Treasurer of the State v. Wygall

• Decision Date: 01 January 1877
• Citation: 46 Tex. 447
• Parties: TREASURER OF THE STATE v. M. A. WYGALL ET AL.
• Court: Texas Supreme Court

46 Tex. 447

TREASURER OF THE STATE

v.M. A. WYGALL ET AL.

Supreme Court of Texas.

1877.

APPEAL from Fort Bend. Tried below before the Hon Livingston Lindsay.

In addition to the facts contained in the opinion, the papers in the cause contain the following correspondence between the attorney for the appellees, and comptroller of the State, with indorsements:

“AUSTIN, TEXAS, 16 th May, 1871.

COMPTROLLER OF THE STATE OF TEXAS:

Your applicants, Joseph B. Wygall, Thomas B. Wygall, James S. Wygall, John W. Vermillion, Corela S. Hooper, Henry Hooper, William G. Hagerman, and Sarah Hagerman, the heirs and only heirs of John C. Clark, deceased, respectfully represent that they herewith file a decree against the treasurer of the State of Texas, which directs the comptroller of the State of Texas to draw his warrant upon the treasurer, for the assets and title papers of the estate of said Clark, deceased.

They exhibit proper powers of attorney, and respectfully request that said papers, assets, &c., be delivered to them in accordance with the terms of said decree.

W. L. ROBARDS, Att'y for said Heirs.”

Upon which the following indorsement was made:

“COMPTROLLER'S OFFICE,

AUSTIN, TEXAS, August 16, 1871.

Respectfully referred to the Hon. William Alexander, with request that he examine the papers and facts, and then advise the comptroller if it is his duty to turn the estate of Clark over to claimants. Very respectfully,

A. BLEDSOE, Comptroller.”

And upon which the attorney general made the following indorsement:

“ATTORNEY GENERAL'S OFFICE,

August 16, 1871.

Respectfully returned, with the opinion that the estate cannot be turned over to the claimants on the within judgment, because instructions have been issued, by direction of the Governor, from this office, to have this case brought up for revision to the Supreme Court. Besides, suits are now pending, both in the United States Circuit Court, at Galveston, and in the District Court for Wharton county--suits brought by other parties, who claim to be the heirs of the estate. The estate cannot be turned over pendente lite; and if it were, any other set of heirs that might recover, might hold the comptroller and the treasurer responsible on their official bonds. For these, with other reasons, it is deemed improper to turn over the estate.

ALEXANDER, Attorney General.”

And thereupon the comptroller made the following indorsement:

“The comptroller declines having any connection with the turning over the estate, until the courts of the country determine definitely and finally who the heirs are.

A. BLEDSOE, Comptroller.”George Clark, Attorney General, for appellant.--This action is not an ordinary one between citizen and citizen, but is, in its nature, a suit against the sovereign, instituted by its consent and authorized by its grace. As a question of power and law strictly, the State could have provided, that upon payment into the treasury of the unclaimed assets of a decedent, title thereto should vest in the State, to the exclusion of all future claimants; or, what would have been tantamount thereto, it could have failed to prescribe a remedy or mode of procedure for the recovery of such assets, or to have invested any of its courts with the necessary jurisdiction; for, I apprehend, without the statute in question, no suit would be maintainable against the treasurer. (Houston Tap and Brazoria R. R. v. Randolph, 24 Tex., 317.)

The State, through its legislative department, having, of its grace, furnished a remedy, that remedy is, at all times, subject to legislative control, liable to be changed, modified, or abolished even, at the pleasure of the law-making department of the Government. Even in ordinary actions between citizens, this is substantially correct, with the qualification, that some remedy must be always provided. (De Cordova v. Galveston, 4 Tex., 470;Paschal v. Perez, 7 Tex., 348; Bronson v. Kinzie, 1 How., U. S., 318.)

A jurisdiction given by statute can be wholly abrogated and taken away by similar method; and the rule has been extended, so as to include a jurisdiction conferred by the organic law, with such exceptions and under such regulations as the Legislature may prescribe. ( Ex parteMcCardle, 7 Wall,, 506.) And the repeal of an act conferring or regulating the jurisdiction, operates as an abatement to suits pending. (Id.)

