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 a 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, appellant insisting that said law is a local or special law. However, in deference to the fact that this question *Page 301 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, article 3, of the Constitution, which inhibits the enactment of any local or special law touching the summoning or empaneling 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 twenty thousand 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, article 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, article 4, thereof."
To support appellant's contention under the above grounds, to quash the venire, he cites us to section 56, article 3 of the Constitution, which provides: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special *Page 302 law authorizing `the summoning or empaneling 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, article 3 of the Constitution, 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 therefor 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 contra-distinguished from a special law. Cordova v. State, 6 Texas Crim. App., 208; Davis v. State, 2 Texas Crim. App., 430. In the case of Lastro v. State, 3 Texas Crim. 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 Texas Crim. App., 255, and others, the insistence was made that an act prescribing the time for holding the district court in the 22d 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 *Page 303 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 of article 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 one hundred and fifty or two hundred 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 contra-distinguished 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 persons or things upon which the law is designed to operate at all. All laws operate upon persons or things. Are we, then, to understand that a general law is only one which operates upon all persons or upon all things? If so, it is obvious that our general laws are very few, if indeed there are any of that class. Obviously, such can not *Page 304 be the meaning of the words `of a general nature' as here used. The word `general' comes from `genus' and relates to a whole genus or kind; or, in other words, to a whole class or order. Hence a law which affects a class of persons or things, less than all, may be a general law," citing Brooker v. Hyde, 37 Cal. 366. Then the court goes on and holds that the act providing for five annual terms in Bexar County was intended to form part of the general machinery to be used in the administration of the laws of the State, affecting equally the whole citizenship of the State which came within its range; and being such, it can not be considered either special or local in the view contemplated by the Constitution, citing, among other cases, the case of Bohl v. State, 3 Texas Crim. App., 685.
In the case of Clark v. Finley, 54 S.W. Rep., 343, Chief Justice Gaines in delivering the opinion of the court, says: "A law is not special because it does not apply to all persons or things alike. Indeed, most of our laws apply to some one or more classes of persons or of things and exclude all others. Such are laws as to the rights of infants, married women, corporations, carriers, etc. Indeed, it is perhaps the exception when a statute is found which applies to every person or thing alike. Hence it can not be that the statute under consideration is special merely because it is made to operate in some counties of the State and not in others. The definition of a general law, as distinguished from a special law, given by the Supreme Court of Pennsylvania in the case of Wheeler v. Philadelphia, 77 Pa. St., 338, and approved by the Supreme Court of Missouri, is perhaps as accurate as any that has been given. State v. Tolle, 71 Mo., 645. The court in the former case say: `Without entering at large upon the discussion of what is here meant by a "local or special law," it is sufficient to say that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.' The law in question is applicable to every county of the designated class. Now, we do not propose to be led off into any extended discussion as to what is a proper class for the application of a general law. The tendency of the recent decisions upon the subject, as it seems to us, is to drift into refinements that are rather more specious than profitable. It is said in some of the cases that the classification must be reasonable; in others, that it must not be unreasonable or arbitrary, etc. If it is meant by this that the Legislature can not evade the prohibition of the Constitution as to special laws by making a law applicable to a pretended class, which is, in fact, no class, we concur in the proposition. Such was the law passed upon in the case of Com. v. Patton, 88 Pa. St., 258. That statute was applicable to all counties in which there was a population of more than 60,000, and an incorporated city with a population exceeding 8,000, `situate at a distance from the county seat of more than twenty-seven *Page 305 miles by the usually traveled public road.' There was but one city in the State which came within the pretended class. The court held this a covert attempt at special legislation, and that the act was a nullity. * * * To what class or classes of persons or things a statute should apply is, as a general rule, a legislative question. When the intent of the Legislature is clear, the policy of the law is a matter which does not concern the courts. A Legislature may reach the conclusion that the compensation of certain officers in certain counties of the State is excessive, while in others it is not more than enough. By the reduction of the fees of office throughout the State they may correct the evil in those in which the compensation is too great, but they would probably inflict a greater evil by making the compensation too small in all the others. In such a case it becomes necessary to make the law applicable to some, and not to all. There must be a classification. That classification may be either by population or by taxable values. One Legislature might do, as the Legislature of Texas did, make the classification by population; another, as was done by the Legislature of Arizona, might make the taxable values of the respective counties the basis of the classification. Shall the courts inquire which is correct? Can they say that the work of an officer is not, in some degree, proportionate to the population of his county? On the other hand, can they say that, the more the property of a county, the more the crime? To ask these questions is to make it apparent that they are questions of policy, determinable by the political department of the government, and not questions the determination of which by the Legislature is subject to review by the courts. Therefore, should we adopt the rule that, in order to make an act a general law, the classification adopted should be reasonable, we should still be constrained to hold the statute in question a general law, and valid, under our Constitution; for we can not say that the classification is unreasonable. It may be, as urged in the argument, that there are counties in the class to which the law is made applicable, the population of which very slightly exceeds that of other counties which are without it, and that it seems unreasonable to make a discrimination upon so slight a difference. To this the answer is, the line must be drawn somewhere, and that a similar difficulty would probably result if the classification were made upon any other basis. Exact equality in such matters, however desirable, is practically unattainable."
