Ex Parte A. C. Ginnochio, 30 Tex. Ct. App. 584

DAVIDSON, Judge. The above is the brief of the State, prepared for us by Hon. R. H. Harrison, our Assistant Attorney-General, and we adopt it as the opinion of the court in this case in so far as the law is therein stated, and in doing so will add some further observations bearing upon the questions involved.

Section 1,

article 5, of the State Constitution ordains, that “the judicial power of this State shall be vested in one Supreme Court, in one Court of Appeals, in District Courts, in County and Commissioners Courts, in courts of justices of the peace, and in such other courts as may be established by law.

The Legislature may establish Criminal District Courts, with such jurisdiction as it may prescribe; but no such court shall be established unless the district includes a city containing at least 30,000 inhabitants as ascertained by the census of the' United States or other official census; provided, such town or city shall support said Criminal District Courts when established.” The effect of this provision is to vest in these courts the whole element of sovereignty known as the “judicial,” prescribed by the Constitution and the laws enacted under it, except, perhaps, in a few instances, where powers of a judicial nature are expressly and specifically lodged elsewhere.

Kilbourn v. Thompson, 103 U. S., 168; The People v. Keeler, 99 N Y., 463, 2 N. E. Rep., 615; The State v. Noble (Ind. Sup.), 21 N. E. Rep., 244, et seq. /Section 19,

article 5, provides, that “justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than $200, and in civil matters of all cases where the amount in controversy is $200 or less, exclusive of interest, of which exclusive original jurisdiction is not given to the District or County Courts; and such other jurisdiction, criminal and civil, as may be provided by law, under such regulations as may be prescribed by law.” * * * It will be observed from the reading of the above that the words employed conveying jurisdiction are clear, strong, and entirely unambiguous.

The jurisdiction of the court is so set out as not to be misunderstood, and the other provisions of

article 5 of the Constitution do not abridge or qualify this jurisdiction. The quoted

section may be held to authorize the conferring of additional jurisdiction upon the courts by virtue of the expression, “and such other jurisdiction as may be provided bylaw, and under such regulations as may be prescribed" by law,” etc.; but there is no authority in the Constitution authorizing the Legislature to abridge their jurisdiction. This view is in strict harmony with the prior decisions of this court holding that the County Courts have concurrent jurisdiction with such Justice Courts. 2sTor is this view in the slightest degree antagonistic to the authority conferred upon the Commissioners Courts to lay off and prescribe the territorial jurisdiction of said courts.

Section 19,

article 5, above quoted, refers to the jurisdiction of the subject matter involved in the controversy, and not to extent of territory, hi or is this view affected by the fact that the Legislature may enact or abrogate laws wherein the penalty involved is within the jurisdiction of said court. When a law is in force under which jurisdiction would attach to the court, that jurisdiction necessarily attaches, and when that law is repealed the jurisdiction necessarily ceases, because there is nothing to which it can attach.

But as long as the law exists the jurisdiction is inherent in the court, and can not be divested by legislative enactment.

Our Constitution has ordained that “the powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit, those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” Const. 1876, art. 2. This separation of the powers is not merely theoretical.

They are practical and imperative, else the words employed are powerless, and the will of the people of the great sovereignty of Texas, expressed in their written Constitution, is but an empty and meaningless fulmination.

The provisions quoted, taken with those not quoted, as well as the entire tone and spirit of the Constitution, make it too plain for argument that the courts enumerated in the Constitution possess the entire body of the intrinsic judicial power of the State, and that the other departments are prohibited from diminishing, changing, or altering that power, except wherein they are specifically authorized so to do by the Constitutian itself. The authorities all sustain this position, as far as we have been able to ascertain. Speaking of this question, Elliott, C.

J., of the Supreme Court of Indiana, said: “The people have a right to the courts established by and under the Constitution, and this constitutional right the Legislature can neither alter nor abridge. The constitutional tribunals can not be changed by legislation. * * * The Legislature may establish courts, but it can not destroy the constitutional courts—the Circuit Courts and the Supreme Court—nor can it change their organization nor distribute their powers, for these courts owe their organization to the Constitution, and as the Constitution has ordained that they shall be organized, so shall they be.

Judicial power distributed by the Constitution is beyond legislative control.” The State v. Noble, 21 N. E. Rep., 244, 250. See this case for an able and exhaustive discussion of the questions involved, as well as authorities collated. In New Jersey, referring to constitutional provisions similar to our own, the Court of Errors said: “In an examination of these sections, the first thing which attracts attention is this, that the instrument itself establishes certain courts. It does not leave that all-important work to other hands.

An omission in this respect in the Constitution would have left the judicial system without any fixity whatever. In such a state of things, the powers and jurisdictions and even the very existence of the several courts would have been placed under the control of the Legislature. They could have been altered or abolished by that body at will. But the Constitution had no such purpose as this, and they therefore enumerated the superior tribunals in which was principally to reside the judicial powers of the government.

By that enumeration these tribunals became constitutional courts—that is, courts that could not be altered or abolished except by an alteration of the instrument creating them. The peculiar quality of a constitutional court, or of any other constitutional establishment, is this, that it is not susceptible of change in its fundamental principles except in some prescribed mode. Thus, for example, the nature of this court, or the nature of the Supreme Court, can not be altered in any way but one—that is, by a modification of the Constitution itself.

It is presumed that no professional gentleman would for an instant contend that the Legislature could deprive the decrees and judgments of this court of their quality of being conclusive, or could take from the Supreme Court any of those prerogative writs by which inferior jurisdictions are superintended and regulated. The power to do this would involve the power to modify in essential particulars the constitution of these courts—a power not to be distinguished from an authority to supersede or abolish.

