Scott v. State
| Decision Date | 28 February 1894 |
| Citation | 25 S.W. 337 |
| Parties | SCOTT v. STATE. |
| Court | Texas Court of Appeals |
J. L. Scott, in pro. per. S. H. Lumpkin, for the State.
At a former day of this term, upon motion of the attorney general, this writ of error was dismissed for want of jurisdiction. The cause was then removed by writ of error to the supreme court. In accordance with the opinion of that court rendered January 15, 1894, (24 S. W. 789,) it has been returned to this court for decision on the merits. Before announcing that decision, we deem it proper to state our views upon the question of jurisdiction involved. It is perhaps to be regretted that this was not done when the writ was dismissed, as the supreme court seem to have misapprehended the ground upon which we hold this court to be without jurisdiction.
The opinion of the supreme court, after stating that "the ground of the motion to dismiss was that this is a criminal case," and after quoting from Abbott's Law Dictionary the definition of a "criminal case," proceeds to demonstrate that this is not a criminal case, and concludes, therefore, that the motion should not have been sustained. True, the motion did allege it to be a criminal case, but the ground was better stated therein as follows: "The charge and action against the said Scott is penal in its nature, and cannot be appealed nor heard as a civil case." The judgment of dismissal did not indicate the ground. The constitution, in defining the jurisdiction of this court, makes no reference to criminal cases. It does not, in terms, include all cases other than criminal, but expressly limits the jurisdiction to "civil cases." Amended Const. art. 5, § 6, (85 Tex. 623.) It would seem, then, that a less circuitous method of determining the question of jurisdiction would be to inquire whether this is a civil case, within the meaning of those words in the amended constitution. Turning to the law dictionaries, we find a civil action at common law to be thus defined: "An action which has for its object the recovery of private or civil rights, or compensation for their infraction." 1 Bouv. Law Dict. p. 317; And. Law Dict. p. 26. Can it be said that a proceeding like this — to disbar an attorney — has any such object in view? This question is answered by the above opinion of the supreme court, as follows: "But the object of this proceeding is not to punish him for his misconduct, but merely to protect the court and the public against a person already licensed, who has shown himself unfit to be intrusted with the high and responsible duties of an attorney." It would then seem as difficult to bring this proceeding within the technical definition of a civil as of a criminal case. It does not follow that, because it is not technically a criminal case, it must, in strict law language, be a civil case. As said by the supreme court of Indiana in construing these words in the constitution of that state, "Not every case which is not a criminal case is a civil one." Railroad Co. v. Heath, 9 Ind. 558, (where the authorities are collated in support of the proposition that the definition of "civil case," in the common-law sense, was the one intended by the use of that term in the early constitutions of this country.) Such a proceeding seems, as has often been ruled, to partake of the nature of both; and, in analogy to the old common-law action partaking both of the nature of a real and personal action, may not inappropriately be termed "mixed." It is one of those cases which, with reference to civil and criminal jurisdiction, the courts have often found difficulty in classifying. For other instances, take forfeited bail-bond cases, which, after much deliberation, were finally classed as criminal, so far as appellate jurisdiction is concerned, by a majority both of the supreme court and court of appeals. Hart v. State, 13 Tex. App. 555; Houston v. State, Id. 558; State v. Norrell, 53 Tex. 427; Aber v. Warden, 49 Tex. 377. The case last cited was a suit to enjoin the sale of property under a judgment on a forfeited bail bond; and yet the supreme court dismissed the appeal for want of jurisdiction, holding it to be merely incidental to the criminal case, and that its purpose might have been accomplished by motion in the court where the judgment had been made final on the bond. The judgment brought here for revision on writ of error but declares, in a proceeding in the name of the state to protect her courts and people, the consequences of a felony conviction, as will more fully appear when we come to consider the case on its merits; and this result, it seems, might have been