The jury law in this State provides that same shall apply only to counties having cities aggregating twenty thousand in population according to the census of 1900. This is nothing but a rational classification warranted by the Constitution, and is not a local or special law within the contemplation of the constitutional clause under consideration. The only difference between the jury law under *Page 306 consideration and the fee bill that was passed on in the Clark v. Finley case, supra, is the fact that the jury law makes no provision for counties having the requisite population thereafter to come within its provisions, whereas the fee bill does, but a careful perusal of the Clark v. Finley case, will show that the court did not attempt to say nor do they intimate, that the opinion of the court in that case was based, as appellant insists, upon the clause authorizing other counties each recurring four years to come within its provisions. In fact, to have so held would have been non sequitur. That is to say, there would have been no rational reason for holding that the fee bill was a general law and not a special law, because it provided that other counties might come within its provisions each recurring four years. This provision would make it no less a general law, and no more a special law. If appellant's insistence in this case is correct, then the Legislature can not name a classification and pass a general law that would be constitutional at all. Suppose the jury law had provided that a county having a population of twenty thousand according to the census of 1900 should be under its provisions, and counties that thereafter according to each recurring census having a city of said population should be within its provisions, then we would have had this condition: For ten years many counties, or some counties at least, would have a city of said population before the expiration of the ten years, and yet said counties would not be within the terms of the jury law. The Legislature had a right to use its own yard-stick, its own basis for classification, and as indicated in the Clark v. Finley case, supra, it is a matter of legislative and not of judicial discretion as to what the classification shall be. If we were to assume to pass on this character of question, we would be usurping the legislative discretion in order to render invalid a statute. The Legislature desired to fix a special mode of selecting juries in certain cities. In order to do so they had to classify the cities on some basis. We are not apprised of but two bases upon which they could predicate the classification, either the taxable value of the city or the number of people that live within it, and the mere fact that they did not provide that cities hereafter that have said population may come within its provisions, is a matter of legislative policy that does not in any degree affect the constitutionality of the act. So to our minds, for all practical purposes, we think the Clark v. Finley case, above cited, is decisive of this question. However, appellant has cited us to a long line of authorities which, he claims, hold adversely to our decision in the case, as follows: Lewis Sutherland on Statutory Construction, vol. 1, sec. 200; City of Topeka v. Gillette,4 P. 800; Dunne v. Kansas City Cable Railway Co., 32 S.W. Rep., 641; State v. Herman, 75 Mo., 354; State v. Wofford, 25 S.W. Rep., 851; State v. County Court, 1 S.W. Rep., 307; Smith v. Grayson County, 44 S.W. Rep., 921; Young v. State, 102 S.W. *Page 307 Rep., 118; Holly v. State, 14 Texas Crim. App., 514; Cordova v. State, 6 Texas Crim. App., 220; Davis v. State, 2 Texas Crim. App., 425; Orr v. Rhine, 45 Tex. 352; Cox et al. v. State, 8 Texas Crim. App., 254, 286-9; Womack v. Womack, 17 Tex. 1; Graves v. State, 8 Texas Crim. App. 234; Gonzales County v. Houston, 81 S.W. Rep., 118; Ellis v. Fort Bend County, 74 S.W. Rep., 45; Flewellen v. Fort Bend County, 42 S.W. Rep., 775; Hill County v. Atchinson, 45 S.W. Rep., 144; Coombs v. Block, 32 S.W. Rep., 1139; Glover v. Weinroth, 34 S.W. Rep., 72; McMahon v. Pac. Ex., 34 S.W. Rep., 479; Dallas v. Elec. Co., 83 Tex. 243 [83 Tex. 243]; Lewis Sutherland Con. Stat., vol. 1, sec. 203; Murray v. Bd. Co. Commissioners, 81 Minn. 359; 84 N.W. 103.
