If the validity of R.S. Art. 4639a (enacted in 1935, Vernon's Ann.Civ.St. art. 4639a) in respect to its constitutionality be assumed, and it be construed as effective to repeal all prior laws in conflict therewith, then the writer agrees with the other members of the court that the effect of said statute is properly to be construed as fixing exclusive jurisdiction of the present action in the district court of Jones County, same being the court that *Page 186 acquired, and retained, jurisdiction of the divorce suit.
The following discussion is based upon the assumption (most reluctantly indulged, however) that the Legislature had the power to enact all provisions of said Art. 4639a. The question is whether or not the Legislature intended to exclude the jurisdiction of all other courts, by the provision of said Art. 4639a, in connection with all the others, that "Said Court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent." The law prior to this enactment was that a judgment awarding the custody of children and/or making provision for their support, became final and binding as other judgments, with one apparent, but not real, exception. It is true that subsequent adjudications were authorized which would have the effect to alter, change or suspend the operation of the prior judgment; but only as the result of a subsequently arising, and therefore, subsequently existing, independent cause of action. Goldsmith v. Salkey, 131 Tex. 139,112 S.W.2d 165, 116 A.L.R. 1293, Id. Tex. Civ. App. 115 S.W.2d 778; Greenlaw v. Dilworth, Tex.Com.App., 299 S.W. 875; Townsend v. Townsend, Tex. Civ. App. 115 S.W.2d 769; Smith v. Givens, Tex. Civ. App.97 S.W.2d 532; Williams v. Guynes, Tex. Civ. App. 97 S.W.2d 988. Such subsequently arising causes of action, being independent of the original cause of action, necessarily required the holding that the court having jurisdiction of the original cause of action retained no exclusive jurisdiction of subsequently and existing independent cause of action. The law as thus stated was established by the settled construction by the courts of R.S. 1925, Art. 4639, at the time of the passage of Art. 4639a. Under the law, as it thus existed prior to the enactment of 4639a, no court after a judgment awarding the custody or making provision for the support of, the children in an action for divorce was authorized to alter, change or suspend same, unless there was a change from the conditions existing at the time of the original judgment. The existence of such changed condition was a limitation upon the power of the court, since it constituted the very essence of any cause of action, which the court had jurisdiction to hear.
The power purported to be granted by the new statute, according to its terms, is not so restricted. The grant of power "to alter or change such judgments or suspend the same" is not, according to the reasonable purport of the language, conditioned upon the existence of facts, circumstances and requirements of justice, but rather the grant of power is absolute and the manner of its exercise is conditioned as the "facts and circumstances and justice may require." The purported grant of power is sufficiently broad to authorize the court to "alter or change such judgments or suspend the same", even when there has been no change in the conditions which existed at the time of the former judgments; but the court would have such power when it merely recognized that some error or inequity existed in the former judgment by reason of facts or circumstances then existing. It appears to be true, as said in Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953, 954, that the part of the statute "which authorizes the district court to compel the spouses to contribute to the support of their children until such children reach the age of sixteen years does not even contemplate a final judgment. To the contrary, the statute expressly confers upon the district court the rightto retain jurisdiction of such matter until the children reach theabove-mentioned age." (Italics ours) It is true the court in so saying was passing upon the question of whether the statute was unconstitutional as against an attack that it permitted imprisonment for debt, and the above was rather in the nature of dicta as respects the question which the court had for decision. But the evident legislative intent, if to be determined alone from those provisions which make the change in the former laws, would certainly be such as to require that interpretation.
We are not presently concerned with the fact (the constitutionality of the statute being assumed, as aforesaid) that if Art. 4639a grants such power, with the effect stated, the statute now grants the power to a judge of a court to order the imprisonment of one for contempt, consisting alone in his failure to pay money ordered by a judgment from which, because of its lack of finality, there exists no logical right of appeal, regardless of errors therein, or injustice to the citizen. This is said merely by way of emphasis to indicate the very radical change which the statute, by some *Page 187 of its terms, if valid, appears to have wrought in the law as it existed before.
The Legislature, by providing that the statute in question should be known as Art. 4639a, thereby implied the intention to leave Art. 4639 (and, of course, its effect as established by authoritative decisions) in full force. If the two provisions are in conflict, it may be that such construction by the Legislature solely so indicated would not be conclusive, but the courts would be under the duty of giving effect to the subsequent statute, even to the nullification of another statute which the Legislature impliedly intended should remain unaffected. However, that may be, it is certainly a most elemental principle of statutory construction that the intention of the Legislature when ascertainable shall always be given effect by the courts. To do so, the court sometimes by judicial construction gives to the language of a legislative act a directly contrary meaning to its natural import, but this, it must be remembered, is upon the theory that the ascertainment of the legislative intention so requires. When the legislative intention is placed beyond doubt, the inquiry is at an end, and no court is justified in recognizing as effective any legislative language contrary to the certain legislative intention. Now in the present act the Legislature expressly declared: "This act shall be cumulative of all other laws upon the same subject and is not intended to repeal any other law upon the subject of the care or support of such minors." The word "cumulative" means "that which augments by addition; that which is added to something; additional; that which is superadded to another thing of the same character and not substituted for it. The term signifies that two things are to be added together or taken one after another, instead of one being a repetition or in substitution of the other; a harmonious coexistence and cooperation, rather than a consolidation of two things into one." 17 C.J. 401, sec. 61. (Italics ours) Under the definition of the word "cumulative" there can be no such thing as a conflict between cumulative statutes or laws. The only effect, therefore, of a legislative declaration that a statute is cumulative of other laws is to make certain the intention not to repeal the existing law.
Generally, the legislative intent must be determined from the provisions of the new law without any direct statement of the intention; but here the Legislature has in necessary effect, in express words, declared that it was not its intention to affect or repeal the existing laws, such as Arts. 4638 and 4639. With all question thus obviated as to the intention of the Legislature not to make a change which would deny all the district courts in Texas, except one, jurisdiction of an action like that here considered, in my opinion, regardless of the effect upon the new statute, even to the extent of destroying it, all rights existing under the former laws should be recognized and enforced. It may be that some effect can be given to Art. 4639a, but that is a consideration immaterial to the question here involved. In my opinion, even if such result is to declare the later act without effect, that should be done rather than override the expressed intention of the Legislature not to repeal the pre-existing laws. As to the case before the court, the effect of the Legislature's plainly expressed intention is to render invalid or ineffective the provision of Art. 4639a for retaining jurisdiction by a court of a divorce suit as respects award of the custody, control or provision for support of children, beyond the finality of such judgments, under the pre-existing laws or rendering any part of such a judgment not final until the children have reached the age of 16 years.
This view, of course, would call for a judgment by this court, affirming the judgment of the court below sustaining the plea of privilege.