Beyman v. Black

• Court: Texas Supreme Court
• Writing for the Court: GOULD
• Citation: Beyman v. Black, 47 Tex. 558 (Tex. 1877)
• Decision Date: 01 January 1877
• Parties: THOMAS BEYMAN v. WILLIAM BLACK.

47 Tex. 558

THOMAS BEYMAN

v.WILLIAM BLACK.

Supreme Court of Texas.

1877.

APPEAL from Nueces. Tried below before the Hon. T. C. Barden.

The facts are carefully stated in the opinion.

Lovenskiold & Mc Campbell, for appellant.

Phillips, Lackey & Stayton, for appellee.--This is a proceeding under the 43d section of the act of March 23, 1874, General Laws, 45. To authorize this procedure, the seizure must be made in consequence of the existence of the facts mentioned in the 8th and 9th sections of this act. The petition does not allege the facts which are made necessary by said sections.

There is only one other section of the act which has any reference to forfeitures; that is the 27th section. The facts necessary under said section are not alleged.

If, however, the facts mentioned in the several sections of the statute referred to, were alleged in the petition, then we respectfully submit that the same would not entitle the complainant to any relief; for we hold that so far as the sections referred to are concerned, said act is in violation of the Constitution.

The 16th section of the bill of rights provides that “no citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.”

In Janes v. Reynolds, 2 Tex., 251, Chief Justice Hemphill says: “The terms, ‘laws of the land,’ are now, in their most usual acceptation, regarded as general public laws, binding upon all members of the community, under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals.”

Justice Cooley, in his work upon Constitutional Limitations, 392, says: “To forbid, to an individual or a class, the right to the acquisition or the enjoyment of property, in such manner as should be permitted to the community at large, would be, to deprive them of liberty in particulars of primary importance to their pursuit of happiness; and those who claim the right to do so, ought to be able to show a specific authority therefor, instead of calling upon others to show how and where the authority is negatived.”

The statute in question is not general in its operation, but affects only those who may own or purchase property in certain districts. It does not purport to be a general law, for the first section thereof restricts it, by creating inspection districts in only a portion of the State, while it does not provide for the creation of like districts in other parts of the State at any time; but if it purported to be a general law, merely suspended in a portion of the State, it would not affect the question, for a partial suspension of a general law would be subject to the same objections as a law which upon its face was partial.

Judge Cooley, in his work upon Constitutional Limitations, upon the question of the suspension of laws, says: “The Legislature may suspend the operation of the general laws of the State, but when it does so, the suspension must be general, and cannot be made for individual cases or for particular localities.” (See also Holden v. James, 11 Mass., 396; Davison v. Johonnot, 7 Met., 393.)

“The general exemption laws cannot be varied for particular cases or localities.” (Bull v. Conroe, 13 Wis., 238.)

In Wally's Heirs v. Kennedy, 2 Yerg., 554, the court say: “The right of every individual must stand or fall by the same rule of law that governs every other member of the body politic, or land, under similar circumstances; and every partial or private law which directly proposes to destroy or affect the individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporations would be governed by one law; the mass of the community, and those who made the law, by another; whereas, the like general laws, affecting the whole community equally, would not have been passed.”

That the laws shall be general in their operation, affords a guaranty that bad laws will not be enacted; and when we look to the law in question, no one can for a moment doubt, from the large number of the most populous counties which are not affected by it, that it would have been impossible to enact this statute if it had provided that it should be operative throughout the entire State. If one law may be partial in its operation, another may. In one part of the State, the whole penal code may be suspended, while in the residue, it is in full force. The law of marriage and divorce; of descent and distribution; of limitation; the law regulating the course of procedure in the courts; in fine, any law, however much it may affect all of the best interests of society, may be suspended in a portion of the State, while fully effective in all other parts, if such power of partial legislation exists. We have laws by which the inhabitants of certain localities are permitted, for their own convenience, to have certain local regulations, by which they are governed, being at the same time subject to the general laws of the State. Municipal corporations, which are but subordinate instrumentalities of the Government, ordinarily have power to make laws, local in their effect, but such corporations are incorporated upon the actual or implied consent of the people so to be governed.

The provisions of the statute in question impose upon residents of certain named counties an onerous tax, in the matter of fees to inspectors, and also impose upon them restrictions which are not only onerous, but, in many instances, vexatious, while other residents of the State, in the pursuit of the same business, are not subjected to the like impositions.

Section 19, article 11, of the Constitution, provides, that “taxation shall be equal and uniform throughout the State.” That the inspection fees required to be paid under the statute are as much a tax as any other contribution required to be made to the State by the citizens, for the support of the machinery of the Government, we have no doubt. It is a demand which the Government makes upon the citizen, for the support of an officer of the Government, the compliance with which is a condition precedent to the right of the citizen, under the statute, to dispose of his own property, to be used for certain purposes within his own county, or to use the same in a market out of his county.

“Every burden which the State imposes upon its citizens, with a view to a revenue, either for itself, or for any of the municipal Governments, or for the support of the governmental machinery, in any of the political divisions, is levied under the power of taxation, whether imposed under the name of tax, or under some other designation.” (Cooley's Const. Lim., 469.)

Whatever form taxation may assume, it must be equal and uniform throughout the State. If the citizen of one section is to be taxed, by way of fees to an inspector, before he can sell his own property wherever he pleases, then every citizen must be subject to the same rule, or there can be no equality--no uniformity. The 27th and 43d sections of the act are, however, subject to another fatal objection, which is, that said sections provide for the forfeiture of property, without having the facts which authorize the forfeiture first judicially ascertained. (Cooley's Const. Lim., 362.) The 27th section provides, that the inspector may take charge of cattle and sell them, as if under execution, and, in case they are not voluntarily delivered to him, provides that he may sue for and sequestrate them, without giving bond or security.

In the first instance, “he levies without process, condemns without proof, and sells without execution.” An inspector is not clothed with any judicial power by the law.

In case of sequestration, it does not clearly appear whether the suit is to be instituted for the sole purpose of getting possession of the property, or for the purpose of having the facts ascertained which, under the statute, authorize the forfeiture. The section makes no provision for a trial before any court in which the forfeiture may be decided; but simply provides that upon the order of a justice of the peace, or of a district judge of the court where the suit may be instituted, the property seized may be sold. The statute does not seem to contemplate a trial and judgment before the sale; nor does it provide for citation in any form to the owner, before the sale and deposit with the county treasurer. Yet if the deposit is not called for in one year, the statute vests it in the county. Can the rights of the owner be thus divested?

A judge of a District Court, as contradistinguished from the District Court, can have no such power under the Constitution. The language of the statute would seem to imply that the sole purpose of the suit is, through the writ of sequestration, to obtain the possession of the property.

The 43d section provides that when a seizure has been made under the 8th and 9th sections of the act, that the inspector shall report the same to a justice of the peace, or some judge of the District Court whose duty it is made to issue, or cause to be issued, citations addressed to “all whom it may concern,” setting forth the seizure of said property, with a description of the same, commanding them to appear at a day named in said citation, to show cause, &c.

This section of the act clearly evidences that the forfeitures are not to be ascertained and declared by any judicial tribunal known to the Constitution, but by persons holding certain judicial positions, not, however, in the exercise of their judicial functions, for otherwise the statute would have directed that those proceedings be had in the courts of which such persons are the chief officers.

We are forced to this conclusion, from the fact that the jurisdiction of the justice of the peace is as ample in these cases, under the statute, as the jurisdiction...