Cocke v. E. P. Calkin & Co.
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 542 |
| Parties | JAMES H. COCKE v. E. P. CALKIN & CO. |
| Court | Texas Supreme Court |
Writ of Error from Galveston County.
The laws of the republic of Texas regulating imposts existed in full force until the 16th day of February, 1846, and all importations previous to that period were chargeable with duties in accordance with those laws.
Until the organization of the state government on the 16th of February, 1846, the government and laws of the republic of Texas continued in force to exclusion of the constitution and laws of the United States, and of every portion of the state constitution itself, of which a previous enforcement was not enjoined. [Overruled, 21 Tex. 577.]
The record in this case shows, that on the 30th day of January, 1846, the defendants in error brought into the city of Galveston from the city of New Orleans a quantity of merchandise, the original cost of which was about $4,500, principally the growth and manufacture of the United States; that James H. Cocke, the plaintiff in error, claiming to act as collector of the customs at Galveston, under the laws of the republic of Texas, seized and took into his possession the whole of said merchandise for the non-payment of the duties which he alleged to be due thereon under the laws aforesaid. The defendant in error protested against this act in due form of law as being in violation of the constitution of the United States, of the act of congress of the United States of the 31st of December, 1845, and of a circular of the secretary of the treasury of the United States of 9th January, 1846, declaring that “vessels and their cargoes arriving in any port of the state of Texas, either from a foreign port or a port in any other state or territory of the United States, are to be placed on a similar footing with vessels and their cargoes arriving at ports in any of the states of the Union.” It further appeared that the plaintiff in error was instructed by the secretary of the treasury of the late republic of Texas to continue to collect duties under the revenue laws of the same up to the 16th day of February, 1846, being the first day of the meeting of the legislature of the state of Texas. The plaintiff in error subsequently delivered to the defendants the greater part of said goods, but retained so much thereof as he believed sufficient to secure the duties upon the whole, amounting to about $1,000. A petition was thereupon filed in the district court by the defendants in error, praying that the said collector might be enjoined from selling the goods thus retained by him, and that possession of the same might be delivered to them, etc., which was done.
The cause coming on to be heard and tried, the injunction was perpetuated and a verdict and judgment rendered against the plaintiff in error for $250 damages, for the unlawful detention of the goods.
Allen, for the plaintiff in error.
James H. Cocke, collector, plaintiff in error.
The principal question in this case is, at what time did the right of the republic of Texas, under its revenue laws to collect impost duties, cease?
The plaintiff in error was instructed to collect up to the 16th of February, 1846, the time of the organization of the state government; and it is contended in his behalf that this instruction was right. See statement of facts.
The consent of the federal congress that the territory of the republic might be erected into a new state was manifested by the joint resolution. Joint Resolution, sec. 1.
It prescribes the mode in which this erection or organization is to be consummated, and in this respect the resolution is merely organic. Joint Resolution, secs. 1 and 2.
Time is given until the first day of January, 1846, to complete and submit to congress the model of this erection, by which time that body was to take its final action on the subject. Id.
To this extent the acceptance by the convention of the terms of the proffer went, and no further.
This acceptance did not, nor could make the contemplated territory a part of the United States from and after the time of its adoption, without contravening the spirit, sanction and terms of the joint resolution itself, to which it was to conform and by which it was controlled and measured. Debates of Convention, p. 10.
This acceptance was not a grant of territory, but a mere pledge of the national honor, that Texas would carry out the terms of the proffer in like good faith with the United States.
The latter did not request of the former a concession of its territory at that time. Such concession was not contemplated by the resolution. No power or capacity then existed either in the one to give it or in the other to accept it.
The state constitution, framed by the convention, was a mere form or model of government until the state or body politic, of which it was to become the paramount law, was organized. Joint Resolution, sec. 1.
This constitution being adopted by the United States congress, its provisions become a portion of the laws of the United States, and the statutes of congress, of 29th of December, are to be construed to accord with those provisions.
By those provisions the national government of the republic of Texas, with all its attributes and rights, especially so far as the collection of the revenue was concerned, was continued until the first day of the meeting of the legislature, viz., February 16, 1846. State Const. Schedule, secs. 1, 10; sec. 6, p. 26; Acts 29th Congress, U. S. p. 178; Id. p. 3.Harris, on same side. No brief.
J. B. Jones, for defendant in error. No brief filed.
The principal question in this case and the only one discussed is, as to the time when the right of Texas to collect import duties under the revenue laws of the republic ceased to exist. The importations by the defendants in error were made on the 30th of January, 1846; and it is contended by the plaintiff in this court, that all goods introduced before the 16th of February, 1846, the day of the organization of the state government, were chargeable with duties, in accordance with the laws of the republic regulating duties on imports; and by the defendants in error, that these laws became null and inoperative on the 29th of December, 1845, on which day, by joint resolution of the congress of the United States, Texas was admitted as one of the states of the Union.
The judgment of the district court was founded on the opinion that Texas being admitted on the 29th December, 1845, and becoming on that day one of the states of the United States of North America was, of consequence, entitled to all the rights and privileges belonging to any member of the Union; and from that time was subject to the provisions of the constitution of the United and its laws in the collection of duties on imports; and that the merchandise upon which duties are claimed, having been imported from one of the states of the Union, subsequent to the admission of Texas, was not liable to those charges, and that the collection of the same would be in direct conflict with the constitution of the United States.
The executive of the Union was, by joint resolution, approved March 1, 1845, authorized to submit one of two alternative propositions, to the republic of Texas as an overture on the part of that government for her admission as a state of the Confederacy. One of these contemplated the completion of this great measure, and the adjustment of its terms by legislation. And the other by negotiations of the parties to the compact. The president in his discretion selected and presented for consideration and acceptance by this republic, the proposals contained in the first and second sections of the said resolution, by which (among other matters not pertinent to the present question) it was declared that congress assented to the erection of the republic of Texas into a new state, with a republican form of government, to be adopted by the people of the said republic by deputies in convention assembled, with the consent of the existing government of the said republic.
This consent on the part of the United States was given upon several conditions, one of which required the constitution which was to be framed by the convention, to be transmitted with the proper evidence of its adoption by the people of the said republic of Texas, to the president of the United States, to be laid before the congress of the Union for its final action, on or before the first day of January, one thousand eight hundred and forty-six.
The existing government of Texas and the convention assented to this overture, with its conditions and guaranties, and this consent on the part of the convention was attached to and incorporated with the constitution.
By the first section of the 12th article of the said constitution, it was declared that “all process which shall be issued in the name of the republic of Texas, prior to the organization of the state government under this constitution, shall be as valid as if issued in the name of the state of Texas.” In the second section of the same article, it was provided that “all criminal prosecutions or penal actions, which shall have arisen prior to the organization of the state government under this constitution, in any of the courts of the republic of Texas, shall be prosecuted to judgment and execution in the name of the state, etc. The sixth section contained a provision, that if it should appear on the second Monday of November, 1842, from the returns that a majority of the votes of the people of Texas were given for the adoption of the constitution, the president should make proclamation of that fact, and thenceforth the constitution was ordained and established as the constitution of the state, to go into operation and be of force and effect from and after the organization of the state government under the said constitution.
By section 10th it was declared “that the laws of this republic relative to the duties of officers,...
To continue reading
Request your trial
-
Lee v. King
...of the United States were in force in Texas immediately upon her admission as a state, adopted, though not concurred in, by this court. 1 Tex. 542. Appeal from Kaufman. Tried below before Hon. J. C. Robertson, Esq., special judge. Action for trespass on land. This cause was submitted to the......