own hands." Thereafter he removed to 
 Rusk, where he formed a law partnership with J. 
 Pinckney Henderson, then a leading member of the 
 Texas bar, a business relation which continued until 
 the election of Mr. Henderson to Congress, when 
 Mr. Bonner associated himself dn the practice with 
 his brother, F. W. Bonner. In 1873 he was appointed 
 District Judge of the Seventeenth District, and re- 
 
The Supreme Court of Texas 137 
 
 moved to Tyler. At the expiration of his term he 
 was reappointed by Governor Coke, and continued 
 to preside over that court until the adoption of the 
 Constitution of 1876. As District Judge he was able, 
 effiicent and noted for the rapid and accurate dis- 
 charge of the business of his court. His popularity 
 with members of the bar with whom he was associ- 
 ated in the practice is shown in the circumstance that 
 he was unanimously recommended by them to the 
 Governor for appointment as judge of a district in 
 which he did not reside. He is described as a judge 
 who brought to the Supreme Bench a well trained 
 mind and great experience as judge of another 
 tribunal ; a diligent worker in his profession, as well 
 as in the judicial positions which he filled; and a 
 close investigator of the true doctrines of law and 
 equity, whose opinions exhibited careful examina- 
 tion of record. 1 
 
 In Ex-Parte Towles 2 there is an interesting dis- 
 cussion in the majority opinion, and the dissenting 
 opinion by Justice Gould, of the constitutionality 
 of an act conferring jurisdiction upon Distract 
 Courts of appeals from County Courts in con- 
 tested county seat election cases. 3 In the majority 
 opinion it was held that the Constitution of 1876 
 did not confer upon District Courts the power to 
 entertain appeals prescribed by the act ; that the pro- 
 ceedings were wanting in all the attributes of a case 
 or suit cognizable in the District Court, having 
 neither the parties nor subject matter necessary to 
 
 iChief Justice H. H. Willie. 
 
 248 Texas, 413. 
 
 a Acts 2nd session 14th Leg., p. 89. 
 
138 The Supreme Court op Texas 
 
 its jurisdiction as prescribed by the Constitution; 
 and that so much of the act as gave the right of ap- 
 peal to the District Court in such cases was incap- 
 able of being executed in accordance with the appar- 
 ent legislative intention. Justice Gould dissented 
 from so much of the opinion of the majority as held 
 that the statute, which gave to any legal voter of 
 the county the right to contest the result of the elec- 
 tion in the District Court, was unconstitutional, for 
 the reason that he regarded such decision as sub- 
 stantially overruling former decisions of the court 
 on the subject of contested elections, and because the 
 constitutional questions involved were of such im- 
 portance as to justify the fullest examination. 
 
 In Peck vs. San Antonio 1 the court in an opinion 
 rendered by Justice Bonner, overruled the case of 
 San Antonio vs. Lane, 2 which held that the twelfth 
 section of an act incorporating the San Antonio & 
 Mexican Gulf Railroad Company, constitutional, be- 
 cause the court as then organized was not author- 
 ized by the Constitution and laws of the State. 
 "With all due respect to the members who com- 
 posed the same as individuals," says the court, 
 "their decisions have not received the same author- 
 itative sanction given those of the court as regularly 
 constituted." This expression of a lack of confi- 
 dence in the soundness of decisions of the "military" 
 Supreme Court is one of several similar criticisms 
 of it indulged by the court as subsequently organ- 
 ized, in its work of annulling partisan, erroneous de- 
 cisions of the "semicolon court." 
 
 151 Texas, 493. 
 232 Texas, 405. 
 
The Supreme Court of Texas 139 
 
 The Act of July 9, 1879, 1 creating a commission 
 of arbitration and award was the beginning of sev- 
 eral ill-starred attempts to relieve the Supreme 
 Court of Texas of the great and increasing burden 
 of business, which is today as great a problem as it 
 was in the beginning, and which is now claiming 
 the attention of judicial reformers in and out of the 
 legal profession. The act provided for a commission 
 of arbitration and award to consist of three persons 
 learned in the law, to be appointed by the Governor, 
 who should hold their offices for two years and re- 
 ceive the same salary as Judges of the Supreme 
 Court, the name of which should be the "Commis- 
 sioners of Appeals of the State of Texas." It was 
 given power to hear and pronounce awards in civil 
 cases then or thereafter pending in the Supreme 
 Court or the Court of Appeals, in which the parties 
 or their attorneys might file consent in writing to 
 the reference thereof to the commission. The com- 
 mission was required to hold its sessions at the same 
 times and places as the Supreme Court, and to re- 
 port its conclusions or award to the Supreme Court 
 or Court of Appeals in cases referred to it, with a 
 brief synopsis of the case and its opinion thereon. It 
 was provided that its conclusion or award should be- 
 come the judgment of the Supreme Court or the 
 Court of Appeals, respectively, and that such courts 
 should make and render such further order, judg- 
 ment or decree there as should be necessary to make 
 the award effective. It was further provided that the 
 opinions of the commission should not be published 
 
 lActs of 16th Leg., p. 30. 
 
140 The Supreme Court of Texas 
 
 in the reports of the decisions of the Supreme Court 
 nor of the Court of Appeals, nor should have any 
 further effect than to determine the particular cause 
 when rendered, and should have no force or effect as 
 authority or precedents in other cases. 
 
 It is noted that the foregoing act was amended 
 four times in apparently vain efforts to make it ef- 
 ficient in the accomplishment of the purpose of its 
 creation — the relief of the overworked Judges of the 
 Supreme Court in disposing of the vast amount of 
 business encumbering the docket of that tribunal. 1 
 
 In Henderson vs. Beaton 2 the court passed upon 
 the constitutionality of the act creating the com- 
 mission above mentioned and, in an opinion ren- 
 dered by Justice Gould, held that the commission was 
 not a court, had no jurisdiction, was merely a board 
 of arbitration, and deprived no citizen against his 
 will, of the right to his appeal to courts of last re- 
 sort created by the Constitution, and as such was not 
 created in violation of its judiciary clause providing 
 that "the judicial power of the State shall be vested 
 in one Supreme Court and in a Court of Appeals" 
 and subordinate courts therein provided for. No 
 more significance was attached by the opinion to the 
 provision of the law making the award of the com- 
 mission the judgment of the court in which the cause 
 was pending, than to the similar provision in the 
 general statute authorizing the entry of the award 
 of arbitrators therein provided for as the judgment 
 of courts. 
 
 lActs of 17th Leg., p. 4; 20th Leg., p. 74; 31st Leg., p. 49; 22Dd 
 Leg., p. 78. 
 252 Texas, 29. 
 
The Stjpreme Court of Texas 141 
 
 Chief Justice Moore, in the course of an able dis- 
 senting opinion in the case, says: 
 
 "Although the majority of the court deny that 
 such is its proper construction, still, since, as I in- 
 sist, the legal effect of this act, if a valid and con- 
 stitutional law, is to create a court, and some of its 
 advocates maintain its validity upon this ground, 
 it is proper that I should consider it in this light. 
 The length to which this opinion has been already 
 protracted will forbid any attempt to elaborate my 
 views regarding it from this standpoint. I conceive 
 that the Legislature may create other courts than 
 those named in the Constitution, and they need not 
 necessarily be inferior courts, as under the Con- 
 stitution of 1845. . . . But, in my view, the 
 jurisdiction of such courts as may be created by the 
 Legislature must not touch upon or interfere with 
 that conferred by the Constitution on the courts 
 established by that instrument. I have heard it in- 
 sisted upon by some, that the entire judicial power 
 is apportioned by the Constitution among the dif- 
 ferent courts named in it, and therefore to say that 
 none of this jurisdiction can be conferred on courts 
 established by the Legislature, is in effect to deny 
 the Legislature the power to create other courts. 
 But unfortunately such is not the case. If it was, 
 the judicial organization of the State would be far 
 more complete, if not more satisfactory, than it is 
 . . . But if I concede that the Legislature may 
 confer upon courts created by it concurrent juris- 
 diction with the constitutional courts, this can only 
 be when exclusive jurisdiction has not been, ex- 
 pressly or by clear implication, conferred on the 
 
142 The Sttpkeme Cottkt or Texas 
 
 constitutional court. That the jurisdiction vested 
 by the Constitution in the Supreme Court is ex- 
 clusive, and cannot be conferred upon or exercised 
 by any other constitutional or legislative tribunal, 
 without a violation of the organic law, seems to me 
 to be plain beyond all doubt or question. True, the 
 Constitution does not in direct words say that there 
 shall be but one, or only one Supreme Court, or that 
 the jurisdiction conferred upon it shall be exer- 
 cised by no other court; but this is certainly its 
 meaning. To more certainly attain the ends of 
 justice, the exercise of judicial power by our Con- 
 stitution, as is perhaps now universally the case 
 in the American system of government, is committed 
 to courts of original and courts of appellate juris- 
 diction. Certainly one of the great and essential 
 objects and ends of appellate jurisdiction is to se- 
 cure harmony and uniformity in decision through- 
 out the State, and that the law shall be interpreted 
 and construed alike in every part of it, and between 
 all parties who invoke its aid and protection. This 
 could not be if there were more than one appellate 
 court of last resort for the decision of the same 
 class of cases. . . . But if I am not correct in 
 this conclusion, still there are other ^insurmountable 
 objections to the constitutionality of this act. It 
 not only, as I think, interferes with the exclusive 
 constitutional jurisdiction of the Supreme Court, 
 but it also requires of it the exercise of functions 
 not conferred upon it, but, indeed, expressly with- 
 held from it, by the Constitution, and inconsistent 
 with its duty and dignity as the court of last resort 
 in the State in civil cases. The first sentence of 
 
The Supreme Court of Texas 143 
 
 Section 3, Article 5, of the Constitution reads as 
 follows: 'The Supreme Court shall have appellate 
 jurisdiction only, which shall be coextensive with the 
 limits of the State, but shall only extend to civil 
 cases, of which the district courts have original or 
 appellate jurisdiction.' Jurisdiction is said to be 
 the power to hear and determine a cause; an ap- 
 pellate jurisdiction, with us, is to hear and deter- 
 mine whether there is error in the judgment, and 
 if so, to give judgment as the law and facts warrant 
 and demand. It certainly follows that the mere 
 entry of a judgment of some other tribunal, without 
 hearing or determining the cause or question to be 
 decided, or having authority or discretion in entering 
 such judgment, is not the exercise of jurisdiction, 
 but the mere discharge of a ministerial duty. It 
 matters not whether the commission of appeals is a 
 court or a board of arbitrators. Whether their re- 
 port is regarded as a judgment of a court or an 
 award arbitration, the entry of its judgment or 
 award cannot be regarded as the exercise of ap- 
 pellate jurisdiction by the Supreme Court, but the 
 performance of a simple ministerial duty imposed 
 by the statute without authority and in violation of 
 the Constitution." 
 
 By an act approved February 9, 1881, 1 the law 
 creating the commission of arbitration was amended, 
 providing that the commission should be styled, 
 "The Commission of Appeals of the State of Texas," 
 and authorizing and empowering the Supreme 
 Court, and the Court of Appeals to refer civil cases 
 
 iGeneral Laws 17th Leg-., p. 4. 
 
144 The Supreme Cotjbt of Texas 
 
 to the commission for its decision; and providing 
 that its opinions in cases so referred, when adopted 
 by those courts, should be published "as the opin- 
 ions thereof as in other cases." 
 
 The case of Stone vs. Brown 1 was the first re- 
 turned to the Supreme Court by the commission 
 after the amendment became effective, and the con- 
 stitutionality of the act, as amended, was again con- 
 sidered by the court and upheld. 
 
 Chief Justice Moore again dissented, and, in his 
 opinion, says: 
 
 "I have no doubt that the Legislature, if it deems 
 it wise and proper to do so, has the constitutional 
 authority to enact a law authorizing the Supreme 
 Court to refer cases pending before it to a commis- 
 sion, to examine and report to it the matters of 
 fact and law which they involve, where the court 
 is in no way hampered or attempted to be em- 
 barrassed or controlled in the full and free exer- 
 cise of its judgement in their determination; but 
 at the same time must say, that in my opinion the 
 provisions of the act of February 9, 1881, prev- 
 iously mentioned, under which this case was re- 
 ferred to the commissioners of appeals, were un- 
 constitutionally enacted." 
 
 In Milliken vs. City Council of Weatherford* 
 there is a commendable, humane recognition of 
 rights of scarlet women, in which Pharisees who ha- 
 bitually disregard the divine precedent announced 
 by Jesus of Nazareth, may learn that degraded and 
 
 154 Texas, 330. 
 254 Texas, 3S8. 
 
The Supreme Court of Texas 145 
 
 defenseless victims of their inhuman, fanatical per- 
 secutions sometimes enjoy the protection of the 
 laws of man as well as those of a just and merciful 
 God. 
 
 "The appellant was charged with a violation of 
 Section 2 (ordinance of the city of Weatherford)," 
 says the court, "by renting certain premises to 
 prostitutes and lewd women. It will be observed 
 that this section prohibits merely the renting, etc., 
 of any place or premises within the city limits, 
 without reference to the purposes for which the 
 property may be used. Although we most heartily 
 approve the desire of the city council that dens and 
 haunts of prostitution, 'going down to the cham- 
 bers of death,' shall be prohibited and suppressed; 
 and that their inmates shall not be permitted to 
 ply their nefarious traffic in the property, reputa- 
 tion and souls of fellow beings, within the limits of 
 the city, yet we are of opinion that the alleged 
 offense did not embrace such act which the coun- 
 cil, under our Constitution and laws, had the power 
 to make penal. The unfortunate and degraded class 
 against whom the ordinance was mainly intended, 
 however far they may have fallen beneath the true 
 mission of women, which it is one of our highest 
 duties to foster and protect in social and domestic 
 life, are still human beings, entitled to shelter and 
 the protection of the law; and the council did not 
 have the power to so far proscribe them as a class, 
 as to make it a penal offense in any one to rent 
 them a habitation without regard to its use. Such 
 ordinance is null and void, because unreasonable 
 and in controvention of common right." 
 
146 The Supreme Court of Texas 
 
 The case of So Belle vs. Western Union Telegraph 
 Company, 1 was the first to announce the rule that 
 mental anguish is actual damage, recoverable for 
 negligent failure of a telegraph company to deliver 
 messages announcing the death of relatives of the 
 addressee, where no other actual damage resulted 
 from such negligence. 
 
 On November 1, 1881, Chief Justice Moore re- 
 signed, failing eyesight rendering it impossible for 
 him to further discharge the duties of his office. 
 As noted by the reporter in two volumes of reports 2 
 preceding the resignation, Justice Moore was ser- 
 iously afflicted during the latter part of the Gal- 
 veston, Austin, and Tyler terms, in 1879, and Gal- 
 veston Term, 1880; the condition of his eyes pre- 
 venting him from writing opinions, but he rendered 
 many oral opinions in cases not required by the 
 statute to be in writing. His poignant grief at 
 being compelled to sever his connection with the 
 august tribunal which had so long been the scene 
 of his efficient judicial labors, and which he loved 
 so well, was scarcely less distressing than the sad 
 affliction presaging permanent blindness. 
 
 On November 1, 1881, Associate Justice Gould 
 was appointed Chief Justice, and, on November 2, 
 1881, John W. Stayton was appointed Associate 
 Justice to supply the vacancy caused by the pro- 
 motion of Justice Gould. 
 
 John William Stayton was born in Washington 
 County, Kentucky, December 24, 1831. Left father- 
 
 155 Texas, 308. 
 
 251 and 53 Texas Keports. 
 
The Supreme Court of Texas 147 
 
 less at the age of four years, his family removed to 
 Paducah, where his mother hoped to give him the 
 best education afforded by the common schools of 
 that prosperous community, but her death, in 1834, 
 prevented the fulfillment of that cherished desire. 
 After the death of his mother, young Stayton was 
 employed for four years as a laborer on his grand- 
 father's farm. His ambition to secure a college 
 education was opposed and discouraged by his 
 guardian, to whose wishes he dutifully conformed, 
 but left the farm to engage in the blacksmith trade. 
 His earnings in that employment enabled him to 
 pursue a private course of study; and thereafter 
 he secured employment as teacher of a country 
 school. At this period he began the study of law, 
 under written instructions supplied him by his 
 uncle, Judge Henry Pirtle, of Louisville, Kentucky. 
 In 1855 Mr. Stayton entered the law department 
 of Louisville University, thereafter graduating with 
 honors from that institution. In November, 1856, 
 he removed to Texas, locating at La Grange, Fay- 
 ette County. Pecuniary losses and ill health neces- 
 sitated his removal to Atascosa County, then prac- 
 tically an unsettled wilderness. In 1856 he settled at 
 Pleasanton, county seat of that county, where he 
 engaged in blacksmithing and practising law, and 
 was successful in both. In the autumn of 1858 he 
 was elected district attorney, and in 1860 was re- 
 elected to that office, in which he served with dis- 
 tinction. At the expiration of his term of office 
 he removed to Sutherland Springs, Wilson County. 
 In 1862 he enlisted in the Confederate army as a 
 private soldier in Lewis Maverick's company, but 
 
148 The Supreme Court op Texas 
 
 later organized a cavalry company which he com- 
 manded until the close of the Civil War. There- 
 after he located at Clinton, DeWitt County, where 
 he secured employment as school teacher. In 1866 
 he formed a law partnership with Samuel C. Lackey, 
 which became a leading and successful firm. In 
 1871, Major A. H. Phillips, of Victoria, became a 
 member of the firm, when Mr. Stayton removed to 
 that city, which became his permanent home. In 
 1884, being earnestly solicited by citizens of his 
 congressional district to offer for Congress, he 
 was inclined to comply with their request until pe- 
 titioned by a number of the leading lawyers of 
 Texas to retain his position upon the Supreme Court, 
 which he did out of deference to their wishes. 
 
 In the lives of few public men is there a more 
 pathetic and heroic example of successfully over- 
 coming apparently unsurmountable obstacles to the 
 achievement of a cherished ambition, than that ex- 
 hibited by Justice Stayton in his seemingly hopeless 
 struggle against conditions sufficiently discouraging 
 to appall the stoutest heart; while the simple, yet 
 semi-tragic, story of his privations and crowning 
 success, exemplify the truth of Cardinal Eichelieu's 
 noted expression, "In the bright lexicon which youth 
 reserves for age — there's no such word as fail!" In 
 physique, temperament, intuitive sense of justice, 
 and superior intellectuality, he markedly resembled 
 that greatest American jurist, Chief Justice Mar- 
 shall of the Supreme Court of the U/nited States. 
 
 "When called to the Supreme Court of Texas," 
 says the Texas Bar Association, 1 "he came unher- 
 
 187 Texas, vi. 
 
The Supreme Court of Texas 149 
 
 aided, and to many of the profession, unknown, 1 
 but it was soon made manifest that there had come 
 from a quiet country town a lawyer in deed and in 
 truth, and day by day and year by year, he grew 
 and strengthened in the esteem of and the affection 
 of the bar and people; and when he reached the 
 exalted position in which death found him, all men 
 knew that it had never been more worthily filled, 
 and that never had the ermine fallen upon one more 
 fit to wear it, nor who would more nobly sustain 
 that lofty standard of judicial ability and integrity 
 which for nearly fifty years has characterized the 
 Supreme Court of Texas. . . . Behind the 
 lawyer and the judge was, if possible, the more 
 admirable man. Calm, self-possessed, forcible, dig- 
 nified, yet never austere, 'he stood four square to 
 every wind that blew,' with an integrity so lofty 
 and personal and official purity so spotless, that 
 truth could not, and malice dare not assail him. 
 The same courage, ability, and persistency which 
 lifted him from obscurity and poverty to exalted 
 position marked his whole career, and in every field 
 of endeavor he was the same brave, earnest man." 
 The appointment of Justice Stayton was entirely 
 unsolicited, while the telegram tendering him the 
 office was as much of a surprise to him as to lawyers 
 
 iWhen the announcement was made that John Stayton had been ap- 
 pointed Associate Justice of the Supreme Court, few lawyers and still 
 fewer non-professional citizens had ever heard of him — for Stayton 
 was essentially a lawyer, and not a politician — the frequent inquiry 
 being, "Who is he?" When this question was asked Governor Rob- 
 erts, who made the appointment, he replied, "You do not know him 
 now, but when he serves on the court a while, you will know T»tti | 
 without the necessity of an introduction." 
 
150 The Supeeme Cotjrt of Texas 
 
 and politicians of the State who had never heard 
 his name. "The chief executive who made the ap- 
 pointment," says a distinguished judge, 1 "was not 
 only eminent as a Governor, but one of the most 
 distinguished jurists who ever presided over the 
 Supreme Court. There was no citizen of the State 
 better qualified to select from its bar a judge of its 
 court of last resort than he who had so long adorned 
 its bench, and who had been the Chief Justice in the 
 court in which the vacancy was to be filled. The 
 appointment so made was neither sought by Judge 
 Stayton himself nor solicited on his behalf by 
 friends. . . . We have reason to think that the 
 honored chief magistrate who first selected him for 
 promotion has ever regarded his appointment as one 
 of the most praiseworthy acts of his long and dis- 
 tinguished career." 
 
 A brother Justice 2 who shared his labors upon the 
 court, ascribes Justice Stayton 's success to a thor- 
 ough mastery of the general principles of the law, 
 and the mental habit of primarily looking to those 
 principles as a guide, and building upon them, by a 
 train of close, logical reasoning, his conclusions and 
 the framework of his opinions. 
 
 In Ball, HutcMns & Company vs. Lowell, 3 Justice 
 Stayton dissented from the majority opinion hold- 
 ing that when the husband dies leaving a homestead 
 established on the separate property of the wife, no 
 allowance in lieu of a homestead should be made out 
 of the effects of the husband. Quoting the statutes 
 
 iChief Justice Gaines. 
 Uudge R. S. Gould. 
 356 Texas, 579. 
 
The Supreme Court of Texas 151 
 
 relating to the homestead exemption, and allowances 
 in lieu thereof in the absence of the same, at the 
 death of the husband, Justice Stayton admitted that 
 the separate property of the wife may have been 
 the homestead of the family during the life of the 
 husband, yet that it was certainly true that such 
 property could not be considered as being "among the 
 effects of deceased," that is, property pertaining to 
 the estate of the deceased husband, within the purview 
 and intention of the statute providing that exempt 
 property, if it exists in kind, should be taken out 
 of the estate of the deceased husband, and that if 
 no such property existed among the effects of the 
 deceased, an allowance in lieu thereof should be 
 taken from property belonging to his estate ; because 
 it was in lieu of the property not found among the 
 effects of his estate, that the allowance should be 
 made. He believed that had it been the intention of 
 the Legislature that if the family of the deceased 
 husband should have no allowance out of Ms estate, 
 in case the wife owned a homestead in her separate 
 light, that it would have been so easy for it to have 
 said so, that he could not believe that it was so in- 
 tended in the absence of a declaration to that effect. 
 "The facts," says the dissenting opinion, "in ad- 
 dition to what seems to me to be the true import 
 of the language used by the Legislature, force upon 
 me the conviction that the fact that the wife may 
 own a homestead, yea, a homestead made her sep- 
 arate property from the gift of the husband, which 
 is but her separate property, however acquired, 
 cannot deprive her, or his children by her, or the 
 children of the husband by a former wife, of the 
 
152 The Supreme Court of Texas 
 
 right to an allowance in lieu of homestead, out of 
 the huband and father's estate. Nor am I prepared 
 to say, when the statute provides as it does, a means 
 by which creditors who take liens upon property 
 may so secure it, that it will not be subject to sale 
 to make up allowance in lieu of exempt property 
 (R. S. 2000), if they fail to do so, that legislation 
 which appropriates property as I believe it ought 
 to be under the law, in this case, should shock the 
 moral sense of mankind as being against the common 
 dictates of justice and equity. The whole matter 
 was one for legislative discretion, which we must pre- 
 sume has been exercised wisely; but whether so or 
 not, I have a deep conviction that I have no right to 
 dispose of the question in accordance with my own 
 sense of abstract right or equity, if the same be in 
 conflict with the expressed intention of the Legisla- 
 ture. If the spirit of the law be bad, let it be re- 
 pealed by that department of the government whose 
 duty it is to make and repeal laws. Entertaining the 
 views which I do in regard to the construction of 
 the statutes, I cannot assist in repealing thereby 
 a construction which my judgment does not ap- 
 prove." 
 
 In view of the circumstance that had prece- 
 dents have originated in the action of courts in 
 judicially repealing or modifying laws incompatible 
 with their sense of abstract justice, it is regrettable 
 that there are not more judges of tribunals of last 
 resort entertaining similar views to those expressed 
 by Justice Stayton on the subject of judicial repeals. 
 
 In November, 1882, Asa H. Willie was elected 
 Chief Justice to succeed Justice G-ould, and Charles 
 
The Supreme Court or Texas 153 
 
 S. West was elected Associate Justice to succeed 
 Justice Bonner, who retired from the court at the 
 expiration of his term. 
 
 Charles Sherman West was born in Camden, 
 Smith County, South Carolina, September 4, 1829. 
 His first public service was as sheriff of Kershaw 
 District. Thereafter he was employed for several 
 years as cashier of the Camden Bank. After re- 
 ceiving a preparatory course of instruction, he at- 
 tended the College of South Carolina, graduating 
 from that institution in 1848. During the years 
 1849-50, he was employed in teaching school at 
 Pleasant Hill, devoting his spare time to the study 
 of the law under the supervision of James Chestnut, 
 afterwards United States Senator, and later a mem- 
 ber of the staff of President Davis. In 1851 Mr. 
 West was admitted to the bar, and entered the 
 practice at Camden. He removed to Texas in the 
 autumn of 1852, locating at Austin, which became 
 his permanent home. In 1854 he formed a law 
 partnership with Colonel H. P. Brewster. In 1855 
 he was elected Representative in the Sixteenth Leg- 
 islature for the Austin district, and served with 
 distinction in that body. In 1856 he formed a law 
 partnership with John Hancock. In 1861 became 
 Secretary of State under Governor P. R. Lubbock; 
 in 1862 he entered the Confederate army as Ad- 
 jutant-General, with the rank of captain. He served 
 during the Civil War on the staffs of Generals 
 Herbert, Bankhead, Magruder, Scurry, and E. Kir- 
 by Smith, respectively. He was promoted to the 
 rank of major for gallantry in the battle of Jen- 
 kins' Ferry. Thereafter he became Judge- Ad- 
 
154 The Supreme Court of Texas 
 
 vocate in the Trans-Mississippi department of the 
 Confederate service. At the close of the war he re- 
 turned to Austin and resumed the practice in co- 
 partnership with the Hon. John Hancock, a firm 
 which became noted as among the strongest and most 
 successful in the State. 
 
 While a capable Judge, it was an advocate that 
 Justice "West achieved that distinction which was 
 the basis of his merited reputation as one of the 
 ablest lawyers in a State noted for the strength 
 of its bar. "He appeared," says an eminent author- 
 ity, 1 "to equal advantage in court, whether his sub- 
 ject was one of civil or criminal law, common law 
 or equity, statutory or constitutional law, the law 
 merchant, or law of realty. No narrow circle con- 
 fined the progress of his attainments in ascending 
 to distinguished eminence in his profession. . . . 
 He was Judge-Advocate of the Trans-Mississippi 
 Department, and was prosecutor in a very im- 
 portant trial before a court-martial, in Louisiana, 
 in 1863, which I witnessed. In that position he had 
 the power to make the trial partake of persecution 
 in the manner of conducting the prosecution. It 
 lasted three weeks. His courtesy, liberality and 
 ability in the discharge of his duty challenged the 
 admiration of the court and all who witnessed the 
 trial. Having been a member of this court four 
 times, and having served with ten others, and with 
 some of them several times, I may be allowed here 
 and now to refer to some matters pertaining to it, 
 especially as I may never again be called upon to 
 
 iQovernor O. M. Eoberts. 
 
The Supreme Court of Texas 155 
 
 perform a similar duty. Its labors and responsi- 
 bilities are so great tbat very few men are able to 
 remain on tbe bench many years continuously with- 
 out having their health impaired and their lives 
 shortened. Chief Justice Hemphill, Wheeler and 
 Moore were notable instances of this, and it may be 
 that both Justices Bonner and West, going from a 
 heavy practise at the bar to seats on the bench, 
 found its labors to be beyond their powers of en- 
 durance. Another matter worthy of notice is, that 
 few of the members of this court have had time or 
 opportunity to improve their pecuniary condition, 
 and when worn out in its service are not provided 
 for as they are under some governments. Prom 
 these facts we are forcibly admonished (and my age 
 and condition in life are such as prevent me from 
 saying it from any imputable motive of self-inter- 
 est), that measures should be speedily adopted to 
 diminish the labors of the members of this court, 
 and to increase their compensation, while they may 
 be able to give their services to its duties." 
 
 "It is as a lawyer," said a distinguished member 
 of the Supreme Court, 1 "that he (Judge West) 
 was pre-eminently distinguished and has impressed 
 himself upon the memory of his contemporaries. 
 In the nisi prius or appellate courts it may be well 
 said that he had few equals. ... In his pre- 
 sentation of facts to a jury and law to the court, 
 he could not be excelled. The records of the Supreme 
 Court and the memory of its judges can well attest 
 the logical force of his arguments and the per- 
 
 iChief Justice Willie. 
 
156 The Supreme Court of Texas 
 
 spicuous language in which they were presented. 
 . . . His name appears in our reports per- 
 haps oftener than any of the past or present mem- 
 bers of the bar." 
 
 In Gulf, Colorado & Santa Fe Railway Company 
 vs. Levy, 1 the court in an opinion rendered by 
 Justice Stayton, denied the right of a person to 
 maintain an action for damages for mental anguish 
 against a telegraph company for negligence in trans- 
 mitting a message, where no pecuniary loss resulted 
 from such negligence ; overruling So Belle vs. West- 
 ern Union Telegraph Company, hereinbefore noted. 
 
 The case of Houston & Texas Central Railway vs. 
 Simpson, 2 was the first of those known to the pro- 
 fession as "the turn-table cases," in which judg- 
 ments for damages against railroad companies for 
 injuries to children playing upon unfastened turn- 
 tables on the premises of those corporations, were 
 sustained, among other theories, upon the conception 
 that such mechanisms were attractive to children, 
 inviting their use as playthings. In the opinion 
 rendered by Justice Stayton, a verdict for $3,500 
 was sustained. "It appears," says the opinion, 
 "that the turn-table was not inclosed, and near a 
 pond to which boys were accustomed to go for the 
 purpose of fishing. The entry upon such a place 
 was not a traspass in a child which would deprive 
 it of the right to recover for an injury resulting 
 from the attempted use of a dangerous machine to 
 which children would be attracted for sport or 
 
 159 Texas, 543. 
 260 Texas, 103. 
 
The Supreme Court or Texas 157 
 
 pastime, for it is the duty of every person to use 
 due care to prevent injury to such persons, even 
 from dangerous machinery upon the premises of 
 the owner, if its character be such as to attract 
 children to it for amusement." 
 
 The case of Faulkner vs. House, 1 which incident- 
 ally touches upon interesting historical data con- 
 nected with an attempted State bond issue in aid 
 of the construction of the International Railway 
 Company, and which culminated in the noted "com- 
 promise" act, is interestingly suggestive of legislative 
 methods which were the origin of the issues involved. 
 The action was brought by A. Faulkner as assignee 
 before maturity of the following obligation in 
 writing: 
 
 "Austin, Texas, August 3, 1870. 
 
 "In consideration of services rendered and of 
 the payment of $1 to us in hand paid, we, the under- 
 signed, for ourselves and in behalf of the corpor- 
 ators of the International Railroad Company, do 
 hereby promise Henry B. Andrews that we will 
 deliver to him or to his order $5,000 in bonds to be 
 issued in aid of said road by the State of Texas, 
 said bonds to be delivered as soon as the first in- 
 stallment thereof is issued to the directors of said 
 road by the proper authorities of the State of 
 Texas. 
 
 T. W. HOUSE." 
 
 Plaintiff alleged that the International Railroad 
 Company never received the bonds authorized to be 
 issued to it by an act of the Texas Legislature ; that 
 
 161 Texas, 308. 
 
158 The Supreme Cotjet of Texas 
 
 the Comptroller refused to sign said bonds, and that 
 the Supreme Court sustained his refusal; and that 
 thereafter the company accepted other subsidies 
 from the State in lieu of said bonds, without the 
 consent of plaintiff, so he could not demand the 
 identical bonds mentioned, by reason whereof de- 
 fendants became indebted to plaintiff in the sum of 
 $5,000, for which he prayed judgment. It was 
 further alleged that the instrument sued on was 
 executed for a valuable consideration to Henry B. 
 Andrews, to be by him delivered to one Craw- 
 ford for services and expenses of said Crawford, 
 rendered to the obligors in said bond, and which 
 were reasonably worth and were by them estimated 
 and valued at $5,000, and that the said obligation 
 was for bonds to be delivered to him in discharge 
 of said services, and which by the said Henry B. 
 Andrews, was delivered and indorsed to W. A. Say- 
 lor for the said Crawford, and at the instance and re- 
 quest of said Crawford the said Saylor sold and 
 delivered the same to plaintiff for a valuable con- 
 sideration." 
 
 In this connection the reporter of the court re- 
 corded the following reference to "public history" 
 as an aid to a clearer understanding of the facts of 
 the case: 
 
 "The bonds referred to were those to issue under 
 the provisions of a bill which passed two days 
 afterwards through the Texas Legislature, charter- 
 ing the International Railway Company, and pro- 
 viding for a bonus to be given it by the State in 
 State bonds at the rate of $10,000 for each mile 
 of road to be constructed. It may be stated as a 
 
The Supreme Court or Texas 159 
 
 matter of public history that the bonds provided for 
 by that act were never issued, and that Saylor, who 
 seems to have been the agent of one Crawford, 
 whose given name does not appear, was a member 
 of the State Senate when the act passed which 
 authorized the issuance of the bonds." 
 
 In the opinion rendered by Justice Stayton it was 
 held that the instrument sued on was not a contract 
 for the sale of bonds, as, at the date of it the bonds 
 had not potential existence ; that the delivery of the 
 bonds was conditional upon their issuance; and as 
 they were never issued, plaintiff was not entitled 
 to recover. 
 
 There was another defense, it seems, that the 
 defendants could have interposed with equal suc- 
 cess, but probably for reasons which will readily sug- 
 gest themselves to the professional mind, it was not 
 presented to the court. 
 
 The case of Jones vs. George, 1 contains an inter- 
 esting exposition of the law of implied warranty, 
 proximate cause, and measure of damages for the 
 loss of growing crops for breach of implied war- 
 ranty. A farmer engaged in growing Sea Island 
 cotton, and whose crop was being damaged by cot- 
 ton worms, purchased of a druggist Paris green for 
 use in preparing a compound for the destruction 
 of said worms. Instead of delivering him Paris 
 green, the druggist supplied Chrome green, a harm- 
 less drug, which when used in said compound and 
 applied to a hundred and twenty-four acres of his 
 cotton, totally failed to destroy the cotton worms, 
 which, in consequence, destroyed the crop. 
 
 "The liability of the appellee, under the fact in 
 
160 The Supreme Court of Texas 
 
 evidence," says the court, speaking through Justice 
 Stayton, "is as broad as though he warranted the 
 substance delivered as Paris green." Following an 
 able review and discussion of leading authorities, 
 the court held that the failure to supply Paris 
 green was the proximate cause of the destruction of 
 the crop; and that the measure of damages for the 
 injury thus sustained was the value of the crop 
 as it stood, just before it was destroyed by the 
 worms, with the cost of the compound used, and the 
 further cost of its preparation and application to 
 the cotton, with interest upon the amount thus ex- 
 pended. 
 
 In Belo & Company vs. Wren, 1 there is an inter- 
 esting discussion of privileged matter under the 
 Texas libel law, in connection with the reaffirm- 
 ance of elementary principles of the law of libel es- 
 tablished by adjudicated precedents. The import- 
 ant issue in the case was whether certain testi- 
 mony taken ex-parte by a legislative committee 
 in the investigation of a land fraud conspiracy, and 
 deposited in the Attorney-General's office, was priv- 
 ileged matter. The testimony thus taken was copied 
 by a representative of the Galveston News, owned 
 and published by appellants, who, after consulting 
 counsel, and being advised that it was privileged 
 matter, published the same. Appellee, claiming the 
 publication as libelous of his character, by reason 
 of certain references to his conduct and supposed 
 connection with said land fraud conspiracy, in- 
 stituted suit for damages against appellant, and 
 recovered a judgment for $7,500. 
 
 163 Texas, 686. 
 
The Supreme Court of Texas 161 
 
 In an able opinion by Chief Justice Willie* hold- 
 ing that the publication was not privileged, the 
 court says: 
 
 "There may be cases where a preliminary and 
 ex-parte proceeding would be privileged, but as to 
 this we do not decide; but when to these two con- 
 ditions is added that fact that the proceeding is con- 
 ducted in secret, we know of no principle in the law 
 of libel that will protect the publication. Ex-parte 
 proceedings have been held privileged where there 
 was a right in the accused to appear and defend 
 himself. If privileged where this was not the case 
 it was on the ground that they were open and might 
 be attended by the public, and that their publica- 
 tion was therefore merely an enlargement of the 
 area to which a knowledge of the proceedings would 
 otherwise extend. 
 
 "But if merely preliminary, and at the same 
 time ex-parte and secret, no policy of the law can 
 be subserved by their publication which is not over- 
 borne by the damage which may result to the reputa- 
 tion of individuals. The accused may escape by 
 reason of having publicity given to the preliminary 
 proceeding upon which his prosecution is to be based. 
 A person may have his case prejudged, and himself 
 found guilty in public opinion so as to deprive him 
 of a fair and impartial trial, without any oppor- 
 tunity of defending himself in the preliminary pro- 
 ceeding; or he may have his character traduced 
 without the slightest intimation that it will be the 
 subject of investigation and discussion. It is true 
 that the same thing may happen in a public trial, 
 but what occurs there is open to the world ; and what 
 
162 The Supreme Court of Texas 
 
 the public are entitled to witness may in many 
 instances be disclosed to it through other channels. 
 Even this, however, is not a universal rule, as there 
 are cases in which defamatory matter may be spoken 
 in privileged places, when its publication at other 
 places would constitute libel. . . . This is always 
 the case when the proceeding in which it is uttered 
 is of a secret character. 
 
 "We think the privilege of publishing defamatory 
 matter is confined strictly to proceedings of a ju- 
 dicial or quasi judicial or legislative nature, and, 
 if preliminary and ex-parte, they must at least be 
 openly conducted and subject to the inspection of 
 the public. This is as far as it is necessary for us 
 to go in the case now under consideration, to which 
 case let us apply the principles above announced. 
 
 "The joint committee appointed by the legis- 
 lature of Texas, before whom the defamatory words 
 published by appellant were spoken, was not a body 
 possessing either judicial or quasi judicial powers. 
 It determined nothing ; exercised its judgment upon 
 no questions requiring judicial action; did not even 
 procure evidence which could be recognized in a 
 court of justice for any purpose whatever. It simply 
 obtained the statements of witnesses under oath, 
 to be used, not in a court of justice, but as a guide 
 to attorneys representing the State in bringing 
 offenders against her criminal laws to justice. 
 
 "Nor can its proceedings in strictness be termed 
 legislative. The committee was appointed by the 
 Legislature and was composed of members of that 
 body ; but it was to do nothing in aid of legislation — 
 it was not even to report anything for legislative 
 
The Supreme Court of Texas 163 
 
 action. The duties required of it, and the powers 
 granted it, could as well have been discharged and 
 exercised by persons not in any manner connected 
 with the Legislature. The result of its labors were 
 never necessary to come to the knowledge of that 
 body, nor to form part of its records in any man- 
 ner whatever. They were an irregular and irre- 
 sponsible committee, exercising doubtful powers, 
 and formed for no purpose connected with the duties 
 of the body from whom they derived their appoint- 
 ment. It would seem, therefore, rather a stretch 
 of the meaning of the term " legislative" to apply it 
 to the proceedings of such committee. 
 
 "But admitting that they were legislative or ju- 
 dicial, or both, what was the object of their pro- 
 ceedings and how were they conducted? Their ob- 
 ject was to obtain evidence by which the State's 
 counsel might be guided in instituting criminal pros- 
 ecutions against the perpetrators of land frauds and 
 forgeries. The proceedings of the committee did 
 not arise to the dignity of those of a grand jury 
 or of a justice of the peace making a preliminary 
 examination. These are filed in courts, and upon 
 them a capias may issue and the offender be arrested 
 and thrown into prison. Upon the action of this 
 committee no such criminal process could be found- 
 ed, and a seizure of any person under a writ issued 
 as one of the results of their proceedings would only 
 have laid the basis for an action of false imprison- 
 ment. So far from ever becoming a part of the 
 records of a court, the purposes of the committee's 
 formation were fully satisfied if the evidence pro- 
 cured by them was placed in the hands of any 
 
164 The Stjpkeme Couet of Texas 
 
 attorney employed by the State to prosecute land 
 frauds and forgeries. Its proceedings, therefore, 
 have not the slightest imaginable claim to being 
 called even a preliminary examination, in the legal 
 sense of that term. 
 
 "Moreover these proceedings were in their very 
 nature essentially ex-parte — so designed to be by 
 the resolution creating the committee, and such was 
 the practical construction given them by the com- 
 mittee itself. No party whose connection with land 
 frauds inquired into was ever allowed to appear 
 before it, and produce witnesses in rebuttal of 
 the evidence adduced against himself. The inquisi- 
 tion was established for the purpose of prosecution 
 only; any defense the accused might have was re- 
 served for the trial of the cause, when he was 
 brought before the courts to answer the prosecution 
 based upon the committee's evidence. 
 
 "Again, the proceedings were secret — carried on 
 with closed doors, and in the presence only of the 
 committee, their clerk and persons interested solely 
 in the prosecution of the frauds developed by the 
 evidence. There may have been occasionally two 
 witnesses in the room at one time, but this was an 
 exceptional case and did not deprive the proceedings 
 of their general secret character. 
 
 "It was obviously necessary that the proceedings 
 should be kept secret, otherwise offenders having 
 notice of the evidence given against them would 
 place themselves beyond the reach of the law. It 
 was proper, too, in order to prevent innocent per- 
 sons, against whom perjured witnesses might bring 
 
The Supreme Court of Texas 165 
 
 accusations, from suffering in the good opinion of 
 the public. 
 
 "The fact that the evidence taken before the com- 
 mittee might be filed in the attorney-general's office 
 does not affect the question. The joint resolution 
 would have been satisfied if this evidence had been 
 committed to the State's private counsel alone. This 
 shows that it was not intended to be made an archive 
 of a public office ; but, taken in connection with the 
 purpose for which the committee were appointed, 
 clearly shows that its contents were to rest within 
 the knowledge of the State's chosen prosecuting of- 
 ficers, to be witheld by them from the public until 
 the parties implicated in land frauds by the evi- 
 dence should be placed within the grasp of the 
 criminal law. Confidential communications between 
 himself and his client, and papers committed to his 
 inspection in reference to prosecutions like the pres- 
 ent, must not be divulged before the prosecutions 
 have been commenced or abandoned; otherwise the 
 whole object of the proceedings would be thwarted. 
 
 "We do not think that it was his duty — not even 
 his privilege — to give copies of the evidence to per- 
 sons requesting them of him. This might end in 
 giving information to the accused, such as it was 
 never intended he should receive in advance of his 
 arrest or indictment. If the contents of the evi- 
 dence could not be made known to a few, through 
 copies taken from the attorney-general's office, it 
 certainly could not be published to the world through 
 the newspapers. The plastic nature of the common 
 law does not allow us, in deference to the improve- 
 ments of modern times, and the advancement of news- 
 
166 The Supkeme Court of Texas 
 
 paper enterprise, to so vary the cardinal principles 
 of the law of libel that proceedings required by the 
 policy of the law to be kept absolutely secret may 
 be published to the world in the columns of a news- 
 paper. We cannot defeat the ends of justice, and 
 the objects of the criminal law, for the purpose 
 merely of satisfying the public cravings for news 
 and information. 
 
 "Every facility should be allowed for the quick 
 transmission of useful facts, and the freedom of 
 the press should not be restrained further than is 
 absolutely necessary to protect private character 
 from falsehood and slander. But public policy 
 alone protects defamatory statements made through 
 the press, and they cannot be shielded when made in 
 defiance of one of the plainest principles of law 
 established solely for the public benefit. We there- 
 fore conclude that the defamatory matter com- 
 plained of by the appellee, and proven to have been 
 published by the appellants, was not of a privileged 
 nature." The judgment of the court below was 
 affirmed. 
 
CHAPTER VI. 
 
 1885-1895. 
 
 Sawnie Robertson Succeeds Associate Justice West — Sketch of 
 Justice Robertson — Stuart vs. Western Union Telegraph Com- 
 pany — Mental Anguish as Actual Damages — Reuben R. 
 Gaines Succeeds Justice Robertson — Sketch of Justice 
 Gaines — Brenham vs. Water Company — A Contract Con- 
 trary to the Spirit of the Constitution — Edwards vs. Brown 
 — Some General Principles of Conscience and Equity — 
 Price vs. Supreme Lodge Knights of Honor — "Graveyard" 
 Insurance — John W. Stayton Succeeds Chief Justice Willie 
 — A. S. Walker Appointed Associate Justice — Sketch of 
 Justice Walker — John L. Henry Succeeds Justice Walker — 
 Sketch of Justice Henry — Gulf, Colorado & Santa Pe Rail- 
 way Company vs. State — Illegal Combination of Competing 
 Railway Lines — Little vs. State — County Court Judges Not 
 Required to Know the Law — State vs. Galveston, Harris- 
 burg & San Antonio Railway Company — Touching Dis- 
 position of Public Domain — Dissenting Opinion by Chief 
 Justice Stayton — Number of Judges of Commission of 
 Appeals Increased Prom Three to Six — Ewing vs. State — 
 Incorporating the "Countryside" — Ewing vs. Commission- 
 ers' Court of Dallas County — Expiring Effort in a "Friend- 
 ly Move" — State vs. Land & Trust Company — Requisite 
 Interest in Subject Matter of Suit — Canfield vs. Gresham — 
 Legislative Contempt Proceedings — Constitutional Amend- 
 ment Changing Jurisdiction and Procedure of Supreme 
 Court — Act of Legislature in Pursuance of Authority Con- 
 ferred by Constitutional Amendment — Creation of System 
 of Courts of Civil Appeals — Darnell vs. Lyon — Thomas J. 
 Brown Succeeds Justice Henry — Sketch of Justice Brown — 
 Construction of Section of the New Law — Chief Justice 
 Stayton 's Dissent — Queen Insurance Company vs. State — 
 Construction of Anti-Trust Law — Scott vs. State — The 
 Retort Discourteous: Comparison Odious — Texas & Pacific 
 Railway Company vs. Gay — Able Opinion by Chief Justice 
 Stayton — Death of Chief Justice Stayton — Reuben R. 
 Gaines Appointed Chief Justice — Leroy G. Denman, As- 
 sociate Justice — Sketch of Justice Denman. 
 
168 The Supreme Court of Texas 
 
 September 29, 1885, Associate Justice West re- 
 signed, and Sawnie Bobertson was appointed As- 
 sociate Justice, October 6, 1885. 
 
 Sawnie Robertson was born in La Fayette, Ala- 
 bama, October 5, 1850. In 1851 bis parents removed 
 to Texas, locating at Tyler. He was educated in the 
 excellent schools at Tyler and G-ilmer. In connec- 
 tion with the academic course of the Gilmer school, 
 ex-Chief Justice Roberts at that time conducted a 
 law school, from which young Robertson graduated 
 in 1870. This course of instruction, under the super- 
 vision of that most capable of preceptors in the 
 science of law, admirably equipped Mr. Robertson 
 for the attainment of eminence in his profession in 
 subsequent years. He was admitted to the bar on 
 December 29, 1870, before reaching his majority. 
 He was immediately successful, and in a few years 
 acquired a large and remunerate practice. The ra- 
 pidity of his advancement to a premier position at 
 the bar is evidenced by the circumstance that when 
 only 35 years old, at the unanimous request of the 
 bar, he was appointed Associate Justice to succeed 
 Justice West. It is said that, with probably one 
 exception, he was the youngest man who ever oc- 
 cupied a position on the Supreme Court of Texas. 
 
 "As a jurist," says one who knew him intimately, 1 
 "his place is securely fixed with the illustrous men 
 who have given character to our highest tribunal. 
 In an eminent degree he possessed the broader and 
 better qualities of a great judge. He loved justice, 
 
 iSenator Culberson. 
 
The Supreme Cottrt op Texas 169 
 
 and was endowed with a rare and exceptional ju- 
 dicial temperament. To a rich store of common 
 sense he added the conservatism of fairness and the 
 ripening powers of a strong legal mind. Pro- 
 foundly cherishing the law, and deeply grounded 
 in its philosophy and maxims, he was thoroughly 
 equipped for its interpretation along its nobler lines. 
 In the administration of justice he was without 
 friend or foe, and prejudice and partiality were 
 strangers to him. While he was impressed with the 
 importance of precedents, whenever in his judg- 
 ment it was demanded by wholesome consideration, 
 he did not hesitate to explore new fields or apply the 
 elasticity of legal principles to changing conditions. 
 . . . Many believe, however, that he exhibited 
 his greatest powers and achieved his most marked 
 success at the bar. It was there he presented con- 
 spicuously a striking personality and wielded a dis- 
 tinctive force. It was there, also, that he exerted 
 his noblest influence, for his tone of character was 
 exalted and his daily intercourse with his associates 
 tended to the dignity and elevation of the profes- 
 sion ; and it was there that he was loved and honored 
 for his forensic genius, his unbought courtesy, and 
 his nobility of soul. With his extraordinary legal 
 acquirements, his distinguishing traits as a lawyer 
 were his deferential regard for the courts before 
 which he appeared and his magnanimous considera- 
 tion of opponents." 
 
 Those who served with him upon the bench unite 
 in high tribute to the judicial powers and profes- 
 sional attainments of Justice Robertson, "whose 
 
170 The Supreme Cotjbt of Texas 
 
 opinions calmly reach and deal with every material 
 question in a cause, but are concise, and in reason 
 and in style most forcible." 
 
 Associate Justice Robertson resigned in October, 
 1886, and in November, 1886, Reuben R. Gaines was 
 elected to fill the vacancy. 
 
 Reuben R. G-aines was born in Sumpter County, 
 Alabama, October 29, 1836. His parents thereafter 
 removed to Adams County, where he was reared to 
 manhood. In 1855 he graduated from the Univer- 
 sity of Alabama, and, in 1857, received his law de- 
 gree from Cumberland Law School at Lebanon, 
 Tennessee. He engaged in the practice of law until 
 the outbreak of the Civil War, when he joined the 
 Confederate Army, in which he served under General 
 John Morgan of Alabama, and later with Gen- 
 eral Anderson, as adjutant of brigades commanded 
 by those officers. At the close of the war he removed 
 to Texas, locating in Red River County in 1868, 
 where he successfully engaged in the practice and 
 established his reputation as a leading member of 
 the Texas bar. He formed a law partnership with 
 B. H. Epperson, remaining in that firm until 1876. 
 In that year, at the unanimous solicitation of the 
 bar of his district, he accepted the nomination for 
 the office of District Judge of the Sixth Judicial 
 District, composed of the counties of Red River, 
 Lamar, Fannin, and Grayson, and was elected 
 without opposition, and re-elected to that posi- 
 tion at the expiration of his term. He voluntarily 
 retired from the district bench after eight years of 
 distinguished service to engage in the practice of law 
 at Paris. 
 
The Supreme Court of Texas 171 
 
 Justice Gaines was one of the ablest judges who 
 has adorned the Supreme Court of Texas. His 
 long service and enlightened labors in that tribunal 
 rank with those of Lipscomb, Hemphill, Wheeler, 
 and Roberts, greatest of judges connected with our 
 judiciary. His opinions, in volumes 66 to 103 of 
 the Texas Reports, disclose his pre-eminent judicial 
 learning and mastery of the principles of the law. 
 The period of his service upon the Supreme Court 
 was an epoch in the development, progress and ad- 
 vancement of the State in all lines of business and 
 commercial endeavor — a transition from semi-pio- 
 neer conditions to a state of modern development, 
 in which questions of greatest importance and far- 
 reaching influence upon the State and its citizens 
 were constantly arising for decision in its court of 
 last resort. No justice who has ever served upon the 
 court was better equipped to uphold the splendid 
 history and traditions of the court under the newer 
 conditions by the wisdom and justice of his decisions, 
 than was Justice Gaines, as his opinions abundantly 
 show. 
 
 Justice Gaines possessed the retiring, unobtrusive 
 disposition which is always a conspicuous attribute 
 of true greatness, which courts neither the favor 
 nor friendship of those in the seats of the mighty, 
 nor patronizes the lowly, his chosen companions 
 being for the most part those in the subordinate and 
 humble pathways of life. He recognized and appre- 
 ciated merit for its own sake, irrespective of the 
 social, commercial or political prestige of its pos- 
 sessor. Essentially a judge, as contradistinguished 
 from a politician, in no instance was he ever known 
 
172 The Supreme Court of Texas 
 
 to deliver a political speech in his own behalf, or that 
 of others. His refined sense of the dignity of the court, 
 and his reverential respect for the judicial ermine 
 were such that he discountenanced and discouraged 
 conduct tending to a suspicion of its political pol- 
 lution. Firm in his convictions, he was vigorous in 
 their advocacy, regardless of their effect upon the 
 policies or ambitions of political leaders or their 
 power to visit their displeasure upon him. As a true 
 gentleman, devoted friend, courageous soldier, just 
 judge, and exemplary citizen, Justice Gaines will 
 be gratefully remembered by those who knew him 
 best. 
 
 In Stuart vs. Western Union Telegraph Company 1 
 the court in an opinion rendered by Associate Jus- 
 tice Robertson, held that mental anguish resulting 
 from the negligent failure of a telegraph company 
 to deliver a telegram announcing the fatal illness 
 of a relative was actual damage and recoverable 
 as such. The rule announced was thereafter sub- 
 jected to severe criticism, while some of the Federal 
 courts, including the United States Circuit Court of 
 Appeals of the Fifth Circuit, declined to follow it. 
 Later, however, it was adopted by the courts of 
 Indiana, Tennessee, Alabama, and some other States, 
 and was affirmed by an equal division of judges of 
 the Supreme Court of the United States when a va- 
 cancy existed on that tribunal. 2 
 
 In Breriham vs. Water Company" the court held 
 that a municipal corporation could only exercise 
 
 166 Texas, 580. 
 2140 U. S., 682. 
 8R7 Texas, 542. 
 
The Supreme Cotjkt of Texas 173 
 
 such powers as were expressly granted by its char- 
 ter; powers necessarily or fairly implied as in or 
 incident to powers expressly granted; powers essen- 
 tial to the objects and purposes of the corporation; 
 and that any reasonable doubt as to the existence 
 of such powers should be resolved against the cor- 
 poration. 
 
 In denying the power of the city of Brenham to 
 contract with a water company for the exclusive 
 privilege of supplying said city with water for a 
 period of twenty-five years, the opinion rendered 
 by Associate Justice Stayton says: 
 
 "On August 18, 1884, the City of Brenham passed 
 an ordinance which provided that an association of 
 persons, then unincorporated, known as the 'Bren- 
 ham Water Company,' should have the right to es- 
 tablish, construct and operate a system of water 
 works in or adjacent to the city, and for this pur- 
 pose to use all streets, alleys, lanes, public grounds, 
 and all places under the control of the city, so far as 
 might be necessary for the proper conduct of the 
 business 'and for supplying said city and the inhab- 
 itants thereof with fresh water for domestic, man- 
 ufacturing, fire and other purposes.' . . . 
 
 "The ninth section secured to the city the right to 
 purchase the water works, after the expiration of 
 ten years, at such price as might be agreed upon 
 by persons to be selected as therein provided, whose 
 appraisement was to be binding on both parties. 
 . . . Section 1 was: 'That there is hereby given 
 and granted to Brenham Water Company the right 
 and privilege, for twenty-five years from the adop- 
 tion of this ordinance, of supplying the city of 
 
174 The Supreme Court of Texas 
 
 Brenham and the inhabitants thereof with water for 
 domestic or other uses and for the extinguishment 
 of fires.' 
 
 "The sixth section provided that 'the said Bren- 
 ham Water Company shall make all extensions of 
 mains and pipes whenever the city council shall or- 
 der the same to be made, and shall erect not less 
 than at the rate of ten double nozzle fire hydrants to 
 the mile on such extensions, for which hydrants the 
 said city of Brenham shall pay a rental of sixty 
 dollars each per annum.' . . . 
 
 "This action was brought to recover the price 
 stipulated for the use of hydrants between June 1, 
 1885, and January 1, 1886. . . . The subject 
 matter of the contract was one over which the city 
 had control solely under the power confided to it as 
 a municipal government, to be exercised for the pub- 
 lic good, and not under any private corporate right 
 of proprietorship. The first section of the ordi- 
 nance professes to give and grant a privilege to the 
 water company to supply the city and its inhabitants 
 with water for the period of twenty-five years. 
 
 "Was it intended to make this right and privi- 
 lege exclusive for that period of time 1 ? This must 
 be ascertained from the language of the ordinance, 
 the surroundings of the parties, and the purpose 
 sought to be accomplished. The ordinance, in terms, 
 professes to give and grant a right to do certain 
 things and therefor to receive certain benefits for a 
 quarter of a century, i. e., to confer a claim to do 
 certain things, and to receive a fixed compensation, 
 which may be enforced for that period. 
 
 "It not only professes, in general terms, to con- 
 
The Supreme Court or Texas 175 
 
 fer such a right, but, as if to emphasize it, and to 
 fully illustrate the character of right intended to 
 be granted, it terms it a privilege. The word 'priv- 
 ilege, ' as used in the ordinance, is evidently not used 
 in the technical sense in which it is used in the civil 
 law, or even under the common law, where used in 
 the sense of 'priority,' but was intended to be given 
 its ordinary signification, meaning a right peculiar 
 to the person on whom conferred, not to be exercised 
 by another or others. 
 
 "This right is to supply the city and its inhabi- 
 tants with water for their varied uses for twenty- 
 five years, at fixed prices in enumerated cases, and 
 at such prices as the water company and the inhab- 
 itants may agree upon in other cases. The word 
 'supplying' must be considered in its connection 
 with a view to ascertain whether it was used in its 
 primary sense -or in one more restricted; and, so con- 
 sidered, we can have no doubt that it was used in 
 its primary sense, intending thereby to give to the 
 water company the right and privilege to furnish 
 the city and its inhabitants what water might be 
 needed or necessary to be furnished through such 
 system. 
 
 "In the ordinance under construction it can mean 
 no less than to furnish all the water the city and 
 its inhabitants may need to have furnished under 
 the power given to the city through its charter, and 
 this for the period of twenty-five years. It would 
 do violence to the context to give to the word any 
 other meaning. If nothing more appeared than we 
 have considered, to give character to the contract 
 and to illustrate the nature of the right intended 
 
176 The Supreme Court of Texas 
 
 to be secured through it, it seems to us that there 
 is uo escape from the conclusion that the parties 
 contracted and intended to contract that the right 
 of the water company should be exclusive. . . . 
 
 "No express power is conferred upon the city, 
 through either or both charters (that of the city 
 and the water company), to make a contract through 
 which the water company could be entitled to the use 
 of the streets, and to have the exclusive right to fur- 
 nish the city and its inhabitants with water at a 
 fixed rate for twenty-five years; and we do not see 
 that power to make such a contract was necessary 
 or essential to the proper exercise of the power ex- 
 pressly given. Under charters containing grants of 
 powers less full and express than are contained in 
 the charter of the city of Brenham, it has been held 
 that power existed to erect and operate water works 
 under the control and ownership of the municipality 
 when it deemed it necessary to the public good. The 
 Legislature had given power to the city of Brenham 
 to erect, control and regulate water works, and this 
 it may exercise, if it has or may have the pecuniary 
 ability, unless restrained by the contract under con- 
 sideration. 
 
 "It is now universally conceded that 'powers are 
 conferred on municipal corporations for public pur- 
 poses, and as their powers cannot be delegated, so 
 they cannot be bargained or bartered away. Such 
 corporations may make authorized contracts, but 
 they have no power, as a party, to make contracts 
 or pass by-laws which shall cede away, control or 
 embarrass their legislative or judicial powers, or 
 
The Supreme Court or Texas 177 
 
 which shall disable them from performing their 
 public duties.' 1 . . . 
 
