Jordan v. Crudgington

231 S.W.2d 641, 149 Tex. 237, 1950 Tex. LEXIS 435

• Court: Texas Supreme Court
• Decided: June 28, 1950
• Docket: A-2557
• Status: Published

Opinions

Mr. Chief Justice Hickman

delivered the opinion of the Court.

The Legislature of Texas at its regular session in 1949 enacted House Bill No. 250, establishing a “Court of Domestic Relations in and for Potter County, Texas,” Acts, 51st Leg., Ch. 426, p. 792, Vernon’s Revised Civil Statutes of Texas, Art. 2338 — 3. The Commissioners’ Court of Potter County in making provision for setting up the new court incurred certain items of indebtedness, for the payment of which it caused warrants to be issued. The County Auditor, John Crudgington, refused to approve the warrants, and this suit was filed by E. E. Jordan, County Judge, and the four County Commissioners of Potter County to compel him by writ of mandamus to approve them. On the ground that the Act establishing the court is unconstitutional, the trial court refused to issue the writ, and its judgment was affirmed by the Court of Civil Appeals. 225 S. W. 2d 917.

The sole question for decision is the constitutionality of the Act establishing the court. The Act thus defines the court’s jurisdiction :

“Said Court of Domestic Relations shall have jurisdiction of all cases involving adoptions, removal of disability of minority, change of name of persons, delinquent, neglected or dependent child proceedings, and all jurisdiction, powers and authority now or hereafter placed in the district or county courts under the juvenile and child welfare laws of this State; and of all divorce and marriage annulment cases including the adjustment of property rights involved therein, as well as cases of child support, alimony pending final hearing and adjustment of property rights as well as any and every other matter incident to divorce or annulment proceedings; and all other cases of Domestic Relations involving justiciable controversies and differences between parents or between them and their minor children which are now, or may hereafter be, within the jurisdiction of the district or county courts in the manner provided by Article 2337, 2338 — 1, Revised Civil Statutes of Texas, 1925, Acts of the Regular Session of the 48th Legislature, 1943, Chapter 240, page 313, and Acts of the Regular Session of the 49th Legislature, 1945, Chapter 35, page 52, and any other Article of the Civil or Penal Statutes of this State. It shall also have jurisdiction of all criminal cases involving crimes against children the maximum punishment for which does not exceed two (2) years in the penitentiary, or in which a fine or jail sentence may be imposed, including wife and child desertion, contributing to the delinquency of a minor, enticing a minor from legal custody as provided under Articles 602, 534, and 535 of the Penal Code of this State; and provided that all cases above enumerated may be instituted in, or transferred to said Court.”

It will be observed that the Act does not undertake to divest any court of its constitutional jurisdiction and vest same exclusively in the court of domestic relations.

The provisions for the organization of the court may be summarized briefly as follows: A Juvenile Board composed of judges of the 47th and 108 judicial districts and the County Judge of Potter County is created, and the members thereof are allowed additional compensation for their services on the Board. The Board, by and with the approval of the Commissioners’ Court, is empowered to appoint and to discharge a judge and a clerk of the court. The sessions of the court shall be held in Potter County, beginning on September 1st of each year and continuing to and including the 31st day of August of the following year. Provision is made for appeals of civil cases to the Court of Civil Appeals and of criminal cases to the Court of Criminal Appeals. The rules of practice and procedure for district and county courts are made applicable to this court. The opinion of the Court of Civil Appeals states that the judge of the court created by this Act is empowered to impanel grand juries. The term “grand jury” does not appear in the Act at all. The court’s statement was probably based upon this language taken from Section 14: “All cases, indictments, complaints and other matters over which the Court of Domestic Relations is herein given jurisdiction may be transferred to or instituted in said Court, * Language more specific than that would be required to evidence a legislative intent to provide that the court should have authority to impanel a grand jury. The court is given jurisdiction of but a very limited number of cases involving crime. A grand jury investigates all offenses committed in the county in which it sits. Constitution, Art. V, Sec. 17; Code of Criminal Procedure, Art. 381. As we view this Act as a whole it would violate its purpose to hold that the Legislature intended by the language above quoted to provide that this court, whose jurisdiction is limited to cases involving domestic relations, should impanel a grand jury to investigate crime in general, and no provision of the Act indicates a legislative intent that the court impanel a grand jury with authority to investigate only those offenses of which it has jurisdiction. The language quoted above may be given effect by construing it to provide that cases of which the court has jurisdiction and in which indictments are returned by a grand jury, as well as cases pending on the dockets of other courts, may be transferred to this court of domestic relations, and cases in which no indictment is required may be instituted in it. That construction is in keeping with the purpose of the Act.

