During my absence the decision of this case was rendered. This accounts for my failure to then note my dissent. Judge HENDERSON agreed to the conclusion reached, and for his views referred to his late opinion in Ex Parte Wilbarger, ante, p. 514. I am somewhat at a loss to understand the attitude of my brethren in regard to the question at issue, as stated in their diverging opinions. But their views explain themselves. Had my Brother BROOKS contented himself with simply basing his opinion upon that expression in section 1 of article 5 which states the judicial power of this State shall be vested in certain named courts, "and in such other courts as may be provided by law," I could have remained silent, as my views upon this question have been fully expressed in Ex Parte Coombs, 38 Texas Criminal Reports, 648; Leach v. State, 36 Texas Criminal Reports, 248; Ex Parte Knox (Texas Criminal Appeals), 39 Southwestern Reporter, 670. The main question at issue in this case was the same as in those cases, and was thoroughly discussed by Judge HENDERSON and myself in the Coombs case, as well as by Judge Brown, for the Supreme Court, in Harris County v. Stewart, 91 Tex. 133. Judge BROOKS uses this language: "The fact that provisions of previous Constitutions may have contained express power authorizing the Legislature to create municipal or corporation courts, and the present contains no such provision, is no argument whatever that the omission of such express authority in the present Constitution is a repeal by implication of the authority heretofore existing in previous Constitutions." This is not a correct statement of the proposition. These Constitutions did not undertake to grant authority to the Legislature to create corporation courts. They simply recognized the existence of such corporation courts as were or might be created by the Legislature, independent of the judiciary article. This was one of the main questions discussed and decided in all the cases supra. As, for example, the Constitution of 1845, in this respect, reads as follows (section 1, article 4): "The judicial power of this State shall be vested in one Supreme Court, in district courts, and in such inferior courts as the Legislature may from time to time ordain and establish, and such jurisdiction may be vested in corporation courts as may be deemed necessary and directed by law." It will be observed on the surface that this Constitution did not authorize the Legislature to create corporation courts, but it simply authorized the Legislature to confer certain jurisdiction upon such corporation courts, the existence of which is directly recognized by the article quoted. Corporation courts in Texas have not depended for their creation or existence upon the judiciary article in the Constitution. *Page 591 This action of the people in ordaining the Constitution of 1845 simply authorized the legislative body to confer jurisdiction upon such corporation courts as the Legislature either had already created or might thereafter create; and it does recognize the fact that the corporation courts were then existing courts, and that it did not require the authority of the Constitution to justify the Legislature in creating them. It was simply intended to authorize the Legislature to confer jurisdiction upon them; nothing more, nothing less. For a discussion of this question, I refer to the decisions rendered by this court cited above. This further remarkable statement is found in the opinion of Judge BROOKS: "Each Constitution is a legal entity, independent of, and not dependent upon, any previous Constitution. There might be some plausibility in the statement in the Coombs case, supra, if the rule of construction invoked was being applied to amendments of provisions of the Constitution. But this is not a rule of construction in the nature of things that can be applied to a new or independent Constitution. The doctrine of `expressio unius est exclusio alterius' does not apply to State Constitutions. While the doctrine may have some application to the Federal Constitution, it is directly at variance with the theory of State Constitutions, which are limitations upon the powers of government, and under which whatever power is not denied is deemed to exist." While it is true that each Constitution may be regarded as a legal entity, yet, when this statement of Judge BROOKS, in its entirety, as above quoted, is looked to, the proposition is evolved that you can not look to prior Constitutions in order to construe a subsequent or new Constitution. I doubt if such a rule can be found outside the opinion of the majority in this case. This matter was reviewed in the Coombs case, supra. Our Supreme Court has recognized this rule in all its decisions where the question came up for adjudication. In Travis County v. Trogdon, 88 Tex. 302, in an elaborate opinion, Judge Denman reviewed the Constitutions of 1836, 1845, 1866, and 1869, in order to ascertain what was meant by a change in that section of the Bill of Rights which relates to the taking of property to be applied to public use, and it was only upon a review of the provisions of all these Constitutions that he was enabled to arrive at what he and the court deemed a just conclusion of the meaning of that section as amended by the Constitution of 1876. All the elementary writers lay down the proposition that, when necessary to do so in construing an existing Constitution, it is proper to look to prior Constitutions. This is especially true when the intention of the people is to be arrived at in making changes in their organic law. This doctrine was expressly recognized by the Supreme Court in Bigby v. City of Tyler, 44 Tex. 351; Holmes v. State,44 Tex. 631; State v. McAllister, 88 Tex. 284 [88 Tex. 284]. Applied to statutory enactments, this rule is so well settled that it can not be questioned; and the authorities, elementary as well as the decisions, lay down the proposition that the general rules of interpretation are the same whether *Page 592 applied to statutes or Constitutions. See authorities collated in the Coombs case, supra; Potter, Dwar. Stats., pp. 654, 657; Cool. Const. Lim., 79 et seq.; Endl. Stat. Const., 509, 518; 6 Am. and Eng. Enc. of Law, 2 ed., p. 930, and notes, for cases.