 "Will not the contract under consideration, if 
 valid, have the effect, not only to embarrass the city 
 government in the exercise of the power conferred 
 upon it, but to withdraw from it the right to pro- 
 vide in any other authorized way water for public 
 purposes and the use of its inhabitants, which was 
 the sole purpose for which the power to erect, main- 
 tain and regulate water works was given to it? It 
 seems so to us, for, as we have before said, the con- 
 tract in effect assumes to give an exclusive right— 
 assumes .to surrender to a private corporation for a 
 period of twenty-five years the power which the 
 Legislature conferred on the municipal government. 
 The power given to a municipal corporation to con- 
 tract in relation to a given subject matter, does not 
 carry the implication that it may contract, even with 
 reference to that, so as to render it unable in the 
 future so to control any municipal matter over which 
 it is given power to legislate as may be deemed 
 best. . . . 
 
 "We are of the opinion that the exercise of the 
 exclusive rights conferred upon the water company- 
 produce the same results as would the exercise of 
 any exclusive right which would fall within the 
 most exacting definition of a monopoly, and that 
 the allowance or creation of such exclusive rights is 
 contrary to the spirit of the Constitution of this 
 State."" 
 
 iDillon on Municipal Corporations, 97. 
 
178 The Stjpeeme Court of Texas 
 
 In Edwards vs. Brown 1 the court reviews the cases 
 of Yancy vs. Batte and Johnson vs. Harrison, pre- 
 viously noted herein, concurring in some of the views 
 expressed in Chief Justice Moore's dissenting opin- 
 ion in the former case. The facts in the Edwards 
 case were that in 1845 a married man obtained a 
 patent to land in his own name, as assignee of the 
 certificate under which it was located. The wife ob- 
 tained a divorce in 1862, but neither claimed nor had 
 set apart to her any property. The husband died, 
 leaving a second wife, to whom he devised the land. 
 The second wife sold the land to one who was ignor- 
 ant of the fact that the husband had ever before been 
 married, and who, upon examination of the records, 
 found a title down to the vendor, perfect on its face. 
 In holding that the purchaser acquired title as 
 against the community interest of the divorced wife, 
 the court, in an opinion rendered by Justice Gaines, 
 says : 
 
 "It is well settled law in this State that the inter- 
 est of the husband and wife in the community prop- 
 erty are equal whether the deed be taken in the name 
 of either or both. . . . And there are decisions 
 of courts in which the title of the wife or of her 
 heirs in the common estate held in the name of the 
 husband is denominated the legal title. . . . But, 
 as we take it, by this must be meant that the wife 
 or the heirs have a beneficial title in fee simple, 
 which, save as to the husband's power of manage- 
 ment and disposition during her life, and power to 
 sell for payment of community debts after her death, 
 
 168 Texas, 329. 
 
The Supreme Court of Texas 179 
 
 is in no degree subordinate or inferior to his right. 
 The legal title is in him, or the heirs of him who is 
 the grantee on the face of the conveyance, although 
 another, such, for example, as wife or partner, may 
 have an equal interest in the property conveyed. 
 
 "But it may be further remarked that it does not 
 follow that because one may have the legal title, an- 
 other may not acquire a superior equity as a bona 
 fide purchaser. The holder of the legal estate, by 
 an unrecorded deed, cannot prevail over a purchaser 
 from his grantor, who has paid value without no- 
 tice of the unrecorded conveyance. . . . 
 
 "If a vendee is to be required to inquire into his 
 vendor's family history in order to ascertain whether 
 the property was community or not, why should he 
 not be held to inquire into his business history and 
 thus be affected with notice of secret trusts on behalf 
 of partners or other third parties 1 . . . We have 
 endeavored to show that the legal title to the land 
 in controversy in this suit was in E. W. Brown at 
 the time of his- death, though appellee, as his di- 
 vorced wife, had an equal beneficial interest in the 
 property. . . . But we do not wish to be under- 
 stood as holding that it was necesary that this should 
 be done in order to uphold the decisions in this case. 
 The policy of our laws is to protect purchasers 
 against secret titles, whether they be legal or equi- 
 table; and justice demands that this be done in the 
 one case as well as the other. In fact, our registra- 
 tion acts protect innocent purchasers as fully against 
 the legal title as against an equitable claim. . . . 
 Judge Storey, after stating that it had been held by 
 tribunals of high authority that a plea of bona fide 
 
180 The Supreme Court or Texas 
 
 purchaser would not prevail against a suit in equity 
 for dower — that being a legal estate — says: 'Other 
 learned minds have, however, arrived at a different 
 conclusion, and have insisted that, upon principle, 
 the plea of a purchaser for a valuable consideration 
 without notice, is a good plea in all cases against a 
 legal as well as against an equitable claim, and that 
 dower constitutes no just exception to the doctrine. 
 They put themselves upon the general principle of 
 conscience and equity, upon which such a plea must 
 always stand; that such purchaser has an equal 
 right to protection and support as any other claim- 
 ant, and that he has the right to say, that having 
 bona fide and honestly paid his money, no person 
 has a right to require him to discover any facts 
 which shall show an infirmity in his title. The gen- 
 eral correctness of the doctrine cannot be doubted, 
 and the only recognized exception seems to be that 
 of dower, if that can be deemed a fixed exception.' 1 
 
 "Upon the general principles of conscience and 
 equity, to which this learned jurist appeals, we see 
 no good reason why the purchaser in this case should 
 not be protected, although the title of the appellee 
 should be a legal and not merely an equitable one. 
 The distinction between the legal and the equitable 
 title, as applied to this class of cases, is shadowy 
 and arbitrary, and ought not to be recognized under 
 our blended system and the general policy of our 
 registration laws." 
 
 In Price vs. Supreme Lodge Knights of Honor 2 
 the court held that the mere payment of premiums 
 
 ^Storey's Equity Jurisprudence, Sec. 631. 
 268 Texas, 361. 
 
The Supreme Court or Texas 181 
 
 on a benefit certificate of another was insufficient 
 to create an insurable interest in the life of the hold- 
 er of the certificate, thus discouraging what was then 
 known as "graveyard insurance," which gave prom- 
 ise at one time of becoming a popular and profitable 
 industry. The suit was instituted by Price, who al- 
 leged that he was entitled to recover the amount due 
 on a benefit certificate issued to one Thomas C. 
 Harper, who died a member of the order of the 
 Supreme Lodge of the Knights of Honor ; that Har- 
 per, by becoming a member of the lodge, had his 
 life insured for $2000, payable to his wife and chil- 
 dren, beneficiaries named by him; that it was neces- 
 sary for Harper to pay certain dues from time to 
 time to keep the certificate in force ; that he failed to 
 pay such dues, became subject to suspension from 
 the lodge, was about to be suspended, and his certifi- 
 cate forfeited, when he applied to plaintiff, with 
 whom he entered into a verbal agreement specify- 
 ing that if plaintiff would pay the indebtedness of 
 Harper to the lodge for past dues and assessments, 
 he, Harper, would transfer the certificate to plain- 
 tiff; that in pursuance of the agreement plaintiff 
 paid said indebtedness and kept the certificate alive 
 until the death of Harper. General and special ex- 
 ceptions being sustained to the petition, plaintiff 
 declined to amend, and the ease was dismissed by 
 the trial court, from which ruling plaintiff appealed. 
 "It is almost universally conceded," says Chief 
 Justice Willie, "that policies procured by persons 
 having no interest in the life of the insured are void 
 at common law as against public policy. The policy 
 holder has nothing to lose for which he can claim 
 
182 The Stjpkeme Cotjkt or Texas 
 
 indemnity; on the contrary, his interest is an the 
 early death of the insured; when that occurs, he 
 ceases to pay premiums, and receives the amount of 
 the policy. This creates a temptation to destroy 
 human life, and the common law forbids the con- 
 tract. These are the grounds upon which such pol- 
 icies are held to be void. Are they applicable to 
 a case where the policy is first taken out by the per- 
 son whose life is insured, and then transferred by 
 him to one who has no interest in his life? It is 
 pretty generally held that if a person effects insur- 
 ance upon his own life, and, in pursuance of a pre- 
 vious agreement, immediately and without consid- 
 eration, transfers the policy to one who has no in- 
 terest in his life, but who agrees to pay the premiums 
 upon the policy, it will be void. . . . And it has 
 been held by the Supreme Court of the United States 
 that a transfer would not be enforced under such 
 circumstances though the insured were indebted to 
 the assignee in a small sum disproportionate to the 
 amount of insurance on his life ; but the policy would 
 be deemed a security for the debt, and such advances 
 as might afterwards be made on account of it. . . . 
 We think those decisions which hold the assignment 
 invalid are based upon the more satisfactory reason- 
 ing. When the policy is transferred it becomes the 
 property of the assignee. ... He becomes the 
 holder of a policy upon the life of a person 
 whose early death will bring Trim pecuniary advan- 
 tage. The temptation to bring about this death pre- 
 sents itself as strongly to him as to a party who 
 originally effects insurance for his own benefit upon 
 the life of another. Public policy removes the temp- 
 
The Supreme Court of Texas 183 
 
 tation to take human life, and it cannot matter how 
 that temptation is brought about. If by reason of a 
 contract between two persons one is tempted by 
 pecuniary interest to destroy the other, the form of 
 the contract is of no importance in testing its valid- 
 ity. . . . Here we have a mere verbal agreement 
 between Harper and the appellant that the latter 
 should pay the dues and assessments — in other words, 
 the premiums due and to fall due upon the former's 
 life policy — in consideration of receiving, at Har- 
 per's death, the money due on the policy. It was but 
 little better, if anything, than a parol gift of the 
 certificate by which the assignee was subrogated to 
 all rights of the assignor in the certificate. In fact, 
 it was no more than an agreement to convey which 
 was never executed. Whilst such an agreement 
 might be enforced in a court of equity, when made 
 for a valuable consideration and a lawful purpose, 
 it would have but little standing in such court if 
 made for the purpose of giving the assignee an in- 
 terest in the death of the assured." 
 
 On March 3, 1888, Chief Justice Willie resigned, 
 and John W. Stayton was appointed his successor; 
 A. S. Walker being appointed Associate Justice to 
 fill the vacancy caused by the promotion of Justice 
 Stayton. 
 
 Alexander S. Walker was born in Rockbridge 
 County, Virginia, on August 18, 1826. He gradu- 
 ated from Hanover College, Indiana, in 1850, receiv- 
 ing the degree of Master of Arts from that institu- 
 tion in 1854. In 1852 he removed to Texas, locating 
 at Mannayunk, in Harris County, where he was 
 employed as a school teacher, and while thus en- 
 
184 The Supreme Court of Texas 
 
 gaged, read law under David G. Burnet and J. 
 Pinckney Henderson. In 1853 he was admitted to 
 the bar at Houston, and in July of that year lo- 
 cated at Georgetown, Texas, where he received the 
 appointment of District Clerk from Judge R. E. 
 Baylor. In 1854 he began the practice of law, and 
 in 1858 was elected District Attorney for the Seven- 
 teenth District. In 1862, while serving in the Con- 
 federate army, he was elected District Judge of that 
 district, which position he held until 1865, when he 
 was removed by the Federal military authorities as 
 an "impediment to reconstruction." While residing 
 at Georgetown he was associated in the practice of 
 law with A. J. Strickland, Richard Sansom, and A. 
 H. Chalmers. In 1865 Judge Walker located at Aus- 
 tin, forming a partnership with H. M. Bowers, and 
 at the death of the latter, associated himself in the 
 practice with Judge A. W. Terrell, under the firm 
 name of Terrell & Walker. The members of this 
 firm were appointed Reporters for the Supreme 
 Court. In 1879 he was appointed a member of the 
 Commission of Appeals by Governor O. M. Roberts. 
 In 1880 Judge Walker was elected Judge of the Six- 
 teenth Judicial District, composed of Travis County. 
 In June, 1889, he was apointed Reporter of the Su- 
 preme Court. 
 
 Judge Walker was another distinguished jurist 
 whose appointment reflected credit upon that pre-em- 
 inent judge "of judicial talent — Governor O. M. Rob- 
 erts. Judge Walker's record as District Judge, As- 
 sociate Justice of the Supreme Court, and official re- 
 porter of the decisions of that tribunal, disclose his 
 
The Supreme Court of Texas 185 
 
 professional learning, judicial acumen, and superior 
 executive ability. 
 
 Associate Justice Walker retired from the court 
 at the expiration of his term, and was succeeded by 
 John L. Henry, elected Associate Justice at the en- 
 suing election, and who assumed his duties January 
 1, 1889. 
 
 John L. Henry was born in Culpepper County, 
 Virginia, October 18, 1831. When he was five years 
 old his parents removed to Murf reesboro, Tennessee, 
 where he was reared to manhood. After completing 
 his education in Union University, he removed to 
 Texas in 1852, locating at Huntsville, Texas, where 
 he read law in 1854-55, and was admitted to the bar 
 in the latter year. In 1856 he removed to Living- 
 ston, and, in 1860, was elected District Attorney of 
 the then Thirteenth District. He enlisted in the 
 Confederate army in 1862, serving in McCardell's 
 company, Elmo's regiment, in Texas coast defense 
 service, until the close of the Civil War. In 1869 he 
 removed to Tyler, and was shortly thereafter elected 
 State Senator to the Thirteenth Legislature. He 
 was a member of the Constitutional Convention of 
 1875. In copartnership with Stockton P. Donley he 
 successfully engaged in practising law at Tyler until 
 the former's death in 1879, when he removed to Dal- 
 las, Texas, and formed a partnership with W. W. 
 Leake. 
 
 Justice Henry's five years' service on the Supreme 
 Court demonstrated his professional learning, while 
 his numerous able opinions in cases of importance 
 are enduring tributes to his judicial accumen, and 
 painstaking research in the thorough investigation 
 
186 The Supreme Court of Texas 
 
 of precedents bearing upon the points involved in 
 the decisions of causes in which he participated. 
 
 In Chdff Colorado & Samta Fe Railway Company 
 vs. State 1 it was held that the State could not control 
 a combination of railroad companies, not chartered 
 by the State, to fix freight rates on commodities 
 transported between this State and other States; 
 but that where two or more of such railroads char- 
 tered by the State are competing parallel lines, and 
 they combine with others not subject to State control, 
 for a purpose condemned by the Constitution, such 
 combination is unlawful and its existence may be 
 enjoined. 
 
 "This suit was brought," says Justice Gaines, "in 
 the name of the State by her Attorney General to 
 restrain certain railroad companies engaged in op- 
 erating lines within the State from carrying out an 
 agreement entered into by them in which they com- 
 mitted to a body of representatives of the companies 
 the power to fix rates for which freight should be 
 carried to or from points within the State. The 
 theory of the State's case is that the parties to the 
 agreement are parallel and competing lines, and that 
 the association formed by it is prohibited by Section 
 5 of Article 10 of the Constitution, which provides 
 that 'no railroad ... or manager of any rail- 
 road corporation shall consolidate the stock, prop- 
 erty, or franchises of such corporation . . . with 
 or any way control any corporation owning or hav- 
 ing under its control a parallel or competing line.' 
 
 "We think it apparent that the leading object 
 
 177 Texas, 366. 
 
The Supreme Court or Texas 187 
 
 if not the sole object of the association is by the 
 appointment of a common governing committee to 
 fix rates of transportation so as to prevent competi- 
 tion among the several parties to the contract. We 
 think it is also apparent from the language of the 
 section of the State Constitution that its leading ob- 
 ject was to prevent competing lines of railroads in 
 the State from so fettering by consolidation, lease, or 
 other agreement by which one should in any way 
 subject itself to the control of another so as to stifle 
 competition for the traffic of the State. . . . We 
 understand the agreement to embrace both commerce 
 within the State and between this State and other 
 States. The former might be enjoined if the latter 
 could not. We are inclined to the opinion that if 
 none of the corporations composing the association 
 owed their existence to our laws that the State would 
 have no power to prohibit or interfere with a con- 
 tract of this character in so far as it regulated 
 charges upon freight carried to and fro between this 
 and other States. . . . But we think we have 
 here a very different question. Several of the de- 
 fendant corporations are chartered under the laws 
 of this State. . . . If we are correct in our con- 
 clusion we think it follows that the defendant corpo- 
 rations who derive their charters from this State are 
 acting in violation of law in entering into this con- 
 tract of association, some members of the association 
 being competing lines of road. We think that the 
 association being illegal as to some of the defendants 
 is illegal as to all. It may be that should the com- 
 panies which have their charters from the United 
 States or from other States come into this State and 
 
188 The Supbeme Cotjkt or Texas 
 
 enter into a similar agreement among themselves 
 the State would be powerless to interfere because of 
 its being a matter within the exclusive jurisdiction 
 of the Uhiited States. Their contract might not be 
 a violation of our laws because we could make no 
 laws interfering with interstate commerce. But it 
 does not follow that they would enjoy immunity in 
 entering into contracts with our own corporations 
 which are prohibited to the latter, and thus enable 
 them to set at naught the limitations upon their 
 powers. There are certainly many things the State 
 may do in the exercise of its police powers which 
 may affect commerce between the States or between 
 this State and foreign countries; but how far the 
 police power of the State may extend so far as it 
 affects the question before us we need not inquire." 
 
 While the legal professional is aware of the some- 
 what paradoxical circumstance that county judges 
 in Texas are not required to know the law, and also 
 that some persons holding that office are present 
 illustrations of the fact that they do not, the general 
 reader no doubt will be interested in the case of 
 Little vs. State, 1 in which it is held that a knowledge 
 of the law is not a necessary qualification of county 
 judges under our law. 
 
 "During the progress of the trial," says Justice 
 Gaines, "while the relator was being examined as a 
 witness, counsel for respondent asked him certain 
 questions with a view to determine whether or not 
 he was well informed in the laws of the State. They 
 were such as would have been proper to ask an ap- 
 
 175 Texas, 616. 
 
The Supreme Court of Texas 189 
 
 plicant for license to practise law. Upon objections 
 being made the court refused to require the questions 
 to be answered. Section 15, Article 5, of the Con- 
 stitution provides that 'there shall be established 
 in each county in this State a County Court, which 
 shall be a court of record, and there shall be elected 
 in each county by the qualified voters a county judge, 
 who shall be well informed in the laws of the State, ' 
 etc., it may be, too, that if relator at the time of the 
 election was disqualified to hold the office respond- 
 ent was elected, although the former received a ma- 
 jority of the votes. Nevertheless, we are of opinion 
 that it was never intended to fix a ground of dis- 
 qualification to hold office by terms so indefinite as 
 the phrase, 'well informed in the law.' It is appar^ 
 ent that county judges were not required to be law- 
 yers, because that qualification is expressly provided 
 by the Constitution for judges of the higher courts. 
 In this State more than half the county judges who 
 have been elected since the Constitution was adopted 
 have been persons who have never devoted a day 
 to the study of the law, and probably there have 
 been more lawyers elected to the position than was 
 expected when the Constitution was framed. . . . 
 If it had been intended to inquire into the extent of 
 the legal learning of a county judge in order to de- 
 termine his qualifications to hold the office, it would 
 seem some examining board or committee would 
 have been provided to decide the question. It 
 was certainly never contemplated that a jury should 
 determine an aspirant's qualifications upon listening 
 to his examination on questions of law. We think 
 the requirement that the county judge should be well 
 
190 The Supreme Court of Texas 
 
 informed in the law was intended as a direction to 
 the voters, and that a majority of the ballots settles 
 the question." 
 
 The omission from the Constitution of any definite 
 requirement that county judges should be lawyers 
 has resulted in criticism from persons who believe 
 that a court of even limited jurisdiction should be 
 presided over by a judge capable of administering 
 the law intelligently and of safeguarding the rights 
 of litigants compelled to obey its judgments. 
 
 In State 1 vs. Galveston, Harrisburg & San Antonio 
 Railway there is interesting data relating to the 
 disposition of the public domain, together with an 
 able discussion of legislation touching the State land 
 grants in aid of the construction of railroads. In 
 1878 appellant located forty land certificates granted 
 to it by the State, upon public lands in Crockett 
 County, Texas. The certificates were for 640 acres 
 each, and at the same time the company surveyed 
 alternate sections for the State, as required by the 
 law governing such locations. After patents had 
 issued to the company for its forty sections, the 
 State instituted suit for the recovery of one-half of 
 the forty sections, contending that the Constitution 
 of 1876 unconditionally appropriated to the public 
 free schools an undivided one-half of the unappro- 
 priated public domain within the State at the time 
 said Constitution was adopted, in addition to such 
 alternate surveys as should thereafter be reserved 
 from grants to corporations. Appellee contended 
 that the expression "public domain of the State," 
 
 177 Texas, 367. 
 
The Supreme Court of Texas 191 
 
 as used in the Constitution was not meant to embrace 
 lands thereafter taken up under the law granting 
 lands to railroads. 
 
 The court below, in rendering judgment for the 
 railroad company, filed conclusions of fact, based 
 upon an agreed statement of facts containing inter- 
 esting data concerning the amount and disposition 
 made of the public domain from the adoption of the 
 Constitution of 1876 to the date of the location of 
 the lands in controversy in the suit. According to 
 the court's findings the unappropriated public do- 
 main of the State on April 18, 1876, amounted, in 
 acres, to 71,961,277. That since that date there 
 had been surveyed by virtue of certificates and scrip 
 54,713,741 acres ; under pre-emption claims 1,638,688 
 acres; for the University under grants made by 
 the Constitution, 1,000,000 acres ; for the University 
 under the Act of April 10, 1883, 1,000,000 acres; sur- 
 veyed and set apart for the building of the State Cap- 
 itol, 3,050,000 acres; sold under the Act of July 14, 
 1879, 8,043,127 acres; set apart for counties, as 
 school lands, under Acts of March 26, 1881, and 
 April 7, 1883, and other prior laws, 1,515,721 acres ; 
 surveyed for the common school fund, under act of 
 April 10, 1883, 1,000,000 acres; total surveyed for all 
 purposes since the adoption of the Constitution of 
 1876, 71,961,277 acres. The court found that of the 
 54,713,741 acres surveyed by virtue of certificates and 
 scrip, there had been returned for the benefit of the 
 school fund, in alternate sections, sections surveyed 
 by virtue of alternate scrip issued to railroad and 
 other corporations 20,967,199 acres ; under Confeder- 
 ate land scrip, 3,411,156 acres, of which there were re- 
 
192 The Supreme Cotjrt or Texas 
 
 turned for the benefit of the common school fund, 
 1,705,578 acres; which amounts added to 176,493 
 acres surveyed and returned in the years 1876, 1877, 
 and 1878, aggregated the sum of 23,849,270 acres, 
 which constituted all the lands of said 71,961,277 
 acres of public domain that were surveyed for the 
 benefit of the public school fund since the adoption 
 of the Constitution of 1876. That of said 54,713,741 
 acres of public domain surveyed by virtue of certifi- 
 cates and scrip, there were surveyed for the benefit 
 of railroads and other corporations and (individuals, 
 30,826,906 acres; and that of the lands that consti- 
 tuted the unappropriated public domain of the State 
 immediately before the taking effect of the Consti- 
 tution of 1876, as much as one-half remained unsur- 
 veyed on the 17th of December, 1878, after the sec- 
 tions, part of which were sued for in the action, and 
 the alternates thereto, had been surveyed by the de- 
 fendant. 
 
 In the opinion rendered by Justice Henry, atten- 
 tion is called to appellee's insistence that the ex- 
 pression "one-half the public domain" should be 
 given all the force the words imply, unrestrained and 
 unmodified by what precedes them in the same sec- 
 tion or by what is found in other articles of the 
 Constitution, while it is also insisted that such clause 
 of the Constitution is self-acting and had the imme- 
 diate effect of appropriating to the school fund an 
 undivided one-half of the then unappropriated pub- 
 lic domain, not otherwise appropriated by the same 
 Constitution; the application of which contention 
 meant that the balance remaining of the 71,961,277 
 acres then constituting the unappropriated public 
 
The Supebme Court of Texas 193 
 
 domain, after deducting 4,000,000 appropriated by 
 the Constitution for building a new capitol, and to 
 the University was, by the self-operating force of the 
 Constitution, appropriated to the school fund. The 
 court believed that if no land had been surveyed for 
 railroad or other corporations it could not be con- 
 tended that the Constitution appropriated more than 
 one-half the public domain, while if under the Con- 
 stitution and laws corporations became entitled to 
 grants of land, and such lands were surveyed, as they 
 must have been, in alternate sections, under appel- 
 lee's contention, that fund would also become the 
 owner of one-half of the other, or railroad alter- 
 nates, also. In other words, that the logical -se- 
 quence of the contention was, if none of the public 
 domain should be acquired by corporations, only 
 one-half of it was intended to be or was in fact ap- 
 propriated to the school fund ; while if all of it was 
 earned by the corporations, then three-fourths of 
 the whole was appropriated to the school fund. 
 
 The court could not see why it was proposed to 
 adopt such a division, or why, if it was so intended, 
 language was not used to clearly express it; that if 
 it had been intended that the fund should have three- 
 fourths of the public domain, no reason appeared 
 why the quantity of the appropriation was made 
 uncertain by its being made to depend upon the 
 quantity of land earned by corporations. The court 
 was of the opinion that if it was the purpose to give 
 the school fund three-fourths,, that the mode of ap- 
 propriation tended to the defeat of the purpose by 
 lessening the interest of the' corporations to diminish 
 the quantity of land earned by them, and that in the 
 
194 The Supreme Court of Texas 
 
 same proportion that the corporations took less the 
 school fund would have done the same thing. 
 
 The court was convinced that if it were true that 
 the Constitution operated of itself to appropriate an 
 undivided one-half of the entire unappropriated 
 public domain to the school fund, as it was contended 
 it did, then it necessarily followed that since its 
 adoption there has been no unappropriated public 
 domain; that since then there had been no spot in 
 Texas upon which a man could set his foot without 
 placing it on appropriated land. It was unable to as- 
 sume that the convention and the people in creating 
 the Constitution intended to accomplish that result; 
 that it was clear that if they did so intend they also 
 designed that the location of the public domain 
 should cease. After an extensive review of the stat- 
 utes and decisions, the court reversed and rendered 
 the case in favor of the railroad company. 
 
 Chief Justice Stayton dissented from the views 
 expressed in the majority opinion. In his dissenting 
 opinion he expressed the view that the magnitude 
 of the interest involved in the questions decisive of 
 the case, and the broad divergence of opinion enter- 
 tained by members of the court, were reasons which 
 impelled him to express his views of the construction 
 which should be placed upon those parts of the Con- 
 stitution on which the decision should rest. 
 
 "In construing a Constitution, or any other law," 
 says Chief Justice Stayton," the object sought is 
 the true intention of the lawmaker, which must be 
 ascertained by the language in which the law is writ- 
 ten, and in considering this it is always important to 
 keep in view the object which the lawmaker intended 
 
The Supreme Court of Texas 195 
 
 to accomplish through its enactment. The more 
 intensely the lawmaker may have seemed to have 
 desired to accomplish the given purpose, the more 
 weight should be given the language used in a law 
 looking to that end. "When it is seen that the people 
 of a great State have persisted throughout the pe- 
 riod of their Statehood — in prosperity and in adver- 
 sity, in peace and in war — in the accomplishment of 
 a purpose which they have declared again and again 
 of the utmost importance to their welfare if not to 
 their existence, when from time to time, as occasion 
 offered, they have manifested their deep concern to 
 accomplish it by increasing the fund with which this 
 may be done, their language used in laws looking to 
 that end ought not to be lightly weighed. 
 
 "The first section of the article of the Constitution 
 on which the decision of this case rests declares that 
 'A general diffusion of knowledge being essential to 
 the preservation of the liberties and rights of the 
 people, it shall be the duty of the Legislature of the 
 State to establish and make suitable provision for 
 the support and maintenance of an efficient system 
 of public free schools.' 
 
 "This utterance is not new to the people of Texas. 
 Before it became a separate nationality, in the face 
 of an hostile army bent on subjugation, when the 
 future was dark, the fathers of the Republic, in sum- 
 ming up the wrongs which drove them to seek 
 refuge from oppression through revolution, declared 
 that the Mexican nation 'had failed to establish any 
 public system of education, although possessed of 
 almost boundless resources (the public domain), and 
 although it is an axiom in political science that un- 
 
196 The Supreme Court of Texas 
 
 less a people are educated and enlightened it is idle 
 to expect the continuance of civil liberty or the ca- 
 pacity for self-government.' 
 
 "The same men, in the Constitution then made, 
 declared that 'it shall be the duty of Congress, as 
 soon as circumstances will permit, to provide by law 
 a general system of education. . . . When it 
 surrendered its nationality and entered the Union it 
 preserved the fund now in question, and in the Con- 
 stitution of 1845 first used the language found in the 
 present Constitution before quoted. That Constitu- 
 tion preserved to the school fund all that had been 
 donated by the Congress of the Republic, imposed 
 upon the Legislature the duty 'as early as practi- 
 cable to establish free schools throughout the State,' 
 and 'to set apart not less than one-third of the an- 
 nual revenues of the State derivable from taxation 
 as a perpetual fund.' It made other provisions in 
 lands. The accumulation of that fund and the 
 sources from which it came may be traced through 
 the legislation of the period. Again came devasta- 
 ting war, but the purpose was never abandoned ; the 
 fund though for a time partially diverted was re- 
 stored." 
 
 Following an extensive review of the statutes 
 and provisions of the Constitution bearing upon 
 the questions involved in the case, Chief Justice 
 Stayton expresses his conviction that it was not to 
 be supposed that the people who ratified the Con- 
 stitution looked to any dark or abstruse meaning 
 in the words employed by it, but rather that they 
 accepted them in the sense most obvious to their 
 common understanding in the belief that that was 
 
The Supkeme Court op Texas 197 
 
 the sense designed to be conveyed; that courts are 
 not at liberty to speculate as to what the people 
 would have done under any given state of facts 
 when called upon to construe a constitution, but are 
 bound to ascertain what they did — what they in- 
 tended to do — and this from the language used in 
 making known their intentions. In the absence of 
 any claim of conflict between the several sections of 
 the Constitution relating to the questions involved, 
 he conceived it to be the duty of the court to give 
 effect to all of them; and that the school fund was 
 not only the owner of one-half the public domain 
 given to it by Section 2, Article 7, of the Constitu- 
 tion, but also and in addition thereto, one-half of 
 the corporations' alternate surveys. Calling at- 
 tention to the circumstance that there was a defic- 
 iency in the amount of land due the school fund, 
 of 16,592,267 acres, he believed that it could not 
 be restored in a manner so equitable as by the en- 
 forcement of the spirit of the Constitution by com- 
 pelling every person or corporation who has received 
 two acres of land when entitled to receive one, to 
 restore one. 
 
 It is interesting to note that the attorney general's 
 argument of the State's motion for rehearing of the 
 case, disclosed that 5,000,000 acres of land were 
 involved in this decision. 
 
 April 8, 1891, the Legislature increased the num- 
 ber of judges of the Commission of Appeals from 
 three to six, dividing the court into two sections of 
 three commissioners each, designated as sections A 
 and B, respectively. 
 
198 The Supreme Court of Texas 
 
 Ewing et al. vs. The State of Texas ex rel Pollard 
 et al, 1 involved the power of the city of Oak Cliff, 
 covering about two square miles, to embrace within 
 its corporate limits ten square miles, composed of 
 farms and unoccupied lands. The court in an opin- 
 ion rendered by Justice Gaines, expressed itself 
 as authorized by the facts found by the trial court, 
 to assume that the limits of the attempted incorpora- 
 tion embraced about ten square miles, while the city 
 proper covered two square miles; and that while it 
 was true the proposed incorporation embraced the 
 village of West Dallas, a suburb of the thriving 
 city whose name it had in part adopted, there was a 
 mile of uninhabited territory between the outskirts 
 of that village and the city of Oak Cliff, the facts 
 were sufficient to bring the case within the principles 
 announced in the case of State vs. Edison, 2 in which 
 the court held that the statute authorizing towns and 
 villages to incorporate for school purposes only did 
 not authorize them to include within their limits 
 adjacent territory inhabited solely by a rural popu- 
 lation. In the court's opinion, a stronger reason ex- 
 isted for not permitting them to embrace in the cor- 
 poration territory not inhabited at all. The corpora- 
 tion in the instance case having been attempted 
 under the statute authorizing towns or cities of 1000 
 inhabitants to incorporate, it followed that the man- 
 ner of incorporating towns and villages for school 
 purposes, and for incorporating cities, towns, and 
 villages for municipal purposes was precisely the 
 
 181 Texas, 173. 
 276 Texas, 303. 
 
The Supreme Court of Texas 199 
 
 same; and that the same rule as to the extent and 
 nature of the territory sought to be included in the 
 corporation, was applicable to both, in the matter of 
 restricting the same to their actual boundaries. The 
 court denied the contention that the boundaries of a 
 corporation was a question to be determined by the 
 Legislature, and not by the courts, because no power 
 had been granted the Legislature to authorize the 
 incorporation to embrace territory beyond the actual 
 limits of cities and towns. "A city," said the court, 
 "does not extend beyond the area occupied by its 
 houses and inhabitants. For the same reason the 
 fact that much of the territory lying beyond the 
 actual city has been laid off into blocks and lots as 
 prospective additions does not aid respondents' 
 case." 
 
 After the annullment of the attempted incorpora- 
 tion of Oak Cliff by the decision above noted, the 
 officers of that city applied to the Commissioners' 
 Court of Dallas County to take possession of certain 
 property of the defunct city and apply it to the 
 payment of their salaries and arrears, and upon the 
 refusal of the commissioners to comply with that 
 request, sought to compel such action by mandamus. 
 A demurrer being sustained to the petition seek- 
 ing that relief, applicants appealed. In sustain- 
 ing the ruling of the court below, the Supreme 
 Court, in Ewing vs. The Commissioners' Court of 
 Dallas County, 1 held that there never existed any 
 indebtedness for which the inhabitants of the terri- 
 tory sought to be incorporated into a city, were 
 
 183 Texas, 663. 
 
200 The Supreme Court of Texas 
 
 bound ; and that it seemed that the Legislature would 
 not have power to authorize the levy of a tax upon 
 the inhabitants to meet the liabilities incurred by 
 an illegal attempt at municipal government. 
 
 In the case of State vs. Loan and Trust Company, 1 
 the Farmers' Loan and Trust Company, as plain- 
 tiff, brought suit against the International & Great 
 Northern Railway Company as defendant, to re- 
 cover $10,348,000 due upon certain second mortgage 
 bonds, alleged to have been issued and sold by said 
 company and applied to the construction and opera- 
 tion of its road, and to foreclose a certain second 
 mortgage upon all the property and franchises of 
 said company, alleged to have been executed to plain- 
 tiff as trustee to secure the payment of the bonds. 
 Plaintiff asked the appointment of receiver to take 
 charge of and operate the mortgaged property 
 under direction of the court during the pendency of 
 the suit ; for judgment for the amount sued for, and 
 for foreclosure and sale of the property in satisfac- 
 tion of its judgment. The State intervened, chal- 
 lenging the validity of the mortgage and bonds sued 
 on; prayed for their cancellation; that the owners 
 be prohibited from negotiating them; that the cor- 
 poration and its receivers be restrained from paying 
 them; and for general relief. After the overruling 
 of plaintiff's exceptions to the State's plea of inter- 
 vention, plaintiff moved the court to take a non- 
 suit, which the court sustained over the objections 
 of the State. 
 
 The court in an opinion by Chief Justice Stayton, 
 
 181 Texas, 530. 
 
The Supreme Court of Texas 201 
 
 in discussing the duties and powers conferred upon 
 the Attorney-General by the Constitution, says that 
 his duty to inquire into the charter rights of private 
 corporations was to the end that when in his opinion, 
 based upon inquiry, it became necessary to take 
 steps to prevent the abuse of corporate power he 
 might do so, but that final inquiry in all cases must 
 be made in and through all courts as to whether in 
 a given case the corporation had exercised a power 
 not given by its charter or the laws of the State 
 which would authorize the State to sue to prevent 
 an injury to the public; that the Constitution made 
 it the duty of the Attorney-General to take such 
 action in the courts as might be proper and necessary 
 to prevent any corporation from demanding any 
 species of taxes, tolls, freight or wharfage not 
 authorized by law, and that as to such matters it 
 was not only the right but the duty of the Attorney- 
 General to institute and maintain in behalf of the 
 State such suits as might be necessary to prevent 
 abuse of its franchise by any private corporation; 
 but that even in such cases it rested with the courts 
 in which such actions were brought to determine 
 whether the petition of the State showed a cause of 
 action entitling it to preventative or restraining 
 process against the corporation in a given case. 
 
 As ground for its intervention the State alleged, 
 among other things, that it had made a large dona- 
 tion of lands to the defendant company, exceeding, 
 with exemptions from taxation, the value of the 
 properties of the company, for the purpose and on 
 condition that the company would maintain low 
 rates of freight charges upon traffic, which it could 
 
202 The Supreme Court of Texas 
 
 not do if its bonds were foreclosed and its property 
 sold as prayed for by the Farmers' Loan and Trust 
 Company; and that if the decree asked by the trust 
 company should be granted, the said railway com- 
 pany would be forced to raise charges for traffic over 
 its line, thereby imposing an extra burden upon the 
 commerce of the country. 
 
 The court recognized the universally accepted rule, 
 that to entitle a person or a corporation to maintain 
 an action it must be shown that the one instituting 
 the suit has an interest in the subject matter of liti- 
 gation either in his own right or in a representative 
 capacity, and that a State was not exempt from this 
 rule, though it ought to be conceded that such repre- 
 sentative character could be established by a positive 
 law when the relation would not be held to exist in its 
 absence. Without intimating in its opinion the 
 validity or invalidity of the bonds or of the mort- 
 gage intended to secure them, the court was of the 
 opinion that the facts alleged in the State's petition 
 were insufficient to entitle the State to the relief 
 sought because by the sale of the railway and the 
 franchises of the corporation, all debts not secured 
 by mortgage giving prior lien to that held by the 
 trust company as trustee would be extinguished, in 
 so far as they could effect the title of the purchaser, 
 or his right to operate the railway at such rates as 
 under the law he might fix. Conceding that the court 
 had retained jurisdiction of the case and granted 
 the relief asked by the State, the court was unable 
 to see that the public would have been benefited, 
 seeing that the trial court could not have legally 
 made or enforced an order requiring the company, 
 
The Stjpkeme Court of Texas 203 
 
 after the cancellation of the bonds alleged to be 
 invalid, to transport freight or passengers at a 
 rate lower than the maximums fixed by law. The 
 court did not believe that it was the purpose of the 
 Constitution to confer upon the Attorney-General 
 the power to institute and maintain an equitable 
 proceeding such as this in every case in which a 
 corporation exercised a power not conferred by law, 
 without reference to the question of whether the ex- 
 ercise of such power is hurtful to some interest 
 essentially public. It believed it to be the right of 
 the Attorney-General in behalf of the State, through 
 the courts, to prevent any corporation from exercis- 
 ing any power not conferred by law when this is 
 hurtful to the public, or the assumption of a fran- 
 chise which in itself was a public wrong. The court 
 said that the corporate acts in this case claimed to 
 have been committed without authorization of law, 
 were the issuance of bonds and execution of the 
 mortgage made the basis of plaintiff's action, which 
 occurred in 1881, and that it is now alleged, not that 
 the corporation proposes to do any act in excess of 
 its powers, but that it refused to make necessary 
 defenses and intended to permit the court to render 
 judgment against it that ought not to be rendered; 
 that admitting such to be true, it might violate its 
 duty to its stockholders and fail in its duty to the 
 State to preserve its funds that might be necessary 
 to the discharge of its duties to the public, but that 
 such would not be the exercise of a power not con- 
 ferred by law, but a failure to exercise a proper and 
 necessary power, not presenting a case within the 
 
204 The Supeeme Court or Texas 
 
 letter or spirit of the Constitution entitling the State 
 to a preventative remedy. 
 
 In Can-field vs. Gresham et al., 1 the court held that 
 under the provisions of Article 3, Sections 15 and 21 
 of the Constitution, the House of Representatives of 
 the Texas Legislature had the right to determine 
 whether or not the acts of a person were such as to 
 be classed as an obstruction to its proceedings; and 
 that having so determined to cause him to be im- 
 prisoned for contempt, such imprisonment gave no 
 right of action against the members of the Legisla- 
 ture, nor the sergeant-at-arms who executed the 
 order. 
 
 The action was instituted by H. S. Canfield against 
 fifty-six members of the House of Representatives 
 of the Twentieth Legislature, and J. C. Carr, its 
 sergeant-at-arms, to recover damages for his alleged 
 unlawful and malicious arrest and imprisonment. 
 
 As justifying their action the defendants, among 
 other defenses, alleged: 
 
 "That early in the session, and because of the 
 interest of the public in the proceedings of said 
 House of Representatives, and in order that said 
 proceedings might be more fully and accurately re- 
 ported for transmission to the various newspapers 
 publishing the same, a table for writing and other 
 conveniences was provided in said House of Repre- 
 sentatives, within the bar of said House, and to the 
 representatives of journals of the State was ex- 
 tended the privilege of seats at said table. . . . 
 That . . . plaintiff was reporter or correspond- 
 
 182 Texas, 228. 
 
The Supreme Court or Texas 205 
 
 ent for a newspaper published in San Antonio, 
 Texas, and on that account, and for the purposes 
 aforesaid . . . was permitted to sit at said table. 
 . . . That said Canfield did not appreciate the 
 courtesy shown him or the facilities afforded the 
 newspaper he represented; that the said Canfield 
 at once devoted himself to misrepresenting the ac- 
 tion of the Legislature, and instead of confining 
 himself to correct and true reports and legitimate 
 and accurate statements in his correspondence, the 
 said Canfield proceeded to fabricate and transmit 
 . . . for publication ... a series of sensa- 
 tional, false, defamatory, and slanderous letters, re- 
 lating not to any matter affecting the public wel- 
 fare or concerning the official proceedings of said 
 House of Representatives, but to the personal ap- 
 pearance of, manners and habits of certain in- 
 dividual members of said House; said letters being 
 calculated to, and of such a nature and so designed 
 as to bring into public odium, infamy, ridicule, and 
 contempt the said House of Representatives and the 
 individual members thereof. 
 
 "That on account of the purpose and conduct of 
 the said Canfield in the matter of the correspondence 
 above referred to, which was a breach of the priv- 
 ilege of said House, and a high contempt of the 
 dignity of the chosen representatives of the people, 
 a resolution was offered and duly passed . . . 
 which expelled the said Canfield from and denied 
 him admission to and the privilege of the hall within 
 which the said House of Representatives was holding 
 its session. . . . 
 
 "That the said Canfield was present in the House 
 
206 The Supreme Court of Texas 
 
 of Representatives when said resolution was passed, 
 and had full knowledge thereof and its contents. 
 That afterwards . . . the said resolution still 
 being in force, and the House of Representatives be- 
 ing in session with open doors, through which the 
 said Canfield could both hear and see if he so de- 
 sired, the said Canfield, notwithstanding said reso- 
 lution and said rules 49 and 50, and the said Can- 
 field not coming within the exemptions mentioned in 
 said rules, and notwithstanding the further fact that 
 the hall in which the session was being held was 
 under the control of the House of Representatives, 
 demanded to enter said hall where the House of 
 Representative was then in session, and against the 
 wishes and over the objections of the Assistant 
 Sergeant-at-Arms, . . » he, the said iCanfield 
 did, forcibly intrude himself into said hall, . . . 
 and was removed by said Assistant Sergeant-at 
 Arms. 
 
 "That the said Canfield . . . for the purpose 
 of obstructing the proceedings of said House, and 
 contrary to truth, did appear at the office of a justice 
 of the peace . . . and make oath to a written 
 complaint, which charges as follows : . . . 'That 
 he has good reason to believe, and does believe and 
 charge that George C. Pendleton and Mont- 
 gomery whose other name ... is unknown to 
 affiant, did . . . unlawfully and wilfully in and 
 upon H. S. Canfield make an assault' . . . That 
 the said Canfield procured a warrant of arrest 
 . . . and procured the arrest of said Pendleton 
 ... in open contempt of the House of Repre- 
 sentatives and of its right to transact legislative 
 
The Supreme Court of Texas 207 
 
 business for the people free from molestation, and 
 which, was for the purpose of obstructing the pro- 
 ceedings of the House; the said Pendleton being at 
 the time of his arrest a member of said House, as 
 aforesaid, of the Twentieth Legislature of Texas, 
 . . . and not subject to arrest, as he had not 
 committed treason, felony, or breach of the peace. 
 That on account of the arrest of said Pendleton, pro- 
 cured ... by the said Canfield, the said Pendle- 
 ton was forcibly taken away and caused to absent 
 himself from his official duties as a member of the 
 House of Eepresentatives and as Speaker thereof, 
 and was required to attend for trial in answer to 
 said complaint upon the court of said . . . just- 
 ice of the peace. . . . 
 
 "That by the absence of the said Pendleton, caused 
 and procured by the said Canfield, . . . the 
 proceedings of the House of Representatives were 
 obstructed, business was delayed and a Speaker 
 pro tern, had to be elected to serve in the place of 
 the absent Speaker, and a general dissatisfaction 
 and disturbed state of mind ensued, unfitting the 
 Representatives for calm and deliberate legislation. 
 That because of the obstruction of the proceedings 
 of the House of Representatives ... by the 
 said Canfield, a resolution was passed by the House 
 of Representatives . . . substantially as fol- 
 lows: 
 
 " 'Whereas, It has come to the knowledge of 
 this House that Hon. George C. Pendleton, Speaker 
 of this House, was today arrested by virtue of a 
 warrant of arrest issued by Fritz Tegener, justice 
 of the peace in and for Travis County, Texas, upon 
 
208 The Supreme Court of Texas 
 
 the affidavit of H. S. Canfield, charging him, the 
 said George C. Pendleton, with committing an as- 
 sault, and that the said George 0. Pendleton is now 
 detained as aforesaid ; therefore be it 
 
 " 'Resolved, That this House refuse to waive the 
 privilege of the said George C. Pendleton as mem- 
 ber thereof, and that this House refuse to permit 
 the said justice of the peace to proceed with the 
 trial of the said George 0. Pendleton, and that he, 
 together with the said officer, M. V. Crenshaw, be 
 instructed and directed to no longer detain the said 
 Hon. George C. Pendleton, but that he be released 
 at once, that he may attend upon this House as a 
 member thereof. 
 
 " '2. That the said Fritz Tegener, justice of the 
 peace, and M. V. Crenshaw, said officer making such 
 arrest, and the said H. S. Canfield, be required to 
 appear at the bar of the House at once and answer 
 why they should not be committed for contempt as 
 aforesaid ; and that upon their failure to do so that 
 they be committed to imprisonment for the period 
 of forty-eight hours to purge themselves of said 
 contempt.' " 
 
 Upon their appearance in response to the resolu- 
 tion, Tegener and Crenshaw were released from 
 further attendance, and Canfield was sentenced to 
 forty-eight hours imprisonment for obstructing the 
 proceedings of the House of Representatives. 
 
 September 22, 1891, the following Constitutional 
 amendments relating to the Supreme Court were 
 adopted : 
 
 "The Supreme Court shall consist of a chief 
 justice and two associate justices, any two of whom 
 
The Supreme Court op Texas 209 
 
 shall constitute a quorum, and the concurrence of 
 two judges shall be necessary to the decision of a 
 case. No person shall be eligible to the office of 
 chief justice or associate justice of the Supreme 
 Court unless he be, at the time of his election, a 
 citizens of the United States and of this State, and 
 unless he shall have attained the age of thirty 
 years, and shall have been a practicing lawyer or 
 a judge of a court, or such lawyer and judge to- 
 gether, at least seven years. Said chief justice and 
 associate justices shall be elected by the qualified 
 voters of the State at a general election, shall hold 
 their offices for six years or until their successors 
 are elected and qualified, and shall receive an an- 
 nual salary of four thousand dollars until other- 
 wise provided by law. In case of a vacancy in the 
 office of chief justice of the Supreme Court the 
 Governor shall fill the vacancy until the next general 
 election for State officers, and at such general elec- 
 tion the vacancy for the unexpired term shall be 
 filled by election by the qualified voters of the 
 State. The judges of the Supreme Court who may 
 be in office at the time this amendment takes effect 
 shall continue in office until the expiration of their 
 term of office under the present Constitution, and 
 until their successors are elected and qualified. 
 
 "The Supreme Court shall have appellate juris- 
 diction only, except as herein specified, which shall 
 be coextensive with the limits of the State. Its 
 appellate jurisdiction shall extend to questions of 
 law arising in cases of which the Courts of Civil 
 Appeals have appellate jurisdiction, under such 
 restrictions and regulations as the Legislature may 
 
210 The Supreme Court of Texas 
 
 prescribe. Until otherwise provided by law the 
 appellate jurisdiction of the Supreme Court shall 
 extend to questions of law arising in the cases in 
 the Courts of Civil Appeals in which the judges of 
 any Court of Civil Appeals may disagree, or where 
 the several Courts of Civil Appeals may hold dif- 
 ferently on the same question of law, or where a 
 statute of the State is held void. The Supreme 
 Court and the justices thereof shall have power to 
 issue writs of habeas corpus as may be prescribed 
 by law, and under such regulations as may be pre- 
 scribed by law the said court and the justices thereof 
 may issue the writs of mandamus, procedendo, cer- 
 tiorari, and such other writs as may be necessary 
 to enforce its" jurisdiction. The Legislature may 
 confer original jurisdiction on the Supreme Court 
 to issue writs of quo warranto and mandamus in 
 such cases as may be specified, except as against the 
 Governor of the State. The Supreme Court shall 
 also have power, upon affidavit or otherwise, as by 
 the court may be determined, to ascertain such 
 matters of fact as may be necessary to the proper 
 exercise of its jurisdiction. The court shall sit for 
 the transaction of business from the first Monday in 
 October of each year until the last Saturday of 
 June in the next year, inclusive, at the capital of 
 the State. 
 
 "The Supreme Court shall have power to make 
 and publish rules of procedure, not inconsistent with 
 the laws of the State, for the government of said 
 court and the other courts of the State, to expedite 
 the dispatch of business therein." 
 
The Supreme Court of Texas 211 
 
 By an act approved April 13, 1892, 1 it was pro- 
 vided that justices of the Supreme Court should be 
 elected by the qualified voters of the State at a gen- 
 eral election; that the judges of the court then in 
 office should hold their office until the expiration 
 of the term for which they were elected, and until 
 their successors were elected and qualified. It was 
 provided that as soon as practicable successors of 
 the then incumbents should be elected and that the 
 newly elected judges should cast lots for the term 
 of office ; that the one who should draw number one 
 should hold his office for two years; the one draw- 
 ing number two, for four years; the one drawing 
 number three, for six years; and that each judge. of 
 the Supreme Court elected thereafter should hold 
 his office for six years, and should receive an annual 
 salary of four thousand dollars. It was further pro- 
 vided that the court should hold one term each 
 year at the city of Austin, commencing on the first 
 Monday in October in each year, and may continue 
 until the last Saturday in the next June. The 
 Supreme Court was given appellate jurisdiction 
 co-extensive with the limits of the State, extending to 
 questions of law arising in all civil cases of which 
 the courts of civil appeals have appellate but not 
 final jurisdiction. All cases were required to be 
 carried up to the Supreme Court by writs of error 
 issuing from the Supreme Court to the courts of 
 civil appeals upon final judgment, and not on judg- 
 ments reversing and remanding causes, except in 
 the following cases: 1. Where the State is a party 
 
 lAct of 22nd Leg., Appendix A, herein. 
 
212 The Supreme Court op Texas 
 
 or where the railroad commissioners are parties. 2. 
 Cases which involve the construction and application 
 of the Constitution of the United States or of the 
 State of Texas or an Act of Congress. 3. Cases 
 which involve the validity of a statute of the State. 
 4. Cases involving the title to a State office. 5. 
 Cases in which a court of civil appeals overrules its 
 own decisions or the decision of another court of 
 civil appeals or of the Supreme Court. 6. Cases 
 in which the judges of any court of civil appeals 
 may disagree. 7. Cases in which any two of the 
 courts of civil appeals may hold differently on the 
 same question of law. 8. When the judgment of a 
 court of- civil appeals reversing a judgment prac- 
 tically settles the case, and this fact is shown in the 
 petition for writ of error. 
 
 The act provides that parties desiring to sue out 
 a writ of error before the Supreme Court, shall pre- 
 sent a petition to the court stating the names and 
 residences of parties adversely interested, with a 
 brief statement of the nature of the case and the 
 ground upon which the writ of error is prayed, and 
 that it must appear that the errors complained of 
 arose upon questions of law, the determination of 
 which were necessary to the decision of the cause 
 in the court of civil appeals, and that said questions 
 were properly presented to said court; that it must 
 further appear that the Supreme Court would have 
 jurisdicion thereof; and that the petition shall con- 
 tain such other requisites as may be prescribed by 
 the Supreme Court. A certified copy of the con- 
 clusions of law and facts filed in the cause by the 
 court of civil appeals, with the opinion thereof, 
 
The Stjpkeme Court of Texas 213 
 
 together with a certified copy of the judgment in the 
 trial court and of the bond given in the lower court, 
 if any, are required to accompany the application; 
 and if upon inspection of the record it should ap- 
 pear to the Supreme Court that there is error in 
 the judgment of the court of civil appeals, it shall 
 grant a writ of error returnable in thirty days, in 
 such manner as may be prescribed by said court. 
 
 By an act of the same Legislature approved on 
 the same date, the present system of courts of civil 
 appeals was created. 
 
 Darnell vs. Lyon 1 was among the first cases con- 
 struing the Constitutional amendments and the act 
 in pursuance of authority to reform the procedure 
 of the Supreme Court. Chief Justice Stayton dis- 
 sented from the views of the majority of the court 
 holding that the Supreme Court has jurisdic- 
 tion of questions novel or of first impression 
 certified to it by the court of civil appeals, in cases 
 in which it has final jurisdiction. He was con- 
 vinced that the intention of the Legislature was to 
 confer upon the Supreme Court jurisdiction of a 
 question of law found in a case appealed to a court 
 of civil appeals, although that court had made no 
 decision on the question, interlocutory or final in 
 character; and that there could be no doubt that it 
 was intended to make the decision of the Supreme 
 Court on the certified question binding on the court 
 of civil appeals. In the case before the court, he 
 contended that the Court of Civil Appeals made no 
 decision of the cause nor of the question certified, 
 
 185 Texas, 455. 
 
214 The Supeeme Cotjet of Texas 
 
 and hence the question arose whether the Legis- 
 lature had power to confer such jurisdiction on the 
 Supreme Court. Citing the provision of the Con- 
 stitution which declares that "said Court of Civil 
 Appeals shall have appellate jurisdiction coextensive 
 with the limits of their respective districts, which 
 shall extend to all civil cases of which the district 
 or county courts have original or appellate juris- 
 diction, under such restrictions and regulations as 
 may be prescribed by law, he expressed the view 
 that if, under that clause of the Constitution, the 
 Legislature had not restricted the jurisdiction of 
 these courts, they would have had appellate jurisdic- 
 tion of every civil cause tried in a district or county 
 court in the exercise of original or appellate jurisdic- 
 tion, simply because it is conferred by the Constitu- 
 tion. While that jurisdiction has been somewhat re- 
 stricted by the Legislature under the power con- 
 ferred by the Constitution, yet he conceded that the 
 Court of Civil Appeals has jurisdiction of the cause 
 in which the questions certified were found. Touch- 
 ing the character of that jurisdiction, he believed 
 that it was an exclusive one so long as the cause re- 
 mained undecided in that court; that such would 
 follow as there were no other parts of the Consti- 
 tution bearing upon the question except that quoted ; 
 for the declaration that the jurisdiction of the 
 Courts of Civil Appeals "shall extend to all civil 
 cases," etc., necessarily would make their jurisdic- 
 tion in the classes of cases referred to exclusive, for 
 the time, in the absence of some other provision in 
 the Constitution giving some other court concurrent 
 or co-ordinate jurisdiction; that when it is said the 
 
The Supreme Court of Texas 215 
 
 jurisdiction of these courts is conclusive this 
 word is used to express a jurisdiction not 
 concurrent, and it was not contended that 
 while it is in this sense an exclusive jurisdiction, 
 that it is a final jurisdiction. Quoting the section of 
 the Constitution which provides that "The Supreme 
 Court shall have appellate jurisdiction only, except 
 as herein specified, which shall be coextensive with 
 the limits of the State," and that "its appellate 
 jurisdiction shall extend to questions of law arising 
 in cases of which the Courts of Civil Appeals have 
 appellate jurisdiction, under such restrictions and 
 regulations as the Legislature may prescribe," he 
 contended that the Constitution as quoted shows that 
 the jurisdiction to be exercised by the Supreme 
 Court is an exclusive and final jurisdiction, under 
 such restrictions as the Legislature might make ; that 
 it is appellate only, and that it extends only to 
 questions of law arising in cases of which the 
 Court of Civil Appeals have appellate jurisdiction; 
 while under another clause of the Constitution it is 
 declared "that the decisions of said courts (Courts 
 of Civil Appeals) shall be conclusive on all ques- 
 tions of fact brought before them on appeal or 
 error." 
 
 He did not believe that it was the intention of the 
 framers of the Constitution that the Courts of Civil 
 Appeals and the Supreme Court should have juris- 
 diction concurrent in nature in any case, but to 
 clothe the Supreme Court with power, in the exer- 
 cise of its appellate jurisdiction as conferred, only 
 to decide questions of law that had been passed upon 
 by the Court of Civil Appeals, or that arise in a 
 
216 The Supreme Court of Texas 
 
 case decided by one of those courts. He believed 
 that appellate jurisdiction was given the Courts of 
 Civil Appeals that they might exercise it, and not 
 that they might surrender it by referring a cause, 
 or a question in a cause, which they ought to decide, 
 for the decision of the Supreme Court, which would 
 be but another method of giving it jurisdiction of 
 cases over which the Constitution declares the Court 
 of Civil Apeals should have jurisdiction. 
 
 'Was it ever contemplated," inquired Justice 
 Stayton, "that in any case a Court of Civil Appeals 
 should decide the facts of a cause and not the law?" 
 He did not conceive that such was the intention, 
 because it would not be the exercise of the jurisdic- 
 tion conferred by the Constitution — not really the 
 exercise of any jurisdiction at all nor the 
 hearing or determination of any right; that 
 in cases to which that belongs from which 
 the questions were certified, the Constitution pro- 
 vided that they should "be certified to and the 
 records thereof transmitted to the proper Court of 
 Civil Appeals, to be decided by said courts;" that 
 they were required to be sent to Courts of Civil 
 Appeals, to be decided by them, and not that they 
 might send them, in whole or in part, to the Supreme 
 Court for determination in the first instance. 
 
 "It can not," Justice Stayton continues, "with 
 plausibility, be contended that this court has and 
 may exercise appellate jurisdiction in any case 
 pending before a Court of Civil Appeals in which 
 there is a question of law, even if those courts may 
 consent to or invite the exercise of such jurisdiction ; 
 for if this were true, this court, without a law, 
 
The Supkeme Court op Texas 217 
 
 would have or could acquire jurisdiction over any 
 case pending before Courts of Civil Appeals; for 
 there is no cause in which there does not exist a 
 question of law. It may not be a doubtful or con- 
 troverted question, but in the nature of things it 
 must exist, for the application of some rule of law 
 is necessary to the determination of every right. 
 Courts have no power to confer upon themselves or 
 upon other courts any jurisdiction whatever — that 
 must come through the law. It is equally true that 
 the Legislature has not power to confer upon this 
 court appellate jurisdiction over any case pending 
 in the Courts of Civil Appeals in which there exists 
 a question of law, prior to a decision of the cause 
 by the court having jurisdiction over it under the 
 terms of the Constitution; for the existence of such 
 a power in the Legislature would give to that de- 
 partment the power to take from those courts the 
 jurisdiction conferred upon them by the Constitu- 
 tion." 
 
 In May, 1893, Justice Henry resigned, and Thomas 
 J. Brown was appointed Associate Justice to fill 
 the vacancy. 
 
 Thomas J. Brown was born in Jasper County, 
 Virginia, July 24, 1836. His parents removed to 
 Texas in the winter of 1846-47, locating in "Washing- 
 ton County. In 1857 he graduated from the law 
 department of Baylor University, Independence, 
 Texas, and was admitted to the bar in that year, and, 
 in 1859, was licensed to practise in the Supreme 
 Court of Texas. Thereafter he located at McKinney, 
 Collins County, Texas, where he engaged in practis- 
 ing law until the outbreak of the Civil War, when 
 
218 The Supreme Court of Texas 
 
 he joined the Confederate army, serving as second 
 lieutenant in E. Robert Taylor's regiment of cavalry, 
 and was later promoted to the rank of captain. He 
 served in the army until ill health compelled him to 
 resign before the close of the war. Returning to 
 McKinney he formed a law partnership with J. W. 
 Throckmorton, of which he was a member until 
 1872, when he removed to Sherman, Grayson County, 
 Texas. He represented Grayson County in the 
 Twenty-First and Twenty-Second Legislatures with 
 distinction. His able advocacy of the Railroad Com- 
 mission Bill in the Twenty-first Legislature gave 
 him State-wide reputation as one of the ablest 
 legislators of that period. 
 
