Morrow v. Corbin

Decision Date24 June 1933
Docket NumberNo. 6542.,6542.
Citation62 S.W.2d 641
PartiesMORROW v. CORBIN.
CourtTexas Supreme Court

B. R. Wall, of Grapevine, for plaintiff.

M. Hendricks Brown, of Fort Worth, for defendant.

CURETON, Chief Justice.

On May 26, 1933, a certificate issued by the Honorable Walter L. Morris, judge of the Sixty-Seventh judicial district, was filed in the Court of Civil Appeals for the Second (Fort Worth) district. The purpose of the certificate was the determination of the constitutionality of the amendment to article 2218b, Revised Statutes 1925, as made by an Act of the 43d Legislature (Acts 1933, c. 102 [Vernon's Ann. Civ. St. art. 2218b]), effective on May 1, 1933, providing for the judicial stay of foreclosure of liens.

The certificate discloses that the suit out of which it was issued is one for debt and foreclosure of a vendor's lien filed on November 22, 1932, long prior to the enactment of the judicial stay act. On May 13, 1933, the defendant answered by an application for an extension of time for the foreclosure of the lien as provided for in the act above named. The application for such extension is in due form and meets the requirements of the statute invoked. In opposition to the application the plaintiff asserted that the statute involved violates both federal and state Constitutions.

Before trial and judgment in the district court, Judge Morris certified the question of the constitutionality of the act to the Court of Civil Appeals.

The certificate and certified copy of the pleadings in the district court accompanying it shows that the parties agreed that the district judge should issue the certificate under the provisions of the legislative act copied below.

On May 30, 1933, the Court of Civil Appeals certified the questions contained in the certificate to this court and the record is now before us on preliminary examination under rule 17, Rules of the Supreme Court, which provides: "When a certified question from a Court of Civil Appeals is presented to the clerk of this court, he will file and docket it and send it at once to the consultation room. If the court should determine that the question is not properly certified under the statute, so as to give jurisdiction to answer it, it will be dismissed without a hearing. Otherwise, it will be set down for argument on a day to be fixed by the court in regular session." Smoot's Texas Court Rules, p. 54.

We have concluded that we have no jurisdiction of the certificate and that the cause should be dismissed in accordance with the rule.

The certificate is presented under Senate Bill No. 173 (Acts 1933, c. 71 [Vernon's Ann. Civ. St. art. 1851a]), recently enacted by the Legislature.

The several sections of this measure, in so far involved in the case before us, read as follows:

"Sec. 1. In any case now or hereafter pending in any District or County Court in this State, wherein the constitutionality of any law or any order, rule or regulation of any officer, board, or other State Commission is attacked as being violative of either the State or Federal Constitution, and wherein a decision on the same is material to the deciding of said case finally on its merits, the Judge of said Court shall have the power and authority to certify any such question or questions of law involved in said case directly to the Court of Civil Appeals in said District before trial on the merits for its decision.

"Sec. 2. The trial court, in certifying such question or questions, may incorporate in such certificate any or all of the pleadings of the parties therein, and in the event all of the pleadings are not set forth therein, then upon the certification of such question either party may have the right to file in the Court of Civil Appeals or the Supreme Court a certified copy of any such pleadings for the consideration of the Court.

"Sec. 3. In order to expedite the final determination of such question with dispatch, the Court of Civil Appeals may forthwith certify said question or questions immediately to the Supreme Court, as provided by Article 1758 of the Revised Civil Statutes of 1925, and other Articles relating to certifying questions to the Supreme Court. When the Supreme Court, on receiving such record, shall render an opinion thereon, such opinion shall be final and shall be the law on the question involved until overruled by it, or otherwise abrogated by law. After the questions are decided the Supreme Court and the Court of Civil Appeals shall notify the Court of Civil Appeals and the trial court respectively. Either of said Appellate Courts shall give such time as it may deem advisable for the filing of briefs.