Although the history of Article V, Section 1, of our State Constitution has been many times recited, it seems appropriate to recite it again here, for its mere recital is a conclusive answer to many of the criticisms levelled by respondent at the Act under review. In the Constitution of 1876 one provision of that section read as follows:

“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 Justices of the Peace, and in such other courts as may be established by law. * *

In construing that provision in connection with other provisions of the Constitution this court held in Ex parte Towles, 48 Texas 413, that the Legislature was not authorized to add to or change the judicial system as defined in Article V. By that decision, which was followed in subsequent cases, the Legislature was virtually denied the authority to establish such other courts as conditions might require in the future. As a reaction to those decisions and in order to circumvent them and remedy the situation created thereby, which made an elastic judicial system impossible, Article V, Section 1, was amended in 1891. By that amendment there was added this provision:

“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the District and other inferior courts thereto.”

After the amendment became effective the Court of Criminal Appeals in Leach v. State, 36 Texas Crim. Rep. 248, 36 S. W. 471, still adhered to the rule announced in Ex parte Towels, but when the question came before this court it was held in Harris County v. Stewart, 91 Texas 133, 41 S. W. 650, that a material change was effected by the amendment, and this court refused to follow the Court of Criminal Appeals. Later the Court of Criminal Appeals in Ex parte Wilbarger, 41 Texas Crim. Rep. 514, 55 S. W. 968, approved and followed the decision of this court in Harris County v. Stewart.

In this court’s opinion in the Harris County v. Stewart case the purpose of the amendment is stated in this language: “The last clause of the section copied above was introduced, and the people of the State adopted the amendment for the purpose of ridding the State of the incubus which the construction contended for had saddled upon it.” That same opinion states the effect of the amendment in this language: “In other words, the effect of the language is to place the subject at the complete disposal of the Legislature so far as inferior courts are concerned. Later, in Carter v. Missouri, K. & T. Ry. Co. of Texas, 106 Texas 137, 157 S. W. 1169, the purpose and effect of the amendment were stated in this language:

“The manifest purpose of the people in adopting that amendment was to enable the Legislature to meet such conditions as are present in this case, and it is the duty of the courts to act in harmony with the spirit of that amendment, and to give to it a liberal construction. It would be difficult to express more definitely the authority conferred in that clause of the Constitution — to ‘establish such other courts as it may deem necessary’ — which places in the discretion of the Legislature the character and number of courts that may be created as well as the manner in which the officers shall be chosen. The territory over which the jurisdiction of such court may be exercised and the subjects upon which its authority may be exerted are at the discretion of the Legislature.”

Those decisions speak for themselves. They have been followed by this court in many cases, the last of which is State ex rel Rector v. McClelland, 148 Texas 372, 224 S. W. 2d 706. There is no ambiguity in the language of the amendment. It is plain and easily understood. It expressly recognizes in the Legislature two separate and distinct powers which it may exercise in establishing “such other courts as it may deem necessary.” In the first place, it is given power to “prescribe the jurisdiction” of such courts, conforming “the jurisdiction of the District and other inferior courts thereto.” And, in the second place, it is given power to “prescribe the * * * organization thereof.” The Act under review is an attempt in good faith by the Legislature to exercise the powers thus expressly defined in that amendment. The amendment was not written into the Constitution for the purpose of authorizing the Legislature to establish more district courts or county courts. No question had ever arisen as to its authority to do that. But the amendment was adopted for the purpose of making it certain that the Legislature had the authority to establish courts other than constiuttional courts, and that its acts establishing them should not be stricken down on the ground that they were violative of what might be conceived by vague implications to be the general spirit of the Constitution, or that they did not conform to the constitutional pattern for district courts or county courts. To hold that the pattern for all courts established by the Legislature must conform to the pattern of either the district courts or county courts is to ignore the plain language of the amendment. It is argued that “to undertake to institute a different family of courts in Texas must immediately meet with resistance in the Constitution.” We are aware of no provision of the Constitution which ■ offers resistance to “a different family of courts.” To the contrary, the 1891 amendment expressly authorized the Legislature to establish not more of the same courts, but “such other courts as it may deem necessary.”

4 Many specific objections are made to the various provisions of the Act. Some of them, as will be set out below, are well taken, but most of them are without merit, for the reason that they proceed from the premise that the court created by this Act is a district court merely because it exercises some of the jurisdiction of district courts. This is not a district court. Neither is it a county court. It is a court established by the Legislature under its constitutional authority to “establish such other courts as it may deem necessary.” Decisions which strike down Acts creating what in fact, though not in name, are district courts, but do not conform to the constitutional pattern for district courts, have no application here.