 He was among the ablest and most efficient of 
 those leading citizens of Texas who succeeded in 
 curbing corporate aggression in several directions, 
 which threatened for a time the supremacy of those 
 organizations to the detriment of the interests of the 
 people; an epoch marked by the creation of the 
 Railroad Commission, and the enactment of drastic 
 legislation regulating the activities of foreign corpo- 
 rations in Texas. Several persons connected with cor- 
 porations in Texas, who were unable to distinguish a 
 political partisan from a patriot, did not welcome the 
 appointment of Justice Brown. It is distinctly credit- 
 able to Justice Brown that these fears were dispelled 
 by the universal fairness and thorough impartiality 
 of his decisions in corporation cases, as in all others, 
 and that within a short time after his assumption of 
 his duties upon the court, corporation as well as 
 anti-corporation lawyers, united in their approval 
 
The Supreme Court of Texas 219 
 
 of the selection of Justice Brown as the best that 
 could have been made. 
 
 The vigor, strength, simplicity and clearness of 
 Justice Brown's opinions demonstrate his mental 
 virility, unerring sense of justice, and rugged man- 
 hood. He came to the bench in that fullness of 
 physical and mental vigor and strength, made pos- 
 sible in age by a simple, clean and upright life. The 
 pages of the official reports covering the period of 
 his distinguished labors as a member of the court are 
 enduring evidences of how ably, faithfully and well 
 he discharged the responsible duties of his exalted 
 position. There is reason to believe that, like 
 more than one of his distinguished predecessors, his 
 health and life were sacrificed to his conscientious 
 devotion to the exacting labors of that tribunal, 
 which it appears the legislative department has been 
 incapable of understanding or sufficiently appreciat- 
 ing to lighten those burdens which have sacrificed so 
 many of our distinguished jurist. 
 
 In Queen Insurance Company et al. vs. State, 1 the 
 Supreme Court in an able opinion by Justice Gaines, 
 held that a combination between two or more insur- 
 ance companies to increase their rates of insurance, 
 or to diminish the rates to be paid to their agents, 
 was in a general sense a combination in restraint of 
 trade, but not violative of an anti-trust law inhibit- 
 ing and punishing combinations 'to create or carry 
 out restrictions in trade." 
 
 The State of Texas by its Attorney-General in- 
 stituted suit against the "Texas Insurance Club," 
 
 186 Texas, 350. 
 
220 The Supreme Court of Texas 
 
 an association of insurance agents, and against 
 fifty-seven foreign insurance companies doing busi- 
 ness in Texas under permits granted under the laws 
 of the State. The Insurance Club was alleged to 
 have been created with the consent and by the pro- 
 curement of the other defendants for the purpose 
 of organizing a combination to fix a uniform rate 
 of insurance throughout the State upon a graduated 
 scale, thereby preventing competition among each 
 other, and at the same time establishing a fixed rate 
 of commission to be paid to the agents of said com- 
 panies. It was alleged that the combination, pur- 
 poses, and acts of the defendants were in restraint of 
 trade, contrary to public policy, and in viola- 
 tion of the Texas anti-trust act, and illegal at com- 
 mon law. 
 
 The court expressed the opinion that if it should 
 be admitted that the language of the statute suf- 
 ficiently manifests the intention of the Legislature 
 to make such combinations as are defined therein 
 unlawful, and to make punishable acts committed in 
 violation of its provisions, and that it is not in con- 
 flict with the Constitution by reason of the fact that 
 it exempts "agricultural products and livestock 
 while in the hands of the producer or raiser" from 
 its operation, the question remained whether the 
 combination charged in the petition is embraced 
 within the provisions of the law. "We are of the 
 opinion," says the court, "that the question must 
 be answered in the negative. To determine that it is 
 so embraced, we must hold either that it is a restric- 
 tion on trade within the meaning of the first sub- 
 division of Section 1, and that those words suf- 
 
The Supreme Court of Texas 221 
 
 ficiently define an offense so as to make it punishable 
 under our laws, or that the contract of insurance is 
 a commodity such as is named in the other sub- 
 divisions. A combination of two or more insurance 
 companies to increase their rates or to diminish the 
 rates to be paid their agents, is in a general sense a 
 combination in restraint of trade. But we think that 
 the words 'restrictions in trade' were not intended 
 to receive that construction in the statute under 
 consideration. If so intended, it may be gravely 
 doubted whether under our laws they sufficiently 
 designate an offense so as to make it punishable." 
 
 The court viewed some contracts as contrary to 
 public policy, and unlawful in the sense that they 
 would not be enforced by the courts; while others 
 were lawful and enforceable. As to restraints which 
 are reasonable, the authorities, says the court, are 
 not in accord; though the evident tendency of 
 modern decisions was to uphold such contracts in 
 doubtful cases; that the rule as to contracts in un- 
 reasonable restraint of trade had been applied 
 without a question to very varied employments, such 
 as attorneys at law and physicians, as well as to 
 merchants, shopkeepers, carriers, and those engaged 
 in mechanical pursuits of every character. The rule, 
 it was believed, was founded both upon the ground 
 that the public has an interest in the employment, 
 and upon the further ground that it is contrary to 
 public policy that any person should wholly deprive 
 himself of his right to pursue an occupation in which 
 he is presumably skilled; that while a party might 
 bind himself for an adequate consideration not to 
 pursue his avocation within the limits of a prescribed 
 
222 The Supreme Court of Texas 
 
 locality, provided the limits should be reasonable, 
 but he could not bind himself not to follow his trade 
 in any place whatever. 
 
 "Now an agreement between two or more persons," 
 says the court, "by which one of them undertakes 
 to bind himself not to follow his trade or practice a 
 profession in a territory of prescribed limits, is 'a 
 combination' within the meaning of the statute 
 under consideration. A contract between two or 
 more persons to do a thing is a 'combination of 
 . . . acts' of such persons to bring about the 
 performance of the contract. It is upon this theory, 
 in part, that the charge made in the petition is 
 based. Now the clause of the act which we are en- 
 deavoring to construe makes no distinction between 
 such restraints of trade as are reasonable and such 
 as are unreasonable. Hence if we should give the 
 words 'restrictions in trade' their ordinary technical 
 meaning, it would follow that the act made punish- 
 able all contracts in restraint of trade, however 
 reasonable they may be. It would follow, that if one 
 merchant engaged in the hardware business should 
 buy out another, such other agreeing not to pursue 
 the same business on the same block or street or 
 in the same town for a limited time, both would be 
 subject to the penalties affixed by the act. It is 
 probable that the Legislature has the power to make 
 such a law. But it is unreasonable to presume that 
 they intended to make it ; and no construction ought 
 to be given to an act which would lead to such re- 
 sults, unless its language is so clear an unambiguous 
 as to admit of no other conclusion." 
 
 The court did not wish to be understood as hold- 
 
The Supreme Court of Texas 223 
 
 ing that the combination disclosed in this case was 
 not detrimental to the public, or that sound policy- 
 did not demand the suppression of that and like 
 organizations of a similar magnitude. It conceded 
 that there were certain contracts, and perhaps com- 
 binations, which the law regarded as being against 
 public policy, but that the courts could not extend 
 the rule merely by reason of their opinion as to 
 what the law ought to be ; that what other combina- 
 tions or contracts should be held illegal on the 
 ground of public policy, was a political question — 
 one which it was the province of the legislative de- 
 partment of the government to determine; that the 
 Legislature had power to weigh the public interest 
 even "in golden scales," and if such combinations 
 should be found detrimental, they should denounce 
 the evil and provide the remedy. 
 
 Interest attaches to the case of Scott vs. State, 1 as 
 one of few proceedings in Texas to disbar an at- 
 torney for professional misconduct. The suit was 
 instituted in the District Court of Bosque County, 
 where a judgment was rendered against Scott, for- 
 feiting his license, disbarring him from practice, 
 and striking his name from the roll of attorneys. 
 Prom that judgment he sued out a writ of error to 
 the Court of Civil Appeals of the Second District, 
 which held that the case was a criminal proceeding 
 of which it had no appellate jurisdiction, and dis- 
 missed the cause. Upon this judgment appellant 
 was granted a writ of error by the Supreme Court, 
 which held that the case was a civil proceeding of 
 
 186 Texas, 321. 
 
224 The Supreme Court of Texas 
 
 which the Court of Civil Appeals had jurisdiction, 
 and reversed and remanded it to the latter court for 
 disposition. 1 
 
 The opinion of Chief Justice Stayton in Texas & 
 Pacific Railway Company vs. Gay, 2 is one of the 
 ablest rendered in the Supreme Court of Texas in 
 recent years. His masterly review of authorities and 
 able exposition of the jurisdiction of Federal courts 
 in railway receiverships, the sources of judicial 
 power, and the liability of railway corporations for 
 the acts of illegally appointed receivers, are dis- 
 tinctly creditable to the professional learning of the 
 great jurist who formulated the opinion. 
 
 The suit was instituted by the wife and minor 
 child of John M. Gay, to recover from John C. 
 Brown, as receiver of the Texas & Pacific Railway 
 damages for an injury received by him while in the 
 employment of the receiver, which resulted in death. 
 At the time the suit was brought John C. Brown 
 
 iOn submission of the case in the Court of Civil Appeals, Scott, 
 while arguing the case in his own behalf, was interrupted by a learned 
 but proverbially inquisitive Justice, who inquired if counsel was aware 
 that a point he was contending for had been expressly denied in a case 
 decided by a New York appellate court, to which Scott replied he was. 
 
 "Then what have you to say of that case?" the Justice asked. 
 
 "Simply this," Scott replied, "it's a decision of one of those half-way 
 courts, like this, which isn't the law until indorsed by the Supreme 
 Court!" 
 
 The timely intervention of an amaous curiae, who privately advised 
 the court that Scott was so worried by reflections cast upon his pro- 
 fessional integrity by the proceedings, that he was hardly responsible 
 for his utterances, probably was all that saved him from, severe punish- 
 ment for contempt of court. There is, however, no doubt that the 
 decision of the Supreme Court in the case measurably sutained Scott's 
 estimate of the value which sometimes attaches to the decisions of 
 what he was pleased to call "half-way courts.'' 
 
 286 Texas, 571. 
 
The Supreme Court of Texas 225 
 
 was operating the Texas & Pacific Railway as re- 
 ceiver under appointment of the Circuit Court of 
 the United States sitting for the Eastern District of 
 Louisiana, hut pending the litigation the receiver 
 was discharged. After the discharge of the receiver, 
 with pleadings setting up the fact, a judgment was 
 rendered against him, which was reversed hy the 
 Supreme Court in Brown vs. GoAf? Thereafter the 
 Texas & Pacific Railway Company was made a 
 party defendant. 
 
 "The pleadings," says the court, "show a state 
 of facts which would have entitled John Gay to have 
 maintained this action against the railway company 
 for the injury, had he lived ; but as it has been held 
 that actions for injuries resulting in death could 
 not be maintained against receivers under the law 
 as it was when the injury and death in question 
 occurred, questions have been certified to this court 
 under pleadings and a judgment against the railway 
 company which make them pertinent." 
 
 The first question certified was, "Did the Circuit 
 Court of the United States for the District of Louis- 
 iana have jurisdiction to take possession through a 
 receiver of that part of the road situated in the 
 State and Northern District of Texas?" 
 
 After quoting the act of Congress chartering the 
 Texas & Pacific Railway Company, and acts sup- 
 plementary thereto, showing that the eastern term- 
 inus of that road was fixed at Marshall, Texas, and 
 that no part of the line as chartered and authorized 
 by said acts, was in Louisiana, the court says that 
 
 176 Texas, 44. 
 
226 The Supreme Court of Texas 
 
 the case presented is not one in which one railway, 
 under the terms of its charter, extends through or 
 into two or more states, in one of which a receiver 
 over the entire road was appointed by a court sitting 
 in a state in which part of the road was ; but that the 
 case is one in which a receiver was appointed by a 
 Circuit Court of the United States sitting in and for 
 the Eastern District of Louisiana, to take possession 
 of, operate, and control a railway, no part of which 
 was in the State of Louisiana. 
 
 The court held that the appointment of a receiver 
 by a court of general jurisdiction ought to be held 
 conclusive of the power of the court to make the 
 appointment when called in question collaterally, 
 unless it appears that in the particular case the court 
 was without jurisdiction. 
 
 Jurisdiction, the court declared, must depend on 
 the laws creating the court and prescribing its 
 powers; and if it attempts to exercise a power not 
 conferred, its judgments and decrees are not binding 
 even upon the parties, and may be declared inopera- 
 tive by any tribunal in which effect is sought to be 
 given them; that if the fact on which jurisdiction 
 depends is determined by law, then resort to pre- 
 sumptions ordinarily indulged in, in favor of the 
 powers of a court of general jurisdiction which has 
 assumed to act in a given case is neither necessary 
 nor admissible. 
 
 The court expressed its conviction that in the 
 matter under consideration, it appeared through a 
 positive law, creating the Texas & Pacific Railway 
 Company and fixing the locality of its road, that 
 no part of that road extends into the State of Louis- 
 
The Supreme Court of Texas 227 
 
 iana; and the inquiry was presented whether the 
 Circuit Court of the United States sitting in a dis- 
 trict in that State had jurisdiction to appoint a re- 
 ceiver with power to take possession of a railway 
 situated in this State, and to control and operate it 
 under its orders. 
 
 While recognizing the importance of avoiding a 
 conflict between the courts of the United States 
 and the State courts, which could not be overesti- 
 mated, the court believed that such harmony between 
 them could most surely be preserved by strict regard 
 by each for its own jurisdiction, as usurpation of 
 power by either was conducive to conflict ; that where 
 one has assumed the power to act in a given case, 
 every lawful presumption should be indulged that 
 it did not act without jurisdiction ; but that when it 
 was made clear that either had acted without lawful 
 power, the other, when called upon to adjudicate the 
 rights of litigants, should not refuse to make in- 
 quiry even as to the jurisdiction of the other, when 
 such was necessary to the determination of a ques- 
 tion upon it, without surrendering power conferred 
 upon them for the preservation of the rights of 
 litigants before them. 
 
 The court declared that a receiver could never be 
 lawfully appointed unless necessary for the pre- 
 servation of property, the preservation and enforce- 
 ment of rights of persons having claims against it, 
 or to have it applied to some lawful purpose from 
 which it has been or was likely to be diverted if the 
 court did not take possession of it through a re- 
 ceiver, and so cause it to be applied or managed as 
 might be deemed by the court most beneficial to all 
 
228 The Supebmb Court op Texas 
 
 persons interested, having due regard to fixed rights. 
 
 Citing various acts and decisions thereon establish- 
 ing the rule that jurisdiction of Circuit Courts of 
 the United States is confined to the several districts 
 in which they are situated, the court concludes that 
 the courts named have no jurisdiction of the prop- 
 erty of a railway company not within their districts ; 
 that it follows that a court cannot confer upon a 
 receiver power outside of the territory over which 
 it has jurisdiction, for the reason that its process 
 could not be effective beyond that, unless authorized 
 by statute to reach to other territory within the 
 limits of the country to which the court belongs; 
 and that where the process of a court can not go and 
 be entitled to respect and enforcement, its officers 
 could not have power. 
 
 The court did not believe that a case could arise 
 in which a court would have power to appoint a 
 receiver where there was no property of which the 
 court might take possession through such receiver; 
 that if the property be immovable, or movable, but 
 so connected with immovables as are cars or other 
 like property necessary to and used in the operating 
 of a railway, then the suit in which a receiver to 
 take possession of them may be appointed is neces- 
 sarily local in its character, for in such case the 
 court operates directly upon the thing. Such pro- 
 ceeding, says the court, is not one in rem, but such 
 is its nature; and under general rules everywhere 
 recognized, such proceedings can be had only where 
 the thing to be taken is in the jurisdiction of the 
 court. While recognizing that the line between ac- 
 tions termed local and transitory, in some of the 
 
The Supbeme Court op Texas 229 
 
 decided cases, was shadowy, the court declared that 
 in no case could a suit, the purpose of which was to 
 subject certain property, whether personal or real, 
 to the payment of a debt, or to have it placed in the 
 possession of and under the control of a court for 
 any purpose of administration, be termed other than 
 a local action. 
 
 Whether the lex rei sitae or the lex domicilii be 
 applied to the movable property of the Texas & 
 Pacific Railway Company, was considered by the 
 court as unimportant, as under neither was its situs 
 in the State of Louisiana, unless there in fact; and 
 even if in the course of railway traffic some of the 
 movable property belonging to it was in fact in 
 Louisiana when the receiver was appointed, that 
 could not confer jurisdiction on the court making the 
 appointment, over property not so situated. 
 
 One of the questions certified to the court for 
 answer was: "Would the company be liable for 
 such negligent act, if the receiver was appointed and 
 discharged, and the property restored to it by con- 
 sent and collusion, as alleged by appellees, whether 
 the court making the appointment had or had not 
 the requisite jurisdiction? And if the court had 
 jurisdiction, could that issue be made available in 
 this suit?" 
 
 The Supreme Court, answering these questions, 
 says that it was alleged by appellees that the suit 
 in the Circuit Court of the United States by which 
 the receiver was appointed was collusively brought, 
 and that the receiver was appointed by the consent 
 of all parties thereto ; and that while ostensibly act- 
 ing as a receiver the person so appointed was really 
 
230 The Supkeme Cotjkt of Texas 
 
 but the agent of the railway company during the 
 time he managed its property. 
 
 "If a court," says Chief Justice Stayton, "ap- 
 pointing a receiver has jurisdiction over the prop- 
 erty to which the receivership relates, its orders 
 and decrees will be binding on the parties to the 
 suit, and must be given effect so far as they affect 
 the property; but it does not follow from this that 
 the true relation of the person appointed to the 
 railway company when property is placed in his 
 possession may not be inquired into whenever that 
 becomes necessary in litigation between the com- 
 pany and persons not parties to the suit in which 
 the appointment was made. 
 
 "If the court has jurisdiction, every reasonable 
 presumption ought to be indulged that the relation 
 of the receiver to the property and its owner is 
 what that relation ordinarily is; for it ought not 
 to be presumed, or even found to be true in the ab- 
 sence of cogent evidence, that a court has made 
 itself the mere tool of apparently adverse litigants, 
 or that it entertained a collusive suit. 
 
 "A suit is said to be collusive when brought by 
 seemingly adverse parties under secret agreement 
 and co-operation, with view to have some legal 
 question decided which is not involved in a real 
 controversy between them ; or when so brought with 
 intent to defraud other persons, there being no real 
 controversy between the parties nor purpose to se- 
 cure some relief which, as between themselves, would 
 not be conceded without suit. 
 
 "The power of a court to appoint a receiver is 
 based on the fact of real litigation between the 
 
The Supreme Court of Texas 231 
 
 parties, in which it becomes necessary in the opinion 
 of the court to take possession of property to which 
 the controversy in some manner relates, in order to 
 preserve it, or if necessary to administer it for the 
 benefit of all persons interested; he 'is appointed 
 upon a principle of justice for the benefit of all con- 
 cerned. Every kind of property of such nature 
 that, if legal, it might be taken in execution, may, 
 if equitable, be put into his possossion. Hence the 
 appointment has been said to be an equitable execu- 
 tion. He is virtually a representative of the court 
 and of all the parties in interest in litigation when 
 he is appointed. He is required to take possession 
 of property as directed, because more for the interest 
 of justice that he should do so than that the property 
 should be in the possession of either of the parties 
 in the litigation. He is not appointed for the bene- 
 fit of either of the parties, but of all concerned. 
 Money or property in his hands is in custodia legis.' 
 
 "If the parties having no real controversy, and 
 desiring no lawful relief which makes resort to a 
 court necessary, institute a suit and have a receiver 
 appointed to take possession of property for the 
 purpose of defrauding other persons or to em- 
 barrass them in assertion of a right against one of 
 the parties and its property, no principle of justice 
 sanctions the interposition of the court or the ap- 
 pointment of a receiver ; and it would be a perversion 
 of justice to hold otherwise than that a receiver 
 appointed under such circumstances is the agent of 
 the person or corporation whose property may thus 
 collusively be placed in his possession. 
 
 "The theory on which a receiver is held to be an 
 
232 The Supreme Court op Texas 
 
 officer of the court appointing him, and not the agent 
 of the owner, whose property is placed in his pos- 
 session, is that the property to be controlled is taken 
 from the custody and management of its owner and 
 made subject to the control of the court without his 
 consent; but when the defendant owner asks the 
 court to do this, he, in effect, asks the courts to 
 make an appointment for him, and it is but just 
 that a receiver so appointed should be held to be 
 his agent. 
 
 "That a plaintiff collusively acts with a defendant 
 for such purpose only aggravates the case; for this 
 enables the owner to impose upon the court, and 
 such plaintiff has no ground for complaint if the 
 receiver be held the agent of the owner in reference 
 to every act out of which, in the management of the 
 property, obligations to other persons may arise. 
 
 "Corporations ought not to be heard to say that 
 they are either indisposed or incompetent to man- 
 age their own affairs, and that therefore some court 
 should take charge of them through a receiver." 
 
 Chief Justice Stayton died in July, 1894, and was 
 succeeded by Justice Gaines, Leroy G-. Denman 
 being appointed to fill the vacancy caused by that 
 promotion, the court as thus constituted, entering 
 upon its duties at the beginning of the October, 1894, 
 Term of the Supreme Court. 
 
 Leroy Gilbert Denman was born in Guadalupe 
 County, Texas, October 31, 1855. He received his 
 education in the common schools of Guadalupe and 
 Gonzales counties. He was employed for four 
 years in teaching schools in his native county, which 
 supplied him means to pay his expenses in at- 
 
The Supreme Court of Texas 233 
 
 tending the University of Virginia, from the law de- 
 partment of which he received his degree of Bachelor 
 of Laws in 1880. Thereafter he engaged in practis- 
 ing law at New Braunfels, Texas, for two years. 
 In 1884 he removed to San Antonio, where he formed 
 a law partnership with his brother-in-law, Fred 
 Cocke, under the firm name of Cocke & Denman. 
 In the following year Thomas H. Franklin became 
 a member of the firm. Shortly thereafter Mr. 
 Cocke retired, and the business continued under the 
 firm name of Denman & Franklin, which became 
 widely and favorably known as among the ablest 
 and most successful in Texas. His connection 
 with this firm continued until his appointment as 
 Associate Justice of the Supreme Court of Texas. 
 Judge Denman was an able, distinguished and suc- 
 cessful advocate, and an eminent jurist whose effic- 
 ient labors as a justice of the Supreme Court entitle 
 him to rank with great judges who have adorned 
 that august tribunal. He possessed a greater num- 
 ber of friends and acquaintances than probably any 
 other citizen of Texas, whose admiration, esteem 
 and respect was merited by his excellent character, 
 kindly consideration and just treatment of all with 
 whom he came in contact in the social and business 
 relations of life. 
 
CHAPTER VII. 
 1895-1917. 
 
 Higgins vs. Bordages — Homestead Exemption From Street 
 Improvement Lien — Lufkin vs. Galveston, Overruled — Stor- 
 rie vs. Cortes — Wright vs. Tipton — F. A. "Williams Succeeds 
 Associate Justice Denman — Sketch of Justice Williams — 
 First Baptist Church vs. Fort — Doctrinal Discussion — State 
 vs. Deaton — Parental Obligations — Houston & Texas Cen- 
 tral Railway Company vs. State — Construction of Distinct 
 Acts of Legislature on Same Subject — State vs. Shippers' 
 Compress Company — Anti-Trust Law of 1895 Unconstitu- 
 tional — Stare Decisis — State vs. Laredo Ice Company — Con- 
 struction of Anti-Trust Law of 1899 — Brown vs. Galveston — 
 Power of Governor to Appoint City Commissioners — Hatch- 
 er vs. Range — Commendable Works of Codiflers — Interna- 
 tional & Great Northern Railroad Company vs. Railroad 
 Commission — Constitutionality of Act Creating Commission 
 Upheld — Railroad Commission vs. Houston & Texas Central 
 Railway Company, Modified — State vs. Missouri, Kansas & 
 Texas Railway Company — Restriction in Business — Norton 
 vs. Thomas & Sons — Construction of Anti-Trust Law — State 
 vs. Galveston, Harrisburg & San Antonio Railway Com- 
 pany — Constitutionality of Gross Receipts Tax Upheld — 
 State vs. Texas & Pacific Railway Company — Railway Char- 
 tered by Act of Congress Exempt from Gross Receipts Tax — 
 Missouri, Kansas & Texas Railway Company vs. Shannon — 
 Valuation of Intangible Assets by Tax Board Sustained — 
 Texas Company vs. Stephens — Construction of Law Taxing 
 Pipe Lines — Lively vs. Missouri, Kansas & Texas Railway — 
 Illegal Discrimination — Justice Brown Succeeds Chief Jus- 
 tice Gaines — William F. Ramsay Appointed Associate Jus- 
 tice — Sketch of Justice Ramsay — Joseph E. Dibrell Succeeds 
 Associate Justice Williams — Sketch of Justice Dibrell — 
 Church vs. Bullock — Place of Public Worship Defined — 
 State vs. Duke — Right of Social Club to Supply Liquors to 
 Members — Nelson Phillips Succeeds Associate Justice Ram- 
 say — Sketch of Justice Phillips — Justice Phillips Succeeds 
 Chief Justice Brown — J. E. Yantis Appointed Associate 
 
The Supreme Court or Texas 235 
 
 Justice — Sketch of Justice Yantis — William E. Hawkins 
 Succeeds Associate Justice Dibrell— Sketch of Justice Haw- 
 kins. 
 
 In Eiggins vs. Bordages, 1 the court overruled the 
 case of Lufkin vs. City of Galveston, 2 and decided 
 that the Constitution exempted homesteads from 
 forced sale for the payment of assessments for local 
 improvements. 
 
 In the opinion rendered by Justice Brown, the 
 court says : 
 
 "The Constitution of this State, in the six- 
 teenth article and fiftieth section thereof, has in such 
 plain and unmistakable language denned and limited 
 the liability of homesteads to forced sale that no de- 
 partment of the State government can disregard 
 it. Prom the inception of homestead exemptions in 
 this State, the changes have been in the direction of 
 larger exemptions and more perfect protection. 
 Every decision of the courts which trenched upon the 
 liberal spirit of the Constitution in that particular 
 has been met at the next assembling of the people in 
 convention by a provision to meet the construction 
 thus given. Whether it is good or bad policy is not 
 a question for the courts. The Constitution is par- 
 amount, and must be observed and enforced. 
 
 "The learned judge who wrote the opinion in the 
 case of Lufkin vs. Galveston said . . . that 'the 
 plain import of the Constitution's terms is that it 
 (the homestead) is not protected from taxes that 
 may be due on it.' And again says: 'Nor does it 
 
 188 Texas, 458. 
 258 Texas, 545. 
 
236 The Supreme Court of Texas 
 
 draw any distinction between general and special 
 taxes to which it may be subject.' It is not asserted 
 that the assessment in question is a tax, general or 
 special; but we conclude that it must have been 
 treated as a special tax. As it is too clear for argu- 
 ment that it is not a general tax, is it a special tax? 
 If it be a special tax, then it is taxation, and would 
 fall within the requirement that 'all taxation must be 
 uniform and equal. ' If a special tax it must be a tax 
 for some purpose, and would come under the limita- 
 tion as to taxes 'for special purposes.' And again, 
 if it were a tax, though it be for a special purpose, 
 it would be embraced in the terms of the law au- 
 thorizing the collector to sell property for unpaid 
 taxes. Our courts have held that such assessments 
 are not included in any of these expressions, and we 
 cannot see how it can be held to be a special tax, 
 when it has none of the characteristics of a tax in 
 any sense in which it is used in the Constitution. . . . 
 "The decision in Lufkin vs. City of Galveston is 
 directly antagonistic to the express provisions of 
 the Constitution of this State. The doctrine of that 
 case is in- antagonism to a long line of decisions of 
 our own courts upon kindred questions. It is unsup- 
 ported by any other decisions of this court, and is 
 opposed to a line of decisions in the courts of other 
 States, almost unbroken. To follow it means to dis- 
 regard the Constitution, as we understand its pro- 
 visions ; and in our judgment would deprive citizens 
 of a constitutional protection provided by a conven- 
 tion representing the sovereign power of the State, 
 which has the right to determine the policy of this 
 State with regard to this question." 
 
The Supreme Court or Texas 237 
 
 In Storrie vs. Cortes and Wife 1 the court held 
 that the constitutional provisions against laws im- 
 pairing the obligation of contracts was not violated 
 by a decision of State eourt overruling a previous 
 decision sustaining the validity of an obligation, 
 though such ruling is applied to rights acquired on 
 the faith of such previous decision, after it was 
 pronounced, and before it was overruled. It was 
 also held that where the charter of a city authorized 
 the cost of local improvements to be made a personal 
 charge against the owner, as well as a lien against 
 the property, the holder of a certificate covering the 
 cost of the improvements was entitled to a personal 
 judgment against the owner of the lot, though his 
 lien against the property, a homestead, could not be 
 enforced. 
 
 In Wright vs. Tipton 2 it was held that in action 
 on a liquor dealer's bond for the penalty provided by 
 law for the sale of intoxicating liquors to anyone 
 after notice by his wife not to sell to such person, 
 the wife was the "person aggrieved" within the 
 statute, and could maintain the action though her 
 husband refused to join in the action. The court said 
 that the intention of the Legislature in enacting the 
 law was to protect the wife against the indulgences 
 of the husband, who was supposed to have progressed 
 in drunkenness until he had lost self-control, and 
 was beyond the reach of the wife's influence, by 
 putting restraint upon vendors of liquors; that if 
 it had been intended that the husband should sue 
 
 190 Texas, 383. 
 292 Texas, 168. 
 
238 The Supreme Court or Texas 
 
 in such cases, or that his consent for the wife to 
 sue should be given, the Legislature certainly would 
 have expressed such an extraordinary purpose, 
 which would give the wife a right of action subject 
 to the control of him who would be under the influ- 
 ence of the party to be sued, and that such a law 
 would be a farce, and unworthy of any legislative 
 body. The case is interesting merely as illustra- 
 ting the kind of questions sometimes certified to 
 the Supreme Court for its decision. 
 
 Associate Justice Denman resigned May 1, 1899, 
 and on May 9, 1899, F. A. Williams was appointed 
 his successor. 
 
 Judge F. A. Williams was born in Macon, Missis- 
 sippi, October 6, 1851. In the early part of 1871 he 
 removed to Texas, locating at Crockett, where he 
 read law under his brother-in-law, the Hon. D. A. 
 Nunn, then and thereafter one of the leading and 
 most successful lawyers of the State. In 1872 he 
 was admitted to the bar, when he formed a partner- 
 ship with Mr. Nunn, a firm which enjoyed an exten- 
 sive and successful practise from the beginning, and 
 of which he continued an active member until 1884, 
 when he received the nomination for District Judge 
 of the Third Judicial District, was thereupon ap- 
 pointed to that position by Governor Ireland, to which 
 he was thereafter elected, in the autumn of 1884, and 
 re-elected in 1888. His superior judicial abilities 
 as disclosed in the efficient discharge of the duties 
 devolving upon him in that position, resulted in his 
 recognition as among the ablest trial judges who 
 have presided in the district courts of the State, 
 and upon the creation of the Courts of Civil Ap- 
 
The Supreme Court or Texas 239 
 
 peals, in 1892, he received the Democratic nomina- 
 tion and was appointed by Governor Hogg one of 
 the Associate Justices of the Court of Civil Appeals 
 for the First Supreme Judicial District at Galves- 
 ton, the other members of the court then being 
 Judge C. C. Garrett, Chief Justice, and Judge H. 
 Clay Pleasants, Associate Justice. He served with 
 marked distinction in that position, to which he was 
 elected in successive elections, until 1899, when he 
 was appointed by Governor Sayers to the position 
 of Associate Justice of the Supreme Court of Texas 
 left vacant by the resignation of Justice Denman. 
 He served in that position with Chief Justice R. R. 
 Gaines, and Associate Justice Brown, until the resig- 
 nation of the former, in January, 1911, when Judge 
 T. J. Brown was appointed Chief Justice, and Judge 
 W. F. Ramsay, Associate Justice, by Governor 
 Campbell. He was a member of the court as thus 
 organized, until April, 1911, when his resignation, 
 which had been previously tendered Governor Col- 
 quitt, took effect. Thereafter he entered and contin- 
 ued the practice of law at Austin, in partnership 
 with Judge N. A. Stedman, until May, 1913, when he 
 removed to Galveston and became senior member of 
 the law firm of Williams & Neethe, one of the 
 ablest connected with the Texas bar. 
 
 Judge Williams is one of the ablest judges who 
 has served as a member of the Supreme Court in 
 later years. His numerous opinions, during the long 
 period of his distinguished service upon the court 
 demonstrate his superior judicial attainments, 
 unexcelled by those of any member of it in 
 the early days of its great history, or by the 
 
240 The Supreme Court of Texas 
 
 opinions of those who have ornamented that tribunal 
 in recent years. To the legal profession and others 
 familiar with his opinions, no other recommenda- 
 tion of his superior judicial abilities is necessary. 
 No member of the court is believed to have enjoyed 
 the admiration, confidence, esteem and respect of the 
 bar and the courts of Texas to a greater extent than 
 Judge Williams. His voluntary retirement from the 
 court, upon which he had served so long and well, 
 was universally regretted by the lawyers of Texas, 
 and especially by those whose practice in the court 
 had brought them in frequent personal contact with 
 him and who enjoyed his acquaintance and friend- 
 ship. Judge Wiliams has the merited distinction of 
 ranking with Justices Stayton, Gaines, Brown, and 
 others of those noted jurists whose labors upon the 
 Supreme Court have preserved in latter years the 
 splendid traditions and reputation of that tribunal 
 established in its early history by those great judges, 
 Hemphill, Lipscomb, and Wheeler. 
 
 In First Baptist Church of Paris vs. Fort et al., 1 
 the court held that property of a church of strictly 
 congregational or independent organization, acquired 
 by purchase or donation, charging it with no specific 
 trust other than the use of the congregation as a re- 
 ligious society, is not dedicated to the propagation 
 of the particular doctrines adopted and held by the 
 society at the time it was acquired. 
 
 Plaintiffs, members of the First Baptist Church of 
 Paris, Texas, sought to recover possession of the 
 church building, lot, and premises, alleging that a 
 
 193 Texas, 251. 
 
The Supbeme Court of Texas 241 
 
 majority of the members of the church had departed 
 from the original confession of faith adopted by 
 the church in its organization, and had di- 
 verted said property from the purposes to which it 
 was dedicated; that plaintiffs and those whom they 
 represented, a minority of the congregation, had 
 adhered to the original confession of faith, and were, 
 in fact, the First Baptist Church of Paris, and en- 
 titled to the possession of the property. The facts 
 established that on the 10th day of April, 1861, there 
 was in Paris a church known as the Paris Baptist 
 Church, to which certain named citizens conveyed 
 the lot upon which the present building is situated, 
 for the sole and exclusive use and benefit of the 
 Paris Baptist Church; that at its organization, and 
 before the making of the deed, the church had 
 adopted what is known as the New Hampshire Ar- 
 ticles of Faith. The church building, located on the 
 lot, was erected by subscriptions from the members 
 of the church and others, there being nothing to show 
 that any conditions were attached to the donations 
 made by such persons nor any terms exacted in the 
 expenditure of the fund. 
 
 The court thought it was correctly assumed as a 
 matter of common knowledge that in this country 
 houses of religious worship are usually built by sub- 
 scription, not confined to the membership of the 
 particular church or denomination, but, in fact, that 
 members of all denominations, as well as those who 
 belong to no church, contribute freely to the erection 
 of such buildings. 
 
 While it is not claimed, says the court, that a con- 
 gregation of Baptists who organize themselves into 
 
242 The Supreme Court of Texas 
 
 an independent church and adopted articles of faith 
 by a majority vote thereby bound themselves to ad- 
 here to the articles so adopted for all time ; if, how- 
 ever, they should afterwards take up a subscription 
 for the purpose of building a house of worship, 
 or receive donation of a lot, under the doctrine 
 asserted by plaintiffs, the articles already adopted 
 would become immutable, and the church be deprived 
 of the power to change or modify that declaration, 
 for beneficiaries cannot abolish a trust without con- 
 sent of the donor, though they may be unanimous 
 in the wish. Conceding the soundness of the prop- 
 osition, it resulted that before buying the lot or 
 building the church for the Paris Baptist Church, 
 a majority of that congregation could have abolished 
 the New Hampshire Confession of Faith, and could 
 have adopted the Philadelphia Confession, or could 
 have established a confession drafted by themselves, 
 or they might have abolished all articles of faith and 
 relied upon the Bible alone as their creed. Accord- 
 ing to this contention, when the deed was made to 
 the lot and the house built by subscription, the right 
 to repeal or change the articles of faith was taken 
 away from the congregation, and to change it would 
 not only forfeit their rights in the property, but 
 would deprive them absolutely of their membership 
 and good standing in the church, which, to a Chris- 
 tian, was of greater value than houses or land. 
 
 "The presumption," says Justice Brown, "in- 
 volves the absurdity that a Methodist who contrib- 
 uted to the building of the house of worship for the 
 Paris Baptist Church did so for the express purpose 
 of perpetuating and promulgating the doctrine that 
 
The Supreme Couet of Texas 243 
 
 immersion alone is baptism, and that infants are 
 excluded from the rights of the church. The con- 
 tributing Jew — they are not a few — is presumed to 
 be especially anxious that the Messiahship of Christ 
 should be taught, though the failure to believe it 
 cast down his temple and broke down the walls of 
 his holy city, making his people wanderers upon the 
 earth. If the majority of such a congregation should 
 be converted to the belief that sprinkling is valid 
 baptism, and so change their teachings and prac- 
 tise, the Methodist brother who aided to build the 
 house could interfere and say, 'No, you must teach 
 immersion as the only valid mode, because my gift 
 was based upon your continuance in teaching that 
 error.' Gr, if the majority should abandon their 
 faith in Christ as the Messiah and change their teach- 
 ing . . . the Jew contributor could say, 'Nay, 
 you must not abandon your doctrine, because my do- 
 nation binds you to teach the divinity of Christ, al- 
 though false in fact.' If a member of another Bap- 
 tist church which adopted the Philadelphia confes- 
 sion contributed, he might enjoin the church at Paris 
 from abolishing the existing articles and adopting 
 that which his own church indorsed. The soundness 
 of the teaching is not involved in the proposition; 
 error is perpetuated the same as truth. Courts can- 
 not decide between conflicting opinions upon theo- 
 logical questions. The fallacy lies in presuming the 
 existence of a purpose of which there is no proof, 
 and in binding the mind and consciences of men by 
 the presumed secret intentions of those who aid in 
 such enterprises. 
 
244 The Supkeme Cotjbt op Texas 
 
 The case of State ex rel Alice Wood vs. Daniel 
 Beaton 1 was a habeas corpus proceeding by 
 the relator for the recovery of her minor child from 
 respondent and wife, to whom she had delivered 
 it under the assurance that it should never be taken 
 from them. The trial court found that respondent 
 had cared for the child as well as a natural parent 
 could have done, that he and his wife had become 
 attached to it, and that its interest would be as well, 
 if not better, subserved by remaining in the posses- 
 sion of respondent, than that of its mother, and 
 rendered judgment refusing the application of re- 
 lator. 
 
 Justice Brown in rendering the opinion observed 
 that under the facts found by the trial court there 
 was no question of the moral or other qualifications 
 of the plaintiff for the discharge of her maternal 
 duties to the child, . . . but that the trial court, 
 upon the facts, expressed the conclusion "that the 
 interest and welfare of the child, Austin Dillard, 
 will be as well, if not better, subserved by remaining 
 with the respondent and his wife, who have adopted 
 it as their own, than if his possession and custody 
 were given to his mother, the applicant herein." 
 
 "G-od, in His wisdom," declared Justice Brown, 
 "has placed upon the father and mother the obliga- 
 tion to nurture, educate, protect and guide their off- 
 spring, and has qualified them to discharge those 
 important duties by writing in their hearts senti- 
 ments of affection and establishing between them 
 and their children ties which cannot exist between 
 
 1193 Texas, 243. 
 
The Supkeme Cotjkt of Texas 245 
 
 the children and any other persons. Especially is 
 this the case with the mother. Parents cannot di- 
 vest themselves of the obligations imposed upon them 
 by their Creator, but when they have become disqual- 
 ified for a proper discharge of such duties, civil gov- 
 ernment has the right, in the interest of the child, 
 to provide for its proper nurture and education. . . . 
 
 "The facts found do not establish with that cer- 
 tainty which the court must require that the interest 
 of the child, Austin Dillard, or of society itself, de- 
 mands that he shall be taken from his mother and 
 continued in the possession of another." 
 
 In Houston & Texas Central Railway Company 
 vs. State of Texas, 1 the majority opinion by Chief 
 Justice Gaines, and the dissenting opinion by Justice 
 Brown, are interesting and instructive discussions 
 of the rules of statutory construction appli- 
 cable to distinct acts of the same Legislature upon 
 the same subject; the weight which courts should 
 attach to the construction given statutes by execu- 
 tive officers of the government and subsequent Leg- 
 islatures; political and economic conditions as af- 
 fecting the legislative policy; the bearing of legisla- 
 tive committee reports on legislative policy; and the 
 doctrine that repeals by implication are not favored. 
 
 In the case of State of Texas vs. Shippers' Com- 
 press Company 2 the court held that the Texas anti- 
 trust law, enacted in 1895, was unconstitutional, be- 
 cause exempting from its operation agricultural 
 products in the hands of producers ; that the creation 
 
 195 Texas, 507. 
 295 Texas, 603. 
 
246 The Supreme Court of Texas 
 
 of a corporation for the purchase of cotton com- 
 presses was not sufficient evidence of an intention 
 to violate the trust law in the doing of things which 
 the law authorized it to do; that the acquisition by 
 such corporation of six compresses on the same day 
 might afford evidence that it was the purpose of its 
 promoters to acquire such properties, but as the act 
 was lawful it was insufficient evidence of an unlaw- 
 ful purpose in creating the corporation. 
 
 "The State," says the court in the opinion, "seeks 
 to forfeit the charter of the defendant corporation 
 because the incorporators combined to restrict aids 
 to commerce, and procured the charter with intent 
 to carry out that purpose. The defendant insists 
 that the law is unconstitutional, therefore void in 
 whole, and will not support the action to forfeit the 
 charter. Upon the same objection we held the anti- 
 trust law of 1889 constitutional, and there is 
 no such difference between the two laws as would 
 affect the decision of this question. We believe that 
 our decision is correct ; that the law is not in contra- 
 vention of the Constitution of the State nor of the 
 United States. Houck vs. Brewing Association. 1 In 
 the case of Connolly vs. The Union S. and P. Co., 2 
 the Supreme Court of the United States held that 
 a statute of the State of Illinois, in all essential par- 
 ticulars the same as the Act of 1895, was in conflict 
 with the Fourteenth Amendment to the Constitution 
 of the United States, because it excepted 'agricul- 
 tural products and live stock while in the hands of 
 
 188 Texas, 189. 
 
 223 Supremle Court Reporter, 431. 
 
The Supreme Court or Texas 247 
 
 the producer or raiser.' We recognize the superior 
 authority of the Supreme Court of the Uinited States 
 upon this question, and in obedience to its decision 
 we shall hold that in so far as the law of 1895 conies 
 within the terms of the Connolly case, it is invalid ; 
 it will not support an action by the State to recover 
 a penalty for a violation of the law, nor will it, in 
 suits between corporations or individuals, support 
 a defense based upon the fact that the right of action 
 originated in violation of the anti-trust law. But to 
 the extent that the statute of this State is not em- 
 braced in the decision of the Supreme Court of the 
 United States, we shall adhere to our former decision 
 that it is constitutional and valid, and therefore en- 
 forcible by the State." 
 
 In the case of the State of Texas vs. Laredo Ice 
 Company et al., 1 suit was instituted by the State 
 against the defendants for the recovery of penalties 
 for violating the anti-trust law enacted in 1899. A 
 general demurrer to the petition presenting the ques- 
 tion of the constitutionality of the law was sustained 
 by the trial court, and the case dismissed, from which 
 ruling the State appealed. Appellee contended that 
 the act was unconstitutional and void because its 
 fourteenth section made it a part of the Act of 1895 
 by incorporating section 12 of the law of 1895 there- 
 in; because it prescribes excessive fines for its in- 
 fraction; provides that the failure of a person to 
 respond to the demand of the Secretary of State for 
 an affidavit is made prima facie evidence of a viola- 
 tion of the law; and in conflict with the Consti- 
 
 196 Texas, 461. 
 
248 The Supreme Cotjet of Texas 
 
 tution, which provides that no person shall be com- 
 pelled to give evidence against himself. 
 
 The court did not deem it necessary to decide the 
 last objection for the reason that if it was in viola- 
 tion of the Constitution in the respect named, the 
 obnoxious provision could be eliminated and the act 
 would still be sufficient to accomplish the general 
 purpose the Legislature intended in its enactment. 
 The court held that fines and other punishments 
 which may be imposed upon persons violating the 
 law is a matter peculiarly within the power and dis- 
 cretion of the Legislature, and that courts have no 
 power to control or restrain that discretion except in 
 extraordinary cases, where it becomes so manifestly 
 violative of the constitutional inhibition as to shock 
 the sense of mankind. "What," inquires the court, 
 "is to be the legislative guide in performance of its 
 duty but its sound judgment and the wisdom of ex- 
 perience? And how can courts with reason or pro- 
 priety question the action of the Legislature or con- 
 trol or restrain its discretion except when the min- 
 imum penalty is so plainly disproportioned to the 
 offense or act for the violation of which it is fixed 
 as to shock the sense of mankind?" Express Com- 
 pany vs. Walker. 1 
 
 Disposing of the contention that the act of 1899 
 was void because incorporating a clause of the act 
 of 1895, which had been held unconstitutional, the 
 court said that an amendment to a statute was not 
 cumulative, because it takes the place of the part 
 of the law it amends ; that it was true that, in seek- 
 
 198 Virginia, 66. 
 
The Supreme Court of Texas 249 
 
 ing the meaning of language used in a statute, it 
 was proper to consider all of the acts of the same leg- 
 islative body which are in pari materia, because 'it 
 is supposed that there had been no change in the leg- 
 islative intent and purpose,' unless it is manifested 
 by some change in language, but that this was a rule 
 of construction merely, and did not constitute each 
 a part of every act on the same subject. 
 
 In Brown et al. vs. City of Galveston 1 the court 
 upheld the constitutionality of a charter of the city 
 of Galveston which conferred upon a president and 
 board of commissioners, a majority of whom were 
 appointed by the Governor, power to govern the 
 city, usually committed to a mayor and city council. 
 One of the important points urged by appellants in- 
 volved the constitutionality of the section of the 
 city charter of Galveston which empowered the Gov- 
 ernor of the State to appoint three members of the 
 governing board of commissioners, and of those 
 which invested them with the powers of the mayor 
 and board of aldermen. 
 
 "This question," says the court, "arose in the 
 ease of Ex parte Lewis, which was decided by the 
 Court of Criminal Appeals in this State. The ma- 
 jority opinion was delivered by the Honorable John 
 Henderson, Justice, and concurred in by the Hon- 
 orable W. L. Davidson, Presiding Justice of that 
 court. Judge M. M. Brooks dissented from the 
 opinion of the majority. In that case the major- 
 ity held that the law which authorized the Governor 
 to make the appoinment of the three commissioners 
 
 197 Texas, 1. 
 
250 The Supreme Court op Texas 
 
 was contrary to the Constitution of the State of 
 Texas. The majority and dissenting opinion each 
 show extensive research into the authorities and con- 
 tain able and elaborate arguments and discussions 
 of the principles involved. Recognizing the equal 
 authority and dignity of that court, we approach 
 the investigation with much hesitancy because of the 
 delicacy of the duty to be performed. We shall 
 accord to the opinion of the majority in that case 
 equal weight and authority with that of any court 
 of last resort, and because it is a court of co-ordinate 
 powers with this, acting under authority derived 
 from the Constitution, we feel constrained to con- 
 form our opinion to that, if we can possibly do so 
 in the discharge of our duty. The industry of the 
 (judges who wrote those opinions has relieved us 
 of much labor that would have been necessary to 
 obtain the same list of authorities, and we are much 
 aided in the solution of this important question by 
 the arguments presented by each. 
 
 "It was claimed by the appellant and so held by 
 the court of Criminal Appeals, that the provisions 
 of the charter in question are in violation of the 
 following section of the Constitution of Texas: 'All 
 qualified electors of the State, as herein described, 
 who shall have resided for six months immediately 
 preceding an election within the limits of any city 
 or incorporated town, shall have the right to vote 
 for mayor and all other elective officers; but in all 
 elections to determine the expenditure of money or 
 assumption of debt, only those shall be qualified to 
 vote who pay taxes on property in said city or 
 incorporated town.' 
 
The Supkeme Cotjkt of Texas 251 
 
 "The enactment by the Legislature of the charter 
 of Galveston involved," says the court, "the con- 
 sideration by each member of both houses and the 
 Governor of the question now before us, that is, 
 each must have determined that the bill did not 
 violate the Constitution of the State of Texas in any 
 particular. A court has no power to review the 
 action of the legislative department of the govern- 
 ment, but when called upon to administer a law 
 enacted by it, must, in the discharge of its duty, 
 determine whether that law is in conflict with the 
 Constitution, which is superior to any act that the 
 Legislature may make; but in the examination of 
 such a question we must bear in mind, that, except 
 in the particulars wherein it is restrained by the 
 Constitution of the United States, the legislative de- 
 partment may exercise all legislative power which 
 is not forbidden expressly or by implication by the 
 provisions of the Constitution of the State of 
 
 -LGXclSa • • • 
 
 "The honorable Court of Criminal Appeals ex- 
 pressed its conclusion that the sections of the city 
 charter of the city of Galveston in question are in 
 conflict with the Constitution in the following lan- 
 guage: 'However, it is not necessary to test this de- 
 cision on implication, as, in our opinion, the Consti- 
 tution expressly prohibited the Legislature to either 
 appoint directly, or through the Governor, the local 
 municipal officers of cities and towns, inasmuch 
 as the Constitution expressly confers the power on 
 the citizen voters of the municipality "to elect the 
 mayor and other elective officers." ' We hold that the 
 mayor and the board of aldermen of said city were 
 
252 The Supkeme Court or Texas 
 
 elective officers under and by virtue of our Constitu- 
 tion, and that the majority of these, in the face of our 
 traditions and of the organic law itself, having been 
 appointed by the Governor, any law or ordinance 
 passed by them was without authority, inasmuch as 
 they were not officers of the municipality, and could 
 not, under our Constitution be such.' That court 
 could arrive at its conclusion only by implication, 
 for the language used in the section of the Constitu- 
 tion quoted does not declare that there shall be a 
 mayor for each town and city. As we have seen, 
 the power of the Legislature can be limited only by 
 a prohibition contained in the Constitution either 
 in express terms or by fair implication arising from 
 the instrument. If the purpose the convention had 
 in adopting the section in question can be effected 
 without the prohibition, none will be applied. . . . 
 " 'The legislative power of this State' means all 
 the power of the people which may properly be 
 exercised in the formation of laws against which 
 there is no inhibition express or implied in the 
 fundamental law. Since a municipal corporation 
 can not exist except by legislative authority, can 
 have no officer which is not provided for by its char- 
 ter, and can exercise no authority which is not 
 granted by the Legislature, it follows that the crea- 
 tion of such corporations and every provision with 
 regard to their organization is the exercise of legis- 
 lative power which inheres in the people, but by the 
 Constitution is delegated to the Legislature; there- 
 fore it is within the power of the Legislature to de- 
 termine what form of government will be most bene- 
 
The Supreme Court of Texas 253 
 
 ficial to the public and to the people of a particular 
 community." 
 
 The court was of the opinion that the contrary- 
 doctrine was in conflict with the well settled princi- 
 ples of constitutional construction that the power of 
 the Legislature can be restrained only by a pro- 
 hibition expressed or implied from some provision 
 or provisions of the Constitution itself; that it was 
 contradictory of the truth of the history of munic- 
 ipal corporations in Texas, it being a matter of 
 common knowledge that charters are formulated by 
 the people of the towns, presented by their repre- 
 sentatives to the Legislature, and in case of opposi- 
 tion, committees attend upon the Legislature to 
 secure the wish of the majority. 
 
 In the case of Hatcher vs. Range, 1 the court in an 
 opinion by Justice Brown, announced that it had 
 reluctantly followed the rule of the common law, 
 that spoken words imputing a want of chastity to 
 a female were not actionable per se. 
 
 Following a citation of the Texas cases approving 
 the common law rule, the court says : 
 
 "From these quotations it is plain that the three 
 eminent judges quoted were reluctant to follow pre- 
 cedents so unreasonable and unjust. We are equally 
 bound by those precedents, unless there be present 
 in this case a sound reason why they should be dis- 
 regarded which was not considered in those cases. 
 
 "At common law libel was indictable; it was an 
 offense against the public, therefore actionable. In 
 his work on Non-contract Law, . . . Mr. Bishop 
 
 198 Texas, 85. 
 
254 The Supreme Court of Texas 
 
 uses the following language: 'Libel, with a very- 
 narrow margin of verbal slander, is one of the 
 wrongs against the public, punishable as crime. And 
 it is one of the doctrines in our jurisprudence that 
 he who suffers from a crime specially, in a way or 
 degree differing from the rest of the public, may 
 have his civil action against the wrongdoer.' The 
 same writer says: 'The doctrine in general terms 
 is, that the civil wrong and the criminal are legally 
 distinct things, though both may proceed from one 
 act of the offender. If the injury is of a nature 
 falling on the entire community an individual suf- 
 fering from it only as others do can maintain no 
 action against the wrongdoer, even should it in a de- 
 gree causually press more heavily upon him than 
 upon others. But he who suffers a special damage 
 may have his suit, though by reason of the public 
 harm the defendant is also indictable.' Generally 
 an indictable act which inflicts an injury upon an 
 individual different from that suffered by the public 
 will give a right of action against the wrongdoer for 
 reparation of the damages occasioned. Public nuis- 
 ances are instances of which it is held that the 
 private individual, who suffers damage different 
 from that which flows to the public from a public 
 nuisance, may have an action for the injury so in- 
 flicted upon him. 
 
 "Prior to 1879 slander was not indictable in this 
 State, but in the revision of our criminal code which 
 took effect on the 1st of September, 1879, the re- 
 visers introduced a chapter upon the subject of 
 slander in which is embraced the following article: 
 'If any person shall, orally or otherwise, falsely 
 
The Supreme Court of Texas 255 
 
 and maliciously, or falsely and wantonly, impute to 
 any female in this State, married or unmarried, a 
 want of chastity, he shall he deemed guilty of 
 slander, and, upon conviction, shall be fined not less 
 than one hundred nor more than one thousand dol- 
 lars, and the jury may in addition thereto, find a 
 verdict for the imprisonment of defendant in the 
 county jail not exceeding one year.' 1 This 
 article of the code did not exist when the 
 cases of Linney vs. Manton and McQueen vs. 
 Fulgkam were decided, and was not noticed in 
 the other two decisions cited. Under this pro- 
 vision of our criminal law slander is put upon the 
 same footing with libel, as effecting the public good, 
 and falls within the rule that any person who re- 
 ceives a 'special injury different from that which 
 is inflicted on the public by the perpetration of an 
 act punishable at law may have redress for the in- 
 jury so received,' and in our opinion the change 
 in the law in this respect justifies this court in 
 departing from the common law rule heretofore 
 maintained. We therefore conclude that under the 
 law as it now exists in this State, words spoken 
 or written which 'falsely and maliciously, or falsely 
 and wantonly,' impute to a female want of chastity 
 are actionable, without showing special damages 
 arising therefrom." 
 
 In International & Great Northern Railroad Com- 
 pany vs. Railroad Commission of Texas, 2 the court 
 construed so much of the Act of April 3, 1891, 
 creating the Railroad Commission of Texas, as con- 
 
 iPenal Code, Article 645. 
 299 Texas, 332. 
 
256 The Supreme Court of Texas 
 
 f erred the right "to correct abuses," holding that 
 while the subject was not disclosed in the title of 
 the act, when considered in its relation to the power 
 granted in the act to prevent discrimination and 
 extortions in railroad charges and to establish 
 reasonable freight and passenger tariffs, it was not 
 unconstitutional. 
 
 The court was of the opinion that the language 
 employed in the clause of the act quoted was cap- 
 able of two construction, one of which was not con- 
 sistent with the Constitution, and the other not in 
 conflict with that instrument, and that a familiar 
 rule of construction required that it should be given 
 the latter. 
 
 "It is true," said the court, "that in the case of 
 Railroad Commission vs. Houston & Texas Central 
 Railway Company? after having held that the same 
 language in Section 2 of Article 10 of the Con- 
 stitution conferred a power upon the Legislature 
 to correct abuses other than those relating to freight 
 and passenger tariffs, we said: 'Having used the 
 same language as that used in the Constitution and 
 in the same connection, we conclude that the Leg- 
 islature intended expressly to delegate the power 
 to the commission that the Constitution authorized 
 to be delegated to a legislative agency, and the lan- 
 guage of the Constitution not being confined to 
 correcting abuses in the rates of freight and pas- 
 senger tariffs, we hold that the power here conferred 
 by the Legislature upon the commission empowers 
 it to correct abuses other than those which may be 
 
 190 Texas, 340. 
 
The Stjpkeme Court or Texas 257 
 
 connected with the rates of freight and passenger 
 tariffs.' But we think we were in error in an- 
 nouncing that doctrine. So broad a proposition was 
 not necessary to determine the question certified to 
 this court in that case." 
 
 In State vs. Missouri, Kansas & Texas Railway 
 Company? the court held that a contract between a 
 railway and an express company by which the 
 former bound itself not to contract with other ex- 
 press companies to do business on its road might 
 not prevent it from furnishing them facilities for 
 such business without contracting to do so, yet where 
 the rights granted in the contract were described 
 as exclusive facilities, and were only to be awarded 
 by the railway when compelled by legislative or 
 judicial proceedings ; in which event the contracting 
 express company was to have credit for sums paid 
 by such other express companies on the amount due 
 from it under its contract ; such obstacles interposed 
 to the admission of other companies to do business, 
 evidenced an intention to make the rights of the 
 contracting party exclusive, and to create and carry 
 out a restriction upon others in the free pursuit of 
 business. 
 
 "The contract in question," says Justice Williams, 
 "shows by its own terms, that its purpose was to 
 secure to the express companies, as far as it was in 
 the power of the parties to do so, the exclusive 
 right to do an express business upon the railroad, 
 and to exclude other companies from the enjoyment 
 of like rights. It is true that by clause (c) it only 
 
 199 Texas, 516. 
 
258 The Supreme Court or Texas 
 
 bound itself not to contract with others to do an 
 express business on its road, and, if this were all, 
 it might be urged that all of the equal and reasonable 
 facilities, accommodations and rates exacted by the 
 law might be accorded without express contract; 
 but the purpose to grant an exclusive right to the 
 express company is made too plain for argument 
 by the succeeding clause. Clause (d) expressly calls 
 the rights granted 'exclusive facilities' and plainly 
 evidences the understanding that they shall not be 
 given to any one else unless such action be com- 
 pelled by legislation or judicial proceedings, and 
 that, should this be done, the express company shall 
 have credit for the sums paid by other companies. 
 This clause shows plainly the intention that the only 
 express business to be conducted on this road should 
 be that of the contracting express company, and 
 that that company should receive the benefit of the 
 earnings of the railroad company from the business 
 of any other express companies which it might be 
 compelled to admit to its lines, which stipulation is 
 made, presumably, in return for sufficient considera- 
 tion moving from the express company to the rail- 
 road company. The obstacle such an agreement 
 interposes to the admission of other companies to 
 the facilities given them by the statute is easily 
 understood, seeing that every other express company 
 is to be charged for the facilities to be enjoyed by it 
 the same price that the favored company is to pay 
 as the consideration for everything the railroad com- 
 pany agrees to do for it, including the undertaking, 
 in effect, to exact such prices from all other com- 
 panies for the benefit of this one. We conclude that 
 
The Supreme Cottrt of Texas 259 
 
 there was the purpose to create and carry out a re- 
 striction in the free pursuit of business." 
 