It is entirely clear, then, that the Legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts. To this extent, it seems to me, the question is too plain for discussion.” Harris v. Vanderveer, 21 N. J. Eq., 424; The State v. Noble (Ind. Sup.), 21 N. E. Rep., 244. This doctrine is supported by the decisions of other courts. It is unnecessary to quote from them, but we cite a few of the cases: Hutkoff v. Demorest, 103 N. Y., 377, 8 N. E. Rep., 899; The State v. Gannaway, 16 Lea, 124; Landers v. Railway, 53 N.

Y., 450; In re Application of Senate, 10 Minn., 78 (Gil., 56); In re Senate Bill on Irrigation, 9 Colo., 620,21 Pac. Rep., 470. The question before us to be decided is one of serious import, and its decision is not one of discretion, but of most imperative duty.

The duty of maintaining the separation and identity of the departments of government and the integrity and complete existence of each department as established and organized by the Constitution, is one of the most important and wholesome that the judiciary is called upon to perform, whether it relates to its own independence and co-ordinate equality or to that of one of the other departments. The destruction or subordination of either would be equally fraught with danger to the common weal.

It is the solemn duty of courts to uphold the Constitution as it is written, permit no encroachments by one department upon another, and yield none of its own power and authority to any other department, nor assume any not confided to it. To this end the courts are organized and constituted, and for this purpose the judges are selected and qualified. When the limitations of the Constitution are violated and set at naught, free government can not exist. Assumption by one department of powers belonging to another inevitably leads to the destruction of the equality of the co-ordinate branches of government.

If one department of the government can assume and exercise the authority of another, it can assume every power vested in that department and exercise them all. If one department could do so, then each department could do so, and each could be exercising at the same time the functions confided to itself as well as those confided to the others, and endless confusion would result in anarchy and ruin. One encroachment would justify another, and one by one every barrier would be overthrown and constitutional government destroyed.

The jurisdiction vested in the courts is inalienable on the part of the courts themselves; nor can it be divested by the Legislature except in the mode and under such exceptions as may be prescribed by the Constitution itself. This view of such jurisdiction carries with it necessarily the corresponding duty on the part of the courts to exercise that power when called upon to do so in proper form. Alexander v. Bennett, 60 N. Y., 204; The State v. Noble (Ind. Sup. Ct.), 21 N. E. Rep., 244.

In so far as the authority of the Legislature to divest the Justice Courts of their jurisdiction is concerned, it may be stated that it has no more authority for this purpose than it has to abolish the authority of this court or that of the Supreme Court and divest them of their constitu- ■ tional powers and jurisdiction. If it be conceded that the Legislature can withdraw original jurisdiction from a constitutional court in one respect, it must also be conceded that it can divest the same court of all jurisdiction.

If the Legislature can divest a Justice Court of its jurisdiction in one respect in the city of Fort Worth, then it can abrogate that jurisdiction in toto in that city; and if in that city, then in every city in the State; and if in the cities of the State, then with equal propriety and authority it can do so in every precinct in every county in the State. The constitutional jurisdiction conferred upon the Justice Courts is the same wherever that court is found in this State. The Constitution makes no distinction, and it is wholly immaterial what may be the territorial limits of the court.

The Constitution governs all alike. That court is the creature of the Constitution, and is of equal standing with the Legislature as to its origin and parentage, and in its peculiar sphere is the superior of that body. If the Legislature can curtail the jurisdiction of one court, it can of all. If that authority exists as to one, it does as to all. If it exists as to one district, county, or precinct, it exists as to all.

If this power be conceded to the Legislature, then we have the singular phenomenon of a legislative court, created either by general law or a series of special laws, superseding a constitutional court, without abolishing such courts, or the power to do so, and yet leaving that court in existence deprived of the subject matter upon which to act. It is presumed that no court would uphold such a conclusion or doctrine or rule of construction. The Mississippi Supreme Court, Cooper, J., delivering the opinion of the court, said: “By

section 14 of

article 6 of the Constitution, original jurisdiction is conferred upon the Circuit Courts of the State in all criminal matters, and such jurisdiction can not be withdrawn by the legislative department of the government. The legislative, the executive, and the judicial departments are each protected by the Constitution against encroachments by the others, and the power conferred upon either can not he withdrawn or abridged by either or both of the co-ordinate branches.

If the Legislature may withdraw from the constitutional court jurisdiction conferred by the Constitution over one class of cases, it may withdraw it over another and another, until finally there would be no subject over which it might be entertained.” Montrose v. The State, 61 Miss., 429, 432.

The question of authority on the part of the Legislature to confer jurisdiction upon municipal courts concurrent with that of the State courts is neither discussed nor intended to be discussed herein, because it is not raised in the record, nor necessary to a determination of the question involved in this appeal; and for the same reason the further question of legislative authority to confer upon municipal courts jurisdiction to hear and determine causes arising under the State laws is pretermitted.

The only question intended to be passed on is the authority of the Legislature to create municipal courts with power to exercise exclusive jurisdiction over infractions of State laws, to the exclusion of the courts created by the Constitution, and whose jurisdiction has been fixed therein. We are of opinion that so much of said

section 26 of the amended charter granted to the city of Tort Worth as attempts to confer upon the City Court of said city exclusive jurisdiction of offenses committed against the Sunday law prohibited by the State, is in contravention of the Constitution of this State, and therefore void. The judgment of the County Court is in all things affirmed. Affirmed. Hurt, J., gives no opinion in this case at this time, but will, if necessary, file his opinion hereafter.