In order to strike down any provision of this Act the court must be able to point to some specific section of the Constitution which condemns it. The principle is so well established as to call for the citation of no authority that any bill not clearly inhibited by the State Constitution or the higher law of the Federal Constitution may be enacted into valid law by the Legislature.

Let us notice some of the principal attacks made upon particular provisions of the Act. It is pointed out that the Act does not require the judge to be a resident of Potter County during the term of his office. That is an immaterial omission, for the matter is regulated both by our Constitution and our statutes. The judge of the court created by this Act is a county officer. Article XVI, Section 14, of the Constitution makes it mandatory that all county officers reside within their counties, and Article 2927 R. S. provides that a county officer must be an actual bona fide citizen of the county for more than six months prior to his election. Those provisions will be read into the law.

It is contended that the Act created an additional office of emolument for constitutional judges composing the Juvenile Board and is therefore violative of Article XVI, Section 40, of the Constitution. That question was settled contrary to that contention in Jones v. Alexander, 122 Texas 328, 59 S. W. 2d 1080. Another contention is that the provision for the appointment rather than the election of the judge contravenes Article V, Sections 7, 15, and 18. The authority given by the amendment under review to the Legislature to prescribe the organization of courts created by its certainly is authority to provide it with a judge. Carter v. Missouri, K. & T. Ry. Co. of Texas, supra. As pointed out in an article by Mr. M. L. Cook in 9 Texas Law Review, 388, covering the entire question under review, there is an express provision for the mode of selecting judges of every other court mentioned in the Constitution except “such other courts as it may deem necessary.” There is no provision as to the mode of selecting judges for courts of that nature. The absence of any such provision evidences an intent to leave the power of appointment within the discretion of the Legislature. Those specific objections and others of a similar nature would be valid if the court created by the Act were a district court, but since it is not a district court, the objections are without merit. No provision of the Constitution may be pointed to in support of them.

There are three provisions of the Act which must be stricken. One is that the term of office of the judge and clerk of the court of domestic relations shall be four years. Article XVI, Section 30, of the Constitution provides that “The duration of all offices not fixed by this Constitution shall never exceed two years.” The provision for a four-year term is violative of this section of the Constitution. Another provision is for the removal of the judge and clerk of this court by the Juvenile Board. That provision is violative of Article V, Section 24, of the Constitution, which provides that county officers may be removed by district judges upon findings by juries. The judge and clerk of the court created by this Act are county officers, and, therefore, can be removed only in the manner prescribed by this section of the Constitution. The Act provides for a jury of six men. Our Constitution provides in Article I, Section 15, that “The right of trial by jury shall remain inviolate.” The authorities are in a general agreement that the meaning of the term “jury” is a body of twelve members unless an express provision for a smaller number is contained in the Constitution. 31 Am. Jur. Jury. Sec. 95; 35 C. J. Juries Sec. 10; 50 C. J. S. Juries Sec. 7. Article V, Section 13, of the Constitution provides for juries of twelve men in the district court, and Section 17 of the same Article provides for a jury of six men in the county court. There is no provision in the Constitution expressly prescribing the number of jurors in a court established by the Legislature under the authority of the amendment of 1891. In the absence of such a provision the conclusion is inescapable that the constitutional provision preserving the right of trial by jury requires that juries in courts of record, such as the court created by this Act, be composed of twelve men. 31 Am. Jur. Jury. Sec. 95. This ruling does not apply to justice and police courts. 31 Am. Jur. Jury. Sec. 28; 50 C. J. S. Juries, Sec. 77. Since the provision for a jury of six violates Article I, Section 15, of the Constitution, that provision is invalid.

As a result of striking from the Act the three provisions above discussed, must the Act as a whole be condemned? We have concluded that that result does not follow. The Act provides that “If any Section, clause, or part of this Act shall be held invalid, it is hereby declared to be the intention of the Legislature that the remainder thereof not held invalid shall remain in effect, and the validity of the remainder of this Act shall not be affected thereby.” Since the above provisions of the Act violate mandatory and exclusive provisions of the Constitution, it is our duty to carry out the express intent of. the Legislature by substituting the constitutional provisions for the provisions of the Act which they condemn, with the result that jury trials in the court in question shall be had before juries of twelve men. Norman v. Giles, 148 Texas 21, 219 S. W. 2d 678; Greene v. Robison, 117 Texas 516, 8 S. W. 2d 655. With those constitutional provisions read into the Act it is our conelusion that it is a valid exercise of the legislative power; that is to say that none of the objections urged by respondent is valid.

It is accordingly ordered that the judgments of the courts below be reversed and the cause remanded to the trial court with instructions to issue the writ of mandamus as prayed for.

Opinion delivered June 28, 1950.