 In Norton vs. Thomas & Sons Company, 1 the 
 court held that an agreement that a vendor would 
 not sell any liquor of a certain age and brand in 
 either of three named cities in which the vendee 
 engaged in business, until the latter had closed out 
 his business was not violative of the Texas anti- 
 trust law. 
 
 "The contract," says the court, "does not attempt 
 to fix or regulate the price of whisky, nor to fix 
 or limit the quantity thereof. It must be borne in 
 mind that provision of the statute against limita- 
 tions on the amount or quality of an article does not 
 refer to the amount to be sold in or supplied to any 
 particular community or territory, but to the amount 
 or quantity in existence ; that is, to what is generally 
 called the supply, or output. The contract imposes 
 no limitation such as the statute, when thus under- 
 stood, prohibits." 
 
 In the case of the State of Texas vs. Galveston, 
 Harrisburg & San Antonio Railway Company, 2 the 
 court held that the law imposing a tax upon rail- 
 way companies equal to one per cent of their gross 
 receipts, was not violative of the Constitution in 
 denying them equal protection of the laws; that the 
 exaction of such tax was not the taking of property 
 without due process of law inhibited by the Constitu- 
 tion; and that such tax was not a tax upon the re- 
 ceipts of railroads, but an excise tax for the privilege 
 of operating them. 
 
 199 Texas, 578. 
 2100 Texas, 153. 
 
260 The Supreme Court op Texas 
 
 In disposing of appelees' contention that the tax 
 was violative of Article 1, Section 8, Subdivision 4, 
 of the Constitution of the United States which con- 
 fers upon Congress the power to regulate interstate 
 commerce, the court held that the statute under 
 consideration would be open to that objection if it 
 levied an ad valorem tax on the gross receipts of 
 the companies, but as the tax was an excise tax on 
 the privilege of conducting the business, the conten- 
 tion was without merit. 
 
 It was also contended by appellees, that because 
 they were engaged in interstate transportation they 
 could not be compelled to pay an excise tax on the 
 business of carriers in Texas under franchises de- 
 rived from the State. The court held that the tax 
 levied by the law was placed upon the exercise of 
 the franchise within the limits of the State and in 
 the carriage of local or state business ; and that the 
 reference to gross receipts of the company was 
 merely a means by which to ascertain the amount of 
 tax to be levied. The court was of the opinion that 
 if the position taken by counsel for defendants in 
 error were true, no State could levy an excise tax 
 upon its local railroads chartered under its own 
 law because it was a fact of common knowledge 
 that all lines of railroad in the State carry freight 
 and passengers destined to points beyond the State, 
 and that which comes from without the State to 
 points within it. In overruling the contention that 
 the taxes levied upon railroad companies were not 
 the same per cent of the gross receipts of each of 
 them derived from interstate business, and there- 
 fore not equal and uniform as required by the State 
 
The Supreme Court of Texas 261 
 
 Constitution, the court observed that the proposition 
 was based upon the fact that the gross earnings of 
 some consist more largely of receipts from inter- 
 state business than others, and that in consequence 
 one per cent of the gross earnings of each road would 
 not be the same per cent of the local earnings of each 
 road, and that the amount of the tax should be de- 
 termined by the product of the occupation taxed; a 
 view of the law which had been determined ad- 
 versely to the claim of corporations in many cases 
 decided by the Supreme Court of the United States. 
 
 In the State of Texas vs. Texas & Pacific Railway 
 Company, 1 the court held that a tax of one 
 per cent on the gross earnings of railroad 
 companies could not be exacted of the Texas & 
 Pacific Railway Company, because such company 
 was created by the Congress of the United States 
 under powers granted it by the Constitution, from 
 which it derived its right to carry on business in 
 Texas ; and that the provisions of a law of the State 
 subjecting said company to the general laws of the 
 State applicable to other railroad companies, did 
 not subject its franchise to taxation by the State. 
 
 The court regarded the question as entirely settled 
 that Congress is authorized, for the necessary and 
 proper execution of the powers granted to the 
 federal government, to create corporations, and 
 empower them to carry on their operations in the 
 States; that such corporations are to be regarded 
 as instrumentalities of the United States, and that 
 the right to conduct their authorized business is be- 
 
 HOO Texas, 279. 
 
262 The Supeeme Court of Texas 
 
 yond the power of the State in which they operate, 
 'by taxation, or otherwise, to retard, impede, burden, 
 or in any manner control." 
 
 "If, under present conditions,'* says Justice 
 Williams, "there appears to be little real foundation 
 for the assumption that railroads such as this one, 
 are, in practice, governmental agencies; if there 
 is little difference, in fact, between them and other 
 railroads which have not received charters, nor aid, 
 nor protection form the United States government, 
 but which may, and perhaps do, render to the gov- 
 ernment services of a like character and upon the 
 same terms with them; if their immunity from 
 State taxation operates as a discrimination between 
 them and the other roads; and, finally, if the pro- 
 tection given to them by the Fourteenth Amendment 
 to the Constitution of the United States, against dis- 
 criminatory State legislation, detracts much from 
 the applicability to them of the reasoning upon 
 which Chief Justice Marshall founded the doctrine 
 under consideration, the remedy, if there be one, 
 is not with the Legislatures, or the judiciary of the 
 States, nor now, perhaps, with the federal judiciary, 
 but with the Congress of the United States." 
 
 In Missouri, Kansas & Texas Railway Company 
 vs. Shannon, Secretary of State et al., 1 the court held 
 that the State law requiring the valuation of the 
 intangible assets of railway companies by a State 
 Tax Board, was not in contravention of the con- 
 stitutional provision requiring railroad property 
 to be assessed by the county assessor in the county 
 
 1100 Texas, 379. 
 
The Supreme Court of Texas 263 
 
 where situated, as such intangible values have no 
 situs in the various counties ; that they could only be 
 valued as attaching to the property as a whole ; and 
 that they constitute one of the "other subjects" of 
 taxation, not enumerated in the Constitution, for the 
 taxation of which the Legislature was authorized to 
 provide. 
 
 Counsel contended that the State Tax Board as 
 constituted by the Intangible Assets Act, was an 
 illegal body, in that it was attempted to confer 
 judicial powers upon the Secretary of State and the 
 Comptroller of Public Accounts, which were not 
 executive in their nature, in violation of Section 1, 
 Article 2, of the State Constitution. The court was 
 of the opinion that this contention resulted from a 
 confusion by counsel as to the meaning of the word 
 "judicial." It declared that the judicial power pre- 
 scribed by the Constitution related in all instances, 
 except in the case of Commissioners' Courts, to the 
 trial of causes; that the word "judicial" was, how- 
 ever, used, not with strict accuracy in another sense, 
 as applied to an executive officer who in the exercise 
 of his functions is required to pass upon facts and to 
 determine his action by the facts so found — a func- 
 tion sometimes called quasijudicial. The court held 
 that the case of Arnold vs. State 1 had settled this 
 point against counsels' contention. It also held that 
 the act was not repugnant to the provision of the 
 Constitution declaring that taxation shall be equal 
 and uniform. 
 
 171 Texas, 239. 
 
264 The Supreme Court of Texas 
 
 In Texas Company vs. Stephens et al., 1 it was held 
 that the business of transporting oil by pipe line for 
 other persons for hire or profit, was distinguishable 
 from the ownership and use of pipe lines by owners 
 thereof for the exclusive transportation of their own 
 products, as an incident of their business; that 
 the first, alone, may be taxed without violation of the 
 Constitution ; and that where, as a method of arriv- 
 ing at the amount of tax to be charged upon the oc- 
 cupation of transporting oil, a pipe line company 
 was required, in its reports of the amount of oil 
 transported, to include the amount of its own oil 
 with that transported for others, the law was not 
 unconstitutional as violative of the provisions of 
 the Constitution requiring that taxation shall be 
 equal and uniform. 
 
 In construing the provision of the law requiring 
 that in determining the amount of the occupation tax 
 which should be levied upon pipe lines, there should 
 be included, not only the amount for transporting 
 oil for others, but also the sum representing the cost 
 of transporting their own oil, an imposition not 
 placed on other owners of other pipe lines mentioned 
 in the twelfth section of the act, the court perceived 
 no constitutional objection to the mere inclusion of 
 the elements mentioned in ascertaining the scope 
 of the business. The court thought it probable that 
 the Legislature might have intended that the value 
 of the entire use made of a pipe line by one holding 
 himself out as transporting goods for the public, 
 should be looked to, and that this should include the 
 
 1100 Texas, 628. 
 
The Supreme Court op Texas 265 
 
 benefits resulting from its use in Ms own business 
 as well as in serving the public. It believed that if 
 such was the intention, it was adopted with reference 
 to companies transporting oil only, and that there 
 was an apparent discrimination against them. There 
 were two difficulties in the way of sustaining plain- 
 tiff's contention, according to the court's view. In 
 the first place it was not made to appear, and the 
 court could not judicially know, that there were in 
 the State other persons transporting the other 
 things (gas, steam, artificial heat, etc.) mentioned, 
 who do not also transport oil. In other words, that 
 it was not shown that there was in fact any discrimi- 
 nation between plaintiff and others. In the second 
 place, there was the question of classification to 
 which the court had referred. It did not conceive 
 that the circumstance that all persons owning and 
 controlling pipe lines were included in the first part 
 of the section and were taxed as a class, as plain- 
 tiff's counsel seemed to argue, precluded further 
 classification and the application of differing rules 
 among them. What was done, according to the 
 court, by the requirement of the provision in 
 question, was to make it a special rule applicable 
 only to those transporting oil; and the contention, 
 when all the necessary facts were shown, would 
 come back to the question as to whether or not such 
 classification was based upon some real difference in 
 the business, or was arbitrary and capricious merely. 
 The court could not say, as the cause was presented 
 to it, that the business of piping oil partly for the 
 public and partly for the owner of the line, did not 
 differ so substantially from the business of so trans- 
 
266 The Supreme Court of Texas 
 
 porting the other things as to furnish reason for 
 the application of different rules to them. 
 
 In Lively vs. Missouri, Kansas & Texas Railway 
 Company of Texas, 1 the court held that where the 
 assessment of the intangible assets of a corporation 
 was fixed at their full market value, while the value 
 of all other property in the county was assessed at 
 two-thirds of its actual value, the corporation was 
 denied uniform taxation secured to it by the Con- 
 stitution, as also the equal protection of the laws 
 guaranteed by the Fourteenth Amendment to the 
 Constitution of the United States ; and the fact that 
 such corporation was not required to pay more taxes 
 than it should, because the property was not taxed 
 beyond its true value, did not satisfy its constitu- 
 tional right to have all others owning property in 
 the same territory, and subject to like taxation, bear 
 their equal proportion of the burden of taxation. 
 
 The court, after quoting Article 8, Section 1, of 
 the Constitution which declares that "All property 
 in this State, whether owned by natural persons or 
 corporations, other than municipal, shall be taxed 
 in proportion to its value, which shall be ascertained 
 as may be provided by law," says: 
 
 "The rule announced by that provision is 'equality 
 and uniformity.' To secure this 'uniform and equal' 
 taxation, the same sentence prescribes that the prop- 
 erty of all persons and corporations, other than 
 municipal, 'shall be taxed in proportion to its 
 value, which shall be ascertained as may be provided 
 by law.' This is a clearly expressed purpose, that the 
 
 1102 Texas, 545. 
 
The Supreme Court of Texas 267 
 
 officers charged with the assessment of property 
 shall in the manner prescribed by law ascertain 
 its value. 'The value of the property is to be de- 
 termined by what it can be bought and sold for.' 
 . . . If it means full market value when applied 
 to the intangible assets of a railroad company, it 
 means the same thing when applied to land, horses, 
 etc. The standard of uniformity prescribed by the 
 Constitution being the value of the property, tax- 
 ation can not be in the same proportion to the value 
 of the property, unless the value of all property 
 is ascertained by the same standard. The value of 
 the intangible assets of appellee being fixed at their 
 full market value and the value of all other property 
 in Dallas County being assessed at 66 2-3 per cent of 
 its value, appellee was denied the right of an equal 
 and uniform taxation secured it by the Constitution 
 of the State. . . . 
 
 "It is evident that this was a deliberate scheme on 
 the part of the officers of Dallas County by which 
 the assessment was made at the proportion of its 
 value stated and there is nothing in the case to in- 
 dicate that there was any mistake on the part of the 
 officers. It was the deliberately adopted policy to 
 so discriminate between the different classes of 
 property in the assessment for taxation. It is not 
 necessary that the officers in so discriminating should 
 have intended to injure the appellee or other rail- 
 road companies. It is sufficient that by their action 
 they denied the appellee the equal protection of 
 the Constitution and laws of the State. The in- 
 tention with which the acts were done is of no 
 consequence. Such deliberate action on the part of 
 
268 The Supreme Court of Texas 
 
 the officers charged with the enforcement of the law 
 must be held to be the act of the State and the ap- 
 pellee was entitled to relief against the enforcement 
 of the excessive assessment." 
 
 January 5, 1911, Associate Justice T. J. Brown 
 was appointed Chief Justice, succeeding Eeuben R. 
 Gaines, resigned, and on the same date William F. 
 Ramsay was appointed Associate Justice. 
 
 Associate Justice Frank A. Williams resigned 
 March 23, 1911, and on April 1, 1911, Joseph B. 
 Dibrell was appointed Associate Justice to fill the 
 vacancy. 
 
 William Franklin Ramsay was born in Bell 
 County, Texas, October 25, 1855. He was edu- 
 cated in the public schools, and, in 1876, grad- 
 uated from the literary department of Trinity 
 College. After his admission to the bar, he engaged 
 in practice at Cleburne, Texas, from July, 1877, 
 until January, 1908. In addition to his successful 
 law business, he engaged in the banking business 
 from the year 1900 to 1907. In 1884 he was elected 
 presidential elector. From January 20, 1907, to 
 January 1, 1908, he was chairman of the Penitent- 
 iary Board of Texas, and from January 1, 1908, to 
 January 5, 1911, a justice of the Court of Criminal 
 Appeals of Texas. He resigned the last named posi- 
 tion to become a candidate for Governor against 
 O. B. Colquitt, by whom he was defeated. At the 
 close of that campaign Judge Ramsay resumed the 
 practice of law in Austin. In the summer of 1916 
 he was appointed Federal reserve agent for the 
 Federal Reserve Bank at Dallas, Texas. 
 
 J. B. Dibrell was born in Kentucky. His parents 
 
The Supreme Court or Texas 269 
 
 removed to Texas when he was two years old. His 
 youth was spent on a farm, and he was edu- 
 cated in the common schools of the State. There- 
 after he attended college in Virginia, and, in 1883, 
 graduated with the degree of B. A. He was ad- 
 mitted to the bar at Seguin in 1883, where he suc- 
 cessfully engaged in practising law. He was a mem- 
 ber of the State Senate in 1894, and was re-elected to 
 that position in 1898. In 1900 he was an unsuccess- 
 ful candidate for Congress in the Seguin District. 
 
 In Church et al. vs. Bullock et al., 1 the court held 
 that the opening of exercises in public schools by 
 reading, without comment, a chapter from the Old 
 or New Testament, King James version, the re- 
 peating of the Lord's Prayer by students in con- 
 cert, and the singing of songs, mostly patriotic, 
 pupils being requested but not required to join in 
 such exercises, did not constitute such schools sects, 
 religious societies, or theological or religious semi- 
 naries, within the meaning of Article 1, Section 7, 
 of the Constitution; nor within the meaning of 
 Section 7, Article 7, Section 5, of that instrument; 
 nor did it convert such school rooms into places of 
 public worship within the purview of Article 1, 
 Section 6, of that instrument. 
 
 Quoting the provision of the Constitution of 1845 
 which declared that "All men have a natural and 
 indefeasible right to worship God according to the 
 dictates of their own conscience; no man shall be 
 compelled to attend, erect, or support any place 
 of public worship, or to maintain any ministry 
 
 1104 Texas. 
 
270 The Supreme Court of Texas 
 
 against his own consent," the court observed that 
 the provision in our Constitution was a protest 
 against the policy of Mexico in establishing and 
 maintaining a church of State and compelling con- 
 formity thereto, and was intended to guard against 
 any such action in future. In the court's opinion, 
 the primary purpose of that provision of the Con- 
 stitution was to prevent the Legislature from in 
 any way compelling the attendance of any person 
 upon the worship of any particular church, or in 
 any manner, by taxation or otherwise, cause any 
 citizen to contribute to the support of "any place 
 of worship." As used in the Constitution the phrase, 
 "place of worship," says the court, means a place 
 where a number of persons meet together for the 
 purpose of worshipping God; that the worship was 
 not prohibited in any place, but that the spirit of 
 the Constitution would include any place at which 
 the worship might be indulged in so continuously 
 and in such a manner as to give it the character of 
 "a place of worship," and that buildings and in- 
 stitutions erected and maintained by the Sate could 
 not be used for such purposes. The court declined 
 to undertake the announcement of any rule as to 
 what would constitute "a place of worship," which 
 necessarily depended upon the facts of each case, 
 and therefore confined itself to the decision of the 
 question as to whether the evidence in the case con- 
 sidered showed that the exercises engaged in by the 
 teachers of the Corsicana school constituted the 
 school building "a place of worship" within the 
 meaning of the Constitution. 
 "To hold that the offering of prayers," says the 
 
The Supreme Court of Texas 271 
 
 court, "either by the repetition of the Lord's Prayer 
 or otherwise, the singing of songs, whether de- 
 votional or not, and the reading of the Bible, make 
 the place where such is done a place of worship, 
 would produce intolerable results. The House of 
 Representatives and the Senate of the State Legisla- 
 ture each elect a chaplain, who, during the session, 
 daily offer prayers to Almighty God in behalf of the 
 State and in the most express manner invoke the 
 supervision and oversight of God for the lawmakers. 
 In the chapel of the State University building, a 
 religious service consisting of singing songs, reading 
 portions of the Bible, with prayers and addresses by 
 ministers and others, is held each day. The Young 
 Men's Christian Association hold their services in 
 that building each Lord's day, and the Young 
 "Women's Christian Association has a like service in 
 another public building. At the Blind Institute on 
 each Lord's day prayers are offered, songs are sung, 
 Sunday School is taught and addresses made to the 
 children with regard to religious matters. Devout 
 persons visit our prisons and offer prayers for those 
 who are confined. An annual appropriation is made 
 for the chaplain for the State penitentiary; in fact, 
 Christianity is so interwoven with the web and woof 
 of the State government that to sustain the con- 
 tention that the Constitution prohibits reading the 
 Bible, offering prayers, or singing songs of a re- 
 ligious character in any public building of the 
 government, would produce a condition bordering 
 upon moral anarchy." 
 
272 The Supreme Court of Texas 
 
 In the case of State vs. Duke, 1 the court held that 
 a bona fide licensed club for purposes permitted or 
 sanctioned by law, situated in a locality where 
 liquors may be sold, could supply liquors to its mem- 
 bers as a mere incident to its purpose, and not for 
 profit, where purchased with club funds and paid 
 for by members who order it as served. The opinion 
 by Associate Justice Ramsay contains a discussion of 
 many authorities bearing upon the issues involved in 
 the decision. 
 
 Associate Justice William F. Ramsay resigned 
 in March, 1912, to take effect April 1, 1912, and 
 Nelson Phillips was appointed Associate Justice 
 on March 26, 1912, to fill the vacancy, qualifying 
 on April 3, 1912. He was elected to the position at 
 the ensuing November election. 
 
 At the November election, 1912, "William E. Haw- 
 kins was elected Associate Justice to succeed Justice 
 Dibrell, and in November, 1916, was re-elected to 
 that position. 
 
 On the death of Chief Justice Brown, in May, 
 1915, Justice Phillips was appointed Chief Justice, 
 and, at the ensuing 1916 election, was elected to that 
 position. 
 
 In May, 1915, J. E. Yantis was appointed Associate 
 Justice to fill the vacancy caused by the promotion 
 of Justice Phillips. In November, 1916, Justice 
 Tantis was elected Associate Justice. 
 
 Nelson Phillips was born in Jefferson, Texas, 
 May 23, 1873. His preparatory education was 
 acquired in the public schools of his native county. 
 
 U04 Texas, 35S. 
 
The Supreme Court or Texas 273 
 
 This he supplemented by a two years' course in 
 Bingham School, Mehane, North Carolina. After 
 the completion of his studies at that institution, 
 he devoted himself for many months to the study of 
 law. Thereafter he entered the law office of T. S. 
 Smith, at Hillsboro, Texas, where he continued his 
 professional studies until 1895, when he was ad- 
 mitted to the bar, and formed a law partnership 
 with Mr. Smith. After engaging successfully in the 
 practice at Hillsboro for ten years, in 1905 he was 
 appointed District Judge of the Eighteenth Judicial 
 District. Thereafter he removed to Dallas, Texas, 
 where he enjoyed an extensive and remunerative law 
 practice until he was appointed Associate Justice of 
 the Supreme Court. 
 
 In a quiet and dignified way, Justice Phillips has 
 taken prominent part in the political issues of the 
 day. In 1910 he served creditably as Chairman of 
 the Democratic State Convention. He is an able 
 judge, a forceful and charming speaker, and a most 
 companionable man. 
 
 William E. Hawkins was born at Greenwood, 
 Caddo Parish, Louisiana, September 26, 1863. His 
 father, the Eeverend Samuel J. Hawkins, was a na- 
 tive of Tennessee, a distinguished minister of the 
 Methodist Episcopal Church, South, who in 1866 or- 
 ganized the North Texas Conference, as Trinity 
 Conference, at Sulphur Springs, Texas, and was 
 presiding elder of the Sulphur Springs District, as- 
 sociate editor of the Texas Christian Advocate, and 
 curator of the Southwestern University at George- 
 town, Texas, at the time of his death at Sulphur 
 Springs, in 1888. Judge Hawkins' mother, Emme- 
 
274 The Supreme Court of Texas 
 
 line (Burk) Hawkins, who was born in Ohio, of 
 Virginia parentage, survives her distinguished hus- 
 band, and now resides at Austin, Texas, with her son. 
 Judge Hawkins acquired his education in the vari- 
 ous schools of Texas, his father's calling necessitat- 
 ing frequent changes in the family residence, while 
 his collegiate course was commenced in the Univer- 
 sity of Louisiana (now Tullane University), at New 
 Orleans, and completed in the Southwestern Univer- 
 sity at Georgetown, Texas, which he attended for two 
 years. Thereafter he taught school in Dallas County, 
 and later in the city of Dallas. Because of his finan- 
 cial inability to attend the law department of the 
 University of Texas, he studied law under the pre- 
 ceptorship and in the offices of Shepard & Miller, 
 of Dallas, a firm composed of Seth Shepard, late 
 Chief Justice of the United States Court of Appeals, 
 Washington, D. C, and the late T. S. Miller. Fol- 
 lowing this excellent professional training, Judge 
 Hawkins was admitted to the bar at Dallas in 1887, 
 and entered the practice in that city as a member of 
 the firm of McKamay & Hawkins, the senior mem- 
 ber of the firm being W. C. McKamay, afterwards 
 State Senator. Subsequently Judge Hawkins formed 
 a partnership with his brother, S. B. Hawkins, under 
 the firm name of Hawkins & Hawkins, and at the 
 death of the latter, in Coryell County, Texas, he as- 
 sociated himself in the practice at Dallas, with John 
 R. and C. P. Haynes, under the firm name of Hawk- 
 ins & Haynes. He continued his connection with 
 this firm until 1905, when he was appointed First 
 Assistant Attorney-General, under Attorney-General 
 R. V. Davidson, in which position he served with 
 
The Supreme Court op Texas 275 
 
 distinction until December 31, 1909, when he re- 
 signed. Shortly thereafter he was appointed State 
 Commissioner of Insurance and Banking, serving 
 until July, 1910, when he removed to Brownsville, 
 Texas, where he was associated in the practice with 
 Frank C. Pierce, under the firm name of Hawkins & 
 Pierce. In July, 1912, while a citizen of Browns- 
 ville, Judge Hawkins received the Democratic nom- 
 ination for the office of Associate Justice of the Su- 
 preme Court of Texas, for an unexpired term of 
 two years, by a majority exceeding 89,000 votes. A 
 feature of his nomination was the remarkable cir- 
 cumstance that he received substantial majorities 
 in every section of the State, with the exception of 
 a few counties. Elected at the ensuing election, he 
 qualified on January 7, 1913. In 1914 he was nom- 
 inated without opposition for the office of Associate 
 Justice of the Supreme Court, for the regular term 
 of six years, leading the Democratic ticket by more 
 than 5,000 votes, receiving the largest majority ever 
 given any candidate in Texas for any office, and was 
 elected at the ensuing election. 
 
 Justice Hawkins is one of the ablest judges who 
 has served upon the Supreme Court of Texas in 
 recent years. The numerous opinions written by 
 him disclose the superior judicial attainments, clear 
 analysis, careful and painstaking research, forceful, 
 convincing reasoning, and mature judgment which 
 have characterized the learning of the greatest jur- 
 ists who have served in that exalted tribunal. 
 
 "Hon. W.E.Hawkins, Associate Justice of the Su- 
 preme Court of Texas," says a capable biographer, 1 
 
 iHistory of Texas and Texans, Vol. 4, p. 3119. 
 
276 The Supreme Court of Texas 
 
 "is a worthy representative of the dignity and great- 
 ness of the State in the domain of the law which he 
 has honored for twenty-seven years. He comes of a 
 family whose members have long been distinguished 
 at the bar and on the bench, especially in Tennessee, 
 where an uncle, Alvin Hawkins, served three terms 
 as a member of the Supreme Court, and later was 
 Governor of the State; another uncle, Albert GK 
 Hawkins, was for many years chancellor of the 
 district, including Carroll County, Tennessee, while 
 a third uncle, Jo Hawkins, was Circuit Judge, and 
 for many years a practitioner at Huntington, Car- 
 roll County, Tennessee." 
 
 The case of Mabee vs. McDonald, 1 sustaining the 
 validity of a personal judgment upon statutory ci- 
 tation by publication against an absent defendant, 
 and involving the principle announced in Pennoyer 
 vs. Nef, 2 contains a notable example of the research 
 and forceful reasoning of Justice Hawkins. His 
 dissenting opinion in St. Louis & Southwestern 
 'Railway vs. Grifin,* holding the "blacklisting" 
 statute unconstitutional; as well as his dissenting 
 opinion in Ex Parte Mitchell* sustaining the con- 
 stitutionality of the "pool-hall local option" stat- 
 ute, are noteworthy examples of the judicial labors 
 of Justice Hawkins. In Volumes Nos. 105, 106, 
 and 107 of the official Supreme Court Reports are 
 numerous opinions by Justice Hawkins in impor- 
 tant cases involving statutory and constitutional 
 
 U75 S. W. Reporter, 1052. 
 295 U. S., 714. 
 8171 S. W. Reporter, 708. 
 *177 S. W. Reporter, 954. 
 
The Supreme Court of Texas 277 
 
 questions, which reflect credit upon his professional 
 attainments. 
 
 Judge J. E. Tantis was born in Hickman County, 
 Kentucky. His parents removed to Texas when he 
 was fifteen years old, locating in Collins County, 
 where his early education was acquired. He ener- 
 getically devoted himself to the fulfillment of his 
 ambition to become a great lawyer. After his ad- 
 mission to the bar at McKinney, Texas, he located 
 at Sweetwater, Nolan County, Texas, where he ac- 
 quired an extensive and remunerative law practise. 
 In 1893 he removed to Waco, Texas, where he suc- 
 cessfully engaged in the practice of law for twenty 
 years. In 1896 he was elected to the State Senate 
 from the Eleventh Senatorial District, in which he 
 served with distinction until the close of his term. 
 Thereafter he was appointed Assistant Attorney- 
 General, in which position he served with ability. 
 He is a strong advocate, distinguished jurist and a 
 leading citizen of the State, while his enviable 
 record as a Justice of the Supreme Court demon- 
 strates the wisdom of his selection by the Governor 
 in the first instance, and his election by the people 
 in the second. He enjoys the merited reputation 
 of being one of the ablest lawyers of Central Texas, 
 justly noted for the strength of its bar. 
 
 In the case of Eppstein vs. State, 1 the court in an 
 opinion by Justice Dibrell, construes the act of the 
 30th Legislature, providing that wholesale liquor 
 dealers or distributors of intoxicating liquors, shall 
 make a quarterly report to the Comptroller of 
 
 1144 S. W. Eeporter, 145, 146. 
 
278 The Supeeme Court of Texas 
 
 Public Accounts, showing the gross amount col- 
 lected and uncollected from any and all sales made 
 within the State during the last preceding quarter, 
 and at the time of making said report shall pay an 
 occupation tax for the quarter beginning on said 
 date, equal to one-half of one per cent, of the gross 
 receipts from said sales as shown by said report. 
 
 In holding that the tax was on gross sales, whether 
 collected or not, the court says : 
 
 "No issue of fact was presented, and the sole 
 question of law is whether the wholesale dealer 
 in intoxicating liquors is required under the act 
 of 1907, to pay the occupation tax of one-half of one 
 per cent, on the gross sales of his business in this 
 State, whether collected or uncollected, during the 
 quarter for which he is to pay, or whether he is re- 
 quired only to pay on such amount of gross sales 
 as he may collect during the quarter." 
 
 The court held that any other construction of the 
 law would result in its nullification as to sales made 
 for other than cash, thus enabling dealers and dis- 
 tributers on a credit basis to escape its provisions; 
 that the case called for the application of that indis- 
 putable rule of statutory construction, that where 
 an act was fairly susceptible of two constructions, 
 one of which would render it inoperative, and the 
 other give it full force and effect, the latter should 
 be adopted. 
 
 The case of Railroad Commission of Texas et al. 
 vs. Galveston Chamber of Commerce? contains an 
 interesting discussion of what is characterized the 
 "Galveston-Houston differential freight rate," of 
 
 1145 S. W. Reporter, 573. 
 
The Stjpeeme Court op Texas 279 
 
 which Galveston complained as giving Houston an 
 unfair advantage in traffic over that enjoyed by the 
 latter, as the result of its application. 
 
 In this case the court held that the act creating 
 a railroad commission and making it an independent 
 department of government, with jurisdiction and 
 power to represent the interest of the people as 
 well as the railroads, should be liberally interpreted 
 to effectuate its purpose; that provisions for ap- 
 peals to the courts from decisions of the Commis- 
 sion, placing the burden of proof on trials by the 
 Commission, upon plaintiff to show by clear and sat- 
 isfactory evidence that the rates complained of were 
 unreasonable and unjust, evidenced the legislative 
 intent to guard the Railroad Commission from im- 
 proper interference, and to provide that the courts 
 should regard its actions within the limits of its 
 powers, as the result of a purpose to do justice, so 
 that the right of courts to set aside decisions of the 
 Commission must be limited to cases in which the 
 evidence leaves no reasonable doubt that the rate 
 or rule is unjust and unreasonable. The court be- 
 lieved that under such conditions it was not con- 
 cerned so much with any inquiry into the motives 
 of the Commission, as with the results of its action 
 and its effects on the rights of shippers. 
 
 Presaging the opinion, Justice Brown states that 
 the suit was instituted by plaintiffs in error under 
 Art. 4565 of the Revised Statutes, providing that 
 if any railroad company or other party at interest 
 be dissatisfied with the decision of any rate, classi- 
 fication, rule, charge, act, or regulation adopted by 
 the Commission, such company may file a petition 
 
280 The Supreme Court or Texas 
 
 setting forth the cause or causes of its objection to 
 such decision, in a court of competent jurisdiction 
 in Travis County, Texas, against said Commission 
 as defendant, and that such action shall have pre- 
 cedence over all other causes on the docket of said 
 court except others of like nature, and be tried and 
 determined as other civil causes in said court, and 
 providing that either party may appeal to the ap- 
 pellate court having jurisdiction of said cause, and 
 said appeal shall be at once returnable to said ap- 
 pellate court, at either of its terms, and that said 
 action so appealed shall have precedence in that 
 court of cases of a different character therein pend- 
 ing, provided, that if the court be then in session at 
 the time said right of action accrues, the suit may 
 be filed during said term and stand ready for trial 
 after ten days' notice. He also directed attention 
 to Article 4566, prescribing that in all trials under 
 the article formerly quoted, the burden of proof 
 should rest upon the plaintiff, who must show by 
 clear and satisfactory evidence that the rates, regu- 
 lations, orders, classifications, acts, or charges com- 
 plained of are unreasonable and unjust to it or them. 
 After quoting from voluminous findings of facts by 
 the trial court and the Court of Civil Appeals, which 
 were hardly as clear as they should be, the Supreme 
 Court in an opinion by Chief Justice Brown, ex- 
 presses the difficulty experienced in reviewing the 
 action of the Honorable Court of Civil Appeals, as 
 its able and exhaustive opinion discussed in a general 
 way facts and principles without definitely stating 
 the facts or the grounds upon which judgment 
 rested. Under this state of affairs the court con- 
 
The Supreme Court of Texas 281 
 
 eluded that the best way to review the case was 
 to address itself to what it conceived the principal 
 contentions made by the plaintiff against the rates 
 complained of. 
 
 The court found no basis in fact for the con- 
 tention that the differential between Houston and 
 Galveston was unjust or unreasonable to the people 
 of Galveston. It is not claimed, says the court, that 
 the Commission was without authority to prescribe 
 the differential rate; that the principal ground of 
 complaint was the application of the differential 
 to the shipment of cotton from the interior to Gal- 
 veston. 
 
 "Practically all cotton," says the court, "that goes 
 to Houston finally goes to Galveston, and is from 
 there shipped to some other part of the United 
 States or to some foreign country. Let us illustrate 
 the practical effect of the differential by comparing 
 the movement of one shipment by a buyer of each 
 city thus : A, of Houston, ships 100 bales of cotton 
 from some interior point to that city at the rate of 
 49 cents per 100 pounds. It may be unloaded and 
 compressed. He then ships it to Galveston, paying 
 6 cents per 100 pounds, making 55 cents per 100 
 pounds as the total cost of shipment from the 
 initial point. B, of Galveston, purchases in the same 
 market 100 bales of cotton and ship it to Gal- 
 veston, direct, at 55 cents per 100 pounds. Where 
 is B injured by this transaction? Each party pays 
 the same rate for the same service. Suppose that 
 A should start his 100 bales to Liverpool; he may 
 unload at Houston or other compress point, and, 
 after compressing, reship on his railroad bill of 
 
282 The Supreme Coubt of Texas 
 
 lading, which calls for delivery to a ship bound for 
 a foreign port. The railroad company must pay 
 for compressing and wharfage at Galveston, so that 
 delivery may be made at shipside in accordance 
 with the contract. For this A pays 55 cents per 
 100 pounds, neither more nor less. If B should start 
 his 100 bales to Liverpool likewise, and takes a bill 
 of lading for delivery to the ship, for which he 
 pays 55 cents per 100 pounds, and no more, he may 
 unload at Houston or elsewhere and recompress, 
 and then resume the journey to Liverpool. The 
 railroad company pays for compressing and de- 
 livery to shipside the same as for A. Both place 
 their cotton on shipboard at the same cost. Wherein 
 is the discrimination? If B should ship his cotton 
 to Galveston, to be delivered to his or some other 
 warehouse, then the railroad company discharges 
 its contract ; and when B wishes to forward the cot- 
 ton to Liverpool he must deliver it to the ship at his 
 own cost. If A should ship his cotton to a cotton 
 firm at Galveston, to be there stored, when he 
 should resume its shipment to Liverpool, he must 
 pay for delivery at the ship the same as B, each 
 man pays the same rate for a like service." 
 
 The court observed that it seemed to be in the 
 mind of attorneys for defendants in error that 
 Galveston was entitled by law to some favor because 
 of its location and water transportation. The fact 
 that it enjoys those advantages, in the court's view 
 of the matter, should not cause adverse discrimina- 
 tion nor favorable indulgence of that port. The 
 court conceived that the benefit of access to the high 
 seas belongs to the people of all the states, and may 
 
The Supreme Cotjbt op Texas 283 
 
 be, and no doubt has been, used by the Commission 
 for the general good. The bayou affords some com- 
 petition with the railroads between Houston and 
 Galveston, and, if it were sufficient, might force the 
 railroads to seek lower rates to Galveston; but Gal- 
 veston would have no right to demand lower rates 
 on the railroads. The question of competition and 
 its influence on rates was and is peculiarly for the 
 Commission, and for that reason the court did not 
 feel called upon to discuss that phase of the case. 
 
 Addressing itself to the claim that, as applied 
 to the Commodity Tariff, the differential was unjust 
 to the people of Galveston, the court declared that 
 the facts found by the trial court and the Court 
 of Civil Appeals, and clearly illustrated by the 
 learned judge who wrote the opinion of the Court of 
 Civil Appeals, show that the rate per 100 pounds 
 on freight leaving Houston is so regulated that for 
 the first 58 miles from Houston the rate is 30 cents per 
 hundred pounds, while for the first 58 miles from Gal- 
 veston the rate is 20 cents. The rate on freight from 
 Galveston gradually increases in its relative propor- 
 tion to that fixed for Houston until, at the distance of 
 263 miles, each rate reaches 80 Gents per 100 pounds, 
 beyond which distance nothing is added to the Hous- 
 ton rate; but the rate from Galveston is increased 
 until 294 miles is reached when the rate for Galves- 
 ton is equal to the Houston rate, plus the differential. 
 
 "These rates," says the court, "apply to shipment 
 from and to the two cities. It is apparent that Gal- 
 veston has the advantage in rates for 263 miles, and 
 is at a slight disadvantage for about 30 miles. The 
 judge of the trial court found that the lower rates 
 
284 The Supreme Court of Texas 
 
 to and from Galveston applied to the territory in 
 which its merchants and other business men do their 
 largest business, but that the lower rate to and from 
 Houston applied to the territory in which its mer- 
 chants do the least business. From this statement of 
 facts, it does not appear that the plaintiffs, or any 
 interest in the city of Galveston, has suffered injury. 
 
 "The Commission had authority to prescribe the 
 rates, and this court will not disturb them, except 
 upon clear and satisfactory evidence that they are 
 unjust and unreasonable to the complainants. It is 
 not sufficient that we can see no reason for the dif- 
 ferences; we must be able to see a valid reason 
 why the rates should not exist in that form. . . . 
 "With great respect for the learned judge who de- 
 livered the opinion of the Court of Civil Appeals, 
 we repeat that courts cannot set aside rates made 
 hy the Commission, because the reason for an ap- 
 parent discrimination is not evident ; the reason why 
 it should not be made by the Commission must be 
 made clear beyond a reasonable doubt, to justify the 
 courts in setting aside rates which the law author- 
 izes that body to make. . . . 
 
 "The findings of facts by the trial court have not 
 been objected to. Those facts, in our opinion, wholly 
 fail to meet the requirements of Art. 4566, Eevised 
 Statutes, that the evidence must show the rate to 
 be unreasonable and unjust beyond a reasonable 
 doubt, and, as a matter of law, the plaintiff failed 
 to show any right to a judgment. Therefore the 
 trial court correctly rendered judgment refusing 
 to interfere with the rates." 
 
The Supreme Court of Texas 285 
 
 In Nash Hardware Company vs. Morris, 1 Chief 
 Justice Brown discusses the issue as to whether a 
 certain act was a proper exercise of the police reg- 
 ulatory power by the legislative department — great- 
 est of powers exercised by that or any other de- 
 partment of government, and the least understood 
 of any connected with constitutional government. 
 
 "In effect," says the court, "the contention is 
 .that the act is not a proper exercise of the police 
 regulatory power. We regard this as the question in 
 the case; and we will assume that the law is void, 
 if not a reasonable exercise of the police power of 
 the State, which is defined thus: 'The private 
 rights of the individual, apart from a few statutory 
 rights, which, when compared with the whole body 
 of private rights, are insignificant in number, do 
 not rest upon the mandate of the municipal law as 
 a source. They belong to man in a state of nature ; 
 they are natural rights, rights recognized and exist- 
 ing in the law of reason. But the individual, in a 
 state of nature, finds in the enjoyment of his own 
 rights that he transgresses the rights of others. 
 Nature wars upon nature, when subjected to no 
 spiritual or moral restraint. The object of govern- 
 ment is to impose that degree of restraint upon 
 human actions which is necessary to the uniform 
 and reasonable conservation of and enjoyment of 
 private rights. Government and municipal law pro- 
 tect and develop, rather than create, private rights. 
 The conservation of private rights is attained by 
 the imposition of a wholesale restraint upon their 
 exercise, such a restraint as will prevent the in- 
 
 H46 S. W. Reporter, 874. 
 
286 The Supreme Court of Texas 
 
 fliction of injury upon others in the enjoyment of 
 them ; it involves a provision of means for enforcing 
 the legal maxim which enunciates the fundamental 
 rule of both the human and the natural law: 'Sic 
 utere tuo, ut alienum non laedas.' The power of 
 the government to impose this restraint is called 
 'police power'." 1 
 
 "We add the concise and comprehensive definition 
 of Mr. Cooley, in his work on Constitutional Limi- 
 tations : 2 
 
 " 'The police power ©f a state, in a comprehensive 
 sense, embraces its whole system of internal regula- 
 tion, by which the statute seeks, not only to preserve 
 the public order and to prevent offenses against the 
 state, but also to establish for the intercourse of 
 citizens with citizens, those rules of good manners 
 and good neighborhood which are calculated to pre- 
 vent a conflict of rights, and insure to each the 
 uninterrupted enjoyment of his own, so far as is 
 reasonably consistent with a like enjoyment of rights 
 by others.' " 
 
 While the definitions of police power as quoted 
 and approved by' the court are sufficient for or- 
 dinary requirements, it would be expecting too much 
 to indulge the hope that they have proven satis- 
 factory to several distinguished judges and prac- 
 titioners, in this and other states, who have often 
 declared that "police power" is a mere designation 
 of a method in high favor with those who, having 
 determined to violate the constitution, are in need 
 of some plausible excuse for that action. 
 
 iTiedman's Lim. of Police Power, Sec. 1. 
 "Fifth Edition, 706. 
 
The Supreme Court of Texas 287 
 
 In Cox vs. Robinson, 1 is an interesting historical 
 outline by Chief Justice Phillips of the origin of 
 the State's reservation of mineral rights in the 
 sale of its public lands; discussion of rules for the 
 construction of constitutions, and the value of re- 
 sort to extrinsic aids in such construction. 
 
 As stated by the court, this action was a suit for 
 original mandamus to compel the issuance to the 
 relator by the Commissioner of the General Land 
 Office of an unconditional patent to 80 acres out of 
 a section of land belonging to the public free school 
 fund, situated in Culberson county and being in the 
 "Pacific Reservation," referred to in Article 3498a, 
 Revised Statutes of 1895. 
 
 The question involved in the case was the constitu- 
 tionality of Article 2498a, it being contended by rela- 
 tor that upon the adoption of Section 7, Art. 14 of 
 the Constitution, the State lost its power to enact 
 laws providing for the reservation of minerals in the 
 conveyance of its public schools, university and asy- 
 lum lands, and other public lands referred to in Ar- 
 ticle 3498a; that Article 3498a, declaring that any 
 sale of such lands, other than as mining claims, as 
 provided in other articles of the title, should be un- 
 derstood to be with the reservation of the minerals 
 thereon, is accordingly unconstitutional; and that 
 therefore relator is entitled to an unconditional 
 patent. 
 
 The court, after citing Section 7 of Article 14 of 
 the Constitution, in which the State of Texas re- 
 leases to the owners of the soil all mines and min- 
 
 »150 S. Wt Reporter, 1149. 
 
288 The Supreme Court of Texas 
 
 erals that may be on the same, subject to taxation as 
 other property, says: 
 
 "If this provision was intended by the framers 
 of the Constitution and the people who adopted it 
 as a grant by the State to both the then and future 
 owners of the soil of all mines and minerals that 
 might be in it, the State must be held to have been 
 without authority to in any wise further control 
 their disposition; and if so construed, this section 
 of the Constitution amounts to a limitation upon 
 the power of the Legislature to enact laws of the 
 character of the statute under review. If, however, 
 it was curative in its nature and retrospective in 
 its effect, and intended as an extinguishment of the 
 rights of the State in only those mines and minerals 
 in soil owned at the time of its adoption, the title 
 to the State to all other mines and mineral in lands 
 of the public domain remained unimpaired and un- 
 affected; and its authority to provide by law that 
 their reservation should be made in future con- 
 veyances of such land must be recognized. 
 
 "When it is recalled that the development of the 
 mineral resources of Texas is still in a state of 
 infancy; that even their meagre disclosure to this 
 time furnish evidence that in them repose a wealth 
 whose rich extent in the day of its full ascertainment 
 may give new character to the State's resources and 
 materially transform its industrial life, and that 
 there yet remains undisposed of in the hands of 
 the State an immense public domain dedicated to 
 the free education of its youth, whose mineral value 
 is commonly estimated at a large amount and will 
 endure for their benefit, should this legislation be 
 
The Supreme Court op Texas 289 
 
 upheld, but of which they will be deprived, to the 
 benefit of purchasers and the encouragement of set- 
 tlement, if it be held invalid; and that we are deal- 
 ing, therefore, with a question, not only of present 
 concern, but vital in its bearing upon the future of 
 the State, whether viewed with relation to its educa- 
 tional interests or from the standpoint of those who 
 shall hereafter come to inhabit these lands and com- 
 pose its citizenship — it will be appreciated that the 
 decision as to where, under the Constitution, the 
 title to these minerals rest is of such consequence as 
 to challenge the most serious consideration and con- 
 strain the court to a solicitous care for the accuracy 
 of its conclusions. . . . 
 
 "It can with some reason be contended that the 
 meaning of the phrase in the provision, 'hereby re- 
 leases to the owner or owners of the soil/ is notj 
 plain; and upon this account we are authorized to 
 make use of whatever proper information will 
 help to make it certain." 
 
 In support of its view that a better understanding 
 of the provision would result from a clearer view 
 of its history, the court presents in the opinion an 
 interesting and instructive historical outline of the 
 provision under consideration, showing that it is 
 first found in the Constitution of 1866; that it was 
 repeated with but slight variation of language in 
 the Constitution of 1869. As found in those consti- 
 tutions the provision is as follows : "That the State 
 of Texas hereby releases to the owner of the soil all 
 mines and mineral substance, that may be on the 
 same, subject to such uniform rate of taxation, as 
 the Legislature may impose. All lands along the 
 
290 The Supbeme Court or Texas 
 
 Gulf coast of the State, not now patented, or ap- 
 propriated by locations under valid land certificates, 
 are reserved from location or appropriation in any- 
 other manner by private individuals than as the 
 Legislature may direct." 
 
 In view of the circumstance that the present pro- 
 vision had its origin in the Constitution of i866, 
 and is substantially the language of the provision of 
 that instrument, the court considered that no surer 
 method of determining its meaning could be em- 
 ployed than to ascertain with what intent the fram- 
 ers of the Constitution of 1866 adopted the original 
 provision. To that end the prior state of the law and 
 the circumstances which appear, with some cer- 
 tainty, to have influenced their action, were reviewed 
 by the court. 
 
 The court observed that by the Mexican law all 
 mines, and by the common law all royal mines— 
 that is, those of gold and silver — belonged to the 
 sovereign ; and their metals or minerals did not pass 
 by the ordinary grant of the land, without express 
 words of designation; that upon the establishment 
 of the Republic of Texas, among the earlier acts of 
 its Congress was that of June 3, 1837, under which 
 in its grants of land, there was secured to the Re- 
 public, by express reservation, the same rights in 
 all minerals that by the common law was reserved 
 to the king in respect to royal mines, the language of 
 the act mentioned being as follows : "Provided that 
 no lands granted by this government shall be located 
 on salt springs, gold or silver mines, copper or lead, 
 or other minerals, on any island of the Republic." 
 
The Supreme Cotjet of Texas 291 
 
 This act was construed in Cowan vs. Hardeman, 1 
 as disclosing the intention and purpose of the Leg- 
 islature, says the court, to reserve to the Republic 
 the islands and salt springs, gold and silver mines, 
 copper and lead, and other minerals, as corporeal 
 hereditaments out of the public domain; and that 
 thus, while the mineral resources of the country that 
 were known to exist, or that might afterwards be 
 developed, were thereby secured to the government, 
 no embarrassment was placed in the way of the 
 citizen in acquiring the fee in the quantum of land 
 to which his certificate or scrip entitled him. In the 
 act of 1840, adopting the common law and repealing 
 certain Mexican laws, says the court, in the re- 
 pealing section there were expressly excepted all 
 laws relating to "the reservation of islands and 
 lands, and also of salt lakes, licks and salt springs, 
 mines and minerals of every description." From 
 this the court was convinced that in the very be- 
 ginning of the State's history, at the very outset of 
 its career, a fixed purpose and established policy 
 to reserve its minerals from the appropriation of 
 the land, evidencing, as Judge Wheeler said in 
 Cowan vs. Hardeman, "the solicitude of the Legis- 
 lature to guard the interest of the State" in them. 
 
 In his painstaking investigation of the legislative 
 history of a famous salt lake in Hidalgo county, 
 known as El Sal del Bey, Justice Phillips shows 
 that the provision was not embodied in the Consti- 
 tution of 1866, but was a mere ordinance enacted for 
 the purpose of validating the title to the lake men- 
 tioned. 
 
 126 Texas, 217. 
 
292 The Supreme Court of Texas 
 
 "Bearing in mind," says Justice Phillips, "that 
 the ordinances enacted by the convention were 
 valid upon their adoption, without ratification by the 
 people, and that the convention , devoted this power 
 that it thus possessed to the relief of the people and 
 property of the State in many other respects, it is 
 not difficult to credit it with a purpose to quiet 
 the owners of land, which the State had theretofore 
 granted, in their title to whatever minerals might 
 be in the soil by 'releasing' to such owners the 
 previous rights of the State, recently declared to ex- 
 ist by the decision rendered in Cowan vs. Hardeman. 
 But considering the membership of that convention 
 and the conditions under which they performed 
 their labors, it is hard to believe that they intended, 
 through the office merely of an ordinance, by an 
 independent act of their own, without the sanction 
 of the people, to make a grant so broad and gen- 
 eral, in respect to lands yet ungranted, as to deprive 
 the State of all power to thereafter conserve for 
 a sacred use a resource held in such value as to have 
 been the subject of a constant and jealous care. 
 It must be remembered that it was not a time for 
 a measure so free in its disposal of the unguarded 
 public domain, and so generous in its provisions for 
 mere prospective purchasers. Whatever the appeal 
 of equitable considerations in respect to lands with 
 the title to which the State had parted, all things 
 urged a prudent husbandry of its resources rather 
 than a liberal disposition of them. The State had 
 just passed through a ruthless and ruinous war. 
 Its devastation lay over the land, and the gloom of 
 its tragic close pervaded the people. Their minds 
 
The Supreme Court op Texas 293 
 
 turned naturally to rehabilitation and repair, where 
 they faced the stern necessity of a frugal use of 
 whatever had survived waste and destruction. The 
 work of the convention was given largely to such 
 measures, and in that provident spirit, we may be 
 assured, that the hard conditions of the time de- 
 manded. . . . 
 
 "A full consideration of the question in all of its 
 phases has brought us to the conclusion that it was 
 not the intention of the framers of the original pro- 
 vision in 1866, or of the people who adopted the 
 present Constitution in 1876, to give these terms 
 a prospective operation and effect, so as to deny to 
 the Legislature the power to provide for the reserva- 
 tion of minerals in future grants of the school and 
 other public lands if, in their wisdom and the ex- 
 ercise of their province, such reservation was in 
 accord with a sound public policy and the best in- 
 terests of the State. . . ." 
 
 In Grigsby vs. Reib et al, 1 the legal status of mar- 
 riage agreements and contracts as clearly defined 
 in the opinion of the court rendered by Chief Jus- 
 tice Brown, will prove instructive and entertaining 
 to the general reader. In holding that the marriage 
 contract is a civil contract, in that a church ordi- 
 nance or rite is not necessary to its validity; that 
 marriage may be contracted without complying 
 with the statutes, and without any ceremony by an 
 officer or minister of the gospel ; that marriage may 
 be lawfully made without license or ceremony, when 
 with the consent of both parties they professedly 
 
 1153 S. W. Keporter, 1124. 
 
294 The Supkeme Coubt of Texas 
 
 cohabit and maintain the relation of husband and 
 wife, Justice Brown says : 
 
 "Marriage was not originated by human law. 
 When God created Eve, she was a wife to Adam; 
 they then and there occupied the status of husband 
 to wife and wife to husband. When God turned 
 the first pair out of the garden, He gave the com- 
 mand: 'Multiply and replenish (people) the earth' 
 — which was enjoined upon their explusion from the 
 garden. When Noah was selected for salvation from 
 the flood, he and his wife and three sons and their 
 wives were placed in the Ark; and, when the flood 
 waters had subsided and the families came forth, 
 it was Noah and his wife and each son and his wife, 
 and God repeated to them the command: 'Multiply.' 
 All of the duties and obligations that have existed at 
 any time between husband and wife existed between 
 those husbands and wives before civil government 
 was formed. The truth is that civil government has 
 grown out of marriage; marriage by cohabitation, 
 not by contract, which created homes, and popula- 
 tion, and society, from which government became 
 necessary to settle differences in matters of private 
 interest, to protect the weak, and to conserve the 
 moral forces of society to the support of religion 
 and free government. In what respect does the 
 contract of marriage of B. and C. contribute to their 
 happiness? How does that marriage benefit so- 
 ciety? It will contribute nothing to sustaining the 
 dignity of the State, nor add to its citizenship. Such 
 a contract, if it be regarded as such, is worse than a 
 nudum pactum, for it is without consideration or 
 obligation to or from either party. Such life is in 
 
The Supreme Court op Texas 295 
 
 defiance of the command of God, and in disregard 
 of every obligation to society and the State. Such 
 transaction has but one element of a contract: Mut- 
 ual consent to do nothing for themselves, their coun- 
 try or their God. The abstract theory has had but 
 little influence in the determination of the causes, 
 except to confuse the judicial mind. Contract mar- 
 riages exist when the parties, for some pecuniary 
 or social advantages, have desecrated the sacred 
 status by their union; and such marriages often 
 furnish business to the divorce courts and scandals 
 to society. 
 
 "If the rule of law claimed in this case is not given 
 effect, it should be repudiated, because it is unsound 
 and inapplicable to present conditions, serving only 
 to confuse courts and juries. If it were put into 
 effect, as is sought to be done in this case, it would 
 open a wide door, with a strong invitation to per- 
 jury and fraud. It would be a menace to the heirs of 
 men like Grigsby, and make their estates the prey of 
 the bawd and the adventuress, with no possible safe- 
 guard; one party being dead, and no witness to the 
 contract nor publicity of marriage. One of the 
 parties to such contract might marry and raise a 
 family, and, dying without disclosing the former 
 marriage, the "common-law widow" could come 
 forward, claim to be the surviving wife, and thus 
 displace the woman who had borne the hardships 
 of wife and mother, brand the children as bastards, 
 and take the position as survivor with her rights in 
 the estate. A rule for the regulation of the sacred 
 rights of marriage and the rights of families that 
 
296 The Supreme Court op Texas 
 
 makes such wrongs possible, should not be recognized 
 in civilized governments." 
 
 In Missouri, Kansas & Texas Railway Company of 
 Texas vs. State, 1 the court in an opinion by Chief 
 Justice Phillips, holds that what is commonly known 
 as the "Thirty-Minute Order" of the Texas Rail- 
 road Commission as applied to certain ' trains of 
 the plaintiff in error, which, according to its claim, 
 were interstate in character, and not subject to the 
 regulation, were subject to the same, notwithstand- 
 ing their interstate character. The trains sought to 
 be subjected to the order were through passenger 
 trains from St. Louis and Kansas City, Missouri, to 
 points in Texas, operated by the Missouri, Kansas & 
 Texas Railway Company to Denison, Texas, and 
 from there to destination by the plaintiff in error 
 under a contract with the company; it appearing 
 from the proof that a considerable portion of their 
 passenger traffic was interstate. 
 
 There was accordingly presented, said the court, 
 the simple question as to the power of the Railroad 
 Commission to provide and enforce a regulation of 
 this character as applied to trains employed in 
 interstate commerce by railway companies operating 
 in this State. 
 
 "While by the Federal Constitution Congress is 
 empowered to regulate commerce with foreign na- 
 tions and among the several states," says the court, 
 "there remains in the states the power, distinct from 
 any granted to the federal Government, to pre- 
 scribe, within constitutional limitations relative 
 
 1181 S. W. Keporter, 721. 
 
The Supreme Court or Texas 297 
 
 rights and duties of persons and corporations within 
 their jurisdiction in the interest of the public con- 
 venience and for the public good. It is a power 
 still valid and effectual, though its exercise may 
 relate to subjects over which Congress possesses, 
 but has not exerted, authority. It cannot be sup- 
 posed that a sovereign state in the grant of the 
 rights and privileges accorded by its laws to rail- 
 way carriers is required to wholly surrender its 
 authority over them simply because they may en- 
 gage in interstate commerce. Nor is it to be assumed 
 that such rights and privileges are extended merely 
 for their benefit as interstate carriers, or only to 
 subserve the interest of those making use of them 
 for that character of traffic. There are certain 
 duties whose performance by the common carrier 
 in the state the police power may exact, notwith- 
 standing their employment in interstate commerce; 
 and that power is not nullified by the mere fact that 
 they are so employed. Its valid exercise in relation 
 to carriers engaged in such commerce, as well as 
 their instrumentalities so used, is dependent upon 
 other considerations ; and the principles which in the 
 particular case determine the question are well 
 established. . . . With the order producing no 
 conflict with any expression by Congress of its power 
 over the subject, is the state, through its adminis- 
 trative agency established for the regulation of 
 railroads operating within its limits, yet powerless 
 to require their maintenance of the schedules of 
 such of their trains as may have an interstate char- 
 acter, leaving those trains altogether free from any 
 proper regulation of that nature 1 ? We do not think 
 
298 The Supreme Court or Texas 
 
 its authority is to be considered as so reduced. The 
 authority is very plainly not directed against inter- 
 state commerce. It is not an attempt to regulate 
 commerce. It has to do merely with the operation 
 of trains. It has no further object than to bring 
 about dispatch and certainty in their operation as 
 essentials of efficient service to the public. And 
 it seeks to do no more than require that kind of 
 operation merely within the limits of the state. The 
 effect of its observance upon commerce, whether 
 domestic or interstate, is purely incidental, since 
 as a consequence of its obedience commerce will be 
 effected as the result only of the ordinary opera- 
 tion of trains upon their schedule time. It is no 
 more of a regulation of commerce and in particular 
 is it no more of a burden upon or interference with 
 commerce in its effect, than familiar enactments 
 requiring competency of train operatives as a means 
 of affording safety to passengers and employes. It 
 will hardly be denied that, in the absence of action 
 by Congress, the police power of the state may be 
 validly exercised to promote the safe carriage of 
 passengers upon interstate trains. ... If so, 
 by what authority is the State, under a similar 
 condition, to be deprived of the exercise of its 
 rightful powers for the furtherance of their prompt 
 carriage by such trains'? 
 
 "So far as it may affect interstate commerce, the 
 order is a regulation in aid of commerce. It is dif- 
 ficult to conclude that a requirement whose natural 
 effect upon commerce is to facilitate its prompt 
 movement through the observance of train schedules 
 and connections constitutes an interference with 
 
The Supreme Court of Texas 299 
 
 commerce, or in any just sense a burden upon it. 
 There being no legislation by Congress which ren- 
 ders inconsistent such action by the State, the order 
 of the Railroad Commission in such bearing as it 
 has upon interstate -commerce is accordingly a 
 regulation which the State had the full authority 
 to provide in the exercise of its sovereign powers, 
 under which its right to reasonably prescribe the 
 duties of railway companies within its limits is clear 
 and undoubted." 
 
 In Waples vs. Marrast, 1 the court in an opinion 
 by Chief Justice Phillips, held the Presidential 
 Primary Act of the Thirty-third Legislature 2 uncon- 
 stitutional in providing that the expenses of holding 
 such primaries should be paid out of funds in the 
 county treasury, which it held was violative of 
 Article 8, Section 3 of the Constitution. 
 
 In disposing of the contention that the act is 
 impracticable, unworkable if literally observed, and 
 deficient because of the omission to provide for the 
 nomination of the legal number of presidential 
 electors, the court held that such matters, if true, 
 did not affect the power of the Legislature to enact 
 the law. The court believed that the only serious 
 constitutional question involved in the act was the 
 requirement that the expenses of the primary elec- 
 tion should be borne by the public treasury of the 
 counties, presenting nakedly the question whether 
 it was within the power of the Legislature to devote 
 the public revenues of the State to the payment of 
 the primary election expenses of political parties. 
 
