Henderson v. Beaton

• Decision Date: 24 October 1879
• Citation: 52 Tex. 29
• Parties: THOMAS HENDERSON v. ALEXANDER BEATON.
• Court: Texas Supreme Court

52 Tex. 29

THOMAS HENDERSON

v.ALEXANDER BEATON.

Supreme Court of Texas.

Oct. 22, 1879.

Oct. 24, 1879.

APPEAL from Navarro.

Section 1 of article 5 of the Constitution provides: “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.” * * *

On July 9, 1879, an act of the Legislature was passed entitled “An act to create a commission of arbitration and award and define the powers and duties thereof, and to make appropriation to pay the salaries of the judges thereof.” Said act is as follows, viz.:

“SEC. 1. Be it enacted by the Legislature of the State of Texas, that a commission of arbitration and award, to consist of three persons learned in the law, to be appointed by the Governor, by and with the advice and consent of the Senate, if in session, who shall hold their offices for two years from the date of their appointment, and receive for their services the same salary as judges of the Supreme Court, be, and the same is, hereby created, to be styled the ‘Commissioners of Appeals of the State of Texas.’ In case of a vacancy on said commission by the death or resignation of any member thereof during a vacancy [vacation] of the Legislature, it shall be the duty of the Governor to fill the same by appointment, the person appointed to continue in office until the next session of the Legislature after the appointment.

SEC. 2. Said commission shall have the power to hear and pronounce award upon civil cases now or hereafter pending in the Supreme Court or the Court of Appeals, wherein the parties or their attorneys may file consent in writing to the reference thereof to said commission.

SEC. 3. Said commission shall hold its sessions at the same time and places as the Supreme Court, and shall appoint one clerk, if necessary, and if no such clerk be appointed, the duties of that office shall be performed by the clerks of the Supreme Court and of the Court of Appeals, respectively, at the different branches thereof, who shall receive in either case the same fees as are allowed by law to the clerks of the Supreme Court for like services.

SEC. 4. Said commission shall have a seal, being a star with five points, and the words ‘Commissioners of Appeals of the State of Texas' around the same. Regular docket and minutes of all proceedings by or before said commission shall be kept, and the records and proceedings thereof shall be entitled to the same verity as are records and proceedings of courts of record, and all cases shall be docketed in the order of dates of filing of written consent provided in this act.

SEC. 5. Said commission shall have the right to issue writs of certiorari to perfect the record, and such process as the Supreme Court might issue to make parties, and shall have the power to punish for contempt.

SEC. 6. All laws and rules regulating practice in the Supreme Court shall be of force in the practice and proceedings of said commission, so far as the same are applicable, and all applications for rehearing in cases referred to said commission shall be made before and determined by the commission.

SEC. 7. Said commission shall report its conclusions or award to the Supreme Court or Court of Appeals, as the case may be, in the cases so referred, and may accompany the same with a brief synopsis of the case and their opinion thereon; and the conclusions or award aforesaid shall be and become the judgment of the Supreme Court or the Court of Appeals aforesaid; and said courts shall make and render such further order, judgment, or decree thereon as may be necessary or proper to make said award effective.

SEC. 8. The opinions of said commission shall not be published in the reports of the decisions of the Supreme Court or the Court of Appeals, nor shall the same have any other or further effect than to determine the particular cause wherein rendered, and shall have no force, or effect, or authority as precedent in other causes.

SEC. 9. And the sum of seventeen thousand seven hundred and fifty-four dollars, or so much thereof as may be necessary, is hereby appropriated out of any moneys in the treasury not otherwise appropriated for the payment of the salaries of the judges of said commission for the period ending first of March, 1881.

SEC. 10. Whereas the near approach of the close of the present session of this Legislature, and the limited time allowed to legislation, an imperative public necessity exists for the suspension of the constitutional rule requiring bills to be read on three several days, and it is hereby enacted that said rule is suspended. The fact that the accumulation of business in the Supreme Court and in the Court of Appeals is so great as to prevent, in ordinary course, that speedy determination to litigation which is essential to justice, creates an emergency that requires this act to take effect at once, and it is therefore enacted that this act shall take effect and be in force from and after its passage.”

Section 13 of article 16 of the Constitution is as follows, viz.: “It shall be the duty of the Legislature to pass such laws as may be necessary and proper to decide differences by arbitration, when the parties shall elect that method of trial.”

The counsel for the parties in this cause having filed their motion for its reference to the commission of appeals, together with agreement for its reference, the following opinions were delivered on that motion.

William Croft, for appellant.

C. M. Winkler, for appellee.

GOULD, ASSOCIATE JUSTICE.

This motion is based upon a written agreement, signed by counsel, that the case, after its transfer, be referred to the “Commissioners of Appeals of the State of Texas,” and in granting the motion this court must impliedly affirm the validity of that commission. Although when the motion was called the chief justice expressed a desire that the question be argued, it appears that counsel in this case are not in attendance, and no disposition to argue it having been manifested by any of the Bar present, we have found ourselves compelled to dispose of it without the aid of counsel. We have not felt at liberty to postpone the question longer, and proceed to announce, as the conclusion of the court, that the “Act to create a commission of arbitration and define the powers and duties thereof, and to make appropriation to pay the salaries of the judges thereof,” is constitutional and valid, at least in so far as it creates said commission, and authorizes it to report its conclusions or award in the cases referred to it.

The main objection urged against the constitutionality of this act is understood to be that the commission is, in effect, another Supreme Court and Court of Appeals, and that it is created in violation of that clause of the Constitution which says, “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.” (Article 5, sec. 1.)

In our opinion, the commission is not a court, because it acts only by consent of both parties, and even then is without jurisdiction to render or power to enforce a judgment. It has no jurisdiction, for consent cannot give jurisdiction. It is but a convenient and suitable board of referees or arbitrators, provided to facilitate the adjustment of litigated cases pending in the courts of last resort, available only where both parties agree that the case be so referred. It is not a tribunal before which any litigant can be forced to come with his appeal. The constitutional Supreme Court and Court of Appeals are still open to every party.

Undoubtedly, the Constitution, in establishing these courts of last resort, intended to place it beyond the power of the Legislature to force the citizen to go with his appeal before some other tribunal. If, in a case involving life, liberty, or property, the citizen were denied the right to resort to these constitutional courts, and driven before different tribunals, organized, perhaps, under unfavorable circumstances, and in a manner less calculated to secure wise and impartial adjudications, it is believed the Constitution would be violated. If the constitutionality and validity of an act of the Legislature were made to depend on the opinion of a commission, the Constitution would be violated. The constitutional courts are designed to secure the citizen in his rights, and to enforce the observance of constitutional limitations. The commission endangers no right of the citizen, and its opinion affects only the case referred to it by the consent of parties, settling no question of constitutional law, and, indeed, settling nothing beyond that case. The act creating it purports to create but a commission of arbitration and award, having evident reference to that section of the Constitution making it the duty of the Legislature “to pass such laws as may be necessary and proper to decide differences by arbitration, where the parties shall elect that method of trial.” (Const., art. 16, sec. 13.) As in other cases of arbitration, the commission acts only after consent of both parties. If, in consequence of the stage of the litigation and the limitations under which it is placed, the award of the commission assimilates to the opinion of an appellate court, it is still in substance but an award. In our opinion, the commission is not a court, but is a board of referees or arbitrators, for cases in the Supreme and Appellate Courts.

Another objection to the act is based on the provision that the “conclusions or award aforesaid shall be and become the judgment of the Supreme Court or the Court of Appeals aforesaid, and said courts shall make and render such further order, judgment, or decree thereon as...