Duncan v. McCall

• Decision Date: 30 March 1891
• Parties: DUNCAN v. MCCALL, Sheriff
• Court: U.S. Supreme Court

139 U.S. 449

11 S.Ct. 573

35 L.Ed. 219

DUNCAN v. MCCALL, Sheriff.

March 30, 1891.

[Statement of Case from pages 449-453 intentionally omitted] Thos. J. McMinn, A. H. Garland, and Heber J. May, for appellant.

R. H. Harrison, Asst. Atty. Gen., for appellee.

Mr. Chief Justice FULLER, after stating the facts as obove, delivered the opinion of the court.

By section 1, art. 5, of the constitution of Texas, the judicial power of the state was 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.' By section 3, the jurisdiction of the supreme court was confined to civil cases; by section 6 it was provided that 'the court of appeals shall have appellate jurisdiction, co-exten- sive with the limits of the state, in all criminal cases of whatever grade;' and by section 8, that 'the district courts shall have original jurisdiction in criminal cases of the grade of felony.' The district court of Maverick county was created and organized by an act of the legislature of Texas approved March 25, 1887. Laws Tex. 1887, p. 46. It had jurisdiction to try the offense of which petitioner was accused, and acquired jurisdiction over his person and the offense charged against him, through the indictment and his arraignment thereon. He was charged with the commission of the crime of murder, which he did not deny was a crime against the laws of Texas, and that the penalty therefor was death. What he complained of in his application to the circuit court was that in the matter of indictment and trial he had been subjected to the provisions of statutes which had not been enacted in accordance with the state constitution. The district court had jurisdiction and the power to determine the law applicable to the case, and, if it committed error in its action, the remedy of petitioner was that of which he availed himself, namely, an appeal to the court of appeals of the state. Under these circumstances the circuit court properly declined to interfere. Ex parte Royall, 117 U. S. 241, 245, 255, 6 Sup. Ct. Rep. 734; Ex parte Fonda, 117 U. S. 516, 6 Sup. Ct. Rep. 848.

Nor does the contention of counsel in respect of the court of appeals justify any other conclusion. Under sections 5 and 6 of article 5 of the state constitution, the court of appeals was created as a court of last resort in criminal matters, its powers and jurisdiction defined, and the salary, tenure of office, and qualifications of its judges prescribed. The determination of the validity or invalidity of the Civil or Penal Codes of 1879 would in no respect affect that court in these particulars, if the extraordinary claim of counsel in this regard were entitled to any consideration whatever in this proceeding. Unquestionably it is a fundamental principle that no man shall be judge in his own case, and the constitution of Texas forbids any judge to sit in any case wherein he may be inter- ested, 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; and specific provision is made for commissioning persons to hear and determine any case or cases in place of members of the supreme court or appellate court, who may be therein thus disqualified. Const. art. 5, § 11. But no such question arises, or could arise, upon this record. The constitution of the state of Texas was submitted by the convention which framed it to a vote of the people, on the third Tuesday of February, 1876, for their ratification or rejection, by an ordinance passed for that purpose; and it was provided that, if ratified, it should become the organic and fundamental law of the state on the third Tuesday of April following; and also that, at the same time that the vote was taken upon the constitution, there should be a general election held throughout the state for all state, district, county, and precinct officers created and made elective by the instrument; and that, if the constitution were ratified, certificates of election should be issued to the persons chosen. Jour, Const. Con. 772, 780. The constitution was ratified, and the petition alleged that the judges of the court of appeals were elected to their positions on the third Tuesday in February, 1876, and that the court of appeals was organized on the 6th of May of that year, from which counsel argues that the conclusion should be drawn that the present members of that court are not even officers de facto. The suggestion requires no observations here. We repeat that, as the district court had jurisdiction over the person of the petitioner and the offense with which he stood charged, it had jurisdiction to determine the applicatory law, and this involved the determination of whether particular statutory provisions were applicable or not, and hence, if the question were properly raised, whether a particular statute or statutes had been enacted in accordance with the requirements of the state constitution.

It is unnecessary to enter upon an examination of the rul- ing in the different states upon the question whether a statute duly authenticated, approved, and enrolled can be impeached by resort to the journals of the legislature, or other evidence, for the purpose of establishing that it was not passed in the manner prescribed by the state constitution. The decisions are numerous, and the results reached fail of nuiformity. The courts of the United States necessarily adopt the adjudication of the state courts on the subject. Town of Sough Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 U. S. 667; Railroad Co. v. Georgia, 98 U. S. 359. In Town of South Ottawa v. Perkins, where the existence of a statute of Illinois was drawn in question, Mr. Justice BRADLEY, delivering the opinion of the court, said, (94 U. S. 268:) 'As a matter of propriety and right, the decision of the state courts on the question as to what are the laws of a state is binding upon those of the United States. But the law under consideration has been passed upon by the supreme court of Illinois, and held to be invalid. This ought to have been sufficient to have governed the action of the court below. In our judgment it was not necessary to have raised an issue on the subject, except by demurrer to the declaration. The court is bound to know the law without taking the advice of ajur y on the subject. When once it became the settled construction of the constitution of Illinois that no act can be deemed a valid law unless, by the journals of the legislature, it appears to have been regularly passed by both houses, it became the duty of the courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to take that trouble, unless parties bring the matter to their attention; but, on general principles, the question as to the existence of a law is a judicial one, and must be so regarded by the courts of the United States. This subject was fully discussed in Gardner v. Collector. After examining the authorities, the court in that case lays down this general conclusion: 'That whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such questions; always seeking, first, for that which in its nature is most appropriate, unless the positive law has enacted a different rule.' 6 Wall. 511. Of course, any particular state may, by its constitution and laws, prescribe what shall be conclusive evidence of the existence or non-existence of a statute; but, the question of such existence or non-existence being a judicial one in its nature, the mode of ascertaining and using that evidence must rest in the sound discretion of the court on which the duty in any particular case is imposed.' And it has been often held by state courts that evidence of the contents of legislative journals, which has not been produced and made part of the case in the court below, will not be considered on appeal. Railroad Co. v. Wren, 43 Ill. 77; Bedard v. Hall, 44 Ill. 91; Grob v. Cushman, 45 Ill. 119; Hensoldt v. Petersburg, 63 Ill. 157; Auditor v. Haycraft, 14 Bush. 284; Bradley v. West. 60 Mo. 33; Coleman v. Dobbins, 8 Ind. 156.

The distinction is recognized between matters of which the court will take judicial cognizance 'immediately, suo motu,' and those which it will not notice 'until its attention has been formally called to them.' Gres. Eq. Ev. 292, 306. As to the last, Mr. Gresley says: 'It will not point out their applicability nor call for them, but if they are once put in by either party it will investigate them, and will bring its own judicial knowledge to supply or assist their proof, and will then adopt them as its own evidence, independently of the parties.' Jones v. U. S., 137 U. S. 202, 216, ante, 80. As a statute duly certified is presumed to have been duly passed until the contrary appears, (a presumption arising in favor of the law as printed by authority, and, in a higher degree, of the original on file in the proper repository,) it would seem to follow that wherever a suit comes to issue, whether in the court below or the higher tribunal, an objection resting upon the failure of the legislature to comply with the provisions of the constitution should be so presented that the adverse party may have opportunity to controvert the allega- tions, and to prove by the record due conformity with the constitutional requirements. People v. Supervisors, 8 N. Y. 325. By the constitution of Texas, each house of the legislature must keep a journal of its proceedings, and publish the same, and...