De Silvia v. State

• Decision Date: 09 March 1921
• Docket Number: (No. 6025.)
• Citation: 229 S.W. 542
• Parties: DE SILVIA v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 542

DE SILVIA v. STATE.

(No. 6025.)

Court of Criminal Appeals of Texas.

March 9, 1921.

Original application for writ of habeas corpus by Newt De Silvia. Petitioner discharged.

F. G. Vaughn, of Beaumont, for appellant.

Alvin M. Owsley and E. F. Smith, Asst. Attys. Gen., for the State.

MORROW, P. J.

The relator is under conviction for violation of the statute of the state. The judgment assessed against him a fine of $100 and confinement in the county jail for 60 days. He was convicted in a court known as the "county court of Jefferson county at law No. 2," organized under chapter 61 of the Acts of the Thirty-Fifth Legislature, Fourth Called Session. The caption of the act is as follows:

"An act to establish and create a court to be known as the `county court of Jefferson county at law No. 2' and to prescribe its organization, jurisdiction and procedure, and to conform the jurisdiction and procedure of other courts thereto, and to declare an emergency."

In section 2 the jurisdiction of the court is declared to extend over offenses committed within the territorial limits of the city of Port Arthur, which are set out and defined in the act. The offenses described are those of penal nature under the ordinances of the city and concurrently with other county courts of the county "in all criminal cases arising under the criminal laws of this state."

In section 3 it is declared that the court shall hold its sessions at Port Arthur; that a judge shall preside over it known as judge of the county court of Jefferson county at law No. 2, "who shall be appointed in the manner now provided by the existing charter and ordinances of said city for appointing the recorder of the recorder's court of said city, or in accordance with such charter and ordinances as may be hereafter adopted by said city, for appointing the judge for the court hereby created." The tenure of office, qualification, and removal of said judge and filling any vacancy in said office are governed by the charter and ordinances of said city, relating to the judge of the recorder's court of said city "as now existing or as hereafter amended." Other provisions of the act provide for procedure in the court and for rules governing such bodies of the state and for application of fines and costs to the use of the city.

Appellant insists that there is a variance between the act and its caption, and that therefore the law is obnoxious to the constitutional provision requiring the subject to be stated in the title. See Constitution, art. 3, § 35. That a title which is misleading—that is, one which imports a subject different from that to which the law relates—does not comply with the constitutional provision, seems obvious. It has been so held in numerous cases. Ruling Case Law, vol. 25, p. 864, § 108, note 3.

One object of the constitutional provision mentioned is "to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire." Cooley's Const. Limitations (7th Ed.) p. 205.

The courts, in construing the provisions in connection with legislative acts, have, throughout the history of the state, been liberal toward the validity of the act. Notwithstanding this practice, they recognized that the provision of the Constitution is mandatory, and that, when viewing the act in the light of the liberal policy mentioned, if it cannot be fairly said that the caption is not misleading, the law or the part of the law which is variant from the title of the act must give way. Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; Albrecht v. State, 8 Tex. App. 217, 34 Am. Rep. 737.

The title of the act in question gives notice that in Jefferson county a "county court at law" is to be created. One interested in legislation, whether in the Legislature or out of it, would be apprised that the object was the creation of a court, similar in its characteristics to the numerous courts bearing the same name that had previously been created by the Legislature, and which at the time were vital parts of the statutes of the state, and one of which was in Jefferson county.

The jurisdiction of the county courts at law previously created embraced the authority over the territory of a county, and, generally speaking, all such matters, civil and criminal, as were conferred by the Constitution upon the county court, save in probate matters. The terms were fixed by the law, and its sessions were held at the county seat. The method of election and the qualifications of the judge were the same as those prescribed by the Constitution with reference to the judge of the county court. The money received from fines and costs was the property of the state and its officers. Revised Statutes 1911, p. 401; Vernon's Civil Statutes 1918, arts. 1788 to 1811, inclusive.

The court created, while bearing the name of "county court at law," consists of the elements of a...