 1184 S. W. Keporter, 180. 
 ^General Laws 1913, Chap. 46. 
 
300 The Supreme Cotjet or Texas 
 
 The court observed that this was the first attempt in 
 the legislative history of the State, so far as it was 
 aware, to make the expense of a party election a 
 charge upon the public revenue. 
 
 "The funds possessed by the counties of the 
 State," says the court, "and available for the pay- 
 ment of the expenses of the primary election pro- 
 vided for by this act, are only those which are de- 
 rived by taxation. If the payment of such expenses 
 is, within the meaning- of the Constitution, 'a public 
 purpose,' the act is valid in its provision that it 
 shall be borne out of the public treasury of the 
 counties ; otherwise not. 
 
 "Taxes are burdens imposed for the support of the 
 government. They are laid as a means of providing 
 public revenue for public purposes. The sovereign 
 power of the State may be exercised in their levy 
 and collection only upon condition that they shall 
 be devoted to such purposes ; and no lawful tax can 
 be laid for any other purpose. Whenever they are 
 imposed for private purposes, as was said in Broad- 
 head vs. Millwaukee, 1 it ceases to be taxation and 
 becomes plunder. ... As the means provided 
 for the support of the government in its adminis- 
 trative duties and existing alone for that end, the 
 taxing power may be employed for no purpose save 
 that which in a true and just sense is related to the 
 performance by the State of its governmental office. 
 The appropriation of the public revenue is a legis- 
 lative power, and the Legislature necessarily must 
 be allowed a large discretion in determining to 
 what uses public money may be put. Subject to 
 
 119 Wisconsin, 670. 
 
The Supreme Court or Texas 301 
 
 the constitutional limitation that the public revenue 
 shall be applied only to public purposes, to the 
 prudent husbandry of the Legislature as well as 
 its provident foresight has been committed the 
 public trust of making such use of it as will afford 
 the economical administration of the government 
 which both the letter and spirit of the Constitution 
 enjoin. The term 'public purpose' as used in this 
 relation is not, therefore, to be construed narrowly, 
 so as to deny the authority to the Legislature to 
 make such provision for the administration of the 
 government in its several branches and subdivisions 
 as will faithfully subserve the present and the 
 future interests of the people. The limitations im- 
 posed by the Constitution upon the power is, how- 
 ever, imperative. And it is essentially true that it 
 does not permit taxation for all purposes which in 
 a broad and general sense may be regarded as public, 
 but expressly confines its exercise to only those 
 public purposes which the State, as a government 
 invested with high and sovereign powers, but only 
 as a grant from the people and therefore to be used 
 solely for the common benefit of all of them, and 
 not as a paternal institution, may justly concern 
 itself, and to which for that reason, the public 
 revenues may be devoted. . . . 
 
 "General elections are essential to the public wel- 
 fare and are distinctly related to the discharge of 
 an important governmental duty, because it is only 
 by their means that the organic law may be amended 
 and elective officers be supplied for the vari- 
 ous administrative agencies of the State. But 
 is it any duty of the State to provide the people 
 
302 The Supreme Court op Texas 
 
 nominees of political parties for elective offices of 
 the government? Is it in any just sense a concern 
 of the State, that those offices be filled by only the 
 nominees of political parties? And is there any 
 right dn the State to devote the revenues of the State 
 derived by taxation from the people at large in 
 aid of the purposes of such parties ? 
 
 "A political party is nothing more or less than a 
 body of men associated for the purpose of furnish- 
 ing and maintaining the prevalence of certain polit- 
 ical opinions or beliefs in the public policies of the 
 government. As rivals for popular favor they strive 
 at the general elections for the control of the agencies 
 of the government as a means of providing a course 
 for the government in accord with their political 
 principles and the administration of those agencies 
 by their own adherents. According to the sound- 
 ness of their principles and the wisdom ,of their 
 policies they serve a great purpose in the life of the 
 government. But the fact remains that the objects 
 of political organizations are intimate to those who 
 compose them. They do not concern the general 
 public. They directly interest, both in their con- 
 duct and in their success, only so much of the public 
 as are comprised in their membership, and then 
 only as members of the particular organization. 
 They perform no governmental function. They 
 constitute no general agency. The purpose of their 
 primary election is merely to enable them to furnish 
 their nominees as candidates for popular suffrage. 
 In the interest of fair methods and a fair expression 
 by their members of their preference in the selection 
 of their nominees, the State may regulate such 
 
The Supreme Court op Texas 303 
 
 elections by proper laws, as it has done in our gen- 
 eral primary law, and as it was competent for the 
 Legislature to do by a proper act of the character 
 of the one here under review. But the payment of 
 the expenses of a purely party election is a different 
 matter. On principle, such expenses cannot be 
 differentiated from any other character of expense 
 incurred in carrying out a party object, since the 
 attainment of a party purpose — the election of its 
 nominees at the general election through the unified 
 vote of the party membership, is necessarily the 
 prime object of a party primary. 
 
 "The great powers of the State — and the taxing 
 power is the one to be always the most carefully 
 guarded — cannot be used, in our opinion, in aid 
 of any political party or to promote the purposes 
 of all political parties. They are no more to be 
 made the objects of governmental bounty or favor 
 than any other class of public organization into 
 which groups of citizens may form themselves. 
 Expenses incurred in the furtherance of their ob- 
 jects can no more be defrayed out of the public 
 treasury than the expenses of other associations 
 of individuals. If it is constitutional to use the 
 public revenues to pay the cost of their primary 
 elections, it would likewise be constitutional to pay 
 the cost of their candidates' campaigns. If the 
 constitutional barrier is removed in the one case, it 
 cannot be restored in the other; but it will have 
 to be admitted that any and all kinds of expense of 
 political parties may be lawfully imposed as a part 
 of the public burden of taxation. 
 
 "For a stronger constitutional reason than would 
 
304 The Supreme Cotjrt of Texas 
 
 apply to other kinds of public organizations is it 
 the clear duty of the State to withhold the use of its 
 public revenues as an aid to political parties, and 
 particularly as an aid in the holding of their prim- 
 ary elections. The object of such parties is the 
 political control of the government; and we regard 
 it as a fundamentally sound proposition that no 
 power of the government can be constitutionally 
 used in furtherance or aid of the effort of any class 
 or kind of organizations, political or otherwise, to 
 obtain control of the government. 
 
 "Holding an act of the Legislature to be uncon- 
 stitutional is never a welcome duty, and this court 
 has never performed it except with reluctance. It 
 is a duty, however, plain and unmistakable when 
 upon mature consideration such is the conviction 
 of the court. The Constitution is the supreme law 
 of the State, and no consideration should be suffered 
 to stand in the way of its enforcement. Tested by 
 legal principles which are clear and established, 
 the payment of the expenses of primary elections of 
 political parties is not a public purpose for which 
 public revenues may be used; and in our opinion 
 the act in question is therefore unconstitutional and 
 unenforceable." 
 
 In Middleton vs. Texas Power & Light Company, 1 
 the court sustained the constitutionality of the em- 
 ployers' liability act of the Thirty-third Legislature. 
 The court observed that apparently every constitu- 
 tional question suggested by the act had been em- 
 braced in the certificate, including some which ap- 
 
 1185 S. W. Reporter, 557. 
 
The Supreme Court of Texas 305 
 
 pellant was in no position to raise. The principal 
 contention of appellant, however, was that the act 
 was violative of the Bill of Rights, guaranteeing 
 to every person, for any injury done him in his 
 lands, goods, reputation, or person, a remedy by 
 due course of law, in that it denied to employees of 
 employers accepting the benefits of the act, the bene- 
 fits of common law doctrine of negligence. 
 
 While conceding that a vested right given by the 
 common law was a property right protected by the 
 Constitution as other property, the court was of the 
 opinion that the act did not profess to deal with 
 rights of action accruing before its passage; that 
 which was withdrawn from the employee being 
 merely his right of action against the employer, as 
 determined by the rules of the common law, in the 
 event of his future injury. This the court believed 
 to be nothing more than a denial to him by the 
 Legislature of certain rules of the common law for 
 the future determination of the employer's liability 
 to him. for personal injuries incurred in the latter 's 
 service, and, in the plan of compensation provided, 
 the substitution by the Legislature of another law 
 governing such liability and providing a different 
 remedy. 
 
 "The question," says Chief Justice Phillips, in the 
 opinion, "is: "Was the Legislature without the power 
 to thus completely change the law upon the subject? 
 This inquiry has no concern in the wisdom of the 
 change; takes no account of the reason for it; it 
 is limited to the naked question of the Legislature's 
 power. . . . We rest the decision of this ques- 
 tion upon what seems to us is the evident proposition 
 
306 The Supreme Court of Texas 
 
 that no one has any vested or property interest in 
 the rules of the common law, and therefore no one 
 is deprived of a constitutional right by their change 
 through legislative enactment. . . . The altera- 
 tion in the law worked by this act may be marked, 
 but that does not of itself affect the power of the 
 Legislature to so write the law; it is only with 
 the question of its power that we are concerned. 
 The bearing of the act upon the rights of employees, 
 in its denial to those engaged in the service of a sub- 
 scribing employer of a common law action for in- 
 juries so suffered, presents the vital constitutional 
 question of the legislation. It is the abrogation of a 
 familiar rule of liability that affords the chief chal- 
 lenge of its validity and not unnaturally prompts the 
 test of the Constitution. But that instrument has 
 not undertaken to preserve inviolate the rules of 
 the common law. That system of rules to the ex- 
 tent that we are governed by it was adopted by the 
 Legislature, and the same authority may alter it. 
 The right to have the liability of an employer for 
 an accidental injury to an employee determined 
 by a common law doctrine is not a constitutional 
 immunity, and this Act in changing that rule of 
 liability therefore invades no constitutional right." 
 
CHAPTER VIII. 
 
 Reporters of the Decisions of the Supreme Court 
 
 of Texas. 
 
 JAMES WEBB AND THOMAS H. DUVAL. 
 
 James Webb and Thomas H. Duval were the first 
 reporters of the decisions of the Supreme Court 
 of Texas. They reported Volumes 1 to 3, inclusive, 
 of the Texas Reports. 
 
 James Webb was born in Fairfax County, Vir- 
 ginia, in 1792, where he was educated and admitted 
 to the bar. Thereafter he located in Jones County, 
 Georgia, where he practised law. He subsequently 
 removed to Webbville, Florida, and was appointed 
 Judge of the United States District Court for the 
 District of Florida. In 1838 he removed to Texas, 
 locating at Houston, and later removed to Austin. 
 He held the offices of Secretary of State, and At- 
 torney-General, respectively, under President La- 
 mar's administration. In 1841 he was elected to 
 the Senate of the Republic, being thereafter re- 
 elected to that position for three successive terms, 
 during which he served as chairman of the Senate 
 Judiciary Committee, and as a member of the 
 Committee on Foreign Relations. In 1840 he re- 
 sumed the practice of law. He is said to have as- 
 
308 The Supreme Court of Texas 
 
 sisted in the formulation of the articles of an- 
 nexation authorizing the admission of Texas to the 
 Union. In 1846 he was appointed District Judge 
 of the Fourteenth Judicial District. He died No- 
 vember 1, 1856, while en route to Goliad to a session 
 of court. 
 
 Thomas H. Duval was born in Buckingham 
 County, Virginia, November 4, 1813. He graduated 
 from St. Joseph's College, Bardstown, in 1833. He 
 studied law in the office of John Wickliff, Post- 
 master-Greneral in Tyler's administration. In 1837 
 he located in Tallahasse, Florida, where he was 
 admitted to the bar. He held the office of Circuit 
 Clerk of Leon County, and, in 1843, was appointed 
 Secretary of the Territory of Florida. In 1845 he 
 removed to Texas, locating at Austin. In 1846 he 
 was appointed one of the reporters of the Supreme 
 Court of the Republic of Texas. In 1851 he was 
 appointed Secretary of State. In 1855 he was 
 elected District Judge of the Second Judicial Dis- 
 trict. In 1857 he was appointed United States 
 District Judge for the Western District of Texas. 
 He bitterly opposed secession, and in consequence 
 absented himself from Texas during the Civil War, 
 returning to the State in 1865. After nearly a 
 quarter of a century's service on the Federal bench, 
 he died at Fort Hancock, Nebraska, in 1880. A 
 bar resolution honoring his memory, says: "If not 
 brilliantly great, he was nevertheless great; for to 
 say of one who sat nearly a quarter of a century on 
 the bench, as can be said of him, that he was fully 
 adequate in ability and learning to every judicial 
 
The Supreme Court of Texas 309 
 
 task; that he was always calm, patient and laborious, 
 never announcing his conclusions until thoroughly 
 comprehending all the points of the case ; that he was 
 impartial and unvarying in his courtesy, sustaining 
 the most friendly relations to the officers of his court 
 and bar, commanding no less their esteem than their 
 love, is to pay a tribute which belongs to true great- 
 
 ness." 
 
 OLIVER CROMWELL HARTLEY. 
 
 The second reporter of the Supreme Court was 
 Oliver Cromwell Hartley. He reported Volumes 4 
 to 21, inclusive, of the Texas Reports. 
 
 Oliver Cromwell Hartley was born near the village 
 of Bloody Run, Bedford County, Virginia, March 
 31, 1823. After the completion of a preparatory 
 course, he entered Marshall College, Mercersburg, in 
 1838. Upon the completion of the course in that in- 
 stitution, he studied law in the office of Samuel M. 
 Barclay, and was admitted to the bar upon attaining 
 his majority. Practising law for a short time in 
 his native State, he removed to Texas in 1846, locat- 
 ing at Galveston. Through the kindly offices of Mr. 
 Buchanan, he received valuable testimonials touch- 
 ing his character and ability, and recommending 
 him to the confidence of the public in his new home. 
 Upon the issuance of a call for volunteers to march 
 to the relief of General Taylor's army, at Fort 
 Brown, Mr. Hartley became a private in the ex- 
 pedition. In 1848 he began the compilation of 
 Hartley's Digest of the Laws of Texas, which he 
 completed in 1849. This work is an enduring mon- 
 ument to the efficient, scholarly labors he devoted 
 
310 The Supreme Court of Texas 
 
 to the performance of professional work, and is 
 today recognized by the legal profession as the best 
 work of its kind, covering the period of which it 
 treats, that has been written. The following in- 
 cident is quoted as illustrating his scrupulous cor- 
 rectness and unyielding adherence to the letter of the 
 law: 
 
 "The law required copies [of his Digest] sub- 
 scribed for by the Governor 'to be bound in 'law 
 calf.' When he came to contract with his publisher, 
 the latter told him this was a technical term of the 
 trade, and meant 'sheep' dressed for law-binding, 
 in contradistinction to 'split-sheep'; that 'calf was 
 rarely used, and not one person in a hundred could 
 distinguish the difference. His reply was that the 
 1500 copies for the State must be in actual 'law- 
 calf,' and such they were." 1 
 
 During the winter of 1851-2, he ably represented 
 Galveston County in the Sate Legislature, where he 
 was noted for his frankness and independent bear- 
 ing, and his refusal to enter into the intrigues and 
 cabals by which legislation is often controlled. On 
 the 10th of February, 1854, a law was passed by the 
 Legislature creating a commission to be appointed 
 by the Governor to codify the laws of the State. 
 Mr. Hartley, John "W. Harris, and James "Willie 
 were appointed members of this commission, the 
 preparation of the code of civil procedure being 
 committed to Hartley. After the completion of his 
 labors on the commission, Mr. Hartley prepared and 
 published a volume of "Forms" for the use of the 
 
 iSketch of O. C. Hartley, 21 Texas. 
 
The Supreme Cottrt of Texas 311 
 
 legal profession in civil proceedings. He died at 
 Galveston, Texas, February 13, 1859. Contem- 
 poraries ascribe Ms death to overwork which under- 
 mined his strong physical constitution. 
 
 GEORGE F. MOORE AND R. S. WALKER. 
 
 George F. Moore and E. S. Walker were the third 
 reporters of the Supreme Court, their work cover- 
 ing Volumes 22 to the 25th Supplement, 1 inclusive, 
 of the Texas Eeports. A sketch of George F. Moore 
 appears elsewhere. 
 
 Richard S. "Walker was born in Barren County, 
 Kentucky, in 1824. In 1844 he graduated from 
 Centeniary College, Jackson, Louisiana. Thereafter 
 he entered the law department of Transylvana Uni- 
 versity, Lexington, Kentucky, from which he grad- 
 uated in 1844. After devoting a year to the study 
 of civil law, with a view to engaging in the practice 
 in Louisiana, he changed his plans, and removed to 
 Texas instead, locating at San Augustine in 1846. 
 In 1848 he removed to Nacogdoches. He was ap- 
 pointed District Attorney for the district including 
 Nacogdoches County, and was thereafter elected to 
 that office, in which he served a series of terms 
 aggregating eight years. In 1857 he formed a law 
 partnership with George F. Moore, and was con- 
 nected with that firm until elected District Judge, 
 in 1860. He was a member of the Constitutional 
 Convention of 1866. In 1873 he was appointed 
 
 iThe 25th Supplement was reported by Geo. W. Paschal; the 25th. 
 Texas was reported by Geo. F. Moore alone. 
 
312 The Supreme Court op Texas 
 
 District Judge of the district in which he formerly 
 resided, and at the expiration of his term, was elected 
 to the position. In 1879 he was appointed a member 
 of the Commission of Appeals. 
 
 CHARLES L. RORARDS AND A. M. JACKSON. 
 
 Charles L. Eobards and A. M. Jackson were the 
 fourth reporters of the Supreme Court. They re- 
 ported Volumes 26 to 29, inclusive, of the Texas Ee- 
 ports. 
 
 Alexander M. Jackson was born on his father's 
 estate at Drumfaldra, near Bally-Bay, County 
 Monaghan, Ireland, November 7, 1823. His mother 
 died when he was three weeks old. His father remar- 
 ried in 1831, and having suffered financial ruin 
 through security debts, emigrated with his family 
 to America, settling in North Alabama, where he 
 died in 1837, leaving no estate. Thereafter the 
 widow, with two children of the second family, 
 removed to Marietta, Ohio, and, at the age of four- 
 teen, young Jackson was left to care for himself. 
 For three years he earned his support, principally 
 by clerking in a store in Memphis, Tennessee. In 
 1840, at the invitation of his step-mother, he ac- 
 cepted a home with her, and for two years was under 
 the tuition of private teachers employed by this 
 considerate woman. Thereafter he attended Mar- 
 ietta College, and later studied law under Arius Nye. 
 Mr. Jackson completed his law studies under Colonel 
 T. J. Word, of Holly Springs, Mississippi, in 1843. 
 In 1845 he was admitted to the bar, and entered the 
 practice at Ripley, Tippah County, Mississippi. In 
 
The Stjpeeme Court op Texas 313 
 
 1846 lie organized a company for participation in 
 the Mexican War, and served as captain of Com- 
 pany E, Second Eegiment, Mississippi Volunteers. 
 At the close of the war he resumed the practice 
 of law at Ripley, in connection with Colonel Nat. 
 Price, one of the leading lawyers of that section of 
 the State. In 1857 he was appointed Secretary of the 
 Territory of New Mexico, by President Buchanan, 
 and resided there until 1861. In 1863 he was ap- 
 pointed Chief Justice of the Territory of Arizona, 
 by President Davis, but the Territory being in the 
 hands of the enemy, the court was never organized. 
 At the outbreak of the Civil War he was commis- 
 sioned Adjutant-General of Sibley's Brigade. Find- 
 ing himself penniless at the close of the war, he was 
 compelled to support his family for the next year 
 and a half, from week to week, often by day labor. 
 In August, 1866, he removed to Austin, where he 
 obtained a clerkship in the Comptroller's office under 
 Willis L. Robards, at $75 per month. In that year 
 he was appointed reporter of the Supreme Court, 
 in conjunction with Charles L. Robards, but was 
 removed in 1867 by the Federal authorities as an 
 "impediment to reconstruction." He was reporter 
 of the Court of Appeals from its organization in 
 May, 1876, to the date of his death— July 11, 1889— 
 during which time he reported twenty-seven volumes 
 of reports of that court. 
 
314 The Supreme Court of Texas 
 
 george w. paschal. 
 
 George W. Paschal was the fifth Supreme Court 
 reporter. He is familiarly known to the legal 
 profession as the author of that excellent work, 
 "Paschal 's Digest of the Laws of Texas." He 
 reported Volumes 30 and 31, of the Texas Reports, 
 as also the 25th Supplement, as hereinbefore noted. 
 
 E. M. WHEELOCK. 
 
 E. M. Wheelock was the sixth Supreme Court 
 reporter. He reported Volumes 32 to 37, inclusive, 
 of the Texas Reports. 
 
 ALEXANDER TERRELL AND ALEXANDER S. WALKER. 
 
 Alexander W. Terrell and Alexander S. Walker 
 were the seventh Supreme Court reporters. They 
 reported Volumes 38 to 52, inclusive, of the Texas 
 Reports. A sketch of Alexander S. Walker appears 
 elsewhere. 
 
 ALEXANDER W. TERRELL. 
 
 Alexander W. Terrell was the eighth Supreme 
 Court reporter. He reported Volumes 52 to 71, in- 
 clusive, of the Texas Reports. 
 
 Alexander Watkins Terrell was born in Patrick 
 County, Virginia, November 3, 1827. In 1832 his 
 parents removed to Cooper County, Missouri, where 
 he was reared, and received his early education. 
 Thereafter he completed a course of study in the 
 University of Missouri. In 1847 he began the study 
 
The Supreme Court op Texas 315 
 
 of law in the office of Judge Peyton R. Hayden, at 
 Boonville. In 1849 he was admitted to the bar, 
 and entered the practice at St. Joseph. In 1852 he 
 removed to Texas, locating at Austin, where he at- 
 tained distinction as one of the ablest members of 
 the Texas bar. 1857 he was elected District Judge 
 of the Eleventh District. In 1863 he entered the 
 Confederate army as Lieutenant-Colonel of the 
 Thirty-Fourth Regiment of Texas Calvary. He was 
 thereafter promoted to colonel, commanding his 
 regiment until the close of the war. His command 
 participated in the battles of Mansfield, Pleasant 
 Hill, Jenkins' Ferry, and other important engag- 
 ments. In 1865 he was promoted to the rank of 
 brigadier-general. At the close of the war he located 
 at Houston, where he engaged in practising law until 
 1867, when he retired to his plantation in Robertson 
 County, where he devoted himself to agricultural 
 pursuits for several years. In 1873 he returned to 
 Austin, which was thereafter his permanent home. 
 In 1875 his distinguished career as a legislator was 
 inaugurated by his election to the State Senate. At 
 that period of the history of the State, constitutional 
 government had been restored after years of the ruin- 
 ous rule of carpet-baggers foisted upon the people by 
 Federal military authority, and the herculean task of 
 bringing order out of chaos confronted the officers 
 elected by the people. In that important work no 
 man brought to bear greater energy, learning and 
 seasoned statesmanship. His first efforts were de- 
 voted to the purification of the administration of 
 justice, and to that end he formulated the law re- 
 quiring of jurors in civil and criminal cases the 
 
316 The Supreme Court or Texas 
 
 qualification of ability to read and write. In 1879 
 lie was re-elected to the State Senate, and was the 
 author of the bill providing for the construction of 
 the present State Capitol. He was the father of 
 the Texas Railroad Commission, being the first 
 Texas legislator to advocate the creation of that 
 important department of our State government, 
 which was created by an act written by him. 
 
 "Not being content to stop with this reform," 
 says an able biographer, 1 "he entered the political 
 arena again to take his last stand in his last public 
 fight for his people. This last fight was the crown- 
 ing glory of his life and the same halo that wreathed 
 the brow of Thomas Jefferson, the author of the 
 Declaration of Independence, wreathed the brow of 
 Alexander Terrell as he wrote the bill known as 'The 
 Terrell Election Law/ which liberated the people 
 he so devoutly loved from the tyrannical decrees of 
 predatory masters, who corrupted and subsidized the 
 ballot box as their oracle. Through this oracle, un- 
 defended and unguarded as it was, the plutocrat 
 spoke his will to the masses and they were forced to 
 obey, therefore, and thereby this commonwealth was 
 governed. . . . This was the condition of affairs 
 when the champion of reform bared his breast to the 
 fray and stood like a god of war against the hosts 
 of hell. He introduced his bill. A great fight was 
 made against it as presented. Amendment after 
 amendment was made which made the original bill 
 weaker and weaker and consequently less compre- 
 hensive. Predatory interests had their henchmen 
 
 'Mr. Sinclair Morcland. 
 
The Supreme Cotjkt of Texas 317 
 
 there to undermine and tear to pieces the barricade 
 of the people's defense. At last the bill was passed 
 bearing the original author's name, but in a condi- 
 tion that roused the author's ire, for it was so 
 patched and mutilated that he could hardly recog- 
 nize it as his own creation." 
 
 During President Cleveland's second administra- 
 tion Judge Terrell was appointed minister to Tur- 
 key. The Armenian massacres, as then report- 
 ed from that country, appalled civilization, 
 while desperate encounters between Turks and 
 Armenians were almost daily reported in the public 
 prints. The situation in that unhappy country was 
 one that imperatively demanded the first grade 
 diplomatic ability, seasoned judgment, and execu- 
 tive capacity. How well Judge Terrell measured 
 to those requirements, his administration of the deli- 
 cate and important duties of his position abundantly 
 attest. The nature of the duties imposed upon him 
 at that post may be understood when it is remem- 
 bered that during his ministry one hundred thous- 
 and persons perished in numerous conflicts between 
 Turks and Armenians, while an indignant and out- 
 raged world stigmatized the reigning Sultan as 
 "Abdul the Damned." Judge Terrell recognized 
 that the best means of obtaining needed protection 
 of the interests of his government and the lives of 
 its citizens was to gain the confidence and friendship 
 of the Sultan. This he attained by his open, frank 
 and candid method of dealing with that ruler and 
 his ministers of state, with the result that while 
 many missionaries of other countries were severely 
 tortured or put to death, American missionaries were 
 
318 The Supreme Court of Texas 
 
 unmolested. It remained for Judge Terrell to do 
 Abdul Hamid the justice of freeing him from the 
 unjust accusation of being the author and instigator 
 of many of the unspeakable crimes incident to bloody 
 conflicts and massacres of Armenians in Turkey. 
 "The Sultan," said Judge Terrell, "did not deserve 
 the reputation of being a butcher, but, upon the 
 other hand, he was one of the most gentle and kind 
 hearted men I ever knew, and when I say this I 
 am keeping a promise made to the Sultan, that when 
 I finished my diplomatic service I would give the 
 facts to the American people." This he did by show- 
 ing as a result of his patient and impartial in- 
 vestigation of the facts relating to many of those 
 alleged horrors, that they were in many instances 
 mere fabrications of a young Armenian secret so- 
 ciety, similar to the Camorra in Italy, known as the 
 "Hencjack Society," many members of which were 
 employes of a Bible house in Turkey which dissem- 
 inated the reports in America for obvious reasons. 
 As reporter of the Supreme Court decisions, Judge 
 Terrell's work speaks in higher praise of his schol- 
 arly professional labors than any tribute which could 
 be paid them. It is no criticism of the work of 
 other distinguished reporters of the court to say 
 that he was the ablest of those patient and effi- 
 cient officers who have left their lasting impress 
 upon the official reports of that august tribunal. 
 His literary attainments were unexcelled by those 
 of any public man connected with the history of the 
 State, with the possible exception of Mirabeau B. 
 Lamar. As legislator, his achievements are briefly 
 summarized in the truthful legend inscribed on his 
 
The Supreme Court of Texas 319 
 
 portrait adorning the walls of the House of Repre- 
 sentatives of the Capitol at Austin : 
 
 "The author of more good laws for Texas than 
 any other man, living or dead." 
 
 Judge Terrell died at Mineral Wells, Texas, Sep- 
 tember 9, 1912. 
 
 Alexander S. Walker. 
 
 Alexander S. Walker was the ninth reporter. He 
 reported Volumes 72 to 88, inclusive, of the Texas 
 Reports. 
 
 A. E. Wilkinson. 
 
 A. E. Wilkinson is the tenth and present official 
 reporter, and to the present time has reported Vol- 
 umes 89 to 107, inclusive, of the Texas Reports. 
 
320 The Supreme Cotjet of Texas 
 
 SUPREME COURT CLERKS. 
 
 The following is a list of the Supreme Court clerks 
 in the order of their service, at the respective 
 branches of the court, and the period thereof: 
 
 AUSTIN. 
 
 1. Thomas Green, 1846-1866. 
 
 2. W. G. Brown, 1866. 
 
 3. George H. Gray, 1867-1869. 
 
 4. W. P. DeNormandie, 1869-1881. 
 
 5. Charles S. Morse, 1881-1902. 
 
 6. F. T. Connerly, 1902— Present clerk. 
 
 TYLER. 
 
 1. James F. Johnson, 1862-1867. 
 
 2. Thomas W. Smith, 1867. 
 
 3. George H. Slaughter, 1868-1869. 
 
 4. R. P. Roberts, 1874-1878. 
 
 5. S. D. Reeves, 1878-1891. 
 
 GALVESTON. 
 
 1. James E. Johnson, 1862-1867. 
 
 2. William F. Garrett, 1867. 
 
 3. George "W. Honey, 1868-1870. 
 
 4. James B. Shearer, 1874-1877. 
 
 5. N". J. Moore, 1877-1881. 
 
 6. Daniel D. Atchison, 1881-1894. 
 
CHAPTER IX 
 
 Proposed Reforms est Supreme Court Procedure. 
 
 As early as 1879, the volume of business in the 
 Supreme Court of Texas and the crowded condition 
 of its docket attracted attention to the necessity 
 of needed reform in the procedure of the court in 
 the interest of expediting its business and lessening 
 the labors of its justices. The creation in that year 
 by legislative enactment of the "Commission of 
 Award and Arbitration," hereinbefore noted, mark- 
 ed the beginning of several unsuccessful attempts to 
 correct the evils incident to a system of procedure, 
 which in a more aggravated form have continued 
 to the present time. These early attempts to re- 
 form the procedure were confined to the employ- 
 ment of subordinate commissions to assist the Su- 
 preme Court in disposing of the great and rapidly 
 accumulating mass of business hopelessly incumber- 
 ing its docket. This system from its inauguration, 
 in addition to its inefficiency to accomplish the ob- 
 ject intended, was assailed by the ablest members of 
 the court as unconstitutional, although the majority 
 opinion of the court sustained its constitutionality. 
 In this connection we have noted the very able dis- 
 senting opinions of Justice Moore discussing the con- 
 stitutionality of the " Deputy-Supreme-Court- Judge ' ' 
 system, as it is sometimes called by facetious and 
 critical members of the bar. Following numerous 
 
322 The Supreme Cotjet of Texas 
 
 amendments in futile attempts to meet constitutional 
 and other serious objections to the commission sys- 
 tem, it appears to have been abandoned as hopelessly 
 inadequate and thoroughly inefficient to accomplish 
 the object of its creation. 
 
 When it is considered that as early as 1879, the 
 work of the Supreme Court had attained a volume 
 which imperatively demanded some measure of re- 
 form for the relief of the three judges of the court 
 upon whom its performance devolved, its present 
 volume, vastly augmented by nearly four decades 
 of almost phenomenal increase in the population, 
 progress and improvement in all branches of in- 
 dustry in the State, incidentally and necessarily pro- 
 ductive of marked increase in the volume of litiga- 
 tion within its jurisdiction, the vast increase of the 
 business of the court, even when assisted in its per- 
 formance by the comparatively recently adopted 
 system of Courts of Civil Appeals, may well be 
 imagined even by the non-professional mind. 
 
 Throughout the period intervening between the 
 years 1879 and 1917, the urgent necessity for im- 
 mediate action in the nature of adequate reform 
 of the Supreme Court procedure, for the relief of 
 that tribunal and its judges, has been the subject 
 of discussion by the bench and bar of the State, as 
 well as a large percentage of non-professional citi- 
 zens whose interests suffered from delays incident 
 to the existing system of procedure. It is inexplic- 
 able that a demand universally conceded as im- 
 peratively necessary to the efficiency of our civil 
 court of last resort, should have been so long neg- 
 lected by the legislative department despite con- 
 
The Supbeme Court op Texas 323 
 
 tinuous urgent appeals by a majority of the citizens 
 of the State. 
 
 It is, therefore, gratifying and encouraging to 
 note that at the present time the agitation in the 
 interest of this needed reform in our Supreme 
 Court procedure has aroused greater interest in the 
 general public and the legal profession than at any 
 time during the many years in which the subject has 
 been earnestly discussed, and that the time is at 
 hand when the people will be given an opportunity 
 to perfect an adequate system for the elimination 
 of these evils which are not only a reproach to our 
 judiciary but a serious reflection upon the interest 
 we take in the health and lives of distinguished 
 judges jeopardized by present conditions in our most 
 important tribunal. 
 
 Not the least difficulties incident to the adop- 
 tion of an efficient remedy for the evils of the pres- 
 ent system of Supreme Court procedure originate in 
 differences of opinion of members of the legal 
 profession touching the constitutionality of proposed 
 legislative amendments for the accomplishment of 
 the desired reform. It is, therefore, not surprising 
 that this character of objections has been urged 
 to several of the proposed reform measures now 
 under consideration. 
 
 The following are the principal measures proposed 
 for the accomplishment of the desired reform : 
 
 First: A restriction of the jurisdiction of the 
 Supreme Court by repealing the law giving it the 
 power to review any decision of a Court of Civil 
 Appeal where it is made to appear that the latter 
 erred in declaring the substantive law of the case. 
 
324 The Supreme Court op Texas 
 
 * Second: A measure championed by a committee 
 of lawyers, some selected by the Governor, some by 
 the State Bar Association, and others by the law 
 department of the University of Texas. This meas- 
 ure authorizes members of the Supreme Court, as 
 is claimed without constitutional authority, to call 
 to their aid any two members of the Courts of Civil 
 Appeals to pass upon applications for writs of 
 error, making the action of the two hi granting or 
 refusing a writ of error final, without any action 
 thereon whatever by the Supreme Court. 
 
 Third: Repeal of the system of Courts of Civil 
 Appeals, and the increase of the number of judges 
 of the Supreme Court to nine, or such number as 
 shall prove adequate to the efficient and prompt 
 discharge of the business of that court. 
 
 A prominent lawyer 1 in a recent discussion in the 
 press of some of the proposals above mentioned, di- 
 rected attention to several objections urged to their 
 adoption. He believed that no one would complain 
 of the restrictions sought to be placed upon the 
 Supreme Court's jurisdiction as proposed by the 
 first plan, but that the ablest lawyers of the State, 
 as a rule, as well as the best informed of the public, 
 were generally decidedly opposed to any further re- 
 striction of the jurisdiction of the Supreme Court, 
 realizing that in order to preserve a jurisprudence 
 worthy of the name, there should be only one tri- 
 bunal having the final determination as to what 
 should be the law throughout the State, and to se- 
 cure its uniform administration within that juris- 
 
 iDon A. Bliss. 
 
 *Since this chapter was -written the plan has been adopted and is 
 now in force. — Ed. 
 
The Supreme Court of Texas 325 
 
 diction. He believed that to further restrict the 
 jurisdiction of the Supreme Court, and turn the 
 Court of Civil Appeals loose, so to speak, would be 
 to make present confusion worse confounded, one 
 result of which would be that a man would find him- 
 self with a legal right that could be enforced if his 
 case came up in one supreme judicial district, while 
 if it arose in another he had none. 
 
 The second proposal, advocated as it is by several 
 of the ablest laywers of the state, has been sub- 
 jected to severe criticisms on constitutional grounds. 
 The contention is made that judges of the Courts of 
 Civil Appeals who may be selected to discharge 
 duties already conferred upon the justices of the 
 Supreme Court by the Constitution, would be un- 
 authorized to perform the same in the absence of a 
 constitutional provision conferring that power upon 
 them; that their selection by members of the Su- 
 preme Court would not be authorized by any pro- 
 vision of the Constitution conferring upon Supreme 
 Court judges the power to delegate to other judges 
 of inferior courts the performance of duties which 
 the Constitution has conferred upon the former. It 
 is also contended that the provision declaring that 
 the action of a judge of the Court of Civil Appeals 
 in granting or refusing a writ of error should not 
 be considered, as determining any issue would de- 
 stroy the usefulness of such judge as an aid to 
 the Supreme Court in disposing of business, as his 
 labors would merely result in postponement until 
 an authoritative decision could be had on some sub- 
 sequent application to a judge of the Supreme Court. 
 
 The writer hereinbefore quoted, in the course of 
 
326 The Supreme Court of Texas 
 
 his discussion of the first and second proposals, 
 says: 
 
 ''It is seen that the first mentioned measure pro- 
 poses to remedy the evil mentioned by shutting the 
 door of the supreme court to applications for writs of 
 error in the great bulk of the cases decided by the 
 courts of civil appeal; and the second measure pro- 
 poses to remedy the evil mentioned by having an- 
 other body of men to do the work that the Constitu- 
 tion and the present law requires the Supreme Court 
 itself to do. 
 
 "Both of these measures overlook the greatest evil 
 that the people of the State are suffering from under 
 our present system of appellate judiciary; and it 
 seems that no remedy is even suggested for the 
 greatest of all evils in our judicial system. 
 
 "That litigants should have to wait for years for 
 a final disposition of their cases is undoubtedly a 
 great hardship, which should be remedied, for it 
 amounts in many cases to a substantial denial of 
 justice. 
 
 "But for the people of a State to have no cer- 
 tain rule of law uniformly administered by the 
 courts, to go by, is a still greater evil, which, if not 
 already so, will in process of time unless remedied, 
 become absolutely intolerable, and will lead to the 
 abolition of our present system and the substitution 
 of another." 
 
 The third proposal, providing for the abolishment 
 of the Court of Civil Appeals, is advocated by many 
 of the legal profession who opposed the adoption of 
 that system on economical grounds, as well as a fear 
 that its operation would result in an unsettled, con- 
 
The Supreme Court of Texas 327 
 
 flicting state of adjudicated law incident to jurisdic- 
 tions having many courts of co-ordinate powers, in- 
 termediate for the most part, but courts of last resort 
 in a numerous and important class of cases. In the 
 main, however, it must be admitted that whatever of 
 evil and inconvenience has resulted from the admin- 
 istration of these courts are more the result of the 
 system than any fault of justices who have served in 
 those tribunals. Advocates of the retention of the 
 Courts of Civil Appeals, while admitting that the 
 system is open to just criticism, assert that no lesser 
 number of courts than those provided by it would be 
 adequate to the great task of weeding out the mass of 
 details necessary to the lightening of the labors of 
 the judges of the Supreme Court. 
 
 Those who advocate the abolition of the sys- 
 tem of Courts of Civil Appeals believe that all 
 intermediate courts between the trial courts and the 
 Supreme Court should be abolished in the interest 
 not only of economy in the judiciary, but also in 
 the interest of that harmony in the decisions of the 
 superior courts which shall enable the average law- 
 yer to ascertain what the adjudicated law is upon a 
 given point at a stated time. As a matter of course 
 these critics, for obvious reasons, are advocates of 
 the plan to increase the number of Supreme Court 
 judges sufficiently to insure the prompt dispatch of 
 the business of the court by its members without 
 outside assistance in the exercise of their functions. 
 
 No doubt the well-known disinclination of citizens 
 to adopt radical changes in the organic law of the 
 State embodied in the Constitution has resulted in 
 ill-advised efforts to accomplish by legislative en- 
 
328 The Supreme Court of Texas 
 
 actment judicial reforms which could only be ac- 
 complished by necessary amendments to the Consti- 
 tution, and in view of past efforts in that direction, 
 there is every reason to believe that present re- 
 formers will recognize the necessity of taking no 
 chances upon the enactment of a measure the consti- 
 tutionality of which is open to serious doubt or rea- 
 sonable question. 
 
 No doubt a full discussion of the several proposals 
 for eliminating the defects of the present system of 
 Supreme Court procedure will result in the adoption 
 of a measure which will prove adequate and satisfac- 
 tory in the elimination of evils which for many years 
 have been a reproach to our judiciary, a reflection 
 upon our citizenship and a practical denial of jus- 
 tice. 
 
 THE END. 
 
APPENDIX A. 
 
 RULES FOR THE COURTS OP TEXAS. 
 RULES FOR THE SUPREME COURT. 
 
 APPLICATIONS FOR WEITS OP ERROR. 
 
 1. Applications for writs of error from the Supreme Court 
 to the Courts of Civil Appeals shall conform to the require- 
 ments herein prescribed and the provisions of the statute. 
 
 (a) The application shall be addressed to "The Supreme 
 Court of Texas." 
 
 (b) It shall present a question of law decided by a Court of 
 Civil Appeals of which the Supreme Court has jurisdiction as 
 defined by Article 1521, Revised Statutes, 1911, as amended by 
 Chapter 55 of the Acts of the Thirty-third Legislature, and no 
 other questions will be considered; but questions of law arising 
 under two or more of the subdivisions of that article may be 
 presented in the same application under separate assignments. 
 
 (c) The decision or ruling sought to be reviewed must have 
 been assigned as error in the motion for new trial in the trial 
 court, if such motion was made or required by law to be made, 
 and such error must have been assigned and presented in the 
 Court of Civil Appeals and in a motion for rehearing in the 
 latter court. If the decision or ruling sought to be reviewed 
 originated in the Court of Civil Appeals it must have been 
 presented in the motion for rehearing in that court. The ap- 
 plication shall state that the particular decision or ruling was 
 assigned as error in the motion for rehearing in the Court of 
 Civil Appeals. 
 
 (d) The statement of the case made by the Court of Civil 
 Appeals, its conclusions of fact and law and its opinion will be 
 
330 Appendix 
 
 read and considered without being incorporated in the applica- 
 tion. 
 
 A brief statement of the case, if desired, may, however, be 
 made in the first section or paragraph of the application. 
 
 (e) There shall be contained in the first section or para- 
 graph of the application a subdivision entitled: 
 
 GROUNDS OF JURISDICTION. 
 
 In which subdivision it shall be made to affirmatively appear 
 that the case is one of which the Supreme Court has jurisdic- 
 tion under Article 1521, Revised Statutes, 1911, as amended by 
 Chapter 55 of the Acts of the Thirty-third Legislature, and in 
 which it shall further affirmatively appear : 
 
 (1) If the case be one in which the judges of the Court of 
 Civil Appeals have disagreed upon a question of law material 
 to the decision of the case, that the disagreement is upon such 
 a question, which, together with the holding thereon of the 
 majority of the court and the dissenting judge, respectively, 
 shall be specifically and succinctly stated. 
 
 (2) If the case be one in which the Court of Civil Appeals 
 has held differently from a prior decision of its own, or of 
 another Court of Civil Appeals or of the Supreme Court, upon 
 any question of law, that such different holding is upon plainly 
 a question of law, which holding thereon, by the Court of 
 Civil Appeals, as well as that of such prior decision or decisions, 
 and the point of conflict between them, shall be specifically 
 and succinctly stated, with accurate reference to the book and 
 page of the reports where such decision or decisions may be 
 found. 
 
 (3) If the case be one which involves the validity of a 
 statute, in what respect its validity is involved, and what par- 
 ticular provision or provisions are involved, if its alleged in- 
 validity be only partial. 
 
 (4) If the case be one which involves the revenue laws of 
 the State, in what manner or respect such laws are involved. 
 
 (5) If the case be one in which the Court of Civil Appeals 
 
Appendix 331 
 
 has erroneously declared the substantive law of the case, that 
 the ruling complained of was upon a question or questions of 
 law that substantially affected the right of the plaintiff to re- 
 cover or the right of the defendant to maintain his defense. 
 
 (f) In cases in which the Railroad Commission is a party 
 or in which the revenue laws of the State are involved, any 
 question of law material to the decision of the case may be 
 assigned; but in all other cases the Supreme Court will only 
 take jurisdiction for the purpose of correcting errors of the char- 
 acter specifically designated in subdivisions 1, 2, 3, and 6 of 
 Article 1521, Revised Statutes of 1911, as amended by Chapter 
 55 of the Acts of Thirty-third Legislature. 
 
 (g) If the error complained of consists in the application 
 by the Court of Civil Appeals of the substantive law of the case 
 it must be made to affirmatively appear from the presentation 
 of such ruling that it was erroneous and in what manner it 
 injuriously affected the plaintiff's right to recover or the de- 
 fendant's right to maintain his defense. 
 
 (h) Bach ground of error must be presented separately by 
 an assignment stating clearly and succinctly the error com- 
 plained of, which shall be immediately followed by such propo- 
 sitions of law, if the assignment be not itself submitted as a 
 proposition, statement from the record, and citation of authori- 
 ties, as will show in what manner the particular ruling com- 
 plained of was reasonably calculated to cause and did cause 
 the rendition of an improper judgment in the case. 
 
 (i) In the respect of assignments of error, propositions of 
 law and statements from the record, the application shall be 
 complete in itself, and references to the brief filed in the Court 
 of Civil Appeals for assignments of error, propositions of law 
 or statements from the record will not be considered. Reference 
 may be made in the application to the citation of authorities 
 and the argument contained in such brief under any assignment 
 of error, which will be considered if the page of the brief be 
 given where the same may be found. 
 
 (j) Argument upon any assignment of error or proposition 
 of law thereunder may be contained in the application, but shall 
 be reserved for the conclusion of the application, following the 
 
332 Appendix 
 
 presentation of all assignments of error and propositions of 
 law submitted, and referring by its number to the assignment 
 to which it is addressed. 
 
 The plaintiff in error shall file the application with the clerk 
 of the Court of Civil Appeals in which the proceeding sought 
 to be reviewed was had in the manner and time required by 
 law, and shall, in addition to such requirements, deposit with 
 the clerk of said court a true copy of the application to be 
 delivered by said clerk to the defendant in error, which copy 
 shall not be marked filed. The plaintiff in error, or the attor- 
 ney, shall notify the attorney of the defendant in error of the 
 filing of the application and the deposit of the copy thereof. 
 
 (2) The clerk of this court shall receive all applications for 
 writs of error, and file the petition and accompanying tran- 
 script from the Court of Civil Appeals, and enter the case upon 
 the docket kept for that purpose, known as the application 
 docket. But he shall not be required to take the same from the 
 postofflce or an express office unless the postage or express 
 charges, as the case may be, shall have been fully paid. The 
 cases shall be numbered consecutively on the application docket 
 and the number shall be placed upon the application. 
 
 3. After the expiration of ten days from the filing of the 
 record and the application in this court it will be deemed sub- 
 mitted to the court and ready for disposition and will be acted 
 upon by the court, unless for sufficient reason the court may 
 grant further time to cither party. 
 
 4. When the plaintiff in error has failed to file his applica- 
 tion within the time prescribed by law, the clerk of this court 
 shall submit the matter to the court before filing same with 
 any statement of excuse which may be presented by the appli- 
 cant, and the court will act upon such application to file. If it 
 be refused, then no record will be made of the application or 
 the disposition of it. 
 
 When the application shall have been filed for a period of ten 
 days, if the court shall determine to refuse the same, then, 
 whether the defendant has answered or not, the clerk of the court 
 will retain the application, together with the transcript and 
 accompanying papers, for fifteen days, from the day of rendition 
 of the judgment refusing the writ. At the end of that time, if 
 
Appendix 333 
 
 no motion for rehearing has been filed, or upon the overruling 
 or dismissal of such motion, in case one has been filed, the clerk 
 of this court shall transmit to the Court of Civil Appeals to 
 which the writ of error is sought a certified copy of the orders 
 of this court denying such application and of the order over- 
 ruling the motion for a rehearing thereof, and shall return the 
 papers which belong to that court to the clerk thereof, but shall 
 retain the petition for writ of error. A motion for rehearing of 
 an application for writ of error is not a matter of right, but, in 
 case such motion shall be filed within fifteen days after the re- 
 fusal of the application and before the court shall adjourn for 
 the term, the court will consider the same if it be based upon 
 a ground not embraced in the application or contains the cita- 
 tion of authorities not before cited. The presentation of any 
 point or points presented in the application without urging some 
 new argument or citing some new authority will be deemed a 
 sufficient ground for dismissing the motion. 
 
 5. The defendant in error shall have ten days from the date 
 of the filing of the application in the Supreme Court to file an 
 answer thereto, which must be confined to a reply to the grounds 
 of error presented by the plaintiff in error and to such matter 
 as may be pertinent to show to the court that the plaintiff in 
 error is not entitled to the writ, and in support of the correct- 
 ness of the judgment of the court below. If the defendant in 
 error shall file such answer, and the Supreme Court shall con- 
 clude that the writ of error should be granted, it may in its dis- 
 cretion proceed to finally dispose of the case ; provided, the de- 
 fendant in error may in his answer expressly reserve the right 
 to be heard in open court, in which event the case will stand 
 for submission in regular course. If such right be not ex- 
 pressly reserved by the defendant in error in his answer, and 
 the court shall deem it proper to finally dispose of the case upon 
 hearing the application, it shall write such opinion as it may 
 think proper and shall, in open court, pronounce the judgment 
 of the case and enter the same of record, as in other cases. If 
 the defendant in error shall not answer the application, then, 
 the court having granted the writ, the clerk of the court shall 
 issue the writ of error to the judges of the Court of Civil Ap- 
 peals to which the writ of error is sought, advising them that 
 
334 Appendix 
 
 the writ has been granted. The clerk shall issue the citation to 
 the defendant or defendants in error, or to the attorney of 
 record for the defendant, notifying him or them that the writ 
 of error has been granted and of the date thereof, and to appear 
 and defend the same. Such citation shall be returnable in ten 
 days and in the event it be not served, the clerk shall issue other 
 successive citations until due service is had. Service of the 
 citation upon one attorney will be deemed service upon all par- 
 ties represented by him. If no bond be required the citation 
 and writ of error shall issue immediately upon the granting 
 of the application. If a bond be required the writ shall issue 
 upon receipt of the duly certified copy of the bond prescribed 
 by the statute. Unless further time be allowed by special order 
 of the court in the particular case the certified copy shall be 
 filed in the Supreme Court within ten days from the granting 
 of the application. If the copy be not so filed, the application 
 will be dismissed by the court of its own motion. 
 
 5a. An application for a writ of error made to this court 
 upon the ground that the trial court has committed an error of 
 law in the course of the trial will not be granted unless the 
 plaintiff in error shall in his application make it appear that 
 the error was reasonably calculated to cause the rendition of an 
 erroneous judgment in the ease, and, in ease the application 
 may have been granted, this court will not reverse the judg- 
 ment unless it shall be made to appear that the error of law 
 complained of was reasonably calculated to cause and probably 
 did cause the rendition of an improper judgment in the cause. 
 
 5b. "Whenever in any ease in which a writ of error has been 
 granted or in which such writ may hereafter be allowed, it shall 
 be made to appear to the clerk of this court by the affidavit of 
 a plaintiff in error, his agent or attorney, that the defendant in 
 error has no attorney of record and either that he is beyond the 
 limits of the State or that his residence is unknown, so that it 
 is impracticable to serve citation upon him in the ordinary 
 method provided by law, it shall be the duty of the clerk of this 
 court upon the plaintiff in error making provision for the pay- 
 ment of the expense thereof, to cause notice of the granting of 
 the writ to be published once each week for four successive 
 weeks in some newspaper published in the county in which the 
 
Appendix 335 
 
 case was tried; or a notice of the granting of the writ may be 
 issued by the clerk of this court and may be served upon the 
 defendant in error and returned in the manner provided in 
 Articles 1230, 1232 and 1233 of the Kevised Statutes, except no 
 copy of the petition for the writ of error need be served. Notice 
 given in either of the two modes herein provided shall have the 
 same effect as service of citation, as provided in rule 5 ; and the 
 publication or service of notice may be proved by the affidavit 
 of any person, deposited with the clerk and filed among the 
 papers in the cause. 
 
 6. "When service of the citation in error shall have been had, 
 or the defendant in error has filed a reply to the application, 
 it shall be the duty of the clerk to put the case upon the trial 
 docket and to mark upon the file the number of the case shown 
 upon such docket. Cases upon the trial docket shall be num- 
 bered consecutively in the order in which they are entered 
 thereon. 
 
 7. Causes in this court will be regularly submitted on Wed- 
 nesday of each week, though a case may be set down for sub- 
 mission upon another day by the permission or direction of the 
 court. 
 
 8. A case shall stand for submission upon the first regular 
 day of the submission of causes coming after the expiration of 
 twenty days from the day on which the writ of error shall 
 have issued, provided, the citation in error shall have been 
 served ten days before such submission day. If not so served 
 then the case shall be subject to submission on the first regular 
 submission day which falls ten days after service of the citation. 
 
 9. Unless otherwise ordered, motions will be submitted with 
 the case, and the adverse party will be required to take notice 
 of all motions filed in the cause on or before the Tuesday imme- 
 diately preceding such submission day. Notice shall be given of 
 all motions filed after that time. 
 
 10. The clerk shall keep a motion docket upon which shall 
 be entered every motion as soon as filed. The motions shall be 
 numbered consecutively upon the docket and its number shall 
 be placed on the motion itself. 
 
 11. A party who elects to file in this court a brief in addi- 
 tion to the brief filed in the Court of Civil Appeals, shall com- 
 
336 Appendix 
 
 ply as near as may be with the rules prescribed for briefing 
 causes in the latter court and shall confine his briefs to the 
 point raised in the motion for a rehearing and presented in the 
 application for a writ of error. 
 
 12. When any Court of Civil Appeals shall certify to this 
 court any question for determination, or shall send to this court 
 any cause upon a certificate of dissent, either upon its own mo- 
 tion or that of any party, the certificate, in either case, shall 
 be accompanied by the briefs filed in the Court of Civil Ap- 
 peals ; and the clerk of this court shall, upon the Teceipt of the 
 briefs, issue notices to the attorneys whose names appear there- 
 on of the day on which the question or cause, as the case may 
 be, shall be set down for submission. 
 
 13. The rules prescribed for the Court of Civil Appeals as 
 to the custody of transcripts, the argument of causes and as to 
 the notices to attorneys of the disposition of cases shall govern 
 in this court. 
 
 CERTIFIED QUESTIONS. 
 
 14. When a certified question from a Court of Civil Ap- 
 peals is presented to the clerk of this court, he will file and 
 docket it and send it at once to the consultation room. If the 
 court should determine that the question is not properly certi- 
 fied under the statute, so as to give jurisdiction to answer it, 
 it will be dismissed without a hearing. Otherwise, it will be set 
 down for argument on a day to be fixed by the court in regular 
 session. 
 
 MANDAMUS. 
 
 15. Parties desiring a writ of mandamus from this court are 
 required to cause the petition therefor to be presented to the 
 clerk of the court, accompanied with a motion that the same be 
 filed and set down for a hearing, and also accompanied with such 
 written argument in behalf of the motion as may be desired. 
 The motion will be filed, and, together with the petition and ar- 
 gument, if any, will be sent at once to the consultation room for 
 the action of the court. If the court should be clearly of opin- 
 ion that upon the facts stated in the petition the writ should 
 
Appendix 337 
 
 be awarded, the motion will be granted; otherwise, it will be 
 overruled by an order made in open court and entered upon 
 the minutes. The relator shall also file with his motion a bond 
 with two or more good and sufficient sureties, to be approved 
 by the clerk of this court, in the sum of fifty dollars; or, in 
 case he be unable to pay the costs, or give security therefor, 
 an affidavit in lieu of such bond. Such bond shall be condi- 
 tioned, or in case of an affidavit, the affidavit shall be such as 
 is required by the statutes for cost bonds or affidavit in lieu 
 thereof, in suits in the district court. 
 
 16. Attorneys desiring to withdraw papers from the clerk's 
 office, after the decision of a cause or of an application for writ 
 of error, to prepare motion for rehearing or for other pur- 
 pose, shall first file with the clerk of this court an agreement 
 with opposing counsel. The clerk is not authorized to send pa- 
 pers from his office in the absence of such an agreement. Tran- 
 scripts and other papers in cases finally disposed of shall not 
 be taken from the clerk's office. 
 
APPENDIX 3. 
 CONSTITUTION OF THE STATE OF TEXAS. 
 
 PREAMBLE. 
 
 Humbly invoking the blessing of Almighty God, the people of 
 the State of Texas do ordain and establish this Constitution. 
 
 ARTICLE I. 
 
 BILL OF EIGHTS. 
 
 That the general, great, and essential principles of liberty 
 and free government may be recognized and established, we de- 
 clare : 
 
 Section 1. Texas is a free and independent State, subject 
 only to the Constitution of the United States; and the main- 
 tenance of our free institutions and the perpetuity of the 
 Union depend upon the preservation of the right of local self- 
 government unimpaired to all the States. 
 
 Sec. 2. All political power is inherent in the people, and all 
 free governments are founded on their authority, and insti- 
 tuted for their benefit. The faith of the people of Texas stands 
 pledged to the preservation of a republican form of govern- 
 ment, and, subject to this limitation only, they have at all 
 times the inalienable right to alter, reform or abolish their gov- 
 ernment in such manner as they may think expedient. 
 
 Sec. 3. All free men when they form a social compact have 
 equal rights, and no man or set of men is entitled to exclusive 
 separate public emoluments or privileges, but in consideration 
 of public services. 
 
 Sec. 4. No religious test shall ever be required as a quali- 
 
Appendix 339 
 
 fication to any office, or public trust, in this State; nor shall 
 any one be excluded from holding office on account of his re- 
 ligious sentiments, provided he acknowledge the existence of 
 a Supreme Being. 
 
 Sec. 5. No person shall be disqualified to give evidence in 
 any of the courts of this State on account of his religious opin- 
 ions, or for want of any religious belief, but all oaths or affirma- 
 tions shall be administered in the mode most binding upon 
 the conscience, and shall be taken subject to the pains and pen- 
 alties of perjury. 
 
 Sec. 6. All men have a natural and indefeasible right to 
 worship Almighty God according to the dictates of their own 
 conscience. No man shall be compelled to attend, erect or sup- 
 port any place of worship, or to maintain any ministry against 
 his consent. No human authority ought, in any case whatever, 
 to control or interfere with the rights of conscience in matters 
 of religion, and no preference shall ever be given by law to 
 any religious society or mode of worship. But it shall be the 
 duty of the Legislature to pass such laws as may be necessary 
 to protect equally every religious denomination in the peaceable 
 enjoyment of its own mode of public worship. 
 
 Sec. 7. No money shall be appropriated or drawn from the 
 treasury for the benefit of any sect or religious society, theolog- 
 ical or religious seminary; nor shall property belonging to the 
 State be appropriated for any such purposes. 
 
 Sec. 8. Every person shall be at liberty to speak, write or' 
 publish his opinions on any subject, being responsible for the 
 abuse of that privilege; and no law shall ever be passed cur- 
 tailing the liberty of speech or of the press. In prosecutions for 
 the publication of papers investigating the conduct of officers 
 or men in public capacity, or when the matter published is 
 proper for public information, the truth thereof may be given 
 in evidence. And in all indictments for libels the jury shall 
 have the right to determine the law and the facts, under the 
 direction of the court, as in other cases. 
 
 Sec. 9. The people shall be secure in their persons, houses, 
 papers, and possessions from all unreasonable seizures or 
 searches, and no warrant to search any place, or to seize any 
 person or thing, shall issue without describing them as near as 
 
340 Appendix 
 
 may be, nor without probable cause, supported by oath or af- 
 firmation. 
 
 Sec. 10. In all criminal prosecutions the accused shall have 
 a speedy public trial by an impartial jury. He shall have the 
 right to demand the nature and cause of the accusation against 
 him, and to have a copy thereof. He shall not be compelled to 
 give evidence against himself. He shall have the right of being 
 heard by himself or counsel, or both; shall be confronted with 
 the witnesses against him, and shall have compulsory process 
 for obtaining witnesses in his favor. And no person shall be 
 held to answer for a criminal offense, unless on indictment of 
 a grand jury, except in cases in which the punishment is by. 
 fine, or imprisonment or otherwise than in the penitentiary, in 
 cases of impeachment, and in cases arising in the army and 
 navy, or in the militia, when in actual service, in time of war 
 or public danger. 
 
 Sec. 11. All prisoners shall be bailable by sufficient sureties, 
 unless for capital offenses when the proof is evident; but this 
 provision shall not be so construed as to prevent bail after 
 indictment found, upon examination of the evidence in such 
 manner as may be prescribed by law. 
 
 Sec. 12. The writ of habeas corpus is a writ of right, and 
 shall never be suspended. The Legislature shall enact laws to 
 render the remedy speedy and effectual. 
 