The application of these rules to the point in issue, seems pertinent. If the jurisdiction given by statute can be taken away in the same manner, this power ought certainly to include the lesser. The act in question does not attempt an adjudication of rights, nor, strictly speaking, does it affect the remedy. It simply changes the forum for the determination of rights from the county of Fort Bend to the county of Travis, after a change had been effected, on motion of defendants in error, from Wharton county, the case again transferred back to that county, and a third time changed and transferred back to Fort Bend county. No contract is impaired, no right or remedy abridged; but after the cause was docketed in Fort Bend county, and before any adjudication was had, the Legislature, which had said such suit was maintainable only in Wharton county, put in exercise its undoubted power, and designated Travis county as the proper forum for final determination.

No violation of positive constitutional provision is detected in the act; and, if it be nugatory, it must be solely on the ground, that the act of changing venue is judicial in its nature, and therefore not exercisable by the legislative department. I do not so interpret the act. The true intent and meaning of it was, to authorize a change of venue, upon application of the attorney general, leaving the orders necessary, to be made by the court. The State had consented to be sued in one county, the suit had been transferred to an unauthorized county, and it now renewed its consent, taking care to designate the county of Travis, in which was the seat of Government, in which this privilege must be exercised in future. No matter what our views may be as to the propriety of such legislation, I think its competency and validity, under established principles of law, must be determined affirmatively.

This view is strengthened by reference to the recent amendments to our Constitution. (See Gen. Laws, 1874, pp. 234, 235.) The inhibition of these amendments, as to “providing for change of venue in civil and criminal cases” by special laws, being prospective in their operation, would seem to give rise to an inference not unnatural or strained, that before their adoption, such special legislation was not unauthorized. The original instrument defining the powers of Government was the work of the people who adopted it, and so are the amendments; and these later expressions ought not to be wholly insignificant.

Legislation of a similar nature has been sustained by the courts of other States, as not trenching upon the province of the judiciary, and an appeal has been allowed by statute after the right thereto had been barred. (Prout v. Berry, 2 Gill., 147; The State v. N. C. R. R., 18 Ind., 193.)

II. The court below erred in entertaining suit for the assets of the estate, and in rendering judgment for the delivery to defendants in error of such uncollected assets: (citing Paschal's Dig., arts. 1354-3676; 24 Tex., 317;Constitution, art. XII, sec. 6, and art. 4, secs. 20, 21; Hall v. Claiborne, 27 Tex., 222, 223.

John T. Harcourt, for appellees.--The special act, approved May 19, 1871, cannot oust the jurisdiction, or change the venue of said cause, because of the misdescription and want of identity with the pending suit. (Crane v. Reider, 28 Mich., 527.)

In Ex parte Heath et al., 3 Hill, 42, it was said by the Supreme Court of New York, that the language of an act, designed to divest that court of its jurisdiction over the proceedings of inferior tribunals, “must express the intent with such clearness as to leave no room for doubt.” (Parsons v. Bedford, 3 Pet., 433.)

I insist that the special act, changing the venue in said cause, was unconstitutional and void, because it was an exercise of judicial power. I refer the court, with much confidence, to the case of Lewis et al. v. Webb, 3 Me., 298.

By the laws in force in Texas at the time of the passage of the special act, the judicial power was vested in the presiding judge of Fort Bend county, to determine whether any and what reasons, or causes, existed for changing the venue in said cause. (Paschal's Dig., art. 1416.) “A motion for a change of venue is addressed mainly to the discretion of the judge of the District Court.” (San Antonio v. Jones, 28 Tex., 19.)

It was a private right of the appellees to have this case tried in Fort Bend county, unless by the general law of the State it could be made to appear to the district judge that legal causes existed for changing the venue to an adjoining county. Upon a motion made for that purpose, notice must be given to the appellees. They could appear, and, by counter affidavits, show that the pretended causes were not legal, but purely imaginary or political. Then the district judge would adjudicate upon the facts, and his judicial decision would determine the question of venue. If he erred, the appellees could, by bill of exceptions, have the ruling reviewed by the Supreme Court, and thus secure all their rights, by “the due course of the law of the land.” (Smith's Comm. on Const. Constr., sec. 347.)

“In reference to acts of the nature we have been considering, each act must depend upon its peculiar phraseology and provisions. The court will look to the particular circumstances of the parties applying for, and to be affected by it, as well as their intention, and the intention of the Legislature, and the object to be accomplished. (Ib., sec. 358.)

Statutes which violate the plain and obvious principles of common right and common reason, are null and void.” (Ham v. McLean, 1 Bay, 98.)

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