Hunt v. State

• Decision Date: 04 November 1886
• Citation: 3 S.W. 233
• Parties: HUNT v. STATE. HADLEY v. SAME. LESLARJETTE v. SAME.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 233

HUNT v. STATE.

HADLEY v. SAME.

LESLARJETTE v. SAME.¹

Court of Appeals of Texas.

November 4, 1886.

Appeals from county court, Tarrant county.

The conviction in each of these cases was for exhibiting a gaming bank, and the penalty assessed in each case was a fine of $25, and confinement in the county jail for 10 days.

W. S. Pendleton and B. G. Johnson, for appellants. Asst. Atty. Gen. Burts, for the State.

WILLSON, J.

These are convictions for keeping and exhibiting a gaming bank, and the punishment assessed in each case is fine and imprisonment under and by virtue of the act of March 19, 1885, (Gen. Laws Nineteenth Leg. 34,) amendatory of article 358 of the Penal Code; which act enlarges the punishment for said offense by adding to the punishment by fine, as prescribed by said article 358, the punishment of imprisonment in the county jail.

The question presented for our determination is the validity of this said act of March 19, 1885. It is contended by defendants that said act is invalid, because it was not enacted in conformity with section 38 art. 3, of the constitution, which reads as follows: "The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislature, after their titles have been publicly read before signing; and the fact of signing shall be entered on the journals." It is asserted that this provision was disregarded by the legislature in that the fact of the signing of this bill by the presiding officer of the senate was not entered upon the journals of the senate. The truth of this assertion is unquestionably established by reference to said journals, and if such omission can be noticed by the court, and invalidates the act, then said act is void, and these convictions must be set aside.

In considering the subject, we think it necessary to first determine whether, in the construction of the organic law, we may, as we might in the construction of a statute, apply the distinction between directory and mandatory provisions, or whether we must construe all provisions of the organic law to be mandatory. There is considerable conflict of decisions upon this point. In support of the doctrine that courts are at liberty to hold, under the rules governing the construction of statutes, a constitutional provision to be merely directory, the leading case perhaps is that of Miller v. State, 3 Ohio St. 483. With reference to the question under consideration, the decision referred to is obiter, the case not calling for a discussion of the subject. In a subsequent case, however, decided by the same court, the views announced in the Miller Case were affirmed. Pim v. Nicholson, 6 Ohio St. 176. And it may be said to be the settled rule in Ohio that it is not every provision of the constitution that is mandatory. In New York the same rule has been adopted, (People v. Supervisors of Chenango, 8 N. Y. 328;) also in California, (Washington v. Page, 4 Cal. 388;) and in Mississippi, (Hill v. Boyland, 40 Miss. 618; Swann v. Buck, Id. 268;) and in Missouri, (Cape Girardeau v. Riley, 52 Mo. 424; St. Louis v. Foster, Id. 513;) and in Maryland, (McPherson v. Leonard, 29 Md. 377;) and perhaps in some other states.

But, notwithstanding these decisions are by able courts, the great weight of authority seems to be the other way, holding that the courts nor any other department of the government are at liberty to regard any provision of the constitution as merely directory, but that each and every of its provisions must be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes. Judge Cooley, in his great work on Constitutional Limitation, upon this subject says: "The courts treated upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the things to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct; and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or mode of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end; especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leaving as little as possible to implication." Pages 94, 95. In referring to decisions holding a contrary doctrine to his text above quoted, the author says: "There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application." Id. page 95.

In our own state we know of no instance in which a constitutional provision has been held to be directory merely. This court has more than once held that constitutional provisions are always mandatory, and has adopted the doctrine laid down by Judge Cooley, which we have quoted above. Cox v. State, 8 Tex. App. 254; Holley v. State, 14 Tex. App. 505. We believe this to be the sound and only safe doctrine. It seems to us that the rule which gives to the courts and other departments of the government a discretionary power to treat a constitutional provision as directory, and to obey it or not, at their pleasure, is fraught with great danger to the government. We can conceive of no greater danger to constitutional government, and to the rights and liberties of the people, than the doctrine which permits a loose, latitudinous, discretionary construction of the organic law. "We are taught by the constitution itself that those who administer this government are divided into three co-ordinate departments. Each of these can only act within its own limited sphere, and they, respectively, are the servants of the sovereign power, the people. There is no power above the people. There is no discretionary power granted in the constitution for either of these departments, nor for all of them united, to exercise a discretionary expansion and flexible power against its rigid limitations, even though such limitations were imposed by improvident jealousy. If abuse exist by reason of defects in the constitution, present or prospective, the true source of authority, the people, have the power, and doubtless the wisdom and patriotism, to correct them; and this, in the American idea, is the safe and only depository." Potter's Dwar. St. 655.

And here we deem it proper to again use the language of Judge Cooley. He says: "Whatever constitutional provision can be looked upon as directory merely, is very likely to be treated by the legislature as if it was devoid of even moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so is conceded; that it is so we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And, if the legislature habitually disregards it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by the habitual disregard by any department of the government of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed." Const. Lim. 183.

Upon the weight of authority, and, to our minds, upon the soundest of reasons, we conclude that the provision of the constitution under consideration, and all other provisions of our constitution, are mandatory, and can in no...