In re Tipton

• Decision Date: 15 February 1890
• Citation: 13 S.W. 610
• Parties: <I>In re</I> TIPTON.
• Court: Texas Court of Appeals

13 S.W. 610

In re TIPTON.

Court of Appeals of Texas.

February 15, 1890.

Original application for writ of habeas corpus.

Finlay, Marsh & Butler and McLemore & Campbell, for relator. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Applicant, T. W. Tipton, being in custody of the sheriff of Smith county by virtue of a capias issued from the county court of said county upon an information based upon a complaint charging said applicant with unlawfully selling refined kerosene illuminating fluid without first having the same inspected and branded according to law, applied to the county judge of said Smith county for the writ of habeas corpus, and said judge declined to grant said writ, but, as the question involved in the case was the validity of a statute, referred the application to this court, requesting action thereon. At Tyler this court granted the writ, and upon a hearing thereof took the cause under advisement, and transferred the same to this branch; and, after a thorough investigation of the question presented, we now declare our conclusions.

It is claimed by applicant that the statute for a violation of which he is being prosecuted and is in custody as aforesaid, to-wit, the act approved April 5, 1889, entitled "An act to provide for the inspection of refined oils which are the product of petroleum, and which may be used for illuminating purposes within this state, and to regulate the sale and use thereof, and to provide penalties for violation of the same," is not a valid law, because it is not the statute which was in fact enacted by the legislature. It is claimed by applicant, and is conceded by the assistant attorney general, and is shown by the journals of the senate and house of representatives, that said act originated in the house of representatives, and was designated and known as "House Bill No. 167." It passed the house, and was sent to the senate. In the senate, section 3 of the bill was amended, and the bill was returned to the house with the senate amendment thereto. The house concurred in the senate amendment. The bill, as amended, was enrolled. The committee on enrolled bills reported to the house that the bill had been correctly enrolled, and the bill was then signed and presented to the governor, who approved it, and it was deposited in the secretary of state's office. As appears from the senate journals, the amendment to section 3 of said bill, which was adopted by the senate, was as follows: "Provided, it shall not be necessary to inspect oil which has been inspected under a law of another state, and its quality determined and evidenced by the authentic stamp or mark of the inspector of such state." In the enrolled bill, which is now the statute we are considering, the proviso in section 3, corresponding to the amendment above quoted, reads: "Provided, it shall not be necessary to inspect one which has been inspected under a law of another state." It is manifest that the proviso in the statute and the proviso which is recited in the senate journals are not the same, but are essentially different.

But how far will the courts of this state go in inquiring into the acts of the legislative department of the government? When a bill has been authenticated by the signatures of the president of the senate, and the speaker of the house of representatives, and the governor of the state, and has been deposited in the office of the secretary of state, and published as a law of the state, will the courts of this state, from the journals of the legislature or other evidence, determine that the statute is not a valid law because not enacted in accordance with the formalities required by the constitution, or because the statute so authenticated is not the one enacted by the legislature? In several of the American states, it is the established doctrine that the courts will inquire behind the authenticated statute into the manner of its enactment, and will from the journals determine whether or not it is a valid law. Counsel for applicant have referred us to numerous decisions which so hold, and which unquestionably support the propositions contended for in behalf of...