"Sec. 4. The trial court may hold the trial of said case in abeyance until its questions have been certified and answered. * * *

"Sec. 5. All such appeals and certified questions shall be given precedence over all other cases as now provided by law. The law and the rules of the Various Courts in reference to certifying questions by the Court of Civil Appeals to the Supreme Court and taking appeals from orders granting or denying temporary injunctions shall govern and control where not in conflict with the provisions hereof.

"Sec. 5a. This Act shall not apply to any cause pending on the effective date hereof unless the parties each and all agree in writing to the certification to the Appellate Court and the agreement approved by the trial judge."

It is obvious that the purpose of this act is to obtain before judgment in the trial court the advice of the Court of Civil Appeals and the Supreme Court as to "the constitutionality of any law or any order, rule or regulation of any officer, board, or other State Commission," which may be involved in any case pending but undetermined in a trial court. In other words, by the terms of this enactment in so far as involved in the case before us we are required to advise the district and county judges how to try their cases as to all constitutional questions, not to revise, reverse, affirm, or otherwise affect their decrees. Ordinarily, we believe the rendition of advisory opinions is to be regarded as the exercise of executive rather than judicial power. This seems to have been the conception of those who framed the Constitution, since by that instrument the Attorney General, a member of the Executive Department, is the only state officer expressly authorized to render such opinions. State Constitution, article 4, §§ 1, 22. At any rate, the rendition of advisory opinions has generally been held not to be the exercise of judicial power. 7 Harvard Law Review, p. 153; Matter of State Industrial Commission, 224 N. Y. 13, 119 N. E. 1027; Laughlin v. Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734; Opinion of Justices, 126 Mass. 567; Anway v. Grand Rapids R. Co., 211 Mich. 592, 179 N. W. 350, 12 A. L. R. 26 (overruled in the later case, 68 A. L. R. 105, but not on the above question); 15 Corpus Juris, p. 785, §§ 78, 79, and authorities cited in the notes; authorities post. We shall inquire, however, whether or not such power may be exercised by the appellate courts of this state, either as an express grant under the Constitution or as incidental to any granted power.

Section 1, article 5, of the Constitution states in what "magistracy" the judicial power shall be vested. It declares: "The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal 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 provided by law." The Constitution has thus erected a system of trial and appellate courts quite similar to that of the United States and those of the American states generally, all of which are an outgrowth of the judicial system of England, out of which the common law grew and attained its renown.

"Judicial power" is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 47 S. Ct. 282, 71 L. Ed. 541; 11 Texas Jurisprudence, pp. 711, 712, § 9, and cases cited in the notes.

"Jurisdiction" of a particular court is that portion of the judicial power which it has been authorized to exercise by the Constitution or by valid statutes.

Since the Constitution has erected a system of both trial and appellate courts, it is obvious that it was never the purpose of the Organic Law to permit one tribunal to interfere with the lawful exercise by another of the judicial power allocated to it. It was the purpose of the framers of the Constitution to make each tribunal independent of all others in the exercise of the authority confided to it, except in so far as powers of revision or direction may be given in the Organic Law or valid statutes thereunder to appellate over trial tribunals. This is made plain by the repeated decisions of the appellate courts in mandamus cases to the effect that while they have power to direct a trial court to proceed to trial, they have no authority to and will not direct the inferior tribunal how to try or decide a case before it. Ewing v. Cohen, 63 Tex. 482; Aycock v. Clark, 94 Tex. 375, 60 S. W. 665; Matthaei v. Clark, 110 Tex. 114, 127, 216 S. W. 856; Matlock v. Smith, 96 Tex. 211, 71 S. W. 956; Roberts v. Munroe (Tex. Civ. App.) 193 S. W. 734; Pollard v. Speer (Tex. Civ. App.) 207 S. W. 620.

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    ...once more wading into the advisory opinion swamp--a constitutionally proscribed journey, TEX. CONST. art. V, § 3; Morrow v. Corbin, 122 Tex. 553, 563, 62 S.W.2d 641, 646 (1933), criticized in my concurrence in overruling the motion for rehearing in Edgewood II. 804 S.W.2d at The history of ......
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