Now, with reference to the statement of Judge BROOKS that "the doctrine of `expressio unius est exclusio alterius' does not apply to State Constitutions," I have not been able to find an authority that sustains this statement, nor does he cite one in support of it. He relies only upon Endlich on Interpretation of Statutes, page 752, latter clause of section 533. The section cited uses this language: "The maxim, `Expressio unius est exclusio alterius,' in the sense in which, as has been seen, it is properly applicable to the construction of statutes, is equally so in the interpretation of constitutional provisions. * * * It was said, however, by a late chief justice of Pennsylvania: `The expression of one thing in the Constitution is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions declaratory in their nature. The remark of Lord Bacon "that, as exceptions strengthen the force of a general law, so enumeration weakens as to things not enumerated," expresses a principle of common law applicable to the Constitution.' No doubt, `when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.' But this proceeds upon the principle that, where a right is given, and the conditions of its exercise are prescribed, by a superior power, an inferior one, charged with acting under and in accordance with it, can not vary or add to those conditions, — a principle obviously alike applicable whether the superior power be the people themselves and the governing rule the Constitution, or whether the superior power be the Legislature and the governing rule a statute." In support of this, the work quoted from cites many authorities. Endl. on Interp. Stats., sec. 533, and authorities collated in notes under said section. See also section 397, et seq. The authorities cited by Judge BROOKS not only fail to support him, but are emphatically and unequivocally against the proposition. To the same effect is Potter's Dwarris on Statutes, page 674, where it is said: "Certain maxims and rules of construction adopted or discussed by Judge Story are deserving of consideration in this chapter, among which are `that a specification of particulars in an instrument is the exclusion of generals;' or, in other words, `the expression of one thing is the exclusion of another.' And Lord Bacon's remark is cited with approbation, viz., `that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.'" In Story on Constitutions, section 448, this language is found: "Another rule of interpretation deserves consideration in regard to the Constitution. There are certain maxims which have found their way not only into judicial discussions, but into the business *Page 593 of common life, as founded in common sense and common convenience. Thus it is often said that in an instrument a specification of particulars is an exclusion of generals, or the expression of one thing is the exclusion of another." This same author cites with approval the famous remark of Lord Bacon, which is copied in the text by the author. To the same effect is Long v. State, 1 Texas Criminal Appeals, 709, in which this question was at issue. Under the Constitution of 1869 the Legislature had authority to create criminal district courts, and, among other things, did create one for the cities of Waco, Marlin, and Calvert. Whether or not this court existed under the Constitution of 1876 was the issue. Section 1 of article 5 of the Constitution of 1876 provided, among other things, "that the Legislature may establish criminal district courts with such jurisdiction as it may prescribe, but no 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 such criminal district court when established, excepting out of this provision the criminal district court for the counties of Galveston and Harris." The court held that by reason of this language in the Constitution of 1876 the criminal district court of Waco, Marlin, and Calvert had been obliterated, and placed it upon the maxim, "Expressio unius est exclusio alterius." This doctrine is expressly recognized, so far as I have been able to ascertain, not only by all the courts known to Anglo-Saxon jurisprudence, but by all writers on constitutional law which I have been able to find. See also Black on Const. Law, page 282, sec. 127. All the authorities also lay down the proposition that the court may not only look to prior Constitutions and their history, but may go beyond, and look to the journals showing the proceedings of the conventions which framed the Constitutions, to ascertain the intent and meaning of those who framed the instrument. Cool. Const. Lim., p. 79, et seq.; Potter's Dwar. on Stats., pp. 657, 660; Endl. Interp. Stats., secs. 509, 518; 6 Am. and Eng. Enc. of Law, 2 ed., p. 930, and notes, for cited cases.
Judge BROOKS states that the rule of "expressio unius est exclusio alterius" applies to amendments of Constitutions, but denies the rule is applicable to a succeeding or new Constitution. If it applies to an amendment of a Constitution, it certainly would apply with equal force to a new Constitution, for the amendment takes the place of that portion of the Constitution which has been amended as thoroughly as the new Constitution could take the place of the old. In this respect Endlich on Interpretation of Statutes uses this language in section 517 of his work: "Statutory provisions which have expired or been repealed may, as has been seen, be looked at as aiding the construction of other provisions and enactments in pari materia. Similarly, clauses that have been eliminated from a Constitution by amendment may be referred to in aid of the interpretation of others originally