The lateness of this term and the enormous length that an opinion would necessarily reach to take up seriatim all of the authorities that appellant has cited, or any of them, would make it entirely too long. We candidly concede that the authorities on the question as to what is a special or local law differ nearly as widely as the number of decisions that have been rendered. We also readily concede that many of the authorities cited by appellant above hold that the act in question is unconstitutional because of the fact that there is no "enabling clause" in the jury law whereby other counties can come within the provisions of said jury law. On the contrary, however, we have found several decisions that combat this position and they appear to us more in consonance with reason and enunciate more clearly the distinction between a general and a special law than any that appellant has cited above. In the case of Elkin v. Moir, 53 L.R.A., 837; see also 199 Pa., 534, the Supreme Court of Pennsylvania held that a statute for the government of cities based upon classification can not be held unconstitutional as local or special, although it was intended, and the classification made, so as to apply to only a limited number of existing cities. Furthermore, that such an act was not unconstitutional because it provides for methods of government and administration different from those required in the other classes, in particulars where there is no real difference, if the classification is made with reference to municipal, and not to irrelevant or wholly local, matters. The court further says that the courts have nothing to do with its wisdom, propriety, or justice, or with the motives which are supposed to have inspired the passage of the act; that it is a matter of legislative and political policy addressed to the discretion of the Legislature. Furthermore, in said case the court, among other things, used the following language in quoting from Pittsburgh's petition, 138 Pa., 401, as follows: "It was urged that certain sections of the acts then in question made the act local `by fixing dates at which acts necessary to put the government in operation are to be done,' which were possible only to one city, the city of Pittsburgh, and which are impossible to the city of Allegheny, which has come into the class since the act was *Page 308 passed. The reply to this objection is that at the date when the act became a law there was but one city in the second class. The provisions of the act were general in their character. They related to all cities of the second class. If there had been several such cities, the terms employed would have applied to all alike. It was necessary, in order to give effect to the change in the system of municipal government, that a definite time should be fixed upon at which the change should take place and the new system be put in operation. The trouble with the act is not that it made such a provision for cities then entitled to a place in the second class, but that it did not also make similar provisions for cities that should thereafter be entitled to come into the class. We can not hold, however, that the failure toprovide a date for the organization of cities afterwards to comeinto the class deprives such cities of the benefit of the law, orrenders it local, and so inoperative, in the cities to which itwould otherwise be applicable." This authority is one of the most elaborate and best considered decisions that we have had access to, and the last proposition cited therefrom conclusively answers the insistence of appellant that the jury law is unconstitutional because it has no enabling clause whereby other cities may come under the jury law. The court here very explicitly hold that it is a general law, although it applies to certain cities and does not apply to others nor is it rendered invalid by failing to provide that others may come within the provisions of the law. In the case of Cook v. State, 9 Tenn. 407, the court hold that the Dortch law is not unconstitutional as class legislation by reason of the fact that it is confined in its operation to counties having seventy thousand inhabitants and to cities having nine thousand inhabitants computed by the Federal census of 1880, or that should have such number of inhabitants by any subsequent Federal census. In said case, the court holds that the Legislature is the judge of the means to be adopted and their necessity, when it comes to classification of cities. That the power to regulate and reform the right of franchise in said cities is in said Legislature. They are presumed to know the conditions and wants of the State.
In the case of the State of Iowa v. Folkner, 94 Iowa 1, the law was held not to be a local or special law that provided for a different mode and method of regulating the sale of whisky for certain cities from that provided in cities of a different class. In the case of Caven v. Coleman, 96 S.W. Rep., 774, Judge Talbot, of the Fifth Court of Civil Appeals of Texas, in passing upon the Act of the Twenty-fifth Legislature, which required every city having underground sewers to create a board for the examination of plumbers with authority to issue licenses to plumbers who would pass a regular examination therefor, and prohibiting any person from conducting the business of plumbing until he or they shall have passed the required examination, held that said act was constitutional. *Page 309 The rule there in reference to local or special laws is very tersely stated as follows: "We think it well settled that a statute which selects particular individuals from a class and imposes upon them special obligations or burdens, from which others in the same class are exempt, is unconstitutional; but such is not, in our opinion, the character of the statute under consideration." In this last cited case we have a statute under consideration held valid by the court, wherein it was provided that cities having underground sewers at the time of the passage of the law should have licensed plumbers. There is no provision in the act authorizing other cities to come within its provisions, but the act applies to all cities that then had underground sewerage. This case, we take it, is also in point on the jury law now under consideration. See also State v. Barrett,138 N.C. 630.
