Long v. State

• Decision Date: 02 February 1910
• Citation: 127 S.W. 208
• Parties: LONG v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 208

LONG v. STATE.

Court of Criminal Appeals of Texas.

February 2, 1910.

Rehearing Denied April 19, 1910.

Appeal from Criminal District Court, Harris County; E. R. Campbell, Judge.

Isaac Conroe Long was convicted of burglary, and he appeals. Affirmed.

J. M. Gibson, J. M. Fenn, and E. T. Branch, for appellant. John A. Mobley, Asst. Atty. Gen., and W. G. Love, Dist. Atty., for the State.

RAMSEY, J.

Appellant was convicted of burglary, and his punishment assessed at two years' confinement in the penitentiary.

The principal question in this case involves the validity of Acts 31st Leg. c. 13, changing, extending, and rearranging the terms of the criminal district court for Harris and Galveston counties.

1. It is contended by appellant, and was urged in a strong oral argument, that the act is invalid, in that same was in contravention of section 40, art. 3, of the state Constitution, in that it was not embraced within the subjects designated by the proclamation of the Governor calling the Legislature in special session. Section 40 of article 3 is as follows: "When the Legislature shall be convened in a special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, or presented to them by the Governor; and no such session shall be of longer duration than thirty days." It was held in the case of Casino v. State, 34 S. W. 769, that it may be shown that legislation passed at a special session of the Legislature was in violation of this section. Some doubt of the correctness of this view was expressed by Judge Willson in the case of Baldwin v. State, 21 Tex. App. 591, 3 S. W. 109, where he says: "It is a question well worthy of serious consideration whether a court in this state can go behind a statute which is valid upon its face, and inquire into the particular authority by virtue of which it was enacted." Usener v. State, 8 Tex. App. 177; Central R. Co. v. Hearne, 32 Tex. 546; Blessing v. Galveston, 42 Tex. 641. The case of Casino v. State, supra, is also authority for the proposition that this section is mandatory, and that, where an act has been passed at a special session on a subject not embraced in the Governor's proclamation, his approval cannot make it valid, and that an act passed at such special session not reasonably within the purview of such call is, and by the courts will be declared to be, unconstitutional. By inference, if not directly, this view is sustained by the case of Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596.

In passing on the appeal we shall treat the question as one subject to judicial inquiry. We think these propositions laid down in the valuable brief filed in behalf of the state may be accepted as unquestionably sound:

First. In the absence of a constitutional provision limiting the same, the jurisdiction of the Legislature when convened in special session is as broad as at a regular session, and that section 40 of article 3 of the Constitution constitutes an exception to the general rule, and is a limitation of the general power of the Legislature. And where such limitation is thus imposed upon the general power of the Legislature, it should be strictly construed, and should not be given effect as against such general power, unless the act in question is clearly inhibited by such limitation. Baldwin v. State, 21 Tex. App. 591, 3 S. W. 109; State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. Rep. 875; People v. Blanding, 63 Cal. 333; Cooley's Const. Lim. 204. Says this author: "Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words. `When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument.'" People v. Fisher, 24 Wend. (N. Y.) 215; State v. Staten, 6 Cold. (Tenn.) 238; Walker v. Cincinnati, 21 Ohio St. 14; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829; People v. Rucker, 5 Colo. 455; Wooten v. State (Fla.) 5 South. 39, 1 L. R. A. 819.

Second. Every presumption should be indulged in favor of the constitutionality of a legislative enactment, and the judicial department of the government will be justified in pronouncing it unconstitutional only when it is shown to be a manifest violation of a constitutional restriction. Solon v. State, 54 Tex. Cr. R. 261, 114 S. W. 349; Sweet v. Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289; Mfg. Co. v. Falls, 90 Tenn. 466, 16 S. W. 1045; Kellogg v. Page, 44 Vt. 359, 8 Am. Rep. 383; Newsom v. Cocke, 44 Miss. 352, 7 Am. Rep. 686.

Mindful of these salutary and safe rules of construction, it follows, third, that the Constitution does not require the proclamation of the Governor to define the character or scope of legislation which may be enacted at a special session but only in a general way to present the subjects for legislation, and thus confine the business to a particular field, which may be covered in such way as the Legislature may determine. Baldwin v. State, 21 Tex. App. 591, 3 S. W. 109; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Deveraux v. City of Brownsville (C. C.) 29 Fed. 742.

The proclamation of the Governor convening the Legislature in special session contained, among other things, the following: "To enact adequate laws simplifying the procedure in both civil and criminal courts of this state, and to enact laws amending and changing the existing laws governing court procedure as will reduce the present unusual and unnecessary expense of litigation and as will tend to the speedy administration of justice in civil and criminal cases." While it is undoubtedly true that the construction which the Legislature and the executive place on the language of such a call is not conclusive upon the courts, it is entitled to great weight. Such call is in a sense the chart of the Legislature, and contains the limitations under which and in respect to which only they can act. When, therefore, acting under such a call, they undertake to consider subjects and pass laws in response thereto, and such laws receive the approval of the executive, courts are and should of right be reluctant to hold that such action is not embraced in such call, and will not so declare unless the subject manifestly and clearly is not embraced therein. The term "court procedure," in the connection in which it was used by the Governor in his proclamation, was doubtless intended to apply, and should be held to have the effect to apply generally to all laws governing the operation of courts, and we think necessarily included the terms and times during which such courts should hold their sessions. If the Legislature by enacting a law amending and changing existing laws increased and extended the length of the terms of the criminal district court of Harris county, which would have the effect and which would tend to the speedy administration of justice in criminal cases, it would seem that such an act would be within the jurisdiction of the Legislature, and would be legislation upon the general subject presented for their consideration by the Governor in his proclamation. It was stated, in the case of Brown v. State, supra: "That the Legislature may only enact legislation in part in relation to the subject mentioned in the call does not render such legislation invalid, nor is it necessary to the validity of such legislation that the whole subject-matter should be acted on by the Legislature. The call includes the entire subject of reapportioning the judicial district, and authorized any and all such legislation upon that subject as was deemed necessary by the Legislature. It was not necessary, nor would it have been proper, for the Governor, in his proclamation, to have suggested in detail the legislation desired. It was for the Legislature to determine what the legislation should be."

The case of Baldwin v. State, supra, is, we think, directly in point, and beyond question supports the validity of the act here under consideration. In that case Baldwin was indicted for following the occupation of selling the Illustrated Police News and Police Gazette without first paying a tax upon such occupation. The act taxing this occupation was passed in 1882 at a special session of the Legislature (see Laws 17th Leg. Sp. Sess. p. 18), and the constitutionality thereof was attacked on the ground that the legislation was enacted without constitutional warrant, and was inhibited by section 40, art. 3, of our Constitution. The proclamation of the Governor convening the...