Smith v. State

• Decision Date: 17 June 1908
• Citation: 113 S.W. 289
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W. 289

SMITH v. STATE.

Court of Criminal Appeals of Texas.

June 17, 1908.

Rehearing Denied October 21, 1908.

Appeal from Criminal District Court, Dallas County; W. W. Nelms, Judge.

Bob Smith was convicted of murder in the first degree, and he appeals. Affirmed.

A. S. Baskett, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

There is no statement of facts in the record. In the absence of statement of facts, none of the bills of exception can be considered save and except bill of exceptions No. 1. This bill presents the constitutionality of the law authorizing the organization of juries by drawing their names from a wheel, which law was passed by the Thirtieth Legislature (Laws 1907, p. 269, c. 139); appellant insisting that said law is a local or special law. However, in deference to the fact that this question is presented to this court for adjudication in various cases, we will state what we deem all of the objections to said law as urged in each of the cases in passing upon the validity thereof in this case.

The following are the objections to the constitutionality of said act:

"(1) Said act of the Thirtieth Legislature under which same was drawn is unconstitutional and void. The ground of said motion in support of the unconstitutionality of said law being, in substance, as follows:

"(2) That said act of the Legislature was a special law, and violative of section 56, art. 3, of the Constitution, which inhibits the enactment of any local or special law touching the summoning or impaneling of grand and petit jurors.

"(3) That said law is unconstitutional, in that the names of jurors for jury duty are listed for a period of two years, and excludes from jury duty all other qualified jurors who may become of age or acquire the right to serve upon the jury, and denies to the litigant the right to select his triors from the qualified jurors of the county, and further exempts from jury duty in capital cases all qualified jurors who have served as much as four days within said two years provided by said law.

"(4) That said law is further unconstitutional, in that it is discriminatory, and made applicable only to counties having cities aggregating 20,000 in population according to the census of 1900, and thereby limits and restricts the operation of said law to counties of a class, and excludes from the operation of said law counties as a class that may hereafter or now have cities aggregating twenty thousand in population. Said law limits its operation to said counties possessing said qualifications named, and the census of 1900 excludes all others and applies to them a different law. * * *

"(5) Said law is further unconstitutional, in that it repeals the existing jury law as to such counties having cities aggregating twenty thousand population under the census of 1900, and otherwise leaves that law operative in all other counties. That said partial repeal is unconstitutional and void, and, further, said law revives the repealed law under the contingencies provided in said act, and, further, under said act delegates to the judge within said counties where said law is operative the discriminatory power under the conditions in said law named, to suspend the act of the Thirtieth Legislature and revive the old law as to such judge or court, and said law is violative of section 56, art. 3, of the Constitution, and section 28 of the Bill of Rights.

"(6) That said act is not in accordance with due process of the law of the land, and is violative of section 19 of the Bill of Rights.

"(7) That said law is not equal and uniform, and is discriminatory, and is violative of the Constitution of the United States in section 1, art. 14, thereof."

To support appellant's contention under the above grounds to quash the venire, he cites us to section 56, art. 3, Const., which provides: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing `the summoning or impaneling of grand or petit juries.'" Section 56 of article 3 of the Constitution of this state reads as follows: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing—First, the creation, extension or impairing of liens; regulating the affairs of counties, cities, towns, wards or school districts," etc., and then, among other things, "summoning or impaneling grand or petit juries." Various other matters and things are enumerated, and the Legislature inhibited from passing any special or local law applicable to any of said things. Then immediately follows this clause: "And in all cases where a general law can be made applicable, no local or special law shall be enacted." Then section 56, art. 3, Const., reads as follows: "No local or special law shall be passed, unless notice of the intention to apply therefor, shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such bill and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the Legislature before such act shall be passed."

Under this last cited article of the Constitution, various special laws have been passed. It will be noticed from the terms of the last cited section that the same to a large extent defines what a local or special law is, in that it stipulates that notice of the intention to apply therefore shall have been published in the locality where the matter or thing to be affected may be situated. If one, therefore, proposes to legislate on a matter or particular thing, then it is under the terms of this section of the Constitution a local or special law; but, if the legislation applies equally to all persons within the territorial limits describing it, it becomes a general, as contradistinguished from a special, law. Cordova v. State, 6 Tex. App. 208; Davis v. State, 2 Tex. App. 430. In the case of Lastro v. State, 3 Tex. App. 363, this court held that the stock law of 1876 was not a local law because it exempted many counties. Nor is an act changing and fixing the term of the district courts a local law. See Cordova v. State, supra. In the case of Cox v. State, 8 Tex. App. 255, 34 Am. Rep. 746, and others, the insistence was made that an act prescribing the time for holding the district court in the Twenty-Second judicial district was unconstitutional on the ground that same is a local law, and not a general law. After quoting from the case of Orr v. Rhine, in 45 Tex. 345, this court then proceeds to discuss the question in the following language: "Turning to the Constitution, we find enumerated in the fifty-sixth section of article 3 the subjects upon which the Legislature is restricted from passing any local or special laws, and laws changing the times of and terms for holding courts are not mentioned amongst the subjects therein prohibited. If such laws are at all embraced in that section, it can only be under the general language of the last paragraph, where it is declared that `in all other cases where a general law can be made applicable no local or special law shall be enacted.' Section 56, art. 3, provides for and prescribes the rules to be observed and the forms necessary to be followed in all cases where local or special laws are desired and their passage is expressly prohibited, unless these forms are pursued. We take it that this latter section (56) relates more especially to that class of legislation which seeks the adjudication of private matters, in which the general public is not supposed to be concerned. Mr. Bouvier defines such acts to be `those which operate only upon particular persons and private concerns,' whilst he defines general or public acts to be `those which bind the whole community.' `Of these,' he says, `the courts take judicial cognizance.' To our minds it is evident the framers of our Constitution intended by the use of the phrase `general act,' not that such acts should be general to the extent that they should have a uniform operation throughout the state, but simply that in its nature, character, and passage such law could be enacted, as any general law might be, without going through the forms and complying with the requisites prescribed for local or special laws by the fifty-sixth section of article 3. To illustrate the idea: As we have seen, the seventh section of article 5 expressly says: `The Legislature shall have power by a general act to authorize the holding of special terms of the district court in any county for the dispatch of business.' A special term for such purpose in but one county could not in the nature of things have a uniform operation throughout the state; and it would be an absurdity to hold that it was necessary in such a case, or could ever have been intended, that the general act by which such a purpose or object might be accomplished should include and embrace within the range and scope of its provisions the 150 or 200 other counties in the state that could have no possible interest in the subject-matter. Technically speaking, an act to hold a special term in a particular county would appear to be both a special and a local law. Doubtless the intention was that in the passage of such an act the same forms were to be observed as in any other ordinary general act, as contradistinguished from those essential to the validity of local or special laws. Any other construction, it seems to us, would make the expression `general act' not only contradictory of the provision, but unintelligible in its meaning." Further along in said opinion it is stated that: "A general law is one whose operation is equal in its effect upon all...