 Sec. 13. Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel or unusual punishment inflicted. All 
 courts shall be open, and every person for an injury done him 
 in his lands, goods, person or reputation shall have remedy by 
 due course of law. 
 
 Sec. 14. No person, for the same offense, shall be twice put 
 in jeopardy of life or liberty; nor shall a person be again put 
 upon trial for the same offense after a verdict of not guilty in 
 a court of competent jurisdiction. 
 
 Sec. 15. The right of trial by jury shall remain inviolate. 
 The Legislature shall pass such laws as may be needed to regu- 
 late the same, and to maintain its purity and efficiency. 
 
 Sec. 16. No bill of attainder, ex post facto law, retroactive 
 law, or any law impairing the obligation of contracts, shall be 
 made. 
 
Appendix 341 
 
 Sec. 17. No person's property shall be taken, damaged or 
 destroyed for or applied to public use without adequate com- 
 pensation being made, unless by the consent of such person; 
 and, when taken, except for the use of the State, such com- 
 pensation shall be first made or secured by a deposit of money ; 
 and no irrevocable or uncontrollable grant of special privilege 
 or immunities shall be made; but all privileges and franchises 
 granted by the Legislature or created under its authority, shall 
 be subject to the control thereof. 
 
 Sec. 18. No person shall ever be imprisoned for debt. 
 
 Sec. -19. No citizen of this State shall be deprived of life, 
 liberty, property, privileges or immunities, or in any manner 
 disfranchised except by the due course of the law of the land. 
 
 Sec. 20. No citizen shall be outlawed; nor shall any person 
 be transported out of the State for any offense committed with- 
 in the same. 
 
 Sec. 21. No conviction shall work corruption of blood, or 
 forfeiture of estate; and the estates of those who destroy their 
 own lives shall descend or vest as in case of natural death. 
 
 Sec. 22. Treason against the State shall consist only in levy- 
 ing war against it, or adhering to its enemies, giving them aid 
 and comfort; and no person shall be convicted of treason ex- 
 cept on the testimony of two witnesses to the same overt act, 
 or on confession in open court. 
 
 Sec. 23. Every citizen shall have the right to keep and bear 
 arms in the lawful defense of himself or the State; but the 
 Legislature shall have power by law to regulate the wearing 
 of arms with a view to prevent crime. 
 
 Sec. 24. The military shall at all times be subordinate to 
 the civil authority. 
 
 Sec. 25. No soldier shall in time of peace be quartered in 
 the house of any citizen without the consent of the owner, nor 
 in time of war but in a manner prescribed by law. 
 
 Sec. 26. Perpetuities and monopolies are contrary to the 
 genius of a free government, and shall never be allowed; nor 
 shall the law of primogeniture or entailments ever be in force 
 in this State. 
 
 Sec. 27. The citizens shall have the right, in a peaceable 
 manner, to assemble together for their common good, and apply 
 
342 Appendix 
 
 to those invested with the powers of government for redress of 
 grievances or other purposes, by petition, address or remon- 
 strance. 
 
 Sec. 28. No power of suspending laws in this State shall 
 be exercised except by the Legislature. 
 
 Sec. 29. To guard against transgressions of the high powers 
 herein delegated, we declare that everything in this "Bill of 
 Rights" is excepted out of the general powers of government, 
 and shall forever remain inviolate, and all laws contrary there- 
 to, or to the following provisions, shall be void. 
 
 ARTICLE II. 
 
 THE POWERS OP GOVERNMENT. 
 
 Section 1. The powers of the government of the State of 
 Texas shall be divided into three distinct departments, each 
 of which shall be confined to a separate body of magistry, to 
 wit: Those which are legislative to one, those which are execu- 
 tive to another, and those which are judicial to another; and no 
 person, or collection of persons, being of one of these depart- 
 ments, shall exercise any power properly attached to either of 
 the others, except in the instances herein expressly permitted. 
 
 ARTICLE III. 
 
 LEGISLATIVE DEPARTMENT. 
 
 Section 1. The legislative power of this State shall be 
 vested in a Senate and House of Representatives, which to- 
 gether shall be styled "The Legislature of the State of Texas." 
 
 Sec. 2. The Senate shall consist of thirty-one members, and 
 shall never be increased above this number. The House of 
 Representatives shall consist of ninety-three members, until the 
 first apportionment after the adoption of this Constitution, 
 when, or at any apportionment thereafter, the number of Rep- 
 resentatives may be increased by the Legislature, upon the ra- 
 tio of not more than one Representative for every fifteen thou- 
 
Appendix 343 
 
 sand inhabitants ; provided the number of Bepresentatives shall 
 never exceed one hundred and fifty. 
 
 Sec. 3. The Senators shall be chosen by the qualified elect- 
 ors for the term of four years, but a new Senate shall be chosen 
 after every apportionment, and the Senators elected after each 
 apportionment shall be divided by lot into two classes. The 
 seats of the Senators of the first class shall be vacated at the 
 expiration of the first two years and those of the second class 
 at the expiration of four years, so that one-half of the Sen- 
 ators shall be chosen biennially thereafter. 
 
 Sec. 4. The members of the House of Bepresentatives shall 
 be chosen by the qualified electors, and their term of office shall 
 be two years from the day of their election. 
 
 Sec. 5. The Legislature shall meet every two years, at such 
 times as may be provided by law, and at other times when 
 convened by the Governor. 
 
 Sec. 6. No person shall be a Senator unless he be a citizen 
 of the United States, and at the time of his election a qualified 
 elector of this State, and shall have been a resident of this 
 State five years next preceding his election, and the last year 
 thereof a reisdent of the district for which he shall be chosen, 
 and shall have attained the age of twenty-six years. 
 
 Sec. 7. No person shall be a Eepresentative unless he be a 
 citizen of the United States, and at the time of his election a 
 qualified elector of this State, and shall have been a resident 
 of this State two years next preceding his election, the last 
 year thereof a resident of the district for which he shall be 
 chosen, and shall have attained the age of twenty-one years. 
 
 Sec. 8. Each House shall be the judge of the qualifications 
 and election of its own members ; but contested elections shall be 
 determined in such manner as shall be provided by law. 
 
 Sec. 9. The Senate shall, at the beginning and close of each 
 session, and at such other times as may be necessary, elect one 
 of its members President pro tempore, who shall perform the 
 duties of the Lieutenant-Governor in any case of absence or 
 disability of that officer, and whenever the said office of Lieu- 
 tenant-Governor shall be vacant. The House of Bepresenta- 
 tives shall, when it first assembles, organize temporarily, and 
 thereupon proceed to the election of a Speaker from its own 
 
344 Appendix 
 
 members; and each. House shall choose its other officers. 
 
 Sec. 10. Two-thirds of each House shall constitute a quo- 
 rum to do business, but a smaller number may adjourn from 
 day to day, and compel the attendance of absent members, in 
 such manner and under such penalties as each House may pro- 
 vide. 
 
 Sec. 11. Each House may determine the rules of its own 
 proceedings, punish members for disorderly conduct, and, with 
 the consent of two-thirds, expel a member, but not a second 
 time for the same offense. 
 
 Sec. 12. Each House shall keep a journal of its proceedings 
 and publish the same; and the yeas and nays of the members 
 of either House on any question shall, at the desire of any 
 three members present, be entered on the Journals. 
 
 Sec. 13. When vacancies occur in either House, the Gover- 
 nor, or the person exercising the power of the Governor, shall 
 issue writs of election to fill such vacancies; and should the 
 Governor fail to issue a writ of election to fill any such va- 
 cancy within twenty days after it occurs, the returning officer 
 of the district in which such vacancy may have happened shall 
 be authorized to order an election for that purpose. 
 
 Sec. 14. Senators and Representatives shall, except in cases 
 of treason, felony, or breach of the peace, be privileged from 
 arrest during the session of the Legislature, and in going to and 
 coming from the same, allowing one day for every twenty miles 
 such member may reside from the place at which the Legisla- 
 ture is convened. 
 
 Sec. 15. Each House may punish, by imprisonment, during 
 its sessions, any person not a member, for disrespectful or dis- 
 orderly conduct in its presence, or for obstructing any of its 
 proceedings; provided, such imprisonment shall not, at any one 
 time, exceed forty-eight hours. 
 
 Sec. 16. The sessions of each House shall be open, except 
 the Senate when in executive session. 
 
 Sec. 17. Neither House shall, without the consent of the 
 other, adjourn for more than three days, nor to any other place 
 than that where the Legislature may be sitting. 
 
 Sec. 18. No Senator or Representative shall, during the 
 term for which he may be eleeted, be eligible to any civil office 
 
Appendix 345 
 
 of profit under this State which shall have been created or the 
 emoluments of which may have been increased during such term ; 
 no member of either House shall, during the term for which he 
 is elected, be eligible to any office or place, the appointment to 
 which may be made, in whole or in part, by either branch of 
 the Legislature; and no member of either House shall vote for 
 any other member for any office whatever, which may be filled 
 by a vote of the Legislature, except in such cases as are in this 
 Constitution provided. Nor shall any member of the Legisla- 
 ture be interested, either directly or indirectly, in any contract 
 with the State, or any county thereof, authorized by any law 
 passed during the term for which he shall have been elected. 
 
 Sec. 19. No judge of any court, Secretary of State, Attor- 
 ney-General, clerk of any court of record, or any person hold- 
 ing a lucrative office under the United States, or this State, or 
 any foreign government, shall, during the term for which he 
 is elected or appointed, be eligible to the Legislature. 
 
 Sec. 20. No person who at any time may have been a col- 
 lector of taxes, or who may have been otherwise entrusted with 
 public money, shall be eligible to the Legislature, or to any 
 office of profit or trust under the State government until he 
 shall have obtained a discharge for the amount of such collec- 
 tions, or for all public moneys with which he may have been 
 entrusted. 
 
 Sec. 21. No member shall be questioned in any other place 
 for words spoken in debate in either House. 
 
 Sec. 22. A member who has a personal or private interest 
 in any measure or bill proposed or pending before the Legisla- 
 ture, shall disclose the fact to the House of which he is a 
 member, and shall not vote thereon. 
 
 Sec. 23. If any Senator or Eepresentative remove his res- 
 idence from the district or county for which he was elected, 
 his office shall thereby become vacant, and the vacancy shall be 
 filled as provided in Section 13 of this article. 
 
 Sec. 24. The members of the Legislature shall receive from 
 the public treasury such compensation for their services as 
 may from time to time be provided by law, not exceeding five 
 dollars per day for the first sixty days of each session; and af- 
 ter that not exceeding two dollars per day for the remainder of 
 
346 Appendix 
 
 the session; except the first session held under this Constitu- 
 tion, when they may receive not exceeding five dollars per day 
 for the first ninety days, and after that not exceeding two dol- 
 lars per day for the remainder of the session. In addition to 
 the per diem, the members of each House shall be entitled to 
 a milage in going to and returning from the seat of government, 
 which mileage shall not exceed five dollars for every twenty- 
 five miles, the distance to be computed by the nearest and most 
 direct route of travel by land, regardless of railways or water 
 routes ; and the Comptroller of the State shall prepare and pre- 
 serve a table of distances to each county seat now or hereafter 
 to be established, and by such table the mileage of each member 
 shall be paid; but no member shall be entitled to mileage for 
 any extra session that may be called within one day after the 
 adjournment of a regular or called session. 
 
 Sec. 25. The State shall be divided into senatorial districts 
 of contiguous territory according to the number of qualified 
 electors, as nearly as may be, and each district shall be en- 
 titled to elect one Senator, and no single county shall be 
 entitled to more than one Senator. 
 
 Sec. 26. The members of the House of Representatives shall 
 be apportioned among the several counties, according to the num- 
 ber of population in each, as nearly as may be, on a ratio ob- 
 tained by dividing the population of the State, as ascertained 
 by the most recent United States census, by the number of 
 members of which the House is composed ; provided, that when- 
 ever a single county has sufficient population to be entitled to 
 a Representative, such county shall be formed into a separate 
 representative district, and when two or more counties are re- 
 quired to make up the ratio of representation, such counties shall 
 be contiguous to each other ; and when any one county has more 
 than sufficient population to be entitled to one or more 
 Representatives, such Representative or Representatives shall 
 be apportioned to such county, and for any surplus of popula- 
 tion it may be joined in a Representative district with any 
 other contiguous county or counties. 
 
 Sec- 27. Elections for Senators and Representatives shall 
 be general throughout the State, and shall be regulated by law. 
 
 Seo. 28. The Legislature shall, at the first session after the 
 
Appendix 347 
 
 publication of each United States decennial census, apportion 
 the State into Senatorial and Representative districts, agreeably 
 to the provisions of Sections 25 and 26 of this article; and 
 until the next decennial census, when the first appointment shall 
 be made by the Legislature, the State shall be and it is hereby 
 divided into Senatorial and Representative districts as provided 
 by an ordinance of the Convention on that subject. 
 
 PBOCEEMNGS. 
 
 Sec. 29. The enacting clause of all laws shall be, "Be it 
 enacted by the Legislature of the State of Texas." 
 
 Sec. 30. No law shall be passed except by bill, and no bill 
 shall be so amended in its passage through either House as to 
 change its original purpose. 
 
 Sec. 31. Bills may originate in either House, and when 
 passed by such House may be amended, altered or rejected by 
 the other. 
 
 Sec. 32. No bill shall have the force of law until it has 
 been read on three several days in each House, and free dis- 
 cussion allowed thereon ; but in cases of imperative public neces- 
 sity (which necessity shall be stated in a preamble, or in the 
 body of the bill) , four-fifths of the House in which the bill may 
 be pending may suspend this rule, the yeas and nays being 
 taken on the question of suspension, and entered upon the 
 journals. 
 
 Sec. 33. All bills for raising revenue shall originate in the 
 House of Representatives, but the Senate may amend or reject 
 them as other bills. 
 
 Sec. 34. After a bill has been considered and defeated by 
 either House of the Legislature, no bill containing the same 
 substance shall be passed into law during the same session. 
 After a resolution has been acted on and defeated, no resolution 
 containing the same substance shall be considered at the same 
 session. 
 
 Sec. 35. No bill (except general appropriation bills, which 
 may embrace the various subjects and accounts for and on 
 account of which moneys are appropriated) shall contain more 
 than one subject, which shall be expressed in its title. But if any 
 
348 Appendix 
 
 subject shall be embraced in an act which shall not be expressed 
 in the title, such act shall be void only as to so much thereof as 
 shall not be so expressed. 
 
 Sec. 36. No law shall be revived or amended by reference to 
 its title; but in such case the act revived or the section or 
 sections amended shall be re-enacted and published at length. 
 
 Sec. 37. No bill shall be considered unless it has been first 
 referred to a committee and reported thereon; and no bill shall 
 be passed which has not been presented and referred to and re- 
 ported from a committee at least three days before the final ad- 
 journment of the Legislature. 
 
 Sec. 38. The presiding officer of each house shall, in the 
 presence of the house over which he presides, sign all bills and 
 joint resolutions passed by the Legislature, after their titles 
 have been publicly read before signing; and the fact of signing 
 shall be entered on the journals. 
 
 Sec. 39. No law passed by the Legislature, except the gen- 
 eral appropriation act, shall take effect or go into force until 
 ninety days after the adjournment of the session at which it 
 was enacted, unless, in case of an emergency, which emergency 
 must be expressed in a preamble or in the body of the act, the 
 Legislature shall, by a vote of two4hirds of all the members 
 elected to each house, otherwise direct; said vote to be taken 
 by yeas and nays, and entered upon the journals.. 
 
 Sec. 40. "When the Legislature shall be convened in special 
 session, there shall be no legislation upon subjects other than 
 those designated in the proclamation of the Governor calling 
 such session, or presented to them by the Governor; and no 
 such session shall be of longer duration than thirty days. 
 
 Sec. 41. In all elections by the Senate and House of Repre- 
 sentatives, jointly or separately, the vote shall be given viva 
 voce, except in the election of their officers. 
 
 REQUIREMENTS AND LIMITATIONS. 
 
 Sec. 42. The Legislature shall pass such laws as may be 
 necessary to carry into effect the provisions of this Constitution. 
 
 Sec. 43. The first session of the Legislature under this Con- 
 stitution shall provide for revising, digesting and publishing 
 
Appendix 349 
 
 the laws, civil and criminal; and a like revision, digest and 
 publication may be made every ten years thereafter; provided, 
 that in the adoption of and giving effect to any such digest or 
 revision, the Legislature shall not be limited by sections 35 and 
 36 of this article. 
 
 Sec. 44. The Legislature shall provide by law for the com- 
 pensation of all officers, servants, agents and public contractors 
 not provided for in this Constitution, but shall not grant extra 
 compensation to any officer, agent, servant or public contractors, 
 after such public service shall have been performed or contract 
 entered into for the performance of the same; nor grant, by 
 appropriation or otherwise, any amount of money out of the 
 treasury of the State, to any individual on a claim, real or pre- 
 tended, when the same shall not have been provided for by pre- 
 existing law; nor employ any one in the name of the State un- 
 less authorized by pre-existing law. 
 
 Sec. 45. The power to change the venue in civil and criminal 
 cases shall be vested in the courts, to be exercised in such man- 
 ner as shall be provided by law; and the Legislature shall pass 
 laws for that purpose. 
 
 , Sec. 46. The Legislature shall, at its first session after the 
 adoption of this Constitution, enact effective vagrant laws. 
 
 Sec. 47. The Legislature shall pass laws prohibiting the 
 establishment of lotteries and gift enterprises in this State; 
 as well as the sale of tickets in lotteries, gift enterprises or 
 other evasions involving the lottery principle, established or 
 existing in other States. 
 
 Sec. 48. The Legislature shall not have the right to levy 
 taxes or impose burdens upon the people, except to raise revenue 
 sufficient for the economical administration of the government, 
 in which may be included the following purposes : 
 
 The payment of all interest upon the bonded debt of the 
 State; 
 
 The erection and repairs of public buildings: 
 
 The benefit of the sinking fund, which shall not be more than 
 two per centum of the public debt, and for the payment of the 
 present floating debt of the State, including matured bonds for 
 the payment of which the sinking fund is inadequate; 
 
 The support of public schools, in which shall be included 
 
350 Appendix 
 
 colleges and universities established by the State; and the 
 maintenance and support of the Agricultural and Mechanical 
 College of Texas; 
 
 The payment of the cost of assessing and collecting the 
 revenue; and the payment of all officers, agents and employes 
 of the State government, and all incidental expenses con- 
 nected therewith; 
 
 The support of the Blind Asylum, the Deaf and Dumb 
 Asylum, and the Insane Asylum; the State cemetery and the 
 public grounds of the State; 
 
 The enforcement of quarantine regulations on the coast of 
 Texas; 
 
 The protection of the frontier. 
 
 Sec. 49. No debt shall be created by or on behalf of the 
 State, except to supply casual deficiencies of revenues, repel 
 invasion, suppress insurrection, defend the State in war, or 
 paying existing debt ; and the debt created to supply deficiencies 
 in the revenue shall never exceed in the aggregate at any one 
 time two hundred thousand dollars. 
 
 Sec. 50. The Legislature shall have no power to give or to 
 lend, or to authorize the giving or lending, of the credit of the 
 State in aid of, or to any person, association or corporation, 
 whether municipal or other; or to pledge the credit of the 
 State, in any manner whatsoever, for the payment of the 
 liabilities, present or prospective, of any individual, association 
 of individuals, municipal or other corporations whatsoever. 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant, or authorize the making of any grant of public money 
 to any individual, association of individuals, municipal or other 
 corporation whatsoever; provided, that this shall not be so con- 
 strued as to prevent the grant of aid in case of public calamity. 
 [Const. 1876.] 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant, or authorize the making of any grant of public money 
 to any individual, association of individuals, municipal or other 
 corporation whatsoever ; provided, however, the Legislature may 
 grant aid to the establishment and maintenance of a home for 
 indigent and disabled Confederate soldiers or sailors who are 
 or may be bona fide residents of the State of Texas, under such 
 regulations and limitations as may be provided by law; pro- 
 
Appendix 351 
 
 vided, that such, grant shall not exceed the sum of $100,000.00 
 for any one year; and provided further, that the pro- 
 visions of this section shall not be construed so as to 
 prevent the grant of aid in case of public calamity. [Adopted 
 Nov. 6, 1894.] 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant or authorize the making of any grant of public money to 
 any individual, association of individuals, municipal or other 
 corporatoins whatsoever; provided, however, the Legislature 
 may grant aid to indigent and disabled Confederate soldiers 
 and sailors who came to Texas prior to January 1, 1880, and 
 who are either over sixty years of age, or whose disability is the 
 proximate result of actual service in the Confederate army for 
 a period of at least three months, their widows in indigent 
 circumstances who have never remarried, and who have been 
 bona fide residents of the State of Texas since March 1, 1880, 
 and who were married to such soldiers or sailors prior to March 
 1, 1866; Provided said aid shall not exceed eight dollars per 
 month; and provided further, that no appropriation shall ever 
 be made for the purpose hereinbefore specified in excess of two 
 hundred and fifty thousand dollars for any one year. And also 
 grant aid to the establishment and maintenance of a home for 
 said soldiers and sailors, under such regulations and limitations 
 as may be provided by law; provided, the grant of aid to said 
 home shall not exceed one hundred thousand dollars for any 
 one year; and no inmate of said home shall be entitled to any 
 other aid from the State; and provided further, that the pro- 
 visions of this section shall not be construed to prevent the 
 grant of aid in case of public calamity. [Section 51, Art. 3, 
 adopted December 1, 1898.] 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant or authorize the making of any grant of public money to 
 any individual, association of individuals, municipal or other 
 corporations whatsoever; provided, however, the Legislature 
 may grant aid to indigent and disabled Confederate soldiers 
 and sailors who came to Texas prior to January 1, 1880, and 
 who are either over sixty years of age, or whose disability is 
 the preximate result of actual service in the Confederate army 
 for a period of at least three months, their widows in indigent 
 circumstances who have never remarried, and who have been 
 bona fide residents of the State of Texas since March 1, 1880, 
 and who were married to such soldiers or sailors anterior to 
 March 1, 1880 ; provided, said aid shall not exceed eight dollars 
 per month; and provided further, that no appropriation shall 
 ever be made for the purpose hereinbefore specified in excess 
 of five hundred thousand dollars for any one year. And also 
 
352 Appendix 
 
 grant aid to the establishment and maintenance of a home for 
 said soldiers and sailors, under such regulations and limitations 
 as may be provided by law; provided, the grant of aid to said 
 home shall not exceed one hundred thousand dollars for any 
 one year; and no inmate of said home shall be entitled to any 
 other aid from the State; and provided, further, that the pro- 
 visions of this section shall not be construed to prevent the 
 grant of aid in case of public calamity. [Sec. 51, Art. 3, 
 adopted November 8, 1904.] 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant or authorize the making of any grant of public money 
 to any individual, association of individuals, municipal or other 
 corporations whatsoever; provided, however, the Legislature 
 may grant aid to indigent and disabled Confederate soldier and 
 sailors who came to Texas prior to January 1, 1880, and who 
 are either over sixty years of age or whose disability is the 
 proximate result of actual service in the Confederate army for 
 a period of at least three months, their widows in indigent 
 circumstances who have never remarried, and who have been 
 bona fide residents of the State of Texas since March 1, 1880, 
 and who were married to such soldiers or sailors anterior to 
 March 1, 1880 ; provided, said aid shall not exceed eight dollars 
 per month; and provided further, that no appropriations shall 
 ever be made for the purpose hereinbefore specified in excess of 
 five hundred thousand dollars for any one year. And also grant 
 aid to the establishment and maintenance of a home for said 
 soldiers and sailors, their wives and widows and women who 
 aided in the Confederacy, under such regulations and limita- 
 tions as may be provided by law; provided, the grant to aid 
 said home shall not exceed one hundred and fifty thousand 
 dollars for any one year, and no inmate of said homes shall be 
 entitled to any other aid from the State; the Legislature may 
 provide for husband and wife to remain together in the home; 
 and provided, further, that the provisions of this section shall 
 not be construed to prevent the grant of aid in case of public 
 calamity. [Sec. 51, Art. 3, adopted Nov. 8, 1910.] 
 
 Sec. 51. The Legislature shall have no power to make any 
 grant or authorize the making of any grant of public money 
 to any individual, association of individuals, municipal or other 
 corporation whatsoever; provided, however, the Legislature may 
 grant aid to indigent and disabled Confederate soldiers and sail- 
 ors who came to Texas prior to January 1, 1900, and their widows 
 in indigent circumstances, and who have been bona fide residents 
 of the State of Texas since January 1, 1900, and who were 
 
Appendix 353 
 
 married to such soldiers and sailors anterior to January 1, 1900 ; 
 to indigent and disabled soldiers, who under special laws of the 
 State of Texas, during the war between the States served for 
 a period of at least six months in organizations for the pro- 
 tection of the frontier against Indian raids or Mexican ma- 
 rauders, and to indigent and disabled soldiers of the militia of 
 the State of Texas, who were in active service for a period of 
 at least six months during the war between the States, to the 
 widows of such soldiers who are in indigent circumstances, and 
 who were married to such soldiers prior to January 1, 1900, 
 provided that word "widow" in the preceding lines of this 
 section shall not apply to women born since 1861, and also 
 to grant aid for the establishment and maintenance of a home 
 for said soldiers and sailors, their wives and widows, and women 
 who aided in the Confederacy under such regulations and lim- 
 itations as may be provided for by law; provided, the Legisla- 
 ture may provide for husband and wife to remain together in 
 the home. 
 
 The Legislature shall have the power to levy and collect, in 
 addition to all other taxes heretofore permitted by the Con- 
 stitution of Texas, a State ad valorem tax on property not 
 exceeding five cents on the one hundred dollars valuation for 
 the purpose of creating a special fund for the payment of 
 pensions for services in the Confederate Army and Navy, frontier 
 organizations and the militia of the State of Texas, and for 
 the widows of such soldiers serving in said armies, navies, 
 organizations, or militia. [Adopted November 5, 1912.] 
 
 Sec- 52. The Legislature shall have no power to authorize 
 any county, city, town or other political corporation or sub- 
 division of the State, to lend its credit or to grant public money 
 or thing of value, in aid of or to any individual, association 
 or corporation whatsoever; or to become a stockholder in such 
 corporation, association or company. [Const. 1876.] 
 
 [Sec. 52, Art. 3, adopted November 8, 1904.] 
 Sec. 52. The Legislature shall have no power to authorize 
 any county, city, town or other political corporation or sub- 
 division of the State, to lend its credit or to grant public 
 money or thing of value, in aid of or to any individual, associa- 
 
354 Appendix 
 
 tion or corporation whatsoever; or to become a stockholder in 
 such corporation, association or company; provided, however, 
 that under legislative provision any county, any political sub- 
 division of a county, any number of adjoining counties, or any 
 political subdivision of the State, or any denned district now 
 or hereafter to be described and denned within the State of 
 Texas, and which may or may not include towns, villages or 
 municipal corporations, upon a vote of a two-thirds majority 
 of the resident property taxpayers voting thereon who are 
 qualified electors of such district or territory to be affected 
 thereby, in addition to all other debts, may issue bonds or other- 
 wise lend its credit in any amount not to exceed one-fourth of 
 the assessed valuation of the real property of such district or 
 territory, except that the total bonded indebtedness of any 
 city or town shall never exceed the limits imposed by other 
 provisions of this Constitution, and levy and collect such taxes 
 to pay the interest thereon and provide a sinking fund for the 
 redemption thereof, as the Legislature may authorize, and in 
 such manner as they may authorize the same, for the following 
 purposes, to-wit : 
 
 (a) The improvement of rivers, creeks and streams to pre- 
 vent overflows, and to permit of navigation thereof or irrigation 
 thereof, or in aid of such purposes. 
 
 (b) The construction and maintenance of pools, lakes, reser- 
 voirs, dams, canals and waterways for the purposes of irriga- 
 tion, drainage or navigation, or in aid thereof. 
 
 (c) The construction, maintenance and operation of macad- 
 amized, graveled or paved roads and turnpikes, or in aid thereof. 
 
 Sec. 53. The Legislature shall have no power to grant, or to 
 authorize any county or municipal authority to grant, any 
 extra compensation, fee or allowance to a public officer, agent, 
 servant or contractor, after service has been rendered, or a 
 contract has been entered into, and performed in whole or in 
 part ; nor pay, nor authorize the payment of, any claim created 
 against any county or municipality of the State, under any 
 agreement or contract made without authority of law. 
 
 Sec. 54. The Legislature shall have no power to release or 
 alienate any lien held by the State upon any railroad, or in 
 any wise change the tenor or meaning or pass any act ex- 
 
Appendix 355 
 
 planatory thereof ; but the same shall be enforced in accordance 
 with the original terms upon which it was acquired. 
 
 Sec. 55. The Legislature shall have no power to release or 
 extinguish, or to authorize the releasing or extinguishing, in 
 whole or in part, the indebtedness, liability or obligation of any 
 incorporation or individual in this State, or to any county, or 
 other muncipal corporation therein. 
 
 Sec. 56. The Legislature shall not, except as otherwise pro- 
 vided in this Constitution, pass any local or special law, 
 authorizing — 
 
 The creation, extension or impairing of liens ; 
 
 Regulating the affairs of counties, cities, towns, wards or 
 school districts; 
 
 Changing the names of persons or places; 
 
 Changing the venue in civil or criminal cases; 
 
 Authorizing the laying out, opening, altering or maintaining 
 of roads, highways, streets or alleys; 
 
 Relating to ferries or bridges, or incorporating ferry or 
 bridge companies, except for the erection of bridges crossing 
 streams which form boundaries between this and any other 
 State ; 
 
 Vacating roads, town plats, streets or alleys; 
 
 Relating to cemeteries, graveyards, or public grounds not of 
 the State. 
 
 Authorizing the adoption or legitimation of children ; 
 
 Locating or changing county seats; 
 
 Incorporating cities, towns or villages, or changing their 
 charters ; 
 
 For the opening and conducting of elections, or fixing or 
 changing the places of voting; 
 
 Granting divorces; 
 
 Creating offices, or prescribing the powers and duties of of- 
 ficers in counties, cities, towns, election or school districts; 
 
 Changing the law of descent or succession; 
 
 Regulating the practice or jurisdiction of, or changing the 
 rules of evidence in any judicial proceeding or inquiry before 
 courts, justices of the peace, sheriffs, commissioners, arbitrators 
 or other tribunals, or providing or changing methods for the 
 
356 Appendix 
 
 collection of debts, or the enforcing of judgments, or prescrib- 
 ing the effect of judicial sales of real estate ; 
 
 Regulating the fees, or extending the powers and duties of 
 aldermen, justices of the peace, magistrates or constables; 
 
 Regulating the management of public schools, the building or 
 repairing of school houses, and the raising of money for such 
 purposes ; 
 
 Fixing the rate of interest; 
 
 Affecting the estates of minors, or persons under disability; 
 
 Remitting fines, penalties and forfeitures, and refunding 
 moneys legally paid into the treasury; 
 
 Exempting property from taxation; 
 
 Regulating labor, trade, mining and manufacturing; 
 
 Declaring any named person of age; 
 
 Extending the time for the assessment or collection of taxes, 
 or otherwise relieving any assessor or collector of taxes from 
 the due performance of his official duties, or his securities from 
 liability ; 
 
 Giving effect to informal or invalid wills or deeds ; 
 
 Summoning and impaneling grand or petit juries ; 
 
 For limitation of civil or criminal actions; 
 
 For incorporating railroads or other works of internal im- 
 provements ; 
 
 And in all other cases where a general law can be made 
 applicable, no local or special law shall be enacted; provided 
 that nothing herein contained shall be construed to prohibit 
 the Legislature from passing special laws for the preservation 
 of the game and fish of this State in certain localities. 
 
 Sec. 57. No local or special law shall be passed unless notice 
 of the intention to apply therefor shall have been published 
 in the locality where the matter or thing to be affected may be 
 situated, which notice shall state the substance of the con- 
 templated law, and shall be published at least thirty days prior 
 to the introduction into the Legislature of such bill and in the 
 manner to be provided by law. The evidence of such notice 
 having been published shall be exhibited in the Legislature 
 before such act shall be passed. 
 
 Sec. 58. The Legislature shall hold its sessions in the city 
 of Austin, which is hereby declared to be the seat of govern- 
 ment. 
 
Appendix 357 
 
 ARTICLE IV. 
 
 EXECUTIVE DEPARTMENT. 
 
 Section 1. The executive department of the State shall con- 
 sist of a Governor, who shall be the chief executive officer of the 
 State; a Lieutenant-Governor, Secretary of State, Comptroller 
 of Public Accounts, Treasurer, Commissioner of the General 
 Land Office, and Attorney-General. 
 
 Sec. 2. All the above officers of the executive department 
 (except Secretary of State) shall be elected by the qualified 
 voters of the State at the time and places of election for mem- 
 bers of the Legislature. 
 
 Sec. 3. The returns of every election for said executive 
 officers, until otherwise provided by law, shall be made out, 
 sealed up and transmitted, by the returning officers prescribed 
 by law, to the seat of government, directed to the Secretary of 
 State, who shall deliver the same to the Speaker of the House 
 of Representatives, as soon as the Speaker shall be chosen ; and 
 the said Speaker shall, during the first week of the session of 
 the Legislature, open and publish them in the presence of both 
 Houses of the Legislature. The person voted for at said election 
 having the highest number of votes for each of said offices, 
 respectively, and being constitutionally eligible, shall be de- 
 clared by the Speaker, under sanction of the Legislature, to be 
 elected to said office. But if two or more persons shall have the 
 highest and an equal number of votes for either of said offices, 
 one of them shall be immediately chosen to such office by a joint 
 vote of both Houses of the Legislature. Contested elections for 
 either of said offices shall be determined by both Houses of the 
 Legislature in joint session. 
 
 Sec. 4. The Governor shall be installed on the first Tuesday 
 after the organization of the Legislature, or as soon thereafter 
 as practicable, and shall hold his office for the term of two years, 
 or until his successor shall be duly installed. He shall be at 
 least thirty years of age, a citizen of the United States, and 
 shall have resided in this State at least five years immediately 
 preceding his election. 
 
 Sec. 5. He shall, at stated times, receive as compensation 
 
358 Appendix 
 
 for his services an annual salary of four thousand dollars, and 
 no more, and shall have the use and occupation of the Gov- 
 ernor's Mansion, fixtures and furniture. 
 
 Sec. 6. During the time he holds the office of Governor he 
 shall not hold any other office, civil, military or corporate; nor 
 shall he practice any profession, and receive compensation, 
 reward, fee, or the promise thereof, for the same; nor receive 
 any salary, reward or compensation, or the promise thereof, 
 from any person or corporation, for any service rendered or 
 performed during the time he is Governor, or to be thereafter 
 rendered or performed. 
 
 Sec. 7. He shall be commander-in-chief of the military forces 
 of the State, except when they are called into actual service 
 for the United States. He shall have power to call forth the 
 militia to execute the laws of the State, to suppress insurrection, 
 repel invasion, and protect the frontier from hostile incursions 
 by Indians or other predatory bands. 
 
 Sec. 8. The Governor may, on extraordinary occasions, 
 convene the Legislature at the seat of government, or at a 
 different place in case that should be in possession of the public 
 enemy, or in case of the prevalence of disease thereat. His 
 proclamation therefor shall state specifically the purpose for 
 which the Legislature is convened. 
 
 Sec. 9. The Governor shall, at the commencement of each 
 session of the Legislature, and at the close of his term of office, 
 give the Legislature information, by message, of the condition 
 of the State; and he shall recommend to the Legislature such 
 measures as he shall deem expedient. He shall account to the 
 Legislature for all public moneys received and paid out by him 
 from any funds subject to his order, with vouchers; and shall 
 accompany his message with a statement of the same. And at 
 the commencement of each regular session he shall present 
 estimates of the amount of money required to be raised by 
 taxation for all purposes. 
 
 Sec. 10. He shall cause the laws to be faithfully executed; 
 and shall conduct, in person, or in such manner as shall be 
 prescribed by law, all intercourse and business of the State 
 with other States and with the United States. 
 
 Sec. 11. In all criminal cases, except treason and impeach- 
 
Appendix 359 
 
 ment, he shall have power, after conviction, to grant reprieves, 
 commutations of punishment, and pardons ; and under such 
 rules as the Legislature may prescribe, he shall have power to 
 remit fines and forfeitures. "With the advice and consent of 
 the Senate, he may grant pardons in cases of treason, and to 
 this end he may respite a sentence therefor, until the close of 
 the succeeding session of the Legislature; provided, that in 
 all cases of remissions of fines and forfeitures, or grants of re- 
 prieve, commutation of punishment or pardon, he shall file in 
 the office of the Secretary of State his reasons therefor. 
 
 Sec. 12. All vacancies in State or district offices, except 
 members of the Legislature, shall be filled, unless otherwise 
 provided by law, by appointment of the Governor, which ap- 
 pointment, if made during its session, shall be with the advice 
 and consent of two-thirds of the Senate present. If made 
 during the recess of the Senate, the said appointee, or some 
 other person to fill such vacancy shall be nominated to the Senate 
 during the first ten days of its session. If rejected, said office 
 shall immediately become vacant and the Governor shall, with- 
 out delay, make further nominations, until a confirmation takes 
 place. But should there be no confirmation during the session 
 of the Senate, the Governor shall not thereafter appoint any 
 person to fill such vacancy who has been rejected by the Senate ; 
 but may apoint some other person to fill the vacancy until the 
 next session of the Senate, or until the regular election to said 
 office, should it sooner occur. Appointments to vacancies in 
 offices elective by the people shall only continues until the first 
 general election thereafter. 
 
 Sec. 13. During the session of the Legislature the Governor 
 shall reside where its sessions are held, and at all other times 
 at the seat of government, except when by act of the Legisla- 
 ture he may be required or authorized to reside elsewhere. 
 
 Sec. 14. Every bill which shall have passed both Houses 
 of the Legislature shall be presented to the Governor for his 
 approval. If he approve, he shall sign it; but if he disapprove 
 it, he shall return it, with his objection, to the house in which 
 it originated, which house shall enter the objection at large 
 upon its journal, and proceed to reconsider it. If, after such 
 reconsideration, two-thirds of the members present agree to 
 
360 Appendix 
 
 pass the bill, it shall be sent, with the objections, to the other 
 house, by which likewise it shall be reconsidered; and if ap- 
 proved by two-thirds of the members of that house, it shall 
 become a law ; but in such cases the votes of both Houses shall 
 be determined by yeas and nays, and the names of the mem- 
 bers voting for and against the bill shall be entered on the 
 Journal of each House, respectively. If any bill shall not be 
 returned by the Governor with his objections within ten days 
 (Sundays excepted) after it shall have been presented to him, 
 the same shall be a law in like manner as if he had signed 
 it, unless the Legislature, by its adjournment, prevent its 
 return; in which case it shall be a law unless he shall file the 
 same, with his objections, in the office of the Secretary of 
 State, and give notice thereof by public proclamation within 
 twenty days after such adjournment. If any bill presented to 
 the Governor contains several items of appropriation, he may 
 object to one or more of such items, and approve the other 
 portion of the bill. In such case he shall append to the bill, 
 at the time of signing it, a statement of the items to which 
 he objects, and no item so objected to shall take effect. If 
 the Legislature be in session, he shall transmit to the house in 
 which the bill originated a copy of such statement, and the 
 items objected to shall be separately considered. If, on recon- 
 sideration, one or more of such items be approved by two-thirds 
 of the members present of each house, the same shall be part of 
 the law, notwithstanding the objections of the Governor. If 
 any such bill, containing several items of appropriation, not 
 having been presented to the Governor ten days (Sundays ex- 
 cepted) prior to adjournment, be in the hands of the Governor 
 at the time of adjournment, he shall have twenty days from 
 such adjournment within which to file objections to any items 
 thereof, and make proclamation of the same, and such item or 
 items shall not take effect. 
 
 Sec. 15. Every order, resolution or vote to which the con- 
 currence of both houses of the Legislature may be necessary, 
 except on questions of adjournment, shall be presented to the 
 Governor, and, before it shall take effect, shall be approved by 
 him; or, being disapproved, shall be repassed by both houses; 
 
Appendix 361 
 
 and all the rules, provisions and limitations shall apply thereto as 
 prescribed in the last preceding section in the case of a bill. 
 
 Sec. 16. There shall also be a Lieutenant-Governor, who 
 shall be chosen at every election for Governor, by the same 
 electors, in the same manner, continue in office for the same 
 time, and possess the same qualifications. The electors shall 
 distinguish for whom they vote as Governor and for whom as 
 Lieutenant-Governor. The Lieutenant-Governor shall, by virtue 
 of his office, be President of the Senate, and shall have, when 
 in Committee of the "Whole, a right to debate and vote on all 
 questions; and when the Senate is equally divided, to give the 
 casting vote. In case of the death, resignation, removal from 
 office, inability or refusal of the Governor to serve, or of his 
 impeachment or absence from the State, the Lieutenant-Gov- 
 ernor shall exercise the powers and authority appertaining to 
 the office of Governor until another be chosen at the periodical . 
 election and be duly qualified ; or until the Governor impeached, 
 absent or disabled shall be acquitted, return or his disability 
 be removed. 
 
 Sec. 17. If, during the vacancy in the office of Governor, 
 the Lieutenant-Governor should die, resign, refuse to serve, or 
 be removed from office, or be unable to serve, or if he shall be 
 impeached or absent from the State, the President of the Sen- 
 ate, for the time being, shall, in like manner, administer the 
 government until he shall be superseded by a Governor or 
 Lieutenant-Governor. The Lieutenant-Governor shall, while he 
 acts as President of the Senate, receive for his services the 
 same compensation and milage which shall be allowed to the 
 members of the Senate, and no more; and during the time he 
 administers the government as Governor, he shall receive in like 
 manner the same compensation which the Governor would have 
 received had he been employed in the duties of his office, and 
 no more. The President, for the time being, of the Senate, 
 shall, during the time he administers the government, receive 
 in like manner the same compensation which the Governor 
 would have received, had he been employed in the duties of 
 his office. 
 
 Sec. 18. The Lieutenant-Governor or President of the Sen- 
 ate, succeeding to the office of Governor, shall, during the entire 
 
362 Appendix 
 
 term to which he may succeed, be under all the restriction and 
 inhibitions imposed in this Constitution on the Governor. 
 
 Sec. 19. There shall be a seal of the State, which shall be 
 kept by the Secretary of State, and used by him officially under 
 the direction of the Governor. The seal of the State shall be a 
 star of five points, encircled by olive and live oak branches, 
 and the words "The State of Texas." 
 
 Sec. 20. All commissions shall be in the name and by the 
 authority of the State of Texas, sealed with the State seal, 
 signed by the Governor, and attested by the Secretary of State. 
 
 Sec. 21. There shall be a Secretary of State, who shall be 
 appointed by the Governor, by and with the advice and consent 
 of the Senate, and who shall continue in office during the term 
 of service of the Governor. He shall authenticate the publica- 
 tion of the laws, and keep a fair register of all official acts 
 and proceedings of the Governor, and shall, when required, lay 
 the same, and all papers, minutes and vouchers relative thereto, 
 before the Legislature or either house thereof, and shall per- 
 form such other duties as may be required of him by law. He 
 shall receive for his services an annual salary of two thousand 
 dollars, and no more. 
 
 Sec. 22. The Attorney-General shall hold his office for two 
 years and until his successor is duly qualified. He shall repre- 
 sent the State in all suits and pleas in the Supreme Court of 
 the State in which the State may be a party, and shall especially 
 inquire into the charter rights of all private corporations, and, 
 from time to time, in the name of the State, take such actions 
 in the courts as may be proper and necessary to prevent any 
 private corporation from exercising any power, or demanding 
 or collecting any species of taxes, toll, freight or wharfage 
 not authorized by law. He shall, whenever sufficient cause ex- 
 ists, seek a judicial forfeiture of such charters, unless other- 
 wise expressly directed by law, and give legal advice in writing 
 to the Governor and other executive officers, when requested by 
 them, and perform such other duties as may be required by 
 law. He shall reside at the seat of government during his con- 
 tinuance in office. He shall receive for his services an annual 
 salary of two thousand dollars, and no more, besides such fees 
 as may be prescribed by law; provided, that the fees which 
 
Appendix 363 
 
 he shall receive shall not amount to more than two thousand 
 dollars annually. 
 
 Sec. 23. The Comptroller of Public Accounts, the Treasurer 
 and the Commissioner of the General Land Office, shall each 
 hold office for the term of two years, and until his successor is 
 qualified; receive an annual salary of two thousand and five 
 hundred dollars, nad no more ; reside at the capital of the State 
 during his continuance of office, and perform such other duties 
 as are or may be required of him by law. They and the Secretary 
 of State shall not receive to their own use any fees, costs or per- 
 quisites of office. All fees that may be payable by law for any 
 service performed by any officer specified in this section, or in 
 his office, shall be paid, when received, into the State treasury. 
 
 Sec. 24. An account shall be kept by the officers of the 
 executive department, and by all officers and managers of 
 State institutions, of all moneys and choses in action received 
 and disbursed or otherwise disposed of them, severally, from 
 all sources, and for every service performed; and a semi- 
 annual report thereof shall be made to the Governor under oath. 
 The Governor may at any time require information in writing 
 from any and all of said officers or managers, upon any subject 
 relating to the duties, condition, management and expenses of 
 their respective offices and institutions, which information shall 
 be required by the Governor under oath, and the Governor may 
 also inspect their books, accounts, vouchers and public funds; 
 and any officer or manager who at any time shall wilfully 
 make a false report or give false information, shall be guilty of 
 perjury, and so adjudged and punished accordingly, and re- 
 moved from office. 
 
 Sec. 25. The Legislature shall pass efficient laws facilitating 
 the investigation of breaches of trust and duty by all custodians 
 of public funds, and providing for their suspension from office 
 on reasonable cause shown, and for the appointment of 
 temporary incumbents of their offices during such suspension. 
 
 Sec. 26. The Governor, by and with the advice and consent 
 of two-thirds of the Senate, shall appoint a convenient number 
 of notaries public for each county, who shall perform such 
 duties as are now or may be prescribed by law. 
 
364 Appendix 
 
 ARTICLE V. 
 
 JUDICIAL DEPARTMENT. 
 
 Section 1. The judicial power of this State shall be vested 
 in one Supreme Court, in a Court of Appeals, in district 
 courts, in county courts, in commissioners courts, in courts of 
 justice of the peace, and in such other courts as may be estab- 
 ished by law. The Legislature may establish criminal district 
 courts with such jurisdiction as it may prescribe, but no such 
 courts shall be established unless the district includes a city 
 containing at least thirty thousand inhabitants, as ascertained 
 by the census of the United States or other official census; 
 provided, such town or city shall support said criminal district 
 courts when established. The Criminal District Court of Gal- 
 veston and Harris Counties shall continue with the district, 
 jurisdiction and organization now existing by law, until other- 
 wise provided by law. 
 
 Sec. 2. The Supreme Court shall consist of a chief justice 
 and two associate justices, any two of whom shall constitute 
 a quorum, and the concurrence of two judges shall be neces- 
 sary to the decision of a case. No person shall be eligible to 
 the office of chief justice or associate justice of the Supreme 
 Court unless he be at the time of his election a citizen of the 
 United States and of this State, and unless he shall have at- 
 tained the age of thirty years, and shall have been a practicing 
 lawyer or judge of a court in this State, or such lawyer and 
 judge together, at least seven years. Said chief justice and 
 associate justices shall be elected by the qualified voters of the 
 State at a general election, shall hold their offices for six years, 
 and shall each receive an annual salary of not more than three 
 thousand five hundred and fifty dollars. In case of a vacancy 
 in the office of chief justice or associate justice of the Supreme 
 Court, the Governor shall fill the vacancy until the next general 
 election for State officers, and at such general election the 
 vacancy for the unexpired term shall be filled by election by 
 the qualified voters of the State. 
 
 Sec. 3. The Supreme Court shall have appellate jurisdiction 
 only, which shall be co-extensive with the limits of the State; 
 but shall only extend to civil cases of which the district courts 
 have original or appellate jurisdiction. Appeals may be allowed 
 from interlocutory judgments of the district courts, in such 
 cases and under such regulations as may be provided by law. 
 The Supreme Court and the judges thereof shall have power 
 to issue, under such regulations as may be prescribed by law, 
 
Appendix 365 
 
 the writ of mandamus and all other writs necessary to enforce 
 the jurisdiction of said court. The Supreme Court shall have 
 power, upon affidavit or otherwise, as by the court may be 
 thought proper, to ascertain such matters of fact as may be 
 necessary to the proper exercise of its jurisdiction. The Supreme 
 Court shall sit for the transaction of business from the first 
 Monday in October until the last Saturday in June of every 
 year, at the seat of government, and not more than two other 
 places in the State. 
 
 Sec. 4. The Supreme Court shall appoint a clerk for each 
 place at which it may sit, and each of said elerks shall give 
 bond in such manner as is now or may hereafter be required 
 by law; shall hold his office for four years, and shall be sub- 
 ject to removal by the said court for good cause, entered of 
 record on the minutes of said court. 
 
 Sec. 5. The Court of Appeals shall consist of three judges, 
 any two of whom shall constitute a quorum, and the concur- 
 rence of two judges shall be necessary to a decision of said 
 court. They shall be elected by the qualified voters of the State 
 at a general election. They shall be citizens of the United 
 States and of this State ; shall have arrived at the age of thirty 
 years at the time of election; each shall have been a practicing 
 lawyer or a judge of a court in this State, or such judge and 
 lawyer together, for at least seven years. Said judges shall hold 
 their offices for a term of six years, and each of them shall 
 receive an annual salary of three thousand filve hundred and 
 fifty dollars, which shall not be increased or diminished during 
 their term of office. 
 
 Sec. 6. The Court of Appeals shall have appellate jurisdiction, 
 coextensive with the limits of the State, in all criminal eases, of 
 whatever grade, and in all civil cases unless hereafter otherwise 
 provided by law, of which the county courts have original or 
 appellate jurisdiction. In civil cases its opinions shall not be 
 published unless the publication of such opinions be required 
 by law. The Court of Appeals and the judges thereof shall 
 have power to issue the writ of habeas corpus; and under such 
 regulations as may be prescribed by law, issue such writs as 
 may be necessary to enforce its own jurisdiction. The Court 
 of Appeals shall have power, upon affidavits, or otherwise, as 
 by the court may be thought proper, to ascertain such matters 
 of fact as may be necessary to the exercise of its jurisdiction. 
 The Court of Appeals shall sit, for the transaction of business 
 from the first Monday of October until the last Saturday of 
 June of every year, at the capital, and at not more than two 
 other places in the State, at which the Supreme Court shall 
 hold its sessions. The court shall appoint a clerk for each place 
 
366 Appendix 
 
 at which it may sit, and each of said clerks shall give bond in 
 such manner as is now or may hereafter be required by law; 
 shall hold his office for four years, and shall be subject to re- 
 moval by the said court for good cause, entered of record on the 
 minutes of said court. 
 
 Sec. 7. The State shall be divided into twenty-six judicial 
 districts, which may be increased or diminished by the Legisla- 
 ture. For each district there shall be elected by the qualified 
 voters thereof, at a general election for members of the Legisla- 
 ture, a judge, who shall be at least twenty-five years of age, 
 and shall be a citizen of the United States, shall have been a 
 practicing attorney or a judge of a court in this State for the 
 period of four years, and shall have resided in the district in 
 which he is elected for two years next before his election; shall 
 reside in his district during his term of office; shall hold his 
 office for the term of four years; shall receive an annual salary 
 of twenty-five hundred dollars, which shall not be increased 
 or diminished during his term of service; and shall hold the 
 regular terms of court at one place in each county in the dis- 
 trict twice in each year, in such manner as may be prescribed 
 by law. The Legislature shall have power by general act to 
 authorize the holding of special terms, when necessary, and to 
 provide for holding more than two terms of the court in any 
 county, for the dispatch of business; and shall provide for the 
 holding of district courts when the judge thereof is absent, or 
 from any cause disabled or disqualified from presiding. 
 
 Sec. 8. The district court shall have original jurisdiction in 
 criminal eases of the grade of felony; of all suits in behalf of 
 the State to recover penalties, forfeitures and escheats; of all 
 cases of divorce ; in cases of misdemeanors involving official mis- 
 conduct; of all suits to recover damages for slander or defama- 
 tion of character; of all suits for the trial of title to land, and 
 for the enforcement of liens thereon; of all suits for trial of 
 right to property levied on by virtue of writ of execution, se- 
 questration or attachment, when the property levied on shall 
 be equal to or exceed in value five hundred dollars; and of all 
 suits, complaints or pleas whatever, without regard to any dis- 
 tinction between law and equity, when the matter in controversy 
 shall be valued at or amount to five hundred dollars exclusive 
 of interest ; and the said courts and the judges thereof shall have 
 power to issue writs of habeas corpus in felony cases, madamus, 
 injunction, certiorari, and all writs necesary to enforce their 
 jurisdiction. The district court shall have appellate jurisdic- 
 tion and general control in probate matters over the 
 county court established in each county, for appointing guard- 
 ians, granting letters testamentary and of administration for 
 
Appendix 367 
 
 settling the accounts of executors, administrators and guardians 
 and for the transaction of business appertaining to states; and 
 original jurisdiction and general control over executors, ad- 
 ministrators, guardians and minors, under such regulations as 
 may be prescribed by the Legislature. All cases now pending 
 in the Supreme Court, of which the Court of Appeals has ap- 
 pellate jurisdiction under the provisions of this article, shall, 
 as soon as practicable after the establishment of said Court of 
 Appeals, be certified and the records transmitted to the Court of 
 Appeals, and shall be decided by such Court of Appeals as if 
 the same had been originally appealed to such court. [Const. 
 1876.] 
 
 [Sees. 1, 2, 3, 4, 5, 6, 7, 8, Art. 5, declared adopted Sept. 22, 1891.] 
 
 Section 1. The judicial powers of this State shall be vested 
 in one Supreme Court, in Courts of Civil Appeals, in a Court 
 of Criminal Appeals, in district courts, in county courts, in 
 commissioners courts, in court of justices of the peace, and in 
 such other courts as may be provided by law. The Criminal 
 District Court of Galveston and Harris counties shall continue 
 with the district, jurisdiction and organization now existing by 
 law until otherwise provided by law. The Legislature may 
 establish such other courts as it may deem necessary, and pre- 
 scribe the jurisdiction and organization thereof, and may con- 
 form the jurisdiction of the district and other inferior courts 
 thereto. 
 
 Sec. 2. The Supreme Court shall consist of a chief justice 
 and two associate justices, any two of whom shall constitute a 
 quorum, and the concurrence of two judges shall be necessary 
 to the decision of a case. No person shall be eligible to the office 
 of Chief Justice or Associate Justice of the Supreme Court un- 
 less he be, at the time of his election, a citizen of the United 
 States and of this State, and unless he shall have attained the 
 age of thirty years, and shall have been a practicing lawyer or a 
 judge of a court, or such lawyer and judge together, at least 
 seven years. Said Chief Justice and Associate Justices shall be 
 elected by the qualified voters of the State at a general election, 
 shall hold their offices six years,' or until their successors are 
 elected and qualified, and shall each reecive an annual salary 
 of four thousand dollars until otherwise provided by law. In 
 
368 Appendix 
 
 case of a vacancy in the office of Chief Justice of the Supreme 
 Court, the Governor shall fill the vacancy until the next general 
 election for State officers, and at such general election the 
 vacancy for the unexpired term shall be filled by election by the 
 qualified voters of the State. The judges of the Supreme Court 
 who may be in office at the time this amendment takes effect, 
 shall continue in office until the expiration of their term of 
 office under the present Constitution, and until their successors 
 are elected and qualified. 
 
 Sec. 3. The Supreme Court shall have appellate jurisdiction 
 only, except as herein specified, which shall be coextensive with 
 the limits of the State. Its appellate jurisdiction shall extend 
 to questions of law arising in cases in which the Courts of Civil 
 Appeals have appellate jurisdiction, under such restrictions and 
 regulations as the Legislature may prescribe. Until otherwise 
 provided by law the appellate jurisdiction of the Supreme Court 
 shall extend to questions of law arising in the cases in the Courts 
 of Civil Appeals in which the judges of any Court of Civil Ap- 
 peals may disagree, or where the several Courts of Civil Ap- 
 peals may hold differently on the same question of law, or 
 where a statute of the State is held void. The Supreme Court 
 and the justices thereof shall have power to issue writs of 
 habeas corpus as may be prescribed by law, and under such 
 regulations as may be prescribed by law the said courts and 
 the justices thereof may issue the writs of mandamus, procedendo, 
 certiorari, and such other writs as may be necessary to enforce 
 its jurisdiction. The Legislature may confer original jurisdic- 
 tion on the Supreme Court to issue writs of quo warranto and 
 mandamus in such cases as may be specified except as against 
 the Governor of the State. The Supreme Court shall also have 
 power, upon affidavit or otherwise as by the court may be de- 
 termined, to ascertain such matters of fact as may be necessary 
 to the proper exercise of its jurisdiction. The Supreme Court 
 shall sit for the transaction of business from the first Monday 
 in October of each year until the last Saturday of June in the 
 next year, inclusive, at the capital of the State. The Supreme 
 Court shall appoint a clerk, who shall give bond in such manner 
 as is now or may hereafter be required by law, and he may hold 
 his office for four years, and shall be subject to removal by said 
 
Appendix 369 
 
 court for good cause, entered of record on the minutes of said 
 court, who shall receive such compensation as the Legislature 
 may provide. 
 
 Sec. 4. The Court of Criminal Appeals shall consist of three 
 judges, any two of whom shall constitute a quorum, and the con- 
 currence of two judges shall be necessary to a decision of said 
 court. Said judges shall have the same qualifications and receive 
 the same salaries as the judges of the Supreme Court. They 
 shall be elected by the qualified voters of the State at a general 
 election, and shall hold their offices for a term of six years. In 
 case of a vacancy in the office of a judge of the Court of Crimi- 
 nal Appeals the Governor shall fill such vacancy by appointment 
 for the unexpired term. The judges of the Court of Appeals who 
 may be in office at the time when this amendment takes effect 
 shall continue in office until the expiration of their term of 
 office under the present Constitution and laws as judges of the 
 Court of Criminal Appeals. 
 
 Sec. 5. The Court of Criminal Appeals shall have appellate 
 judisdiction coextensive with the limits of the State in all 
 criminal cases of whatever grade, with such exceptions and under 
 such regulations as may be prescribed by law. The Court of 
 Criminal Appeals and the judges thereof shall have the power 
 to issue the writ of Tiabeas corpus, and, under such regulations 
 as may be prescribed by law, issue such writs as may be necessary 
 to enforce its own jurisdiction. The Court of Criminal Appeals 
 shall have power, upon affidavit or otherwise, to ascertain such 
 matters of fact as may be necessary to the exercise of its juris- 
 diction. The Court of Criminal Appeals shall sit for the trans- 
 action of business from the first Monday in October to the last 
 Saturday of June in each year at the State capital and two other 
 places (or the capital city) if the Legislature shall hereafter 
 so provide. The Court of Criminal Appeals shall appoint a 
 clerk at such place at which it may sit, and each clerk shall give 
 bond in such manner as is now or may hereafter be required by 
 law, and who shall hold his office for four years unless sooner re- 
 moved by the court for good cause, entered of record on the 
 minutes of said court. 
 
 Sec. 6. The Legislature shall, as soon as practicable after the 
 adoption of this amendment, divide the State into not less than 
 
370 Appendix 
 
 two nor more than three supreme judicial districts, and there- 
 after into such additional districts as the increase of population 
 and business may require, and shall establish a Court of Civil 
 Appeals in each of said districts, which shall consist of a chief 
 justice and two associate justices, who shall have the qualifica- 
 tions as herein prescribed for justices of the Supreme Court. 
 Said Court of Civil Appeals shall have appellate jurisdiction 
 coextensive with the limits of their respective districts, which 
 shall extend to all civil cases of which the district courts or 
 county courts have orginal or appellate jurisdiction, under such 
 restrictions and regulations as may be prescribed by law; pro- 
 vided, that the decision of such courts shall be conclusive of all 
 questions of fact brought before them on appeal or error. Each 
 of said Courts of Civil Appeals shall hold its sessions at a place 
 in its district to be designated by the Legislature, and at such 
 time as may be prescribed by law. Said justices shall be elected 
 by the qualified voters of their respective districts, at a general 
 election, for a term of six years, and shall receive for their 
 services the sum of three thousand five hundred dollars per 
 annum until otherwise provided by law. Said courts shall have 
 such other jurisdiction, original and appellate, as may be pre- 
 scribed by law. Bach Court of Civil Appeals shall appoint a 
 clerk in the same manner as the clerk of the Supreme Court, 
 which clerk shall receive such compensation as may be fixed by 
 law. Until the organization of the Courts of Civil Appeals and 
 Criminal Appeals, as herein provided for, the jurisdiction, power 
 and organization and location of the Supreme Court, the Court 
 of Appeals and the Commission of Appeals shall continue as they 
 were before the adoption of this amendment. All civil cases 
 which may be pending in the Court of Appeals shall, as soon 
 as practicable after the organization of the Courts of Civil Ap- 
 peals, be certified to and the records thereof transmitted to the 
 proper Courts of Civil Appeals, to be decided by said courts. 
 At the first session of the Supreme Court, the Court of Criminal 
 Appeals, and such of the Courts of Civil Appeals which may be 
 hereafter created under this article after the first election of the 
 judges of such courts under this amendment, the terms of office 
 of the judges of each court shall be divided into three classes, 
 and the justices thereof shall draw for the different classes. 
 
