Thomas Henderson v. Alexander Beaton, 52 Tex. 29

Gould, Associate Justice. This motion is based upon a written agreement, signed by counsel, that the case, after its transfer, be referred to the “Commissioners of Appeals of the State of Texas,” and in granting the motion this court must impliedly affirm the validity of that commission. Although when the motion was called the chief justice expressed a desire that the question be argued, it appears that counsel in this case are not in attendance, and no disposition to argue it having been manifested by any of the Bar present, we have found ourselves compelled to dispose of it without the aid of counsel.

We have not felt at liberty to postpone the question longer, and proceed to announce, as the conclusion of the court, that the “Act to create a commission of arbitration and define the powers and duties thereof, and to make appropriation to pay the salaries of the judges thereof,” is constitutional and valid, at least in so far as it creates said commission, and authorizes it to report its conclusions or award in the cases referred to it.

The main objection urged against the constitutionality of this act is understood to be that the commission is, in effect, another Supreme Court and Court of Appeals, and that it is created in violation of that clause of the Constitution which says, “The judicial power of this State shall be vested in one Supreme Court, in a Court of Appeals, in District Courts, in County Courts, in Commissioners’ Courts, in Courts of Justices of the Peace, aud in such other courts as may be established by law.” (Article 5, sec. 1.) In our opinion, the commission is not a court, because it acts only by consent of both parties, and even then is without jurisdiction to render or power to enforce a judgment.

It has no jurisdiction, for consent cannot give jurisdiction. It is but a convenient and suitable board of referees or arbitrators, provided to facilitate the adjustment of litigated cases pending in the courts of last resort, available only where both parties agree that the case be so referred. It is not a tribunal before which any litigant can be forced to come with his appeal. The constitutional Supreme Court and Court of Appeals are still open to every party.

Undoubtedly, the Constitution, in establishing these courts of last resort, intended to place it beyond the power of the Legislature to force the citizen to go with his appeal before some other tribunal. If, in a case involving life, liberty, or property, the citizen were denied the right to resort to these constitutional courts, and driven before different tribunals, organized, perhaps, under unfavorable circumstances, and in a manner less calculated to secure wise and impartial adjudications, it is believed the Constitution would be violated. If the constitutionality and validity of

an act of the Legislature were made to depend on the opinion of a commission, the Constitution would, be violated. The constitutional courts are designed to'secure the citizen in his rights, and to enforce the observance of constitutional limitations. The commission endangers no right of the citizen, and its- opinion affects only the case referred to it by the consent of parties, settling no question of constitutional law, and, indeed; settling nothing beyond that case. The act creating it purports to create but a commission of arbitration and award, having evident reference to that

section of the Constitution making it the duty of the Legislature “to pass such laws as may be necessary and proper to decide differences by arbitration, where the parties shall elect that method of trial.” (Const., art. 16, sec. 13.) As in other cases of arbitration, the commission acts only after consent of both parties. If, in consequence of the stage of the litigation and the limitations under which it is placed, the award of the commission assimilates to the opinion of an appellate court, it is still in substance but an award.

In our opinion, the commission is not a court, but is a board of reíerees or arbitrators, for cases in the Supreme and Appellate Courts.

Another objection to the act is based on the provision that the “ conclusions or award aforesaid shall be and become the judgment of the Supreme Court or the Court of Appeals aforesaid, and said courts shall make and render such further order, judgment, or decree thereon as may be necessary and proper to make said award effective.” (Const., sec. 7.) It is said that the act takes away from the Supreme and Appellate Courts cases of which they had acquired jurisdiction, and that the

section just cited requires of those courts, as a ministerial duty, to enter as their judgment the award of others in those .cases. Certainly, although a case is pending in an appellate tribunal, it may be disposed of by consent. It is of not infrequent occurrence that cases are so disposed of, and a consent decree entered in the Supreme Court.

That court will, of course) in no instance enter a judgment beyond its jurisdiction in the particular case, and will examine such consent judgments to see that they are such as it may properly enter; but with this qualification, the award of the commission, like other judgments by consent, may be entered up.

In regard to the requirement that the award shall be and become -the judgment of the court, it is doubtful whether the statute .means more than the statute on the subject of arbitration which has been in force since 1846, and which provides as to a statutory award that “judgment shall be entered thereon at the first regular term thereafter.” (Paschal’s Dig., art. 66; Rev. Stats., art. 49.) Under this statute, an award in compliance therewith, and not impeached for sufficient cause, is, as of coursé, entered up as the judgment of the court. (Forshey v.

Railroad Co., 16 Tex., 516, and numerous other cases in our reports.) It is not perceived that the requirement that the award shall be and become their judgment imposes on the courts a duty more imperative or ministerial than that long imposed on and exercised by the District Court. Nor are we able to see that there is any inherent difference in the cases arising, as has been suggested, out of the fact that the jurisdiction of the Supreme Court and Court of Appeals is exclusively appellate.

The statute is evidently modeled after similar statutes in the State of Tennessee, one of which, providing for cases on the docket at Nashville, reads: “ The reports and conclusions to become the judgment and decree of the Supreme Court;” and the other, passed on the same day, providing for cases on the docket at Jackson, reads: “ Which decisions or awards shall become and have the force and effect of judgments or decrees of the Supreme Court, subject, however, to the approval or disapproval of said court.” (Public Acts, 14th Gen.

Assembly of Teun., eh. 51, p. 67; Id., ch. 69.) It would seem that the qualification expressed in the latter statute was regarded as implied in the first; and we are inclined to the opinion that if there were a constitutional objection to our own statute, otherwise, it might, in order to support it, be construed as impliedly leaving the award subject to approval as to its validity.

The statute does expressly leave to the Supreme and Appellate Courts to determine what “ further order, judgment, or decree thereon may be necessary or proper to make said award effective.” On the whole, we have been unable to see that the Constitution either expressly or impliedly prohibits the creation of the “commissioners of appeals,” or that the jurisdiction or dignity of the Supreme and Appellate Courts is encroached upon by requiring them to enter up as their judgments such valid awards as the commission may regularly make. [Opinion delivered October 22, 1879.] Motion granted.