Bluitt v. State

• Decision Date: 23 June 1909
• Citation: 121 S.W. 168
• Parties: BLUITT v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W. 168

BLUITT v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1909.

Appeal from Ellis County Court; J. T. Spencer, Judge.

Jesse Bluitt was convicted of failing, after being legally summoned, to work on a public road or pay the sum required by law, and appeals. Reversed, and prosecution ordered dismissed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was charged in the county court of Ellis county with the offense of willfully failing and refusing, after being legally summoned, to attend and work on a public road or to pay the sum required under the law.

The validity of the information is vigorously assailed in a well-prepared motion by counsel for appellant, in which it is claimed in substance and effect that the act of 1897 (Sp. Laws 1897, p. 150, c. 110), entitled "An act to create a more efficient road system for Ellis county," together with the amendment thereto of 1905 (chapter 30, p. 262, of said Special Laws), are void because contrary to article 1, § 28, of the Constitution of the state of Texas, in that the power suspending the same is vested in the commissioner's court of Ellis county, Tex. Again, it is urged that said special law is invalid, in that same is in conflict with the general laws on the same subject, especially with article 4736, Sayles' Ann. Civ. St. Tex. 1897, and also that article 5048, Sayles' Ann. Civ. St. 1897, is contrary to and inhibited by article 8, § 1, of the Constitution of the state of Texas, in that the taxation levied and prescribed in such article of said statutes is not equal and uniform, in that persons between the ages of 21 and 60 years are discriminated against by the levy and exaction of a poll tax, which is a prerequisite to the right to vote and a necessary qualification under the Terrell election law (Laws 1905, p. 520, c. 11), and, further, that the amendatory act of 1905 (Sp. Laws 1905, p. 262, c. 30) of said Ellis county road law amending chapter 110, p. 150, of said act of 1897, is contrary to and inhibited by section 40, art. 16, of the Constitution of the state of Texas, in that said act undertakes to create and impose on a county commissioner another civil office of emolument than that of county commissioner, which cannot be held by one man under the provisions of said Constitution above indicated. It is to be regretted that we have not been furnished with a brief on these matters by counsel for appellant, and we are not sure that from the brief statement of the objections to the act in question as contained in the motion to quash that we fully grasp, in detail at least, the grounds upon which the attack rests. It occurs to us, however, that the law is not subject to any of the objections urged.

1. A case very similar to this which rested practically on the same form of indictment was decided by this court in the case of Young v. State, 51 Tex. Cr. R. 366, 102 S. W. 117. The particular insistence in that case was that the act applicable to Ellis county was violative of article 3, § 56, of the state Constitution, which prohibits the passage of such laws. The act, however, was upheld as being authorized by article 8, § 9, of the Constitution as amended in 1890, which is as follows: "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." This view was upheld by the Court of Civil Appeals of the Fifth Judicial District in the case of Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921.

2. We think that the act in question is not invalid in that same contravenes article 1, § 28, of the Constitution, because, as claimed, the power of suspending the law is vested in the commissioners' court of Ellis county, Tex. If it could be held that any such power of suspension was given in the law, we should not declare the law invalid for this reason, but hold that the power of suspension therein undertaken to be created was itself invalid, and the law would stand and the suspension fail.

3. It cannot be held, we think, that so far as affected by article 5048 of Sayles' Ann. Civ. St. 1897, the law is contrary to and inhibited by article 8, § 1, of the Constitution, in that the burden of working the road is to be construed and tested as if it were taxation levied and prescribed in said article of the statute, and not equal and uniform, for that persons between the ages of 21 and 60 years are discriminated against by the levying and exaction of a poll tax. We held in the case of Solon v. State (Tex. Cr. App.) 114 S. W. 349, that the law levying a poll tax was not invalid, for this reason: that the Legislature had the right to make the levy applicable to a class where such classification was uniform and rested on a substantial basis and reason. The matter is fully discussed in the case above referred to, and requires no further elaboration.

4. Nor do we think that the act in question is invalid or inhibited by section 40, art. 16, of the Constitution, in that said act undertakes to create and impose on a county commissioner another civil office of emolument, which appellant claims cannot be held by one man under the provisions of the Constitution. The commissioners' court and the commissioners themselves are charged by law with the duty, authority, and obligation of giving attention to all matters affecting public roads in their respective counties, and the duties imposed on the commissioners of Ellis county by this act come reasonably and seasonably within the general scope of their duties under the law.

5. In addition to the grounds urged why the indictment should be held invalid, appellant's motion for a new trial is in these words: "In the alternative, defendant says that the judgment of conviction in this case is not warranted by the evidence. That the state failed to prove that a poll tax had been levied against the male citizens, for any year, in Ellis county, Tex." We are not sure that it is intended by this motion to allege that the judgment of conviction is invalid for any other reason than that the state failed to prove that a poll tax had been levied in Ellis county. The mere allegation that the judgment of conviction is not warranted by the evidence would be so general as that we would not be required to pass on same. If, however, we should do so, it does not seem that there are any valid reasons why the judgment should be set aside. Sp. Laws 29th Leg. p. 263, c. 30, § 15, contains the following provision: "Any person in Ellis county subject to the payment of a poll tax (whether assessed or not) who shall fail to pay same on or before the first day of February thereafter shall be a delinquent poll tax payer, and shall be subject to road duty for a period of three days during the year, and they shall be summoned by the road commissioner, road superintendent, road overseer or any person appointed by the road commissioner to work the road, and shall be liable to road duty in the road district where they reside, or to any road district to which they may be assigned by the commissioners' court; and any delinquent poll tax payer who resides in any city or town shall be assigned to work on some road leading into said city or town. And it is made the duty of the tax collector, as soon as practicable after the first day of February and before the first day of May thereafter, to make out and give to the commissioners' court a complete list of all delinquent poll tax payers for the previous year, with their residence as shown in said collector's office. And each of said delinquent poll tax payers shall be subject to road duty in the road district where he lives, or to any road district to which he may be assigned by the commissioners' court. The performance of the road service provided for in this section shall not exempt a person from any other road duty to which he is subject. And any person when liable to work the roads and summoned for that purpose under this section who shall fail to appear and perform the work required shall be subject to the same punishment as in other cases of failing to appear or do good work on the roads, and when convicted shall satisfy the fine and costs as in other misdemeanor convictions; but any person who may become liable to road duty as a delinquent poll tax payer, when summoned, may satisfy said summons and be relieved from road duty by paying to the road commissioner, superintendent or road overseer the sum of three dollars, to be accounted for as other road money." If it is urged that the conviction cannot be sustained for the reason that appellant was a resident of the city of Ennis, which had been regularly incorporated under the laws of this state, over whose streets and alleys the county would have no control, it would be a sufficient answer to say that the only suggestion in the statement of facts raising this is the following, contained in the statement of facts: "Defendant resided in the corporate limits of Ennis, Ellis county, Tex., in 1904, 1905, 1906, and up to September, 1907. Since said last date he has been employed in the oil mill at...