Appendix 371 
 
 Those who shall draw class No. 1 shall hold their offices for two 
 years, those drawing class No. 2 shall hold their offices for four 
 years, and those who may draw class No. 3 shall hold their offices 
 for six years from the date of their election and until their 
 successors are elected and qualified; and thereafter each of the 
 said judges shall hold his office for six years, as provided by this 
 Constitution. 
 
 Sec. 7. The State shall be divided into as many judicial dis- 
 tricts as may now or hereafter be provided by law, which may 
 be increased or diminished by law. For each district there shall 
 be elected by the qualified voters thereof, at a general election, a 
 judge, who shall be a citizen of the United States and of this 
 State, who shall have been a practicing lawyer of this State 
 or a judge of a court in this State for four years next preceding 
 his election ; who shall have resided in the district in which he was 
 elected for two years next preceding his election; who shall re- 
 side in his district during his term of office ; who shall hold his 
 office for the period of four years, and shall receive for his 
 services an annual salary of two thousand five hundred dollars 
 until otherwise changed by law. 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 the 
 court, or the holding of more than two terms in any county 
 for the dispatch of business. The Legislature shall also provide 
 for the holding of district court when the judge thereof is 
 absent, or is from any cause disabled or disqualified from pre- 
 siding. The district judges who may be in office when this 
 amendment takes effect shall hold their offices until their re- 
 spective terms shall expire under their present election or ap- 
 pointment. 
 
 Sec. 8. The district court shall have original jurisdiction of 
 all criminal cases of the grade of felony; in all suits in behalf 
 of the State to recover penalties, forfeitures and escheats; of 
 all cases of divorce; of all misdemeanors involving official mis- 
 conduct; of all suits to recover damages for slander or defama- 
 tion of character; of all suits for trial of title to land and for 
 the enforcement of liens thereon ; of all suits for the trial of the 
 
372 Appendix 
 
 right of property levied upon by Virtue of any writ of execution 
 sequestration or attachment when the property levied on shall 
 be equal to or exceed in value five hundred dollars ; of all suits, 
 complaints or pleas whatever, without regard to any distinction 
 between law and equity, when the matter in controversy shall be 
 valued at or amount to five hundred dollars exclusive of interest ; 
 of contested elections, and said court and the judges thereof shall 
 have power to issue writs of habeas corpus, mandamus, injunction 
 and certiorari, and all writs necessary to enforce their jurisdic- 
 tion. The district court shall have appellate jurisdiction and 
 general control in probate matters over the county court es- 
 tablished in each county for appointing guardians, granting let- 
 ters testamentary and of administration, probating wills, for 
 settling the accounts of executors, administrators and guardians, 
 and for the transaction of all business appertaining to estates; 
 and original jurisdiction and general control over executors, ad- 
 ministrators, guardians and minors, under such regulations as 
 may be prescribed by law. The district court shall have appellate 
 jurisdiction and general supervisory control over the county 
 commissioners court, with such exceptions and under such regu- 
 lations as may be prescribed by law; and shall have general 
 original jurisdiction over all causes of action whatever for which 
 a remedy or jurisdiction is not provided by law. or this Con- 
 stitution, and such other jurisdiction, original and appellate, 
 as may be provided by law. 
 
 Sec. 9. There shall be a clerk for the district court of each 
 county, who shall be elected by the qualified voters for the State 
 and county officers; and who shall hold his office for two years, 
 subject to removal by information, or by indictment of a grand 
 jury, and conviction by a petit jury. In case of vacancy the 
 judge of a district court shall have the power to appoint a clerk, 
 who shall hold until the office can be filled by election. 
 
 Sec. 10. In the trial of all causes in the district courts, the 
 plaintiff or defendant shall, upon application made in open court, 
 have the right of trial by jury ; but no jury shall be impaneled 
 in any civil case unless demanded by a party to the case, and a 
 jury fee be paid by the party demanding a jury, for such sum 
 and with such exceptions as may be prescribed by the Legislature. 
 
Appendix 373 
 
 Sec. 11. No judge shall sit in any case wherein he may be 
 interested or where either of the parties may be connected with 
 him by affinity or consanguinity, within such degree as may be 
 prescribed by law, or where he shall have been counsel in the 
 case. "When the Supreme Court, or the appellate court, or any 
 two of the members of either shall be thus disqualified to hear 
 and determine any ease or eases in said court, the same shall be 
 certified to the Governor of the State, who shall immediately 
 commission the requisite number of persons learned in the law, 
 for the trial and determination of said cause or causes. When a 
 judge of the district court is disqualified by any of the causes 
 above stated, the parties may, by consent, appoint a proper per- 
 son to try said case ; or, upon their failing to do so, a compe- 
 tent person may be appointed to try the same in the county 
 where it is pending, in such manner as may be prescribed by law. 
 And the district judges may exchange districts, or hold courts 
 for each other, when they may deem it expedient, and shall do 
 so when directed by law. The disqualification of judges of infe- 
 rior tribunals shall be remedied, and vacancies in their offices 
 shall be filled, as prescribed by law. 
 
 Sec. 12. All judges of the Supreme Court, Court of Appeals 
 and district court shall, by virtue of their office, be conservators 
 of the peace throughout the State. The style of all writs and 
 process shall be, "The State of Texas." All prosecutions shall 
 be carried on in the name and by the authority of "The State 
 of Texas," and conclude "against the peace and dignity of the 
 State." [Const. 1876.] 
 
 [Sees. 11 and 12, Art. 5, declared adopted September 22, 1891.] 
 
 Sec. 11. No judge shall sit in any case wherein he may be 
 interested, or when either of the parties may be connected with 
 him either by affinity or consanguinity, within such a degree as 
 may be prescribed by law, or when he shall have been counsel 
 in the case. "When the Supreme Court, the Court of Criminal 
 Appeals, the Court of Civil Appeals, or any member of either, 
 shall be thus disqualified to hear and determine any case or cases 
 in said court, the same shall be certified to the Governor of the 
 State, who shall immediately commission the requisite number 
 of persons learned in the law, for the trial and determination of 
 such cause or causes. When a judge of the district court is dis- 
 qualified by any of the causes above stated, the parties may, by 
 consent, appoint a proper person to try said case ; or, upon their 
 
374 Appendix 
 
 failing to do so, a competent person may be appointed to try the 
 same in the county where it is pending, in such manner as may 
 be prescribed by law. And the district judges may exchange 
 districts or hold courts for each other when they may deem it 
 expedient, and shall do so when required by law. This disqual- 
 ification of judges of inferior tribunals shall be remedied and 
 vacancies in their offices filled, as may be prescribed by law. 
 
 Sec. 12. All judges of courts of this State shall, by virtue 
 of their office, be conservators of the peace throughout the State. 
 The style of all writs and process shall be "The State of Texas." 
 All prosecutions shall be carried on in the name and by the au- 
 thority of the State of Texas, and shall concluded "against the 
 peace and dignity of the State." 
 
 Sec. 13. Grand and petit juries in the district courts shall be 
 composed of twelve men ; but nine members of a grand jury shall 
 be a quorum to transact business and present bills. In trials of 
 civil cases and in trials of criminal cases below the grade of felony 
 in the district courts, nine members of the jury concurring may 
 render a verdict, but when the verdict shall be rendered by 
 less than the whole number, it shall be signed by every mem- 
 ber of the jury concurring in it. "When, pending the trial of 
 any case, one or more jurors, not exceeding three, may die, or be 
 disabled from sitting, the remainder of the jury shall have the 
 power to render the verdict ; provided, that the Legislature may 
 change or modify the rule authorizing less than the whole number 
 of the jury to render a verdict. 
 
 Sec. 14. The judicial districts in this State and the time of 
 holding the courts therein are fixed by ordinance forming part of 
 this Constitution until otherwise provided by law. 
 
 Sec. 15. There shall be established in each county in this 
 State a county court, which shall be a court of record ; and there 
 shall be elected in each county by the qualified voters a county 
 judge, who shall be well informed in the law of the State, shall 
 be a conservator of the peace, and shall hold his office for two 
 years and until his successors shall be elected and qualified. He 
 shall receive as a compensation for his services such fees and 
 perquisites as may be prescribed by law. 
 
 Sec. 16. The county court shall have original jurisdiction of 
 all misdemeanors, of which exclusive original jurisdiction is not 
 
Appendix 375 
 
 given to the justices' courts, as the same are now or may be 
 hereafter prescribed by law, and when the fine to be imposed 
 shall exceed two hundred dollars ; and they shall have exclusive 
 original jurisdiction in all civil cases when the matter in contro- 
 versy shall exceed in value two hundred dollars and not exceed 
 five hundred dollars, exclusive of interest; and concurrent juris- 
 diction with the district courts, when the matter in controversy 
 shall exceed five hundred and not exceed one thousand dollars 
 exclusive interest, but shall not have jurisdiction of suits for 
 the recovery of land. They shall have appellate jurisdiction in 
 cases, civil and criminal, of which justices' courts have original 
 jurisdiction, but of such civil cases only when the judgment of 
 the court appealed from shall exceed twenty dollars, exclusive of 
 costs under such regulations as may be prescribed by law. In all 
 appeals from justices ' courts, there shall be a trial de novo in the 
 county court, and when the judgment rendered or fine imposed 
 by the county court shall not exceed one hundred dollars such 
 trial shall be final ; but if the judgment rendered or fine imposed 
 shall exceed one hundred dollars, as well as in all cases, civil 
 and criminal, of which the county court has exclusive or con- 
 current original jurisdiction an appeal shall lie to the Court of 
 Appeals, under such regulations as may be prescribed by law. 
 The county courts shall have the general jurisdiction of a probate 
 court. They shall probate wills, appoint guardians of minors, 
 idiots, lunatics, persons non compos mentis, and common drunk- 
 ards, grant letters testementary and of administration, settle 
 accounts of executors, administrators and guardians, trans- 
 act all business appertaining to the estates of deceased per- 
 sons, minors, idiots, lunatics, persons non compos mentis, and 
 common drunkards, including the settlement, partition and dis- 
 tribution of estates of deceased persons, and to apprentice minors 
 as provided by law. And the county courts or judges thereof 
 shall have power to issue writs of mandamus, injunction and all 
 other writs necessary to the enforcement of the jurisdiction of 
 said courts; and to issue writs of habeas corpus in cases where 
 the offense charged is within the jurisdiction of the county court, 
 or any other court or tribunal inferior to said court. The county 
 court shall not have criminal jurisdiction in any county where 
 there is a criminal district court, unless expressly conferred by 
 law ; and in such counties appeals from justices' courts and other 
 inferior courts and tribunals, in criminal cases, shall be to the 
 criminal district courts, under such regulations as may be pre- 
 scribed by law, and in all such cases an appeal shall lie from 
 such district courts to the Court of Appeals. Any case pending 
 in the county court, which the county judge may be disqualified 
 to try, shall be transferred to the district court of the same 
 
376 Appendix 
 
 county for trial; and where there exists any cause disqualifying 
 the county judge for the trial of a cause of which the county 
 court has jurisdiction, the district court of such county shall have 
 original jurisdiction of such cause. [Const. 1876.] 
 
 [Sec. 16, Art. 5, declared adopted September 22, 1891.] 
 Sec. 16. The county court shall have original jurisdiction 
 of all misdemeanors of which exclusive original jurisdiction is 
 not given to the justices' courts as the same is now or may here- 
 after be prescribed by law, and when the fine to be imposed shall 
 exceed $200; and they shall have exclusive jurisdiction in all 
 civil cases when the matter in controversy shall exceed in value 
 $200 and not exceed $500, exclusive of interest ; and concurrent 
 jurisdiction with the district court when the matter in contro- 
 versy shall exceed $500 and not exceed $1000, exclusive of inter- 
 est, but shall not have jurisdiction of suits for the recovery of 
 land. They shall have appellate jurisdiction in cases, civil and 
 criminal, of which justices' courts have original jurisdiction, 
 but of such civil cases only when the judgment of the court ap- 
 pealed from shall exceed $20, exclusive of costs, under such reg- 
 ulations as may be prescribed by law. In all appeals from jus- 
 tices' courts there shall be a trial de novo in the county court, 
 and appeals may be prosecuted from the final judgment ren- 
 dered in such cases by the county court, as well as all cases, civil 
 and criminal, of which the county court has exclusive or concur- 
 rent or original jurisdiction [of civil appeals] in civil cases to 
 the Court of Civil Appeals, and in such criminal cases to the 
 Court of Criminal Appeals, with such exceptions and under such 
 regulations as may be prescribed by law. The county court 
 shall have the general jurisdiction of a probate court ; they shall 
 probate wills, appoint guardians of minors, idiots, lunatics, per- 
 sons non compos mentis, and common drunkards; grant letters 
 testementary and of administration; settle accounts of execu- 
 tors; transact all business appertaining to estates of deceased 
 persons, minors, idiots, lunatics, persons non compos mentis, and 
 common drunkards, including the settlement, partition and dis- 
 tribution of estates of deceased persons; and to apprentice mi- 
 nors as provided by law ; and the county court or judge thereof 
 
Appendix 377 
 
 shall have power to issue writs of injunction, mcmdamus, and all 
 writs necessary to the enforcement of the jurisdiction of said 
 court, and to issue writs of habeas corpus in cases where the of- 
 fense charged is within the jurisdiction of the county court, or 
 any other court or tribunal inferior to said court. The county 
 court shall not have criminal jurisdiction in any county where 
 there is a criminal district court unless expressly conferred by 
 law ; and in such counties appeals from justices' courts and other 
 inferior courts and tribunals in criminal cases shall be to the 
 criminal district court, under such regulations as may be pre- 
 scribed by law, and in all such cases an appeal shall lie from 
 such district court to the Court of Criminal Appeals. When 
 the judge of the county court is disqualified in any case pending 
 in the county court the parties interested may by consent appoint 
 a proper person to try said case, or upon their failing to do so 
 a competent person may be appointed to try the same in the 
 county where it is pending in such manner as may be prescribed 
 by law. 
 
 Sec. 17. The county court shall hold a term for civil business 
 at least once in every two months, and shall dispose of probate 
 business, either in term time or vacation, as may be provided 
 by law, and said court shall hold a term for criminal business 
 once in every month, as may be provided by law. Prosecutions 
 may be commenced in said court by information filed by the coun- 
 ty attorney, or by affidavit, as may be provided by law. Grand 
 juries impaneled in the district courts shall inquire into misde- 
 meanors, and all indictments therefor returned into the district 
 courts shall forthwith be certified to by the county courts, or 
 other inferior courts having jurisdiction to try them, for trial; 
 and if such indictment be quashed in the county, or other infe- 
 rior court, the person charged shall not be discharged if there 
 is probable cause of guilt, but may be held by such court or mag- 
 istrate to answer an information or affidavit. A jury in the 
 county court shall consist of six men; but no jury shall be im- 
 paneled to try a civil case, unless demanded by one of the par- 
 ties, who shall pay such jury fee therefor in advance, as may be 
 prescribed by law, unless he makes affidavit that he is unable to 
 pay the same. 
 
 Sec. 18. Bach organized county in the State, now or hereafter 
 
378 Appendix 
 
 existing, shall be divided from time to time, for the convenience 
 of the people into precincts, not less than four and not more 
 than eight. The present county court shall make the first di- 
 vision. Subsequent divisions shall be made by the commissioners' 
 court provided for by this Constitution. In each such precinct 
 there shall be elected, at each biennial election, one justice of the 
 peace and one constable, each of whom shall hold his office for 
 two years, and until his successor shall be elected and qualified ; 
 provided, that in any precinct in which there may be a city of 
 eight thousand or more inhabitants, there shall be elected two 
 justices of the peace. Each county shall in like manner be divided 
 into four commissioners precincts in each of which there shall be 
 elected by the qualified voters thereof one county commissioner, 
 who shall hold his office for two years, and until his successor 
 shall be elected and qualified. The county commissioners so 
 chosen, with the county judge as presiding officer, shall compose 
 the county commissioners' court, which shall exercise such power 
 and jurisdiction over all county business as is conferred by this 
 Constitution and the laws of the State, or as may be hereafter 
 prescribed. 
 
 Sec. 19. Justices of the peace shall have jurisdiction in crim- 
 inal matters of all cases where the penalty or fine to be imposed 
 by law may not be more than two hundred dollars, and in civil 
 matters of all cases where the amount in controversy is two 
 hundred dollars or less, exclusive of interest, of which exclusive 
 original jurisdiction is not given to the district or county courts ; 
 and such other jurisdiction, criminal and civil, as may be pro- 
 vided by law, under such regulations as may be prescribed by 
 law; and appeals to the county courts shall be allowed in all 
 cases decided in justices' courts where the judgment is for more 
 than twenty dollars, exclusive of costs, and in all criminal cases, 
 under such regulations as may be prescribed by law. And the 
 justices of the peace shall be ex officio notaries public ; and they 
 shall hold their courts at such times and places as may be pro- 
 vided by law. 
 
 Sec. 20. There shall be elected for each county, by the quali- 
 fied voters, a county clerk, who shall hold his office for two years, 
 who shall be clerk of the county and commissioners' courts and 
 recorder of the county, whose duties, perquisites and fees of of- 
 
Appendix 379 
 
 flee shall be prescribed by the Legislature, and a vacancy in whose 
 office shall be filled by the commissioners' court until the next 
 general election for county and State officers ; providing, that in 
 counties having a population of less than eight thousand persons 
 there may be an election of a single clerk, who shall perform the 
 duties of district and county clerks. 
 
 Sec. 21. A county attorney, for counties in which there is 
 not a resident criminal district attorney, shall be elected by the 
 qualified voters of each county, who shall be commissioned by 
 the Governor and hold his office for the term of two years. In 
 case of vacancy the commissioners* court of the county shall have 
 power to appoint a county attorney until the next general elec- 
 tion. The county attorney shall represent the State in all cases 
 in the district and inferior courts in their respective counties; 
 but if any county shall be included in a district in which there 
 shall be a district attorney, the respective duties of district at- 
 torneys and county attorneys shall, in such counties, be regulated 
 by the Legislature. The Legislature may provide for the elec- 
 tion of district attorneys in such districts as may be deemed 
 necessary, and make provision for the compensation of district 
 attorneys and county attorneys; provided, district attorneys 
 shall receive an annual salary of five hundred dollars, to be paid 
 by the State, and such fees, commissions and perquisites as may 
 be provided by law. County, attorneys shall receive as compen- 
 sation only such fees, commissions and perquisites as may be 
 prescribed by law. 
 
 Sec. 22. The Legislature shall have power, by local or gen- 
 eral law, to increase, diminish or change the civil and criminal 
 jurisdiction of county courts; and in cases of any such change 
 of jurisdiction the Legislature shall also conform the jurisdiction 
 of the other courts to such change. 
 
 Sec. 23. There shall be elected by the qualified voters of each 
 county a sheriff, who shall hold his office for the term of two 
 years, whose duties and perquisites, and fees of office shall be 
 prescribed by the Legislature, and vacancies in whose office shall 
 be filled by the commissioners' court until the next general elec- 
 tion for county or State officers. 
 
 Sec. 24. County judges, county attorneys, clerks of the dis- 
 trict and county courts, justices of the peace, constables and 
 
380 Appendix 
 
 other county officers, may be removed by the judges of the dis- 
 trict courts for incompetency, official misconduct, habitual drunk- 
 enness or other causes denned by law, upon the cause therefor 
 being set forth in writing, and the finding of its truth by a jury. 
 
 Sec. 25. The Supreme Court shall have power to make rules 
 and regulations for the government of said court, and the other 
 courts of the State, to regulate proceedings and expedite the dis- 
 patch of business therein. [Const. 1876.] 
 
 [Sec. 25, Art. 5, declared adopted September 22, 1891.] 
 
 Sec. 25. The Supreme Court shall have power to make and 
 establish rules of procedure, not inconsistent with the laws of 
 the State for the government of said court and the other courts 
 of this State, to expedite the dispatch of business therein. 
 
 Sec. 26. The State shall have no right of appeal in criminal 
 cases. 
 
 Sec. 27. The Legislature shall, at its first session, provide for 
 the transfer of all businses, civil and criminal, pending in district 
 courts, over which jurisdiction is given by this Constitution to 
 the county courts or other inferior courts, to such county or in- 
 ferior courts, and for the trial or disposition of all such causes 
 by such county or other inferior courts. 
 
 Sec. 28. Vacancies in the offices of judges in the Supreme 
 Court, of the Court of Appeals, and district court shall be filled 
 by the Governor until the next succeeding general election ; and 
 vacancies in the office of county judge and justice of the peace 
 shall be filled by the commissioners' court, until the next general 
 election for such office. [Const. 1876.] 
 
 [Sec. 28, Art. 5, declared adopted September 22, 1891.] 
 
 Sec. 28. Vacancies in the office of judges of the Supreme 
 Court, the Courts of Criminal Appeals, the Court of Civil Ap- 
 peals and district courts shall be filled by the Governor until 
 the next succeeding general election, and vacancies in the office 
 of county judge and justices of the peace shall be filled by the 
 commissioners' court until the next general election for such 
 offices. 
 
Appendix 381 
 
 [Sec. 29, Art. 5, declared adopted September 25, 1883.] 
 
 Sec. 29. The county court shall hold at least four terms for 
 both civil and criminal business annually, as may be provided 
 by the Legislature, or by the commissioners' court of the county 
 under authority of law, and such other terms each year as may 
 be fixed by the commissioners' court; provided, the commission- 
 ers' court of any county having fixed the times and number of 
 terms of the county court shall not change the same again until 
 the expiration of one year. Said court shall dispose of probate 
 business either in. term time or vacation, under such regulations 
 as may be prescribed by law. Prosecutions may be commenced 
 in said courts in such manner as is or may be provided by law, 
 and a jury therein shall consist of six men. Until otherwise 
 provided, the terms of the county court shall be held on the first 
 Monday in February, May, August and November, and may re- 
 main in session three weeks. 
 
 ARTICLE VI. 
 
 SUFFRAGE. 
 
 Section 1. The following classes of persons shall not be al- 
 lowed to vote in this State, to wit : 
 
 First — Persons under twenty-one years of age. 
 
 Second — Idiots and lunatics. 
 
 Third — All paupers supported by any county. 
 
 Fourth — All persons convicted of any felony ; subject to such 
 exceptions as the Legislature may make. 
 
 Fifth — All soldiers, marines and seamen employed in the ser- 
 vice of the army of the United States. 
 
 Sec. 2. Every male person subject to none of the foregoing 
 disqualifications who shall have attained the age of twenty-one 
 years, and who shall be a citizen of the United States, and who 
 shall have resided in this State one year next preceding an elec- 
 tion, and the last six months within the district or county in 
 which he offers to vote, shall be deemed a qualified elector. And 
 every- male person of foreign birth, subject to none of the fore- 
 going qualifications, who, at any time before an election, shall 
 
382 Appendix 
 
 have declared his intention to become a citizen of the United 
 States in accordance with the Federal naturalization laws, and 
 shall have resided in this State one year next preceding such 
 election, and the last six months in the county in which he offers 
 to vote, shall also be deemed a qualified elector; and all electors 
 shall vote in the election precinct of their residence; provided, 
 that electors living in an unorganized county may vote in any 
 election precinct in the county to which such county is attached 
 for judicial purposes. [Const. 1876.] 
 
 Sec. 2. Every male person subject to none of the foregoing 
 disqualifications, who shall have attained the age of twenty-one 
 years, and who shall be a citizen of the United States, and who 
 shall have resided in this State one year next preceding an elec- 
 tion, and the last six months within the district or county in 
 which he offers to vote, shall be deemed a qualified elector. And 
 every male person of foreign birth, subject to none of the fore- 
 going disqualifications, who, not less than six months before any 
 election at which he offers to vote, shall have declared his inten- 
 tion to become a citizen of the United States in accordance with 
 the Federal naturalization laws, and shall have resided in this 
 State one year next preceding such election, and the last six 
 months in the county in which he offers to vote, shall also be 
 deemed a qualified elector; and all electors shall vote in the 
 election precinct of their residence ; provided, that electors living 
 in an unoraganized county may vote at any election precinct 
 in the county to which such county is attached for judicial pur- 
 poses. [Declared adopted December 18, 1896.] 
 
 [Sec. 2, Art. 6, declared adopted December 26, 1902.] 
 
 Sec. 2. Every male person subject to none of the foregoing 
 disqualifications who shall have attained the age of twenty-one 
 years, and who shall be a citizen of the United States, and who 
 shall have resided in this State one year next preceding an 
 election, and the last six months within the district or county 
 in which he offers to vote, shall be deemed a qualified elector. 
 And every male person of foreign birth, subject to none of the 
 foregoing disqualifications, who, not less than six months before 
 any election at which he offers to vote, shall have declared his 
 intention to become a citizen of the United States in accordance 
 with the Federal naturalization laws, and shall have resided in 
 this State one year next preceding such election, and the last 
 
Appendix 383 
 
 six months in the county in which he offers to vote, shall also 
 be deemd a qualifid elector; and all electors shall vote in the 
 election precinct of their residence ; provided, that electors living 
 in an unorganized county may vote in any election precinct in 
 the county to which such county is attached for judicial pur- 
 
 Sec. 3. All qualified electors in the State, as herein described, 
 who shall have resided for six months immediately preceding an 
 election within the limits of any city or corporate town, shall have 
 the right to vote for mayor and all other elective officers; but 
 in all elections to determine expenditure of money or assumption 
 of debt, only those shall be qualified to vote who pay taxes on 
 property in said city or incorporated town; provided, that no 
 poll tax for the payment of debts thus incurred shall be levied 
 upon the persons debarred from voting in relation thereto. 
 
 Sec. 4. In all elections by the people the votes shall be by 
 ballot, and the Legislature shall provide for the numbering of 
 tickets, and make such other regulations as may be necessary 
 to detect and punish fraud, and preserve the purity of the ballot 
 box; but no law shall ever be enacted requiring a registration of 
 the voters of this State. [Const. 1876.] 
 
 [Sec. 4, Art. 6, declared adopted September 22, 1891.] 
 
 Sec. 4. In all elections by the people the vote shall be by 
 ballot, and the Legislature shall provide for the numbering of 
 tickets and make such other regulations as may be necessary to 
 detect and punish fraud and preserve the purity of the ballot 
 box; and the Legislature may provide by law for the registration 
 of all voters in all cities containing a population of ten thousand 
 inhabitants or more. 
 
 Sec. 5. Voters shall, in all cases, except treason, felony or 
 breach of the peace, be privileged from arrest during their at- 
 tendance at elections, and in going to and returning therefrom. 
 
384 Appendix 
 
 ARTICLE VII. 
 
 EDUCATION — THE PUBLIC FREE SCHOOLS. 
 
 Section 1. A general diffusion of knowledge being essential 
 to the preservation of the liberties and rights of the people, it 
 shall be the duty of the Legislature of the State to establish 
 and make suitable provision for the support and maintenance 
 of an efficient system of public free schools. 
 
 Sec. 2. All funds, lands and other property heretofore set 
 apart and appropriated for the support of public schools, all the 
 alternate sections of land reserved by the State out of grants 
 heretofore made or that may hereafter be made to railroads or 
 other corporations, of any nature whatsoever, one-half of the 
 public domain of the State, and all sums of money that may 
 come to the State from the sale of any portion of the same, 
 shall constitute a perpetual school fund. 
 
 Sec- 3. There shall be set apart annually not more than one- 
 fourth of the general revenue of the State, and a poll tax of 
 one dollar on all male inhabitants in this State between the ages 
 of twenty-one and sixty years, for the benefit of the public free 
 schools. [Const. 1876.] 
 
 Sec. 3. One-fourth of the revenue derived from the State 
 occupation taxes, and a poll tax of one dollar on every male 
 inhabitants of this State between the ages of twenty-one and 
 sixty years, shall be set apart annually for the benefit of the 
 public free schools, and, in addition thereto, there shall be levied 
 and collected an annual ad valorem State tax of such an amount 
 not to exceed twenty cents on the one hundred dollars valuation, 
 as, with the available school fund arising from all other sources, 
 will be sufficient to maintain and support the public free schools 
 of this State for a period of not less than six months in each 
 year; and the Legislature may also provide for the formation 
 of school districts within all or any of the counties of this State, 
 by general or special law, without the local notice required in 
 other cases of special legislation, and may authorize an additional 
 annual ad valorem tax to be levied and collected within such 
 school districts for the further maintenance of public free schools 
 and the erection of school buildings therein ; provided, that two- 
 thirds of the qualified property taxpaying voters of the district, 
 voting at an election to be held for that purpose, shall vote such 
 tax, not to exceed in any one year twenty cents on the one hun- 
 
Appendix 385 
 
 dred dollars valuation of the property subject to taxation in such 
 district, but the limitation upon the payment of district tax 
 herein authorized shall not apply to incorporated cities or towns 
 constituting separate and independent school districts. [Amend- 
 ment 1883.] 
 
 Sec. 3. One-fourth of the revenue derived from the State 
 occupation taxes and a poll tax of one dollar on every male 
 inhabitant of this State between the ages of twenty-one and sixty 
 years shall be set apart annually for the benefit of the public 
 free schools, and in addition thereto there shall be levied and 
 collected an annual ad valorem State tax of such amount not to 
 exceed twenty cents on the one hundred dollars valuation, as 
 with the available school fund arising from all other sources, will 
 be sufficient to maintain and support the public free schools of 
 this State for a period of not less than six months in each year, 
 and the Legislature may also provide for the formation of school 
 districts within all or any of the counties of this State by general 
 or special law, without the local notice required in other cases of 
 special legislation, and may authorize an additional ad valorem. 
 tax to be levied and collected within such school districts for the 
 further maintenance of public free schools, and the erection and 
 equipment of school buildings therein; provided, that a majority 
 of the qualified property taxpaying voters of the district, voting 
 at an election to be held for that purpose, shall vote such tax, 
 not to exceed in any one year fifty cents on the one hundred 
 dollars valuation of the property subject to taxation in such dis- 
 trict, but the limitation upon the amount of district tax herein 
 authorized shall not apply to incorporated cities or towns con- 
 stituting separate and independent school districts. [Amend- 
 ment 1908.] 
 
 [Sec. 3, Art. 7, declared adopted September 24, 1909.] 
 
 Sec- 3. One-fourth of the revenue derived from the State 
 occupation taxes and a poll tax of $1 on every male inhabitant 
 of this State between the ages of 21 and 60 years shall be set 
 apart annually for the benefit of the public free schools, and in 
 addition thereto there shall be levied and collected an annual 
 ad valorem State tax of such an amount, not to exceed 20 cents 
 on the $100 valuation, as with the available school fund arising 
 from all other sources, will be sufficient to maintain and support 
 the public free schools of this State for a period of not less than 
 six months in each year, and the Legislature may also provide 
 for the formation of school districts by general or special law, 
 
386 Appendix 
 
 without the local notice required in other cases of special legisla- 
 tion, and all such school districts, whether created by general 
 or special law may embrace parts of two or more counties. And 
 the Legislature shall be authorized to pass laws for the assessment 
 and collection of taxes in all said districts and for the management 
 and control of the public school or schools of such districts, 
 whether such districts are composed of territory wholly within 
 a county or in parts of two or more counties. And the Legisla- 
 ture may authorize an additional ad valorem tax to be levied and 
 collected within all school districts heretofore formed or here- 
 after formed for the further maintenance of public free schools, 
 and the erection and equipment of school buildings therein, pro- 
 vided that a majority of the qualified property tax-paying voters 
 of the district, voting at an election to be held for that purpose, 
 shall vote such tax, not to exceed in any one year 50 cents on the 
 $100 valuation of the property subject to taxation in such district, 
 but the limitation upon the amount of school district tax herein 
 authorized shall not apply to incorporated cities or towns con- 
 stituting separate and independent school districts. 
 
 Sec. 3a. Every school district heretofore formed, whether 
 formed under the general law or by spcial act, and whether the 
 territory embraced within its boundaries lies wholly within a 
 single county or partly in two or more counties, is hereby declared 
 to be, and from its formation to have been, a valid and lawful 
 district. 
 
 All bonds heretofore issued by any such districts which have 
 been approved by the Attorney-General and registered by the 
 Comptroller are hereby declared to be, and at the time of their 
 issuance to have been, issued in conformity with the Constitution 
 and laws of this State, and any and all such bonds are hereby in 
 all things validated and declared to be valid and binding obliga- 
 tions upon the district or districts issuing the same. 
 
 Each such district is hereby authorized to, and shall, annually 
 levy and collect an ad valorem tax sufficient to pay the interest 
 on all such bonds, and to provide a sinking fund sufficient to 
 redeem the same at maturity, not to exceed such a rate as may 
 be provided by law under other provisions of this Constitution. 
 And all trustees heretofore elected in districts made up of more 
 than one county are hereby declared to have been duly elected, 
 
Appendix 387 
 
 and shall be and are hereby named as trustees of their respective 
 districts, with power to levy the taxes herein authorized until 
 their successor shall be duly elected and qualified as is or may 
 be provided by law. 
 
 Sec. 4. The lands herein set apart to the public free school 
 fund shall be sold under such regulations, at such times and on 
 such terms as may be prescribed by law ; and the Legislature shall 
 not have power to grant any relief to purchasers thereof. The 
 Comptroller shall invest the proceeds of such sales, and of those 
 heretofore made, as may be directed by the Board of Education 
 herein provided for, in the bonds of this State, if the same can 
 be obtained, otherwise in United States bonds; and the United 
 States bonds now belonging to said fund shall likewise be in- 
 vested in State bonds, if the same can be obtained on terms ad- 
 vantageous to the school fund. [Const. 1876.] 
 
 [Sec. 4, Art. 7, declared adopted September 25, 1883.] 
 
 Sec. 4. The lands herein set apart to the public free school 
 fund shall be sold under such regulations, at such times, and on 
 such terms as may be prescribed by law ; and the Legislature shall 
 not have power to grant any relief to purchasers thereof. The 
 Comptroller shall invest the proceeds of such sales, and of those 
 heretofore made, as may be directed by the Board of Education 
 herein provided for, in the bonds of the United States, the State 
 of Texas, or counties of such State, or in such other securities 
 and under such restrictions as may be prescribed by law; and 
 the State shall be responsible for all investments. 
 
 Sec. 5. The principal of all bonds and other funds, and the 
 principal arising from the sale of lands hereinbefore set apart to 
 said school fund, shall be the permanent school fund ; and all the 
 interest derivable therefrom and the taxes herein authorized and 
 levied shall be the available school fund, which shall be applied 
 annually to the support of the public free schools. And no law 
 shall ever be enacted appropriating any part of the permanent 
 or available school fund to any other purpose whatever; nor 
 shall the same, or any part thereof, ever be appropriated to or 
 used for the support of any sectarian school ; and the available 
 school fund herein provided shall be distributed to the several 
 counties according to their scholastic population and applied in 
 manner as may be provided by law. [Const. 1876.] 
 
388 Appendix 
 
 [See. 5, Art. 7, declared adopted September 22, 1891.] 
 
 Sec. 5. The principal of all bonds and other funds, and the 
 principal arising from the sale of the lands hereinbefore set 
 apart to said school fund, shall be the permanent school fund; 
 and all the interest derivable therefrom and the taxes herein 
 authorized and levied shall be the available school fund, to which 
 the Legislature may add not exceeding one per cent annually 
 of the total value of the permanent school fund; such value 
 to be ascertained by the Board of Education until otherwise 
 provided by law; and the available school fund shall be applied 
 annually to the support of the public free schools. And no 
 law shall ever be enacted appropriating any part of the perma- 
 nent or available school fund to any other purpose whatever; 
 nor shall the same or any part thereof ever be appropriated to 
 or used for the support of any secetarian school ; and the avail- 
 able school fund herein provided shall be distributed to the 
 several counties according to their scholastic population and ap- 
 plied in such manner as may be provided by law. 
 
 Sec. 6. All lands heretofore or hereafter granted to the 
 several counties of this State for education, or schools, are of 
 right the property of said counties respectively to which they 
 were granted, and title thereto is vested in said counties, and no 
 adverse possession or limitation shall ever be available against 
 the title of any county. Bach county may sell or dispose of its 
 lands in whole or in part, in manner to be provided by the com- 
 missioners court of the county. Actual settlers residing on said 
 lands shall be protected in the prior right of purchasing the same 
 to the extent of their settlement, not to exceed one hundred and 
 sixty acres, at the price fixed by said court, which price shall not 
 include the value of existing improvements made thereon by 
 such settlers. Said lands and the proceeds thereof, when sold, 
 shall be held by said counties alone as a trust for the benefit of 
 public schools therein ; said proceeds to be invested in bonds of 
 the State of Texas, or of the United States, and only the interest 
 thereon to be used and expended annually. [Const. 1876.] 
 
 [Sec. 6, Art. 7, declared adopted September 25, 1883.] 
 
 Sec. 6. All lands heretofore or hereafter granted to the sev- 
 eral counties of this State for educational purposes are of right 
 
Appendix 389 
 
 the property of said counties respectively to which they were 
 granted, and title thereto is vested in said counties, and no 
 adverse possession or limitation shall ever be available against the 
 title of any county. Each county may sell or dispose of its 
 lands in whole or in part, in manner to be provided by the com- 
 missioners court of the county. Actual settlers residing on said 
 land shall be protected in the prior right of purchasing the same 
 to the extent of their settlement, not to exceed one hundred and 
 sixty acres, at the price fixed by said court, which price shall not 
 include the value of existing improvements made thereon by such 
 settlers. Said lands, and the proceeds thereof, when sold, shall 
 be held by said counties alone as a trust for the benefit of public 
 schools therein; said proceeds to be invested in bonds of the 
 United States, the State of Texas, or counties in said State, or 
 in such other securities, and under such restrictions as may be 
 prescribed by law; and the counties shall be responsible for all 
 investments; the interest thereon and other revenue, except the 
 principal, shall be available fund. 
 
 Sec. 7. Separate schools shall be provided for the white and 
 colored children, and impartial provision shall be made for both. 
 
 Sec. 8. The Governor, Comptroller and Secretary of State 
 shall constitute a board of education, who shall distribute said 
 funds to the several counties and perform such other duties con- 
 cerning public schools as may be prescribed by law. 
 
 ASYLUMS. 
 
 Sec. 9. All lands heretofore granted for the benefit of the 
 lunatic, blind, deaf and dumb, and orphan asylums, together 
 with such donations as may have been or may hereafter be made 
 to either of them, respectively, as indicated in the several grants, 
 are hereby set apart to provide a permanent fund for the sup- 
 port, maintenance and improvement of said asylums. And the 
 Legislature may provide for the sale of the lands and the in- 
 vestment of the proceeds in the manner as provided for the sale 
 and investment of school lands in section four of this article. 
 
390 Appendix 
 
 UNIVERSITY. 
 
 Sec. 10. The Legislature shall, as soon as practicable, estab- 
 lish, organize and provide for the maintenance, support and di- 
 rection of a university of the first class, to be located by a vote 
 of the people of this State and styled ' ' The University of Texas, ' ' 
 for the promotion of literature and the arts and sciences, includ- 
 ing an agricultural and mechanical department. 
 
 Sec. 11. In order to enable the Legislature to perform the 
 duties set forth in the foregoing section, it is hereby declared that 
 all lands and other property heretofore set apart and appro- 
 priated for the establishment and maintenance of "The Univer- 
 sity of Texas," together with all the proceeds of sales of the 
 same, heretofore made or hereafter to be made, and all grants, 
 donations and appropriations that may hereafter be made by the 
 State of Texas, or from any other source, shall constitute and 
 become a permanent university fund. And the same as realized 
 and received into the treasury of the State (together with such 
 sum belonging to the fund as may now be in the treasury), shall 
 be invested in bonds of the State of Texas, if the same can be 
 obtained; if not, then in United States bonds; and the interest 
 accruing thereon shall be subject to appropriation by the Legis- 
 lature to accomplish the purpose declared in the foregoing sec- 
 tion ; provided, that the one-tenth of the alternate sections of the 
 lands granted to railroads, reserved by the State, which were set 
 apart and appropriated to the establishment of "The University 
 of Texas," by an act of the Legislature of February 11, 1858, 
 entitled "An Act to establish 'The University of Texas'," shall 
 not be included in or constitute a part of the permanent uni- 
 versity fund. 
 
 Sec. 12. The land herein set apart to the university fund 
 shall be sold under such regulations, at such times and on such 
 terms as may be provided by law; and the Legislature shall 
 provide for the prompt collection, at maturity, of all debts due 
 on account of university lands heretofore sold, or that may here- 
 after be sold, and shall in neither event have the power to grant 
 relief to the purchasers. 
 
 Sec. 13. The Agricultural and Mechanical College of Texas, 
 established by an act of the Legislature, passed April 17, 1871, 
 
Appendix 391 
 
 located in the county of Brazos, is hereby made and constituted 
 a branch of the University of Texas, for instruction in agricul- 
 ture, the mechanic arts and the natural sciences connected there- 
 with. And the Legislature shall at its next session make an ap- 
 propriation not to exceed forty thousand dollars, for the con- 
 struction and completion of the buildings and improvements, and 
 for providing the furniture necessary to put said college in 
 immediate and successful operation. 
 
 Sec. 14. The Legislature shall, also, when deemed prac- 
 ticable, establish and provide for the maintenance of a college 
 or branch university for the instruction of the colored youths of 
 the State, to be located by a vote of the people ; provided, that no 
 tax shall be levied and no money appropriated out of the general 
 revenue, either for this purpose or for the establishment and 
 erection of the buildings of the University of Texas. 
 
 Sec. 15. In addition to the lands heretofore granted to the 
 University of Texas, there is hereby set apart and appropriated, 
 for the endowment, maintenance and support of said university 
 and its branches, one million acres of the unappropriated public 
 domain of the State, to be designated and surveyed as may be 
 provided by law; and said lands shall be sold under the same 
 regulations and the proceeds invested in the same manner as 
 provided for the sale and investment of the permanent university 
 fund; and the Legislature shall not have the power to grant 
 any relief to the purchasers of said lands. 
 
 ARTICLE VIII. 
 
 TAXATION AND REVENUE. 
 
 Section 1. Taxation shall be equal and uniform. All prop- 
 erty in this State, whether owned by natural persons or corpora- 
 tions, other than municipal, shall be taxed in proportion to its 
 value, which shall be ascertained as may be provided by law. 
 The Legislature may impose a poll tax. It may also impose 
 occupation taxes, both upon natural persons and upon corpora- 
 tions other than municipal, doing any business in this State. 
 It may also tax incomes of both natural persons and corpora- 
 tions, other than municipal, except that persons engaged in 
 
392 Appendix 
 
 mechanical and agricultural pursuits shall never be required to 
 pay an occupation tax; provided, that two hundred and fifty 
 dollars worth of household and kitchen furniture belonging to 
 each family in this State shall be exempt from taxation, and 
 provided further, that the occupation tax levied by any county, 
 city or town, for any year, on persons or corporations pursuing 
 any profession or business, shall not exceed one-half of the tax 
 levied by the State for the same period on such profession or 
 business. 
 
 Sec. 2. All occupation taxes shall be equal and uniform upon 
 the same class of subjects within the limits of the authority levy- 
 ing the tax; but the Legislature may, by general laws, exempt 
 from taxation public property used for public purposes ; actual 
 places of religious worship ; places of burial not held for private 
 or corporate profit ; all buildings used exclusively and owned by 
 persons or associations of persons for school purposes (and the 
 necessary furniture of all schools) and institutions of purely 
 public charity; and all laws exempting property from taxation 
 other than the property above mentioned, shall be void. [Const. 
 1876.] 
 
 [Sec. 2, Art. 8, adopted November 6, 1906,] 
 
 Seo. 2. All occupation taxes shall be equal and uniform upon 
 the same class of subjects within the limits of the authority levy- 
 ing the tax, but the Legislature may, by general laws, exempt 
 from taxation public property used for public purposes ; actual 
 places of religious worship ; places of burial not held for private 
 or corporate profit; all buildings used exclusively and owned 
 by persons or associations of persons for school purposes and the 
 necessary furniture of all schools, also the endowment funds 
 of such institutions of learning and religion not used with a view 
 to profit and when the same are invested in bonds or mortgages, 
 or in land or other property which has been and shall hereafter 
 be bought in by such institutions under foreclosure sales made 
 to satisfy or protect such bonds or mortgages ; that such exemp- 
 tion of such land and property shall continue only for two years 
 after the purchase of the same at such sale by such institutions 
 and no longer, and institutions of purely public charity ; and all 
 laws exempting property from taxation other than the property 
 above mentioned shall be null and void. 
 
Appendix 393 
 
 Sec. 3. Taxes shall be levied and collected by general laws 
 and for public purposes only. 
 
 Sec. 4. The power to tax corporations and corporate property 
 shall not be surrendered or suspended by act of the Legislature, 
 by any contract or grant to which the State shall be a party. 
 
 Sec. 5. All property of railroad companies, of whatever de- 
 scription, lying or being within the limits of any city or incor- 
 porated town within this State, shall bear its proportionate share 
 of muncipal taxation, and if any such property shall not have 
 been heretofore rendered, the authorities of the city or town 
 within which it lies shall have power to require its rendition, and 
 collect the usual municipal tax thereon, as on other property 
 lying within said municipality. 
 
 Sec. 6. No money shall be drawn from the treasury but in 
 pursuance of specific appropriations made by law ; nor shall any 
 appropriations of money be made for a longer term than two 
 years, except by the first Legislature to assemble under this Con- 
 stitution, which may make the necessary appropriations to carry 
 on the government until the assemblage of the Sixteenth Legisla- 
 ture. 
 
 Sec. 7. The Legislature shall not have power to borrow, or 
 in any manner divert from its purpose, any special fund that may, 
 or ought to, come into the treasury ; and shall make it penal for 
 any person or persons to borrow, withhold, or in any manner to 
 divert from its purpose, any special fund or any part thereof. 
 
 Sec. 8. All property of railroad companies shall be assessed,. 
 and the taxes collected in the several counties in which said 
 property is situated, including so much of the roadbed and fix- 
 tures as shall be in each county. The rolling stock may be as- 
 sessed in gross in the county where the principal office of the 
 company is located, and the county tax paid upon it shall be 
 apportioned by the Comptroller, in proportion to the distance 
 such road may run through any such county, among the several 
 counties through which the road passes, as part of their tax 
 assets. 
 
 Sec. 9. The State tax on property, exclusive of the tax neces- 
 sary to pay the public debt, shall never exceed fifty cents on the 
 one hundred dollars valuatidn; and no county, city or town shall 
 levy more than one-half of said State tax, except for the* pay- 
 
394 Appendix 
 
 ment of debts already incurred, and for the erection of public 
 buildings not to exceed fifty cents on the one hundred dollars 
 in any one year, and except as in this Constitution is otherwise 
 provided. [Const. 1876.] 
 
 Sec. 9. The State tax on property, exclusive of the tax 
 necessary to pay the public debt, and the taxes provided for the 
 benefit of public free schools, shall never exceed thirty-five cents 
 on the one hundred dollars valuation; and no county, city or 
 town shall levy more than twenty-five cents for city or county 
 purposes, and not to exceed fifteen cents for roads and bridges, 
 on the one hundred dollars valuation, except for the payment of 
 debts incurred prior to the adoption of this amendment, and for 
 the erection of public buildings, street, sewer and other perma- 
 nent improvements, not to exceed twenty-five cents on the one 
 hundred dollars valuation in any one year, and except as is in 
 this Constitution otherwise provided. [Amendment 1883.] 
 
 Sec. 9. The State tax on property, exclusive of the tax neces- 
 sary to pay the public debt and the taxes provided for the benfit 
 of public free schools shall never exceed thirty-five cents on the 
 one hundred dollars valuation ; and no county, city or town shall 
 levy more than twenty-five cents for city or county purposes, 
 and not exceeding fifteen cents for roads and bridges on the 
 one hundred dollars valuation, except for the payment of debts 
 incurrd prior to the adoption of the amendment, September 25, 
 A. D. 1883; and for the erection of public buildings, streets, 
 sewer, water works, and other permanent improvements, not to 
 exceed twenty-five cents on the one hundred dollars valuation 
 in any one year, and except as is in this Constitution otherwise 
 provided: and the Legislature may also authorize an additional 
 annual ad valorem tax to be levied and collected for the further 
 maintenance of the public roads ; provided, that a majority of the 
 qualified property taxpaying voters of the county, voting at an 
 election to be held for that purpose, shall vote such tax, not to 
 exceed fifteen cents on the one hundred dollars valuation of the 
 property subject to taxation in such county. And the Legislature! 
 may pass local laws for the maintenance of public roads and 
 highways without the local notice required for special or local 
 laws. [Amendment 1890.] 
 
 [Sec. 9, Art. 8, adopted November 6, 1906.] 
 
 \ 
 Sec. 9. The State tax on property, exclusive of the tax neces- 
 sary to pay the public debt, and of the taxes provided for the 
 benefit of the public free schools, shall never exceed thirty-five 
 cents on the one hundred dollars valuation ; and no county, city 
 
Appendix 395 
 
 or town shall levy more than twenty-five cents for city or county 
 purposes, and not exceeding fifteen cents for road and bridges, 
 and not exceeding fifteen cents to pay jurors, on the one hundred 
 dollars valuation, except for the payment of debts incurred prior 
 to the adoption of the amendment September 25, 1883, and for 
 the erection of public buildings, streets, sewers, water works and 
 other permanent improvements, not to exceed twenty-five cents 
 on the one hundred dollars valuation, in any one year, and except 
 as is in this Constitution otherwise provided; and the Legislature 
 may also authorize an additional annual ad valorem tax to be 
 levied and collected for the further maintenance of the public 
 roads; provided, that a majority of the qualified property tax- 
 paying voters of the county voting at an election to be held for 
 that purpose shall vote such tax, not to exceed fifteen cents on 
 the one hundred dollars valuation of the property subject to 
 taxation in such county. And the Legislature may pass local 
 laws for the maintenance of the public roads and highways, 
 without the local notice required for special or local laws. 
 
 Sec. 10. The Legislature shall have no power to release the 
 inhabitants of or property in any county, city or town, from the 
 payment of taxes levied for State or county purposes, unless in 
 case of great public calamity in any such county, city or town, 
 when such release may be made by a vote of two-thirds of each 
 house of the Legislature. 
 
 Sec. 11. All property, whether owned by persons or corpora- 
 tions, shall be assessed for taxation and the taxes paid in the 
 county where situated, but the Legislature may by a two thirds 
 vote authorize the payment of taxes of non-residents of counties 
 to be made at the office of tfhe Comptroller of Public Accounts. 
 And all lands and other property not rendered for taxation by 
 the owner thereof shall be assessed as its fair value by the proper 
 officer. 
 
 Sec. 12. All property subject to taxation in, and owned by 
 residents of unorganized counties, shall be assessed and the taxes 
 thereon paid in the counties to which such unorganized counties 
 shall be attached for judicial purposes ; and lands lying in and 
 owned by non-residents of unorganized counties, and lands lying 
 in the territory not laid off into counties shall be assessed and the 
 
396 Appendix 
 
 taxes thereon collected at the offijce of the Comptroller of the 
 State. 
 
 Sec. 13. Provision shall be made by the first Legislature for 
 the speedy sale of a sufficient portion of all lands and other 
 property for the taxes due thereon, and every year thereafter 
 for the sale of all lands and other property upon which the taxes 
 have not been paid, and the deed of conveyance to the pur- 
 chaser for all lands and other property thus sold shall be held 
 to vest a good and perfect title in the purchaser thereof, subject 
 to be impeached only for actual fraud ; provided, that the former 
 owner shall within two years from date of purchaser's deed, 
 have the right to redeem the land upon the payment of double 
 the amount of money paid for the land. 
 
 Sec. 14. There shall be elected by the qualified electors of 
 each county, at the same time and under the same law regulating 
 the election of State and county officers, an assessor of taxes, 
 who shall hold his office for two years and until his successor 
 is elected and qualified. 
 
 Sec. 15. The annual assessment made upon landed property 
 shall be a special lien thereon, and all property, both real and 
 personal, belonging to any delinquent taxpayer shall be liable 
 to seizure and sale for the payment of all the taxes and penalties 
 due by such delinquent; and such property may be sold for the 
 payment of the taxes and penalties due by such delinquent, 
 under such regulations as the Legislature may provide. 
 
 Sec. 16. The sheriff of each county, in addition to his other 
 duties, shall be the collector of taxes therefor. But in counties 
 having ten thousand inhabitants, to be determined by the last 
 preceding census of the United States, a collector of taxes shall 
 be elected, to hold office for two years and until his successor 
 shall be elected and qualified. 
 
 Sec. 17. The specification of the objects and subjects of taxa- 
 tion shall not deprive the Legislature of the power to require 
 other subjects or objects to be taxed, in such manner as may be 
 consistent with the principles of taxation fixed in this Constitu- 
 tion. 
 
 Sec. 18. The Legislature shall provide for equalizing, as near 
 as may be, the valuation of all property subject to or rendered 
 
Appendix 397 
 
 for taxation (the county commissioners court to constitute a 
 board of equalization) ; and may also provide for the classifica- 
 tion of all lands with reference to their value in the several 
 counties. 
 
 [Sec. 19, Art. 8, declared adopted October 14, 1879.] 
 
 Sec. 19. Farm products in the hands of the producer and 
 family supplies for home and farm use are exempt from all tax- 
 ation until otherwise directed by a two-thirds vote of all the 
 members elect of both houses of the Legislature. 
 
 ARTICLE IX. 
 
 COUNTIES. 
 
 Section 1. The Legislature shall have power to create 
 counties for the conveniences of the people, subject to the follow- 
 ing provisions : 
 
 First. In the territory of the State exterior to all counties 
 now existing, no new counties shall be created with a less area 
 than nine hundred square miles, in a square form, unless pre- 
 vented by pre-existing, boundary lines. Should the State lines 
 render this impracticable in border counties, the area may be 
 less. The territory referred to may, at any time, in whole or in 
 part, be divided into counties in advance of population, and 
 attached for judicial and land surveying purposes, to the most 
 convenient organized county or counties. 
 
 Second. Within the territory of any county or counties now 
 existing, no new county shall be created with a less area than seven 
 hundred square miles, nor shall any such county now existing 
 be reduced to a less area than seven hundred square miles. No 
 new counties shall be created so as to approach nearer than twelve 
 miles of the county seat of any county from which it may, in 
 whole or in part, be taken. Counties of a less area than nine 
 hundred, but of seven hundred or more square miles, within 
 counties now existing, may be created by a two-thirds vote of 
 each house of the Legislature, taken by yeas and nays, and entered 
 
398 Appendix 
 
 on the journals. Any county now existing may be reduced 
 to an area of not less than seven hundred square miles by a like 
 two-thirds vote. "When any part of a county is stricken off and 
 attached to or created in,to another county, the part stricken 
 off shall be holden for and obliged to pay its proportion of all 
 the liabilities then existing of the county from which it was 
 taken, in such manner as may be prescribed by law. 
 
 Third. No part of any existing county shall be detached from 
 it and attached to another existing county until the proposition 
 for such change shall have been submitted, in such manner as 
 may be provided by law, to a vote of the electors of both counties 
 and shall have received a majority of those voting on the ques- 
 tion in each. 
 
 COUNTY SEATS. 
 
 Sec. 2. The Legislature shall pass laws regulating the man- 
 ner of removing county seats, but no county seat situated within 
 five miles of the geographical center of the county shall be re- 
 moved except by a vote of two-thirds of all electors voting on the 
 subject. A majority of such electors, however, voting at such 
 election, may remove a county seat from a point more than five 
 miles from the geographical center of the county to a point 
 within five miles of such center, in either case the center to be 
 determined by a certificate from the Commissioner of the General 
 Land Office. 
 
 AKTICLB X. 
 
 RAILROADS. 
 
 Section 1. Any railroad corporation or association, organi- 
 nized under the law for the purpose, shall have the right to 
 construct and operate a railroad between any points within this 
 State, and to connect at the State line with railroads of other 
 States. Every railroad company shall have the right with its 
 road to intersect, connect with or cross any other railroad ; and 
 shall receive and transport each the other's passengers, tonnage 
 and cars, loaded or empty, without delay or discrimination, un- 
 der such regulations as shall be prescribed by law. 
 
Appendix 399 
 
 Sec. 2. Railroads heretofore constructed, or that may here- 
 after be constructed in this State, are hereby declared highways, 
 and railroad companies common carriers. The Legislature shall 
 pass laws to correct abuses and prevent unjust discrimination 
 and extortion in the rates of freight and passenger tariffs on the 
 different railroads in this State; and shall from time to time 
 pass laws establishing reasonable maximum rates of charges for 
 the transportation of passengers and freight on said railroads, 
 and enforce all such laws by adequate penalties. [Const. 1876.] 
 
 [Sec. 2, Art. 10, declared adopted December 19, 1890.] 
 
 Sec. 2. Railroads heretofore constructed or which may here- 
 after be constructed in this State are hereby declared public high- 
 ways and railroad companies common carriers. The Legislature 
 shall pass laws to regulate railroad freight and passenger tariffs, 
 to correct abuses, and prevent unjust discrimination and extortion 
 in the rates of freight and passenger tariffs on the different rail- 
 roads in this State, and enforce the same by adequate penalties ; 
 and to the further accomplishment of these objects and purposes 
 may provide and establish all requisite means and agencies in- 
 vested with such powers as may be deemed adequate and ad- 
 visable. 
 
 Sec. 3. Every railroad or other corporation, organized or 
 doing business in this State under the laws or authority thereof, 
 shall have and maintain a public office or place in this State for 
 the transaction of its business, where transfers of stock shall be 
 made, and where shall be kept, for inspection by the stockholders 
 of such corporation's books, in which shall be recorded the amount 
 of capital stock subscribed, the names of the owners of the 
 stock, the amounts owned by them respectively, the amount of 
 stock paid, and by whom, the transfer of said stock, with the 
 date of the transfer, the amount of its assets and liabilities, and 
 the names and places of residence of its officers. The directors 
 of every railroad company shall hold one meeting annually in 
 this State, public notice of which shall be given thirty days 
 previously, and the president or superintendent shall report 
 annually under oath to the Comptroller or Governor their acts 
 and doings, which report shall include such matters relating 
 to railroads as may be prescribed by law. The Legislature shall 
 
400 Appendix 
 
 pass laws enforcing by suitable penalties the provisions of this 
 section. 
 
 Sec. 4. The rolling stock and all other movable property be- 
 longing to any railroad company or corporation in this State 
 shall be considered personal property, and its real and personal 
 property, or any part thereof, shall be liable to execution and 
 sale in the same manner as the property of individuals; and 
 the Legislature shall pass no laws exempting any such property 
 from execution and sale. 
 
 Sec. 5. No railroad or other corporation, or the lessees, pur- 
 chasers or managers of any railroad corporation, shall con- 
 solidate the stock, property or franchises of such corporation 
 with, or lease or purchase the works or franchises of, or in any 
 way control any railroad corporation owning or having under 
 its control a parallel or competing line; nor shall any officer of 
 such railroad corporation act as an officer of any other railroad 
 corporation owning or having the control of a parallel or com- 
 peting line. 
 
 Sec. 6. No railroad company organized under the laws of 
 this State shall consolidate by private or judicial sale or other- 
 wise with any railroad company organized under the laws of any 
 other State or of the United States. 
 
 Sec. 7. No law shall be passed by the Legislature granting 
 the right to construct and operate a street railroad within any 
 city, town or village, or upon any public highway without first 
 acquiring the consent of the local authorities having control 
 of the street or highway proposed to be occupied by such street 
 railroad. 
 
 Sec. 8. No railroad corporation in existence at the time of 
 the adoption of this Constitution shall have the benefit of any 
 future legislation except on condition of complete acceptance of 
 all the provisions of this Constitution applicable to railroads. 
 