In the case of Douglas v. People, 225 Ill. 536; vol. 8 L.R.A., 1116. The court held that a law requiring all engaged in the plumbing business in municipalities containing more than 5,000 inhabitants to procure a license, and requiring the appointment of a board of examiners in those of more than 10,000 inhabitants, is not an arbitrary classification, so as to render the statute invalid. That a statute requiring the procurement of a license by persons working at the business of plumbing in municipalities of more than 5,000 inhabitants throughout the State is not invalid as special legislation. Further commenting upon the question the court says: "The general rule is that a classification of the cities, towns, and villages of the State by population as a basis for legislation may be made if such classification is based upon a rational difference of situation or condition found in the municipalities placed in the different classes; otherwise legislation based upon such classification will not be sustained." They hold that there is a clear and rational difference in the situation or circumstances so far as the plumbing business and appointment of a board of examiners of plumbers is concerned in cities of 10,000 inhabitants or more. It is also urged that the act is not general in term and does not apply to all persons in the State alike, and for that reason it is class or special legislation. "The act does apply uniformly to the persons engaged in or working at the business of plumbing as master plumbers, employing plumbers, or journeymen plumbers in the several classes of cities, towns and villages created by the act throughout the State, and we think, therefore, it is not subject to the criticism of want of uniformity in its application. A law is said to be general and uniform, not because it operates upon every person in the State alike, but because it operates alike upon every person in the State who is brought within the conditions and circumstances prescribed by the law." Steed v. Edgar County, 223 Ill. 187. In Meyer v. Hazelwood,116 Ill. 319, it was said: *Page 310
"Laws are general and uniform and hence not obnoxious to the objection that they are local or special, when they are general and uniform in the operation upon all in like situation." So we have in this case a uniform application of the jury law to all cities that come within its operation. It is a law in which the public at large have an interest in its enforcement and in its passage, in that there is a congested condition of population in the larger cities that to the legislative wisdom suggested that a different mode and method of selecting juries for said large congested centers should apply to the jury than that which applies throughout the balance of the State.
To ask the question as to whether or not a different condition exists is to suggest a governmental policy which, of course, addresses itself to the sound discretion of the Legislature and not to the courts. This law applies to all of the people of the county where the city of the population named is located and is uniform upon each. In the case of Title Document Restoration Co. v. Kerrigan, 88 P. 356 (8 L.R.A., 682), the court had under review the law to provide for the re-establishment of lost record titles to real estate. This is a case from the Supreme Court of California, in which their Constitution in reference to the exception of certain things from special legislation is very similar to the exceptions in our own Constitution. They hold that said act is constitutional, and that it is not necessary that the law shall affect all the people of the State in order that it may be general, or that a statute concerning procedure shall be applicable to every action that may be brought in the courts of the State. A statute which affects all the individuals of a class is a general law, while one which relates to particular persons or things of a class is special, citing McDonald v. Conniff,99 Cal. 386. The Legislature has the right to enact laws applicable only to one class where the classification is authorized by the Constitution or is based upon intrinsic differences requiring different legislation. A law which operates only upon a class of individuals is none the less a general law. See also Reed v. Rogan, 94 Tex. 177. In the last cited case the principle is laid down that where the public at large have an interest in the matter, and the legislation merely applies to a locality but affects all who live in said locality, or whose interests may be drawn to same, that the law is a general law and not a special one. We, therefore, hold that the jury law passed by the Thirtieth Legislature is in all things constitutional. That it is a general law applicable to all within its provisions, and the fact that it does not have a clause authorizing other cities to come within its provisions, does not render it invalid, nor does the fact that the jury law mentioned by appellant in his objections above stated differ from those of the jury law that applies to the rest of the State in any respect render said law unconstitutional. *Page 311
There being no other question in appellant's case, in the absence of a statement of facts, that can be considered, the judgment is in all things affirmed.
Affirmed.
[Motion for rehearing overruled December 21, 1908. — Reporter.]