attained in a summary way in the court where the conviction was had, without further proof or proceedings. Jackson v. State, 21 Tex. 672; State v. Robinson, 26 Tex. 371. The real question at issue, however, is not whether a proper classification would take this case out of the domain of criminal jurisdiction, and place it within that of civil jurisdiction, but whether it is a civil case, within the meaning of those words as used in the amended constitution creating this court, and defining its jurisdiction. This question is conclusively settled, we think, by a well-established, if not universal, rule of construction, which has been too long followed in this state to be now questioned. That rule may be stated thus; Where a statute or constitution, after being once construed by the court of final jurisdiction, has been re-enacted without material change, such construction becomes a part of the new law or constitution. Suth. St. Const. §§ 255, 256; End. Interp. St. §§ 367-371, and numerous cases cited in footnotes. The following are some of the Texas cases recognizing the rule: Ennis v. Crump, 6 Tex. 34; Munson v. Hallowell, 26 Tex. 476; Trigg v. State, 49 Tex. 645; Morgan v. Davenport, 60 Tex. 230; Brothers v. Mundell, Id. 240; Timmins v. Bonner, 58 Tex. 554; Rowe v. Spencer, 70 Tex. 78, 8 S. W. 60. In the case last cited, it is even held that where the supreme court had once construed certain articles of the Revised Statutes, and a session of the legislature occurred after the decision was made, without making any change in the articles construed, it must be inferred that this construction is that which the legislature intended they should receive in the future. In the case of Timmins v. Bonner, supra, Justice Stayton uses this language: "The provisions of the constitution conferring probate jurisdiction upon the county courts being, in reference to the matters now under consideration, no broader than were they under the former law, and almost identical in language, a consideration of cases adjudged under the former law will show the construction put upon that law by this court, and such construction the makers of the constitution are presumed to have had in view at the time of its adoption." The same rule has been applied to statutes borrowed from other countries, the construction there placed upon them being adopted with them. 60 Tex. 230, 240; 26 Tex. 475. In the last case cited, the court say: "Such interpretation is to be as much regarded in determining its import and meaning as if it were expressly so declared in the statute itself."
Taking this well-established rule of interpretation as our guide, let us consider the effect of the decision in case of Tunstall v. State, 51 Tex. 81, so recently overruled by the opinion of the supreme court in this case. That case was a proceeding instituted in the district court to disbar an attorney, and arose under the constitution of 1876, which, for the first time in the history of Texas, created two appellate courts of last resort,— the supreme court and the court of appeals, —...
To continue reading
Request your trial
-
IN RE ABRAMS
...disbar those who are morally unfit to act as such agents. Id. at 340. We have found no authority to the contrary. In Scott v. State, 6 Tex. Civ. App. 343, 25 S.W. 337 (1894), the court held that a proceeding to disbar Scott, which had been brought solely on the basis of Scott's conviction o......
-
Hughes v. State Board of Health
...no longer proof that respondent was guilty of the acts and conduct involved in the transaction which culminated in his conviction. Scott v. State, 25 S.W. 337. (2) practice by a physician of permitting lay persons in his employ to give medical treatment to patients in his office and under h......
-
Hughes v. State Board of Health
...because they are but consequences of the conviction. Knote v. United States, 95 U.S. 149; Sanders v. State, 1 S.W.2d 901; Scott v. State, 25 S.W. 337; Secs. 4172, R. S. 1929. (5) The charge that respondent "caused, permitted and instructed one Steinmeyer to practice medicine by giving medic......
-
In re Sutton
... ... of the jury found guilty. He was thereafter by judgment of ... the court sentenced to a term of two years in the state ... prison. At the time the charge was preferred against him, and ... at the time of his conviction, Mr. Sutton was an attorney and ... counselor ... L.Ed. 426; Osborn v. United States, 91 U.S. 474, 23 ... L.Ed. 388. He also cites and relies with confidence upon the ... case of Scott v. State, 6 Tex. Civ. App. 343, 25 ... S.W. 337, to the point that though the statute makes it the ... duty of the court to strike from the rolls ... ...