 Sec. 9. No railroad hereafter constructed in this State shall 
 pass within a distance of three miles of any county seat without 
 passing through the same, and establishing and maintaining a 
 depot therein, unless prevented by natural obstacles, such as 
 streams, hills or mountains ; provided, such towns or its citizens 
 shall grant the right of way through its limits and sufficient 
 ground for ordinary depot purposes. 
 
Appendix 401 
 
 AETICLE XI. 
 
 MUNICIPAL CORPORATIONS. 
 
 Section 1. The several counties of this State are hereby 
 recognized as legal subdivisions of the State. 
 
 Sec. 2. The construction of jails, courthouses and bridges, 
 and the establishment of county poorhouses and farms and the 
 laying out, construction and repairing of county roads shall be 
 provided for by general laws. 
 
 Sec. 3. No county, city or other municipal corporation shall 
 hereafter become a subscriber to the capital of any private cor- 
 poration or association, or make any appropriation or donation 
 to the same, or in any wise loan its credit ; but this shall not be 
 construed to in any way affect any obligation heretofore under- 
 taken pursuant to law. 
 
 Sec. 4. Cities and towns having a population of ten thous- 
 and inhabitants or less may be chartered alone by general law. 
 They may levy, assess and collect an annual tax to defray the 
 current expenses of their local government, but such tax shall 
 never exceed, for any one year, one-fourth of one per cent, and 
 shall be collectible only in current money. And all license and 
 occupation tax levied, and all fines, forfeitures, penalties and 
 other dues accruing to cities and towns shall be collectible only 
 in current money. [Const. 1876.] 
 
 [Sec. 4, Art. 11, declared adopted September 24, 1909.] 
 
 Sec. 4. Cities and towns having a population of five thous- 
 and inhabitants or less may be chartered alone by general law. 
 They may levy, assess and collect an annual tax to defray the 
 cxttrent expenses of their local government, but such tax shall 
 never exceed, for any one year, one-fourth of one per cent, and 
 shall be collectible only in current money. And all licenses 
 and occupation taxes levied, and all fines, forfeitures, penalties 
 and other dues accruing to cities and towns shall be collectible 
 only in current money. 
 
 Sec. 5. Cities having more than ten thousand inhabitants 
 may have their charters granted or amended by special act of 
 
402 Appendix 
 
 the Legislature, and may levy, assess and collect such taxes as 
 may be authorized by law, but no tax for any purpose shall 
 ever be lawful, for any one year, which shall exceed two and 
 one-half per cent of the taxable property of such city; and no 
 debt shall ever be created by any city unless at the same time 
 provision be made to assess and collect annually a sufficient 
 sum to pay the interest thereon and create a sinking fund of 
 at least two per cent thereon. [Const. 1876.] 
 
 [Sec. 5, Art. 11, declared adopted September 24, 1909.] 
 
 Sec. 5. Cities having more than five thousand inhabitants 
 may have their charters granted or amended by special act of 
 the Legislature, and may levy, assess and collect such taxes as 
 may be authorized by law, but no tax for any purpose shall 
 ever be lawful for any one year which shall exceed two and 
 one-half per cent of the taxable property of such city; and no 
 debt shall ever be created by any city or town unless at the 
 same time provision be made to assess and collect annually a 
 sufficient sum to pay the interest thereon and create a sinking 
 fund of at least two per cent thereon. 
 
 Sec- 5. Cities having more than five thousand (5000) in- 
 habitants may by a majority vote of the qualified voters of 
 said city, at an election held for that purpose, adopt or amend 
 their charters, subject to such limitations as may be prescribed 
 by the Legislature, and providing that no charter or any 
 ordinance passed under said charter shall contain any pro- 
 vision inconsistent with the Constitution of the State, or of 
 the general laws enacted by the Legislature of this State; said 
 cities may levy, assess and collect such taxes as may be author- 
 ized by law or by their charters; but no tax for any purpose 
 shall ever be lawful for any one year, which shall exceed two 
 and one-half per cent of the taxable property of such city, and 
 no debt shall ever be created by any city, unless at the same 
 time provision be made to assess and collect annually a suf- 
 ficient sum to pay the interest thereon and creating a sinking 
 fund at least of two per cent, thereon; and provided, further, 
 that no city charter shall be altered, amended or repealed 
 oftener than every two years. — [Adopted November 5, 1912.] 
 
 Sec. 6. Counties, cities and towns are authorized, in such 
 mode as may now or may hereafter be provided by law, to 
 
Appendix 403 
 
 levy, assess and collect the taxes necessary to pay the interest 
 and provide a sinking fund to satisfy any indebtedness hereto- 
 fore legally made and undertaken; but all such taxes shall be 
 assessed and collected separately from that levied, assessed and 
 collected for current expenses of municipal government and 
 shall, when levied, specify in the act of levying the purpose 
 therefor, and such taxes may be paid in the coupons, bonds 
 or other indebtedness for the payment of which such tax may 
 have been levied. 
 
 Sec. 7. All counties and cities bordering on the coast of the 
 Gulf of Mexico are hereby authorized, upon a vote of two- 
 thirds of the taxpayers therein (to be ascertained as may be 
 provided by law), to levy and collect such tax for construction 
 of sea walls, breakwaters or sanitary purposes, as may be 
 authorized by law, and may create a debt for such works and 
 issue bonds in evidence thereof. But no debt for any purpose 
 shall ever be incurred in any manner by any city or county 
 unless provision is made, at the time of creating the same, for 
 levying and collecting a sufficient tax to pay the interest 
 thereon and provide at least two per cent as a sinking fund; 
 and the condemnation of the right of way for the erection of 
 such work shall be fully provided for. 
 
 Sec. 8. The counties and cities on the gulf coast being 
 subject to calamitous overflows, and a very large proportion of 
 the general revenue being derived from those otherwise pros- 
 perous localities, the Legislature is specially authorized to aid, 
 by donation of such portion of the public domain as may be 
 deemed proper, and in such mode as may be provided by law, 
 the construction of sea walls, or breakwaters, such aid to be 
 proportioned to the extent and value of the works constructed 
 or to be constructed in any locality. 
 
 Sec. 9. The property of counties, cities and towns owned 
 and held only for public purposes, such as public buildings 
 and the sites therefor, fire engines and the furniture thereof, 
 and all property used or intended for extinguishing fires, 
 public grounds and all other property devoted exclusively to 
 the use and benefit of the public, shall be exempt from forced 
 sale and from taxation; provided, nothing herein shall prevent 
 
404 Appendix 
 
 the enforcement of the vendor's lien, the mechanic's or 
 builder's lien, or other liens now existing. 
 
 Sec. 10. The Legislature may constitute any city or town 
 a separate and independent school district. And when the 
 citizens of any city or town have a charter, authorizing the 
 city authorities to levy and collect a tax for the support and 
 maintenance of a public institution of learning, such tax may 
 hereafter be levied and collected, if, at an election held for that 
 purpose, two-thirds of the taxpayers of such city or town shall 
 vote for such tax. 
 
 ARTICLE XII. 
 
 PRIVATE CORPORATIONS. 
 
 Section 1. No private corporation shall be created except 
 by general laws. 
 
 Sec. 2. General laws shall be enacted providing for the 
 creation of private corporations, and shall therein provide fully 
 for the adequate protection of the public and of the individual 
 stockholder. 
 
 Sec- 3. The right to authorize and regulate freights, tolls, 
 wharfage or fares, levied and collected or proposed to be 
 levied and collected by individuals, companies or corporations 
 for the use of highways, landings, wharves, bridges and ferries, 
 devoted to public use, has never been and never shall be re- 
 linquished or abandoned by the State, but shall always be 
 under legislative control and depend upon legislative authority. 
 
 Sec. 4. The first Legislature assembled after the adoption 
 of this Constitution shall provide a mode of procedure by the 
 Attorney-General and district or county attorneys, in the name 
 and behalf of the State, to prevent and punish the demanding 
 and receiving or collection of any and all charges, as freight, 
 wharfage, fares or tolls, for the use of property devoted to the 
 public, unless the same shall have been specially authorized 
 by law. 
 
 Seo. 5. All laws granting the right to demand and collect 
 freights, fares, tolls or wharfage, shall at all times be subject 
 to amendment, modification or repeal by the Legislature. 
 
Appendix 405 
 
 Sec. 6. No corporation shall issue stock or bonds except for 
 money paid, labor done, or property actually received, and all 
 ficitious increase of stock or indebtedness shall be void. 
 
 Sec. 7. Nothing in this article shall be construed to divest 
 or affect rights guaranteed by any existing grant or statute 
 of this State or of the Republic of Texas. 
 
 ARTICLE XIII. 
 
 SPANISH AND MEXICAN LAND TITLES. 
 
 Section 1. All fines, penalties, forfeitures and escheats, 
 which have heretofore accrued to the Republic and State of 
 Texas, under their Constitution and laws, shall accrue to the 
 State under this Constitution; and the Legislature shall pro- 
 vide a method for determining what lands have been forfeited, 
 and for giving effect to escheats; and all such rights of for- 
 feiture and escheat to the State shall, ipso facto, inure to the 
 protection of the innocent holders of junior titles, as provided 
 in sections 2, 3 and 4 of this article. 
 
 Sec. 2. Any claim of title or right to land in Texas, issued 
 prior to the 13th day of November, 1835, not duly recorded 
 in the county where the land was situated at the time of such 
 record; or not duly archived in the General Land Office; or 
 not in the actual possession of the grantee thereof, or some 
 person claiming under him, prior to the accruing of junior 
 title thereto from the sovereignty of the soil, under circum- 
 stances reasonably calculated to give notice to said junior 
 grantee, has never had, and shall not have, standing or effect 
 against such junior title, or color of title, acquired without 
 such or actual notice of such prior claim of title or right; and 
 no condition annexed to such grants, not archived or recorded, 
 or occupied as aforeasid, has been, or ever shall be released or 
 waived, but actual performance of all such conditions, shall be 
 proved by the person or persons claiming under such title or 
 claim of right in order to maintain action thereon, and the holder 
 of such junior title, or color of title, shall have all the rights of 
 the government which have heretofore existed, or now exist, 
 arising from the nonperformance of all such conditions. 
 
406 Appendix 
 
 Sec. 3. Nonpayment of taxes on any claim of title to land 
 dated prior to the 13th day of November, 1835, not recorded 
 or archived, as provided in Section 2, by the person or persons 
 so claiming or those under whom he or they so claim, from that 
 date up to the date of the adoption of this Constitution shall 
 be held to be a presumption that the right thereto has re- 
 verted to the State, and that said claim is a state demand, which 
 presumption shall only be rebutted by payment of all taxes on 
 said lands, State, county and city or town, to be assessed on 
 the fair value of such lands by the Comptroller, and paid to 
 him, without commutation or deduction for any part of the 
 above period. 
 
 Sec. 4. No claim of title or right to land, which issued 
 prior to the 13th day of November, 1835, which has not been 
 duly recorded in the county where the land was situated at 
 the time of such record, or which has not been duly archived 
 in the General Land Office, shall ever hereafter be deposited in 
 the General Land Office, or recorded in this State, or de- 
 lineated on the maps, or used as evidence in any of the courts 
 of this State, and the same are stale claims; but this shall not 
 affect such rights or presumptions as arise from actual pos- 
 session. By the words "duly recorded," as used in sections 
 2 and 4 of this article, it is meant that such claim of title or 
 right to land shall have been recorded in the proper office, and 
 that mere errors in the certificate of registration, or informal- 
 ity, not affecting the fairness and good faith of the holder 
 thereof, with which the record was made, shall not be held to 
 vitiate such record. 
 
 Sec. 5. All claims, locations, surveys, grants and titles of 
 any kind which are declared null and void by the Constitution 
 of the Republic or State of Texas are, and the same shall re- 
 main forever null and void. 
 
 Sec. 6. The Legislature shall pass stringent laws for the 
 detection and conviction of all forgers of land titles, and may 
 make such appropriations of money for that purpose as may be 
 necessary. 
 
 Sec. 7. Sections 2, 3, 4 and 5 of this article shall not be 
 so construed as to set aside or repeal any law or laws of the 
 Republic or State of Texas, releasing the claimants of head- 
 
Appendix 407 
 
 rights or colonists of a league of land, or less, from com- 
 pliance with the conditions on which their grants were made. 
 
 ARTICLE XIV. 
 
 PUBLIC LANDS AND LAND OFFICE. 
 
 Section 1. There shall be one General Land Office in the 
 State, which shall be at the seat of government, where all land 
 titles which have emanated or may hereafter emanate from 
 the State shall be registered, except those titles the registration 
 of which may be prohibited by this Constitution. It shall be 
 the duty of the Legislature at the earliest practicable time 
 to make the Land Office self-sustaining, and from time to 
 time the Legislature may establish such subordinate offices as 
 may be deemed necessary. 
 
 Sec. 2. All unsatisfied genuine land certificates barred by 
 Section 4, Article 10 of the Constitution of 1869, by reason 
 of the holders or owners thereof failing to have them surveyed 
 and returned to the Land Office by the 1st day of January, 
 1875, are hereby revived. All unsatisfied genuine land certifi- 
 cates now in existence shall be surveyed and returned to the 
 General Land Office within five years after the adoption of 
 this Constitution, or be forever barred; and all genuine land 
 certificates hereafter issued by the State shall be surveyed and 
 returned to the General Land Office within five years after 
 issuance, or be forever barred; provided, that all genuine land 
 certificates heretofore or hereafter issued shall be located, sur- 
 veyed and patented only upon vacant and unappropriated 
 public domain, and not upon any land titled or equitably 
 owned under color of title from the sovereignty of the State, 
 evidence of the appropriation of which is on the county 
 records or in the General Land Office; or when the appropria- 
 tion is evidenced by the occupation of the owner, or of some 
 person holding for him. 
 
 Sec. 3. The Legislature shall have no power to grant any 
 of the lands of this State to any railway company except upon 
 the following restrictions and conditions: 
 
 First. That there shall never be granted to any such cor- 
 
408 Appendix 
 
 poration more than sixteen sections to the mile, and no reser- 
 vation of any part of the public domain for the purpose of 
 satisfying such grant shall ever be made. 
 
 Second. That no land certificate shall be issued to such com- 
 pany until they have equipped, constructed and in running 
 order at least ten miles of road, and on failure of such com- 
 pany to comply with the terms of its charter, or to alienate 
 its lands at a period fixed by law, in no event to exceed twelve 
 years from the issuance of the patent, all said land shall be 
 forfeited to the State and become a portion of the public do- 
 main, and liable to location and survey. The Legislature shall 
 pass general laws only, to give effect to the provisions of this 
 section. 
 
 Sec. 4. No certificate for land shall be sold at the Land 
 Office except to actual settlers upon the same, and in lots not 
 to exceed one hundred and sixty acres. 
 
 Sec. 5. All lands heretofore or hereafter granted to rail- 
 road companies, where the charter or law of the State required 
 or shall hereafter require their alienation within a certain 
 period, on pain of forfeiture, or is silent on the subject of 
 forfeiture, and which lands have not been or shall not here- 
 after be alienated, in conformity with the terms of their 
 charters and the laws under which the grants were made, are 
 hereby declared forfeited to the State, and subject to pre- 
 emption, location and survey, as other vacant lands. All lands 
 heretofore granted to said railroad companies to which no 
 forfeiture was attached, on their failure to alienate, are not 
 included in the foregoing clause, but in all such last named 
 cases it shall be the duty of the Attorney-General, in every 
 instance where alienations have been or hereafter may be made, 
 to inquire into the same, and if such alienation has been made 
 in fraud of the rights of the State, and is colorable only, the 
 real and beneficial interest being still in such corporation, to 
 institute legal proceedings in the county where the seat of 
 government is situated, to forfeit such lands to the State, and 
 if such alienation be judicially ascertained to be fraudulent 
 and colorable as aforesaid, such lands shall be forfeited to the 
 State and become a part of the vacant public domain, liable 
 to pre-emption, location and survey. 
 
Appendix 409 
 
 Sec. 6. To every head of a family without a homestead 
 there shall be donated one hundred and sixty acres of public 
 land, upon condition that he will select and locate said land, 
 and occupy the same three years, and pay the office fees due 
 thereon. To all single men of eighteen years of age and 
 upwards shall be donated eighty acres of public land, upon the 
 terms and conditions prescribed for heads of families. 
 
 Sec. 7. The State of Texas hereby releases to the owner or 
 owners of the soil all mines and minerals that may be on the 
 same, subject to taxation as other property. 
 
 Sec. 8. Persons residing between the Nueces river and the 
 Eio Grande, and owning grants for lands which emanated from 
 the government of Spain, or that of Mexico, which grants have 
 been recognized and validated by the State, by acts of the 
 Legislature, approved February 10, 1852, August 15, 1870, 
 and other acts, and who have been prevented from complying 
 with the requirements of said acts by the unsettled condition 
 of the country, shall be allowed until the 1st day of January, 
 1880, to complete their surveys and the plots thereof, and to 
 return their field notes to the General Land Office, and all 
 claimants failing to do so shall be forever barred; provided, 
 nothing in this section shall be so construed as to validate any 
 titles not already valid, or to interfere with the rights of third 
 persons. 
 
 ARTICLE XV. 
 
 IMPEACHMENT. 
 
 Section 1. The power of impeachment shall be vested in 
 the House of Representatives. 
 
 Sec. 2. Impeachment of the Governor, Lieutenant-Gov- 
 ernor, Attorney-General, Treasurer, Commissioner of the Gen- 
 eral Land Office, Comptroller, and the judges of the Supreme 
 Court, Court of Appeals and district courts, shall be tried by 
 the Senate. ' 
 
 Sec. 3. When the Senate is sitting as a court of impeach- 
 ment, the Senators shall be on oath, or affirmation, impartially 
 to try the party impeached, and no person shall be convicted 
 
410 Appendix 
 
 "without the concurrence of two-thirds of the Senators present. 
 
 Sec. 4. Judgment in cases of impeachment shall extend 
 only to removal from office, and disqualification from holding 
 any office of honor, trust, or profit, under this State. A party 
 convicted on impeachment shall also be subject to indictment, 
 trial and punishment, according to law. 
 
 Sec. 5. All officers against whom articles of impeachment 
 may be preferred shall be suspended from the exercise of the 
 duties of their office during the pendency of such impeachment. 
 The Governor may make a provisional appointment to fill the 
 vacancy occasioned by the suspension of an officer until the 
 decision on the impeachment. 
 
 Sec. 6. Any judge of the district courts of the State who is 
 incompetent to discharge the duties of his office, or who shall 
 be guilty of partiality, or opression, or other official miscon- 
 duct, or whose habits and conduct are such as to render him 
 unfit to hold such office, or who shall negligently fail to per- 
 form his duties as judge, or who shall fail to execute in a 
 reasonable measure the business in his courts, may be removed 
 by the Supreme Court. The Supreme Court shall have original 
 jurisdiction to hear and determine the causes aforesaid when 
 presented in writing, upon the oaths, taken before some judge 
 of a court of record, of not less than ten lawyers, practicing in 
 the courts held by such judge, and licensed to practice in the 
 Supreme Court; said presentment to be founded either upon 
 the knowledge of the persons making it or upon the written 
 oaths as to facts of creditable witnesses. The Supreme Court 
 may issue all needful process and prescribe all needful rules 
 to give effect to this section. Causes of this kind shall have 
 precedence and be tried as soon as practicable. 
 
 Sec. 7. The Legislature shall provide by law for the trial 
 and removal from office of all officers of this State, the modes 
 for which have not been provided in this Constitution. 
 
 ADDRESS. 
 
 Sec. 8. The judges of the Supreme Court, Court of Ap- 
 peals and district courts, shall be removed by the Governor on 
 the address of two-thirds of each House of the Legislature, for 
 
Appendix 411 
 
 willful neglect of duty, incompetency, habitual drunkenness, 
 oppression in office, or other reasonable cause which shall not 
 be sufficient ground for impeachment; provided, however, that 
 the cause or causes for which such removal shall be required shall 
 be stated at length in such address and entered on the journals 
 of each house; and provided further, that the cause or causes 
 shall be notified to the judge so intended to be removed, and he 
 shall be admitted to a hearing in his own defense before any 
 vote for such address shall pass; and in all such cases the vote 
 shall be taken by yeas and nays and entered on the journals 
 of each house, respectively. 
 
 ARTICLE XVI. 
 
 GENERAL PBOVESIONS. 
 
 Section 1. Members of the Legislature and all officers, before 
 they enter upon the duties of their offices, shall take the fol- 
 lowing oath or affirmation: "I, , do solemnly 
 
 swear (or affirm), that I will faithfully and impartially dis- 
 charge and perform all the duties incumbent upon me as 
 
 , according to the best of my skill and ability, 
 
 agreeably to the Constitution and laws of the United States 
 and of this State; and I do further solemnly swear (or affirm), 
 that since the adoption of the Constitution of this State, I 
 being a citizen of this State, have not fought a duel with 
 deadly weapons, within this State or out of it, nor have I sent 
 or accepted a challenge to fight a duel with deadly weapons, nor 
 have I acted as second in carrying a challenge, or aided, advised 
 or assisted any person thus offending. And I furthermore solemn- 
 ly swear (or affirm), that I have not, directly or indirectly, paid, 
 offered or promised to pay, contributed nor promised to contrib- 
 ute, any money or valuable thing, or promised any public office or 
 emolument, as a reward for the giving or withholding a vote at 
 the election at which I was elected (or, if the office is one of ap- 
 pointment, to secure my appointment) : So help me God." 
 
 Sec. 2. Laws shall be made to exclude from office, serving 
 on juries, and from the right of suffrage, those who may have 
 been or shall hereafter be convicted of bribery, perjury, forg- 
 
412 Appendix 
 
 ery or other high, crimes. The privilege of free suffrage shall 
 be protected by laws regulating elections, and prohibiting 
 under adequate penalties all undue influence therein from 
 power, bribery, tumult, or other improper practice. 
 
 Sec. 3. The Legislature shall make provision whereby 
 persons convicted of misdemeanors and committed to the 
 county jails in default of payment of fines and costs, shall be 
 required to discharge such fines and costs by manual labor, 
 under such regulations as may be prescribed by law. 
 
 Sec. 4. Any citizen of this State who shall, after the adop- 
 tion of this Constitution, fight a duel with deadly weapons, or 
 send or accept a challenge to fight a duel with deadly weapons, 
 either within this State or out of it, or who shall act as second, 
 or knowingly assist in any manner those thus offending, shall 
 be deprived of the right of suffrage, or of holding any office 
 of trust or profit under this State. 
 
 Sec. 5. Every person shall be disqualified from holding 
 any offibe of profit or trust in this State who shall have been 
 convicted of having given or offered a bribe to procure his 
 election or appointment. 
 
 Sec. 6. No appropriation for private or individual pur- 
 poses shall be made. A regular statement under oath, and an 
 account of the receipts and expenditures of all public money, 
 shall be published annually, in such manner as shall be pre- 
 scribed by law. 
 
 Sec- 7. The Legislature shall in no case have power to issue 
 "treasury warrants," "treasury notes," or paper of any de- 
 scription intended to circulate as money. 
 
 Sec. 8. Bach county in the State may provide, in such 
 manner as may be prescribed by law, a manual labor poorhouse 
 and farm, for taking care of, managing, employing and sup- 
 plying the wants of its indigent and poor inhabitants. 
 
 Sec. 9. Absence on business of the State or of the United 
 States shall not forfeit a residence once obtained, so as to de- 
 prive any one of the right of suffrage, or of being elected or 
 appointed to any office, under the exceptions contained in this 
 Constitution. 
 
 Seo. 10. The Legislature shall provide for deductions from 
 
Appendix 
 
 413 
 
 the salaries of public officers who may neglect the performance 
 ol any duty that may be assigned them by law. 
 
 Sec. 11. The legal rate of interest shall not exceed eight 
 
 mtVofinCr^' If th % absenee of "V contract as to fhe 
 rate „ m f 1 Tl b T C ° ntraCt P arties ma ^ a Sree upon any 
 rate not to exceed twelve per cent per annum. All interest 
 
 tX f^ ? 1S ^r"^ rate Sha11 be deemed us Ss 
 and the Legislature shall at its first session provide appropri- 
 
 1876 PamS and P enaltie s to prevent and punish usury. [Const. 
 
 [Sec. 11, Art. 16, declared adopted September 22, 1891.] 
 
 Sec. 11. All contracts for a greater rate of interest than 
 ten per centum per annum shall be deemed usurious, and the 
 first Legislature after this amendment is adopted shall pro- 
 vide appropriate pains and penalties to prevent the same; but 
 when no rate of interest is agreed upon, the rate shall not ex- 
 ceed six per centum per annum. 
 
 Sec. 12. No members of Congress, nor person holding or 
 exercising any office of profit or trust under the United States 
 or either of them, or under any foreign power, shall be eligible 
 as a member of the Legislature or hold or exercise any office 
 of profit or trust under this State. 
 
 Sec. 13. It shall be the duty of the Legislature to pass such 
 laws as may be necessary and proper to decide differences by 
 arbitration, when the parties shall elect that method of trial. 
 Sec. 14. All civil officers shall reside within the State, and 
 all district or county officers within their districts or counties, 
 and shall keep their offices at such places as may be required 
 by law; and failure to comply with this condition shall vacate 
 the office so held. 
 
 Sec. 15. All property, both real and personal, of the wife 
 owned or claimed by her before marriage, and that acquired 
 afterwards by gift, devise or descent, shall be her separate 
 property; and laws shall be passed more clearly defining the 
 rights of the wife in relation as well to her separate property as 
 that held in common with her husband. Laws shall also be passed 
 providing for the registration of the wife's separate property. 
 
414 Appendix 
 
 Sec. 16. No corporate body shall hereafter be created, re- 
 newed or extended with banking or discounting privileges. 
 [Const. 1876.] 
 
 [Sec. 16, Art. 16, adopted November 8, 1904.] 
 
 Sec. 16. The Legislature shall by general laws, authorize 
 the incorporation of corporate bodies with banking and dis- 
 counting privileges, and shall provide for a system of State 
 supervision, regulation and control of such bodies which will 
 adequately protect and secure the depositors and creditors 
 thereof. 
 
 Each shareholder of such corporate body incorporated in 
 this State, so long as he owns shares therein, and for twelve 
 months after the date of any bona fide transfer thereof, shall 
 be personally liable for all debts of such corporate body ex- 
 isting at the date of such transfer, to an amount additional 
 to the par value of such shares so owned or transferred, equal 
 to the par value of such shares so owned or transferred. 
 
 No such corporate body shall be chartered until all of the 
 authorized capital stock has been subscribed and paid for in 
 full in cash. Such body corporate shall not be authorized to 
 engage in business at more than one place, which shall be 
 designated in its charter. 
 
 No foreign corporation, other than the National banks of the 
 United States, shall be permitted to exercise banking or dis- 
 counting privileges in this State. 
 
 Sec. 17. All officers within this State shall continue to per- 
 form the duties of their offices until their successors shall be 
 duly qualified. 
 
 Sec. 18. The rights of property and of action, which have 
 been acquired under the Constitution and the laws of the Re- 
 public and State, shall not be divested; nor shall any rights or 
 actions which have been divested, barred or declared null and 
 void by the Constitution of the Republic and State, be rein- 
 vested, renewed or reinstated by this Constitution; but the 
 same shall remain precisely in the situation which they were 
 before the adoption of this Constitution, unless otherwise 
 herein provided ; and provided further, that no cause of action 
 heretofore barred shall be revived. 
 
Appendix 415 
 
 Sec. 19. The Legislature shall prescribe by law the qualifi- 
 cations of grand and petit jurors. 
 
 Sec. 20. The Legislature shall, at its first session, enact a 
 law whereby the qualified voters of any county, justice pre- 
 cinct, town or city, by a majority vote from time to time, may 
 determine whether the sale of intoxicating liquors shall be 
 prohibited within the prescribed limits. [Const. 1876.] 
 
 [Sec. 20, Art. 16, declared adopted September 22, 1891.] 
 
 Sec. 20. The Legislature shall at its first session enact a 
 law whereby the qualified voters of any county, justice's pre- 
 cinct, town, city (or such subdivision of a county as may be 
 designated by the commissioners court of said county) may 
 by a majority vote determine from time to time whether the 
 sale of intoxicating liquors shall be prohibited within the pre- 
 scribed limits. 
 
 Sec. 21. All stationery and printing, except proclamations 
 and such printing as may be done at the Deaf and Dumb 
 asylum, paper and fuel used in the legislative and other de- 
 partments of the government, except the judicial department 
 shall be furnished and the printing and binding of the laws, 
 journals and department reports, and all other printing and 
 binding, and the repairing and furnishing the halls and rooms 
 used for the meetings of the Legislature and its committees, 
 shall be performed under contract, to be given to the lowest 
 responsible bidder, below such maximum price and under such 
 regulations as shall be prescribed by law. No member or 
 officer of any department of the government shall be in any 
 way interested in such contract; and all such contracts shall 
 be subject to the approval of the Governor, Secretary of State 
 and Comptroller. 
 
 Sec. 22. The Legislature shall have the power to pass such 
 fence laws, applicable to any subdivision of the State or 
 county, as may be needed to meet the wants of the people. 
 
 Sec. 23. The Legislature may pass laws for the regulation 
 of live stock and the protection of stock-raisers in the stock- 
 raising portions of the State, and exempt from the operation of 
 such laws other portions, sections or counties; and shall have 
 
416 Appendix 
 
 power to pass general and special laws for the inspection of 
 cattle, stock and hides, and for the regulation of brands; pro- 
 vided, that any local law thus passed shall be submitted to the 
 freeholders of the section to be affected thereby, and ap- 
 proved by them before it shall go into effect. 
 
 Sec. 24. The Legislature shall make provisions for laying 
 out and working public roads, for the building of bridges, and 
 for utilizing fines, forfeitures and convict labor to all these 
 purposes. 
 
 Sec. 25. That all drawbacks and rebatement of insurance, 
 freight, transportation, carriage, wharfage, storage, compress- 
 ing, baling, repairing, or for any other kind of labor or service, 
 of or to any cotton, grain or any other produce or article of 
 commerce, in this State, paid or allowed or contracted for to 
 any common carrier, shipper, merchant, commission merchant, 
 factor, agent, or middle man of any kind not the true and 
 absolute owner thereof are forever prohibited and it shall be 
 the duty of the Legislature to pass effective laws punishing all 
 persons in this State who pay, receive or contract for or re- 
 specting the same. 
 
 Sec. 26. Every person, corporation or company that may 
 commit a homicide, through willful act or omission or gross 
 neglect, shall be responsible in exemplary damages to the sur- 
 viving husband, wife, heirs of his or her body, or such of them 
 as there may be, without regard to any criminal proceeding 
 that may or may not be had in relation to the homicide. 
 
 Sec. 27. In all elections to fill vacancies of office in this 
 State, it shall be to fill the unexpired term only. 
 
 Sec. 28. No current wages for personal service shall ever 
 be subject to garnishment. 
 
 Sec. 29. The Legislature shall provide by law for defining 
 and punishing barratry. 
 
 Sec. 30. The duration of all offfces not fixed by this Con- 
 stitution shall never exceed two years. [Const. 1876.] 
 
 [Sec. 30, Art. 16, declared adopted December 22, 1894.] 
 
 Sec. 30. The duration of all offices not fixed by this Con- 
 stitution shall never exceed two years; provided, that when a 
 
Appendix 417 
 
 railroad commission is created by law it shall be composed of 
 three commissioners, who shall be elected by the people at a 
 general election for State officers, and their term of office shall 
 be six years; provided, railroad commissioners first elected 
 after this amendment goes into effect, shall hold office as fol- 
 lows: One shall serve two years, and one four years, and one 
 six years, their terms to be decided by lot, immediately after 
 they shall have qualified. And one railroad commissioner 
 shall be elected every two years thereafter. In case of vacancy 
 in said office, the Governor of the State shall fill said vacancy 
 by appointment until the next general election. 
 
 Sec. 30a. The Legislature may provide by law that the 
 members of the Board of Eegents of the State University and 
 Board of Trustees or Managers, of the educational, eleemosy- 
 nary, and penal institutions of the State, and such boards 
 as have been, or may hereafter be established by law, may 
 hold their respective offices for the term of six (6) years, one- 
 third of the members of such boards to be elected or appointed 
 every two (2) years in such manner as the Legislature may 
 determine; vacancies in such offices to be filled as may be pro- 
 vided by law, and the Legislature shall enact suitable laws to 
 give effect to this section. [Adopted November 5, 1912.] 
 
 Sec. 31. The Legislature may pass laws prescribing the 
 qualifications of practitioners of medicine in this State, and to 
 punish persons for malpractice, but no preference shall ever 
 be given by law to any schools of medicine. 
 
 Sec. 32. The Legislature may provide by law for the estab- 
 lishment of a board of health and vital statistics, under such 
 rules and regulations as it may deem proper. 
 
 Sec. 33. The accounting officers of this State shall neither 
 draw nor pay a warrant upon the treasury in favor of any 
 person, for salary or compensation as agent, officer or ap- 
 pointee, who holds at the same time any other office or posi- 
 tion of honor, trust or profit, under this State or the United 
 States, except as prescribed in this Constitution. 
 
 Sec. 34. The Legislature shall pass laws authorizing the 
 Governor to lease or sell to the government of the United 
 States a sufficient quantity of the public domain of the State 
 necessary for the erection of forts, barracks, arsenals or mili- 
 
418 Appendix 
 
 tary stations or camps, and for other needful military pur- 
 poses; and the action of the Governor therein shall be subject 
 to the approval of the Legislature. 
 
 Sec. 35. The Legislature shall at its first session pass laws 
 to protect laborers on public buildings, streets, roads, railroads, 
 canals and other similar public works, against the failure of 
 contractors and sub-contractors to pay their current wages 
 when due, and to make the corporation, company or individual 
 for whose benefit the work is done, responsible for their ulti- 
 mate payment. 
 
 Sec- 36. The Legislature shall at its first session provide 
 for the payment or funding, as they may deem best, of the 
 amounts found to be justly due to the teachers in the public 
 schools by the State, for service rendered prior to the 1st day 
 of July, 1873, and for the payment by the school districts in 
 the State of amounts justly due teachers of public schools by 
 such districts to January, 1876. 
 
 Sec. 37. Mechanics, artisans and material men, of every 
 class, shall have a lien upon the buildings and articles made or 
 repaired by them, for the value of their labor done thereon, or 
 material furnished therefor; and the Legislature shall provide 
 by law for the speedy and efficient enforcement of said liens. 
 
 Sec. 38. The Legislature may, at such time as the public 
 interest may require, provide for the office of Commissioner 
 of Insurance, Statistics and History, whose term of office, 
 duties and salary shall be prescribed by law. 
 
 Sec. 39. The Legislature may, from time to time, make 
 appropriations for preserving and perpetuating memorials of 
 the history of Texas, by means of monuments, statutes, print- 
 ing and documents of historical value. 
 
 Sec. 40. 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 post- 
 master, unless otherwise specially provided herein. 
 
 Sec. 41. Any person who shall, directly or indirectly, offer, 
 give or promise, any money or thing of value, testimonial, 
 privilege or personal advantage to any executive or judicial 
 officer or member of the Legislature, to influence him in the 
 performance of any of his public or official duties, shall be 
 
Appendix 419 
 
 guilty of bribery, and be punished in such manner as shall 
 be provided by law. And any member of the Legislature, or 
 executive or judicial offilcer, who shall solicit, demand or re- 
 ceive, or consent to receive, directly or indirectly, for himself or 
 for another, from any company, corporation or person, any 
 money, appointment, employment, testimonial, reward, thing of 
 value or employment, or of personal advantage or promise 
 thereof, for his vote or official influence, or for withholding 
 the same, or with any understanding, expressed or implied, 
 that his vote or official action shall be in any way influ- 
 enced thereby, or who shall solicit, demand and receive any 
 such money or other advantage, matter or thing aforesaid, 
 for another, as the consideration of his vote or official influ- 
 ence, in consideration of the payment or promise of such 
 money, advantage, matter or thing to another, shall be held 
 guilty of bribery within the meaning of the Constitution 
 and shall incur the disabilities provided for said offenses, with 
 a forfeiture of the office they may hold, and such other ad- 
 ditional punishment as is or shall be provided by law. 
 
 Sec. 42. The Legislature may establish an inebriate asylum, 
 for the cure of drunkenness and the reform of inebriates. 
 
 Sec. 43. No man or set of men shall ever be exempted, re- 
 lieved or discharged from the performance of any public duty or 
 service imposed by general law, by any special law. Ex- 
 emptions from the performance of such public duty or service 
 shall only be made by general law. 
 
 Sec. 44. The Legislature shall prescribe the duties, and 
 provide for the election, by the qualified voters of each county 
 in this State, of a county treasurer and a county surveyor, who 
 shall have an office at the county seat, and hold their office for 
 two years, and until their successors are qualified; and shall 
 have such compensation as may be provided by law. 
 
 Sec. 45. It shall be the duty of the Legislature to provide 
 for collecting, arranging and safely keeping such records, 
 rolls, correspondence, and other documents, civil and military, 
 relating to the history of Texas as may be now in the posses- 
 sion of parties willing to confide them to the care and preserva- 
 tion of the State. 
 
420 Appendix 
 
 Sec. 46. The Legislature shall provide by law for organiz- 
 ing and disciplining the militia of the State, in such manner 
 as they shall deem expedient, not incompatible with the Con- 
 stitution and laws of the United States. 
 
 Sec. 47. Any person who conscientiously scruples to bear 
 arms, shall not be compelled to do so, but shall pay an equiv- 
 alent for personal service. 
 
 Seo. 48. All laws and parts of laws now in force in the 
 State of Texas which are not Tepugnant to the Constitution of 
 the United States or to this Constitution, shall continue and 
 remain in force as the laws of this State until they expire by 
 their own limitation or shall be amended or repealed by the 
 Legislature. 
 
 Sec. 49. The Legislature shall have power, and it shall be 
 its duty, to protect by law from forced sale a certain portion 
 of the personal property of all heads of families, and also un- 
 married adults, male and female. 
 
 Seo- 50. The homestead of a family shall be, and is hereby 
 protected from forced sale, for the payment of all debts, except 
 for the purchase money thereof, or a part of such purchase 
 money, the taxes due thereon, or for work and material used 
 in constructing improvements thereon, and in this last case 
 only when the work and material are contracted for in writ- 
 ing, with the consent of the wife given in the same manner 
 as is required in making a sale and conveyance of the home- 
 stead; nor shall the owner, if a married man, sell the home- 
 stead without the consent of the wife, given in such manner as 
 may be prescribed by law. No mortgage, trust deed, or other 
 lien on the homestead shall ever be valid, except for the pur- 
 chase money therefor, or improvements made thereon, as here- 
 inbefore provided, whether' such mortgage, or trust deed or 
 other lien, shall have been created by the husband alone or 
 together with his wife; and all pretended sales of the home- 
 stead involving any condition of defeasance shall be void. 
 
 Sec. 51. The homestead not in a town or city shall consist 
 of not more than two hundred acres of land, which may be in 
 one or more parcels, with the improvements thereon; the home- 
 stead in a city, town or village shall consist of lot or lots, not 
 to exceed in value five thousand dollars at the time of their 
 
Appendix 421 
 
 designation as the homestead, without reference to the value 
 of any improvements thereon; provided, that the same shall 
 be used for the purposes of a home, or as a place to exercise 
 the calling or business of the head of the family; provided, 
 also, that any temporary renting of the homestead shall not 
 change the character of the same, when no other homestead has 
 been acquired. 
 
 Sec- 52. On the death of the husband or wife, or both, 
 the homestead shall descend and vest in like manner as other 
 real property of the deceased, and shall be governed by the 
 same laws of descent and distribution, but it shall not be 
 partitioned among the heirs of the deceased during the life- 
 time of the surviving husband or wife, or so long as the survivor 
 may elect to use or occupy the same as a homestead, or so 
 long as the guardian of the minor children of the deceased may 
 be permitted, under the order of the proper court having jur- 
 isdiction, to use and occupy the same. 
 
 Sec. 53. That no inconvenience may arise from the adop- 
 tion of this Constitution, it is declared that all proeess and 
 writs of all kinds which have been Or may be issued and not 
 returned or executed when this Constitution is adopted, shall 
 remain valid, and shall not be in any way affected by the 
 adoption of this Constitution. 
 
 Sec. 54. It shall be the duty of the Legislature to provide 
 for the custody and maintenance of indigent lunatics, at the 
 expense of the State, under such regulations and restrictions 
 as the Legislature may prescribe. 
 
 Sec 55. The Legislature may provide annual pensions, not 
 to exceed one hundred and fifty dollars per annum, to surviv- 
 ing soldiers or volunteers in the war between Texas and Mex- 
 ico, from the commencement of the revolution in 1835, until 
 the first of January, 1837 ; and also to the surviving signers of 
 the declaration of independence of Texas ; and to the surviving 
 widows, continuing unmarried, of such soldiers and signers; 
 provided, that no such pension be granted, except to those 
 in indigent circumstances, proof of which shall be made before 
 the county court of the county where the applicant resides, in 
 such manner as may be provided by law. 
 
 Sec. 56. The Legislature shall have no power to appropri- 
 
422 Appendix 
 
 ate any of the public money for the establishment and main- 
 tenance of a bureau of immigration, or for any purpose of 
 bringing immigrants to this State. 
 
 Sec. 57. Three million acres of the public domain are 
 hereby appropriated and set apart for the purpose of erecting 
 a new State Capitol and other necessary public buildings at 
 the seat of government, said lands to be sold under the direc- 
 tion of the Legislature; and the Legislature shall pass suitable 
 laws to carry this section into effect. 
 
 Sec. 58. The Board of Prison Commissioners charged by 
 law with the control and management of the State pris- 
 ons, shall be composed of three members, appointed by the 
 Governor, by and with the consent of the Senate, and whose 
 term of office shall be six years, or until their successors are ap- 
 pointed and qualified; provided that the terms of office of the 
 Board of Prison Commissioners first appointed after the adop- 
 tion of this amendment shall begin on January 20th of the year 
 following the adoption of this amendment, and shall hold office 
 as follows: One shall serve two years, one four years, and one 
 six years. Their terms to be decided by lot after they shall 
 have qualified, and one Prison Commissioner shall be appointed 
 every two years thereafter. In case of a vacancy in said office 
 the Governor of this State shall fill said vacancy by appoint- 
 ment for the unexpired term thereof. [Adopted November 
 5, 1912.] 
 
 ARTICLE XVII. 
 
 MODE OP AMENDING THE CONSTITUTION OF THIS STATE. 
 
 Section 1. The Legislature, at any biennial session, by a 
 vote of two-thirds of all the members elected to each house, 
 to be entered by yeas and nays on the journals, may propose 
 amendments to the Constitution, to be voted upon by the 
 qualified electors for members of the Legislature, which pro- 
 posed amendments shall be duly published once a week for 
 four weeks, commencing at least three months before an election, 
 the time of which shall be specified by the Legislature, in one 
 weekly newspaper of each county, in which such newspaper 
 
Appendix 423 
 
 may be published; and it shall be the duty of the several 
 returning officers of said election to open a poll for and make 
 returns to the Secretary of State of the number of legal votes 
 cast at said election for and against said amendment; and if 
 more than one be proposed, then the number of votes cast for 
 and against each of them; and if it shall appear from said 
 return that a majority of the votes cast have been cast in favor 
 of any amendment the said amendment so receiving a majority 
 of the votes cast shall become a part of this Constitution, and 
 proclamation shall be made by the Governor thereof. 
 
INDEX 
 
 PAGE 
 
 Alamo, a story of the 47 
 
 Atchison, Daniel, Supreme Court clerk _ 320 
 
 Balunger, William Pitt, Associate Justice Supreme Court... Ill 
 
 Besignation _ Ill 
 
 Sketch of 114 
 
 Baylor, B. E. B., Associate Justice Supreme Court of the 
 
 Bepublic 16 
 
 Sketch of - 17 
 
 Bell, James H., succeeds Associate Justice Wheeler. 55 
 
 Sketch of 55 
 
 District Judge of First District 56 
 
 Valuable services to Texas 56 
 
 Bonner, Micajah H., Associate Justice Supreme Court 136 
 
 Sketch of - 137 
 
 Branch, Edward T., Associate Justice of Supreme Court of 
 
 Bepublic 16 
 
 Brief, a model — 135 
 
 Brown, W. G., Supreme Court clerk. 320 
 
 Brown, Thomas J., succeeds Justice Henry, Associate Jus- 
 tice of Supreme Court 217 
 
 Sketch of - - - 217 
 
 Succeeds Chief Justice Gaines — 268 
 
 Death of 272 
 
 Birdsall, John, succeeds Collingsworth as Chief Justice of 
 
 Bepublic •■■■- 10 
 
 Caldwell, Associate Justice, removed from office by mili- 
 tary commandant 95 
 
 Chambers, Thomas Jefferson, Judge of Superior Judicial 
 
 Court of Province of Texas 4 
 
 Sketch of - -~ 4 
 
 Surveyor General of Province of Texas.... 5 
 
426 Index 
 
 PAGE 
 
 Chambers, Thomas Jefferson — ConMnwd. 
 
 Address to the people — - 5 
 
 Historical document 6 
 
 Valuable assistance to Texas..- — 6 
 
 Delegate to Secession Convention 6 
 
 Unsuccessful candidate for Governor. 6 
 
 Death of _ 6 
 
 Coahuila and Texas, Internal State of the Bast. 1 
 
 Superior State Tribunal of. 2 
 
 Novel restriction upon powers. 3 
 
 Coke, Richard, elected Associate Justice Supreme Court of 
 
 Texas - 82 
 
 Sketch of 82 
 
 The conspiracy .'. - 83 
 
 Governor of Texas 82 
 
 United States Senator 84 
 
 Collingsworth, James, first Chief Justice Supreme Court 
 
 of Republic 9 
 
 Sketch of 9 
 
 Member of Executive Council of Revolution 9 
 
 Gallant conduct on the field of San Jacinto 9 
 
 Secretary of State 9 
 
 Commissioner to United States 9 
 
 Candidate for President of Republic _ 9 
 
 Death of , 10 
 
 Connerlt, F. T., Supreme Court clerk. * 320 
 
 Corzine, Shelby, Associate Justice Court of Republic 16 
 
 Courts of Civil Appeals, creation of 213 
 
 Courts, Military, practice and procedure in „ 88 
 
 Commission of Arbitration and Award, creation of 139 
 
 Cox vs. Robinson; historical outline of mineral reserva- 
 tion provision of the Constitution 287 
 
 Cullen, Ezekiel "W., Associate Justice Supreme Court of 
 
 Republic 16 
 
 Denman, Leroy G., Associate Justice of Supreme Court of 
 
 Texas - 232 
 
 Sketch of 232 
 
 Resignation of _ 238 
 
Index 427 
 
 PAGE 
 
 Denison, James, succeeds Associate Justice Caldwell 95 
 
 DeNormandie, W. P., Supreme Court clerk 320 
 
 Devine, Thomas J., Associate Justice of the Supreme Court... Ill 
 
 Sketch of Ill 
 
 Romantic story of Arrendondo's revolution 112 
 
 Dibrell, Joseph B., succeeds Justice "Williams 268 
 
 Sketch of 268 
 
 Domain, Public, interesting data concerning. 191 
 
 Donley, Stockton P., Associate Justice Supreme Court. 82 
 
 Sketch of 86 
 
 Duval, Thomas H., Supreme Court Reporter. 307 
 
 Evans, Lemuel Dale, Associate Justice of the Supreme 
 
 Court 95 
 
 Sketch of 95 
 
 Peculiar conception of judicial qualifications. 96 
 
 Resignation of 96 
 
 Fannin, J. "W., commissioned to procure men and munitions 
 
 for Texas army 12 
 
 Fetching Illustration ] 67 
 
 Fontaine, Henbt W., Associate Justice Supreme Court of 
 
 Republic _ 16 
 
 "Fourth Estate" hurricane in legislative teapot 207 
 
 Franklin, Benjamin C, Associate Justice Supreme Court 
 
 of Republic 16 
 
 Sketch of 17 
 
 Gaines, Reuben R., succeeds Associate Justice Robertson 170 
 
 Sketch of 170 
 
 Succeeds Chief Justice Stayton 232 
 
 Resignation of - - 268 
 
 Garrett, William F., Supreme Court clerk 320 
 
 Gould, Robert S., Associate Justice Supreme Court. Ill 
 
 Sketch of - HI 
 
 Elected Associate Justice 129 
 
 Appointed Chief Justice 146 
 
 Gray, Peter W., Associate Justice Supreme Court. — Ill 
 
 Resignation of Ill 
 
 Sketch of - -~ 115 
 
 Gray, George H., Supreme Court clerk. 320 
 
428 Index 
 
 PAGE 
 
 Grayson, Peter W., commissioner to United States 9 
 
 Candidate for President of Republic 9 
 
 Death of 10 
 
 Green, Thomas, Supreme Court clerk 320 
 
 Grigsby vs. Reib, legal status of marriage contracts 293 
 
 ' ' Half-way Courts ' ' 224 
 
 Hamilton, A. J., Justice of Supreme Court. 87 
 
 Sketch of 91 
 
 Member State Legislature 91 
 
 State Senator 92 
 
 Presidential elector 91 
 
 Congressman 92 
 
 Brigadier-General in Federal army 92 
 
 Provisional Governor of Texas 92 
 
 Resignation of 95 
 
 Hansford, John M., Associate Justice of Supreme Court of 
 
 Republic 16 
 
 Hartley, Oliver Cromwell, Supreme Court reporter 309 
 
 Sketch of '. 309 
 
 Hawkins, William E., elected Associate Justice Supreme 
 
 Court to succeed Justice Dibrell 272 
 
 Re-elected 272 
 
 Sketch of 273 
 
 Hemphill, John, Chief Justice of the Supreme Court of the 
 
 Republic 15 
 
 Sketch of 15 
 
 Adjutant-General of the Republic 16 
 
 Member of ill-starred Mier expedition 16 
 
 Delegate to Convention of 1845 16 
 
 United States Senator from Texas 16 
 
 Delegate to Montgomery Convention 16 
 
 Member of Confederate Congress 16 
 
 Chief Justice Supreme Court of Texas. 29 
 
 Death of 16 
 
 Henry, John L., succeeds Associate Justice Walker. 185 
 
 Sketch of 185 
 
 Resignation of 217 
 
 Honey, George W., Supreme Court clerk 320 
 
Index 429 
 
 PAGE 
 
 Hutchinson, Anderson, Associate Justice Supreme Court 
 
 of Eepublic _ lg 
 
 Ireland, John, succeeds Associate Justice Devine 127 
 
 Sketch of _. 127 
 
 Member of Constitutional Conventions, 1861 and 1866... 128 
 
 District judge : _ 128 
 
 "Impediment to reconstruction" 128 
 
 Member of Texas Legislature 128 
 
 Governor of Texas. _ 128 
 
 Popularity of 129 
 
 Johnson, Jambs F., Supreme Court clerk 320 
 
 Johnson, Thomas, Associate Justice Supreme Court of Re- 
 public „ 17 
 
 Jones, Oliver, representative of Texas in Coahuila and 
 
 Texas Congress 5 
 
 Jones, William, Associate Justice Supreme Court of Re- 
 public. 17 
 
 Jose, Mission San, a story of the past. 38 
 
 Jack, Patrick, Associate Justice Supreme Court of Repub- 
 lic 17 
 
 Jackson, A. M., Supreme Court Reporter, sketch of 312 
 
 Jones, John B., Associate Justice Supreme Court of Re- 
 public 17 
 
 Jones, "William J., Associate Justice Supreme Court of Re- 
 public 17 
 
 Judicial Dishonor, depths of. 97 
 
 Judicial Humor 33 
 
 Law, County Judges not required to know the 188 
 
 Lamar, Mirabeau B., President of Republic 10 
 
 Lipscomb, Abner S., Associate Justice Supreme Court of 
 
 Texas 29 
 
 Sketch of 30 
 
 Assists in suppressing Indian hostilities fomented by 
 
 England against America 31 
 
 Chief Justice of Supreme Court of Alabama 31 
 
 Member Alabama legislature 31 
 
 Secretary of State under President Lamar 31 
 
 Member of Convention 1845 31 
 
430 Index 
 
 PAGE 
 
 Lindsay, Livingston, Justice of Supreme Court of Texas 87 
 
 Sketch of 90 
 
 District judge _ 91 
 
 County attorney 91 
 
 Death of 91 
 
 Middeton vs. Texas Light & Power Company, constitution- 
 ality of Employers' Liability Act). 304 
 
 Mills, John T., Associate Justice Supreme Court of Re- 
 
 public 16 
 
 Missouri, Kansas & Texas Railroad Company op Texas vs. 
 State, application of Railroad Commission's "thirty- 
 minute" order to interstate trains 296 
 
 Moore, George Fleming, succeeds Associate Justice Rob- 
 erts 69 
 
 Sketch of 69 
 
 Able denunciation of military encroachment upon civil 
 
 tribunals 72 
 
 Chief Justice 82 
 
 Associate Justice _ Ill 
 
 Chief Justice _ __ 136 
 
 Resignation of 146 
 
 Supreme Court Reporter 311 
 
 Moore, N. J., Supreme Court clerk 320 
 
 Morris, Richard, Associate Justice Supreme Court of Re- 
 public 16 
 
 Sketch of _ 18 
 
 Morrill, Amos, Associate Justice Supreme Court 87 
 
 Sketch of 89 
 
 United States District Judge 90 
 
 Resignation of 90 
 
 Death of 90 
 
 Morse, Charles S., Supreme Court clerk 320 
 
 Nash Hardware Company vs. Morris, police power de- 
 fined 285 
 
 Norton, M. P., Associate Justice of Supreme Court of Re- 
 public 16 
 
 Ochiltree, "William B., Associate Justice Supreme Court 
 
 of Republic 16 
 
Index 431 
 
 PAGE 
 
 Ogden, "Wesley, succeeds Justice Evans as Presiding Judge 
 
 of Supreme Court _ _ 97 
 
 Opinion, noteworthy, by Justice Lipscomb 38 
 
 Opinion, by great judge. 121 
 
 Padttj.a, Antonio, land commissioner for Eastern Texas. 5 
 
 Paschal, Geokoe W., Supreme Court Reporter 314 
 
 Phillips, Nelson, Succeeds Justice Ramsay. 272 
 
 Elected Associate Justice of Supreme Court. 272 
 
 Sketch of - _ 272 
 
 Succeeds Chief Justice Brown 272 
 
 Elected Chief Justice 272 
 
 Privileged matter, law of libel _ 160 
 
 Procedure, attempted reform of judicial „ 213 
 
 ' ' Public History, ' ' significant 158 
 
 Ramsay, "William F., appointed Associate Justice Supreme 
 
 Court 268 
 
 Sketch of 268 
 
 Resignation of 272 
 
 Reporter, an irate. _ 93 
 
 Reeves, Reuben A., appointed Associate Justice Ill 
 
 Reeves, Stephe D., Supreme Court clerk 320 
 
 Robards, Charles L., Supreme Court Reporter.... 312 
 
 Roberts, Oran M., succeeds Associate Justice Lipscomb 49 
 
 Sketch of - 49 
 
 Member of Alabama legislature 51 
 
 District attorney - 51 
 
 United States Senator from Texas, not permitted to 
 
 qualify 51 
 
 Instructor in Science of Government 51 
 
 Governor of Texas. 51 
 
 Law professor, University of Texas 51 
 
 A noble sacrifice 53 
 
 Resignation to join Confederate army 69 
 
 Succeeds Chief Justice "Wheeler 81 
 
 Appointed Chief Justice - Hi- 
 Elected Chief Justice 129 
 
 Resignation of 136 
 
432 Index 
 
 PAGE 
 
 Roberts, R. P., Supreme Court clerk _ 320 
 
 Robertson, Sawnie, succeeds Associate Justice West 168 
 
 Sketch of 168 
 
 Robinson, James, Associate Justice Supreme Court of Re- 
 public 16 
 
 Sketch of 18 
 
 Rodriguez, Ex parte, unspeakable judicial infamy. 97 
 
 Rusk, Thomas Jefferson, Chief Justice of Republic „.. 10 
 
 Sketch of 10 
 
 Commissary of Texas army 11 
 
 At the siege of San Antonio 12 
 
 Commissioned to procure men and munitions for Texas 
 
 army 12 
 
 Secretary of War 12 
 
 Appeal to the patriotism of Texans. 12 
 
 Heroism on the field of San Jacinto 13 
 
 Real hero of the Battle of San Jacinto 12 
 
 Commander-in-Chief Texas army 13 
 
 Member President Houston's cabinet : 13 
 
 Member of Congress of the Republic 13 
 
 Declination to offer for President of Republic 13 
 
 Suppresses revolution of enemies of the Republic 13 
 
 United States Senator from Texas 13 
 
 Major-General of militia 13 
 
 Death of 14 
 
 Scott, John, Associate Justice of Supreme Court of Re- 
 public 17 
 
 Scurry, Richardson A., Associate Justice Supreme Court of 
 
 Republic 17 
 
 Self-defense, "hip-pocket movement" variety 125 
 
 ' ' Semicolon Case," the - 97 
 
 "Semicolon Court," the 109 
 
 Shelby, Anthony B., Associate Justice Supreme Court of 
 
 Republic 17 
 
 Shearer, James B., Supreme Court clerk 320 
 
 Slaughter, George H, Supreme Court clerk 320 
 
 Smith, Thomas W., Supreme Court clerk 320 
 
Index 433 
 
 PAGE 
 
 Stayton, John W., appointed Associate Justice 146 
 
 Sketch of 146 
 
 Succeeds Chief Justice Willie 183 
 
 Death of _ _ 232 
 
 Supreme Court op Republic, creation and organization of... 7 
 
 Supreme Court of Texas, creation and organization of 28 
 
 Supreme Court, number of justices reduced to three 94 
 
 Supreme Court Library, junking the 94 
 
 Supreme Court, as organized under Constitution of 1869 95 
 
 Supreme Court Procedure, proposed reforms in 321 
 
 Supreme Court, number of justices reduced to three 129 
 
 Supreme Court, changes in jurisdiction and procedure of... 211 
 Terrell, Alexander "W., Supreme Court Reporter, sketch 
 
 of 314 
 
 Able member of Texas Bar 315 
 
 District judge 315 
 
 Lieutenant-Colonel Thirty-fourth Texas Cavalry, Con- 
 federate army 315 
 
 Distinguished statesman and legislator; member, of 
 
 State Senate 315 
 
 Public services 316 
 
 Father of Texas Railroad Commission 316 
 
 Last stand for the people 316 
 
 Minister to Turkey ; distinguished diplomatic services... 317 
 
 "Abdul the Damned" in a new light. 317 
 
 The "Hencjack Society," and Armenian massacres 318 
 
 The tribute unexcelled - 319 
 
 Death of 319 
 
 Terrell, George W., Associate Justice of Supreme Court of 
 
 Republic 17 
 
 Texas, province of, separate judicial circuit comprising jur- 
 isdiction of Superior Judicial Court of Texas _ 3 
 
 Vasquez, Jose, representative of Texas in Congress of 
 
 Coahuila and Texas 5 
 
 Walker, Alexander S., appointed Associate Justice of the 
 
 Supreme Court 183 
 
 Resignation of - 185 
 
 Supreme Court Reporter - 319 
 
434 Index 
 
 PAGE 
 
 Walker, Richard S., Supreme Court Reporter, sketch of 311 
 
 "Walker, Moses B., succeeds Associate Justice Hamilton 95 
 
 Waples vs. Marrast, constitutionality of Presidential Pri- 
 mary law 299 
 
 Webb, James, Supreme Court Reporter 307 
 
 Sketch of 307 
 
 West, Charles S., Associate Justice Supreme Court 153 
 
 Sketch of 153 
 
 Resignation of 168 
 
 Wheeler, Royall T., Associate Justice Supreme Court of 
 
 Republic 17 
 
 Sketch of 22 
 
 Succeeds Chief Justice Hemphill 55 
 
 Death of 80 
 
 Wheelook, B. M., Supreme Court Reporter 314 
 
 Williams, P. A., succeeds Associate Justice Denman _ 238 
 
 Sketch of „„ 238 
 
 Resignation of 268 
 
 Wilkinson, A. B., Supreme Court Reporter 319 
 
 Williamson, R. M., "Three-legged Willie," Associate Jus- 
 tice Supreme Court of Republic 17 
 
 Sketch of 19 
 
 Death of 22 
 
 Willie, A. H., Associate Justice of Supreme Court of Texas... 82 
 
 Sketch of - 85 
 
 Chief Justice „ _.. 152 
 
 Resignation of 183 
 
 Yantis, J. E., Associate Justice of Supreme Court 272 
 
 Sketch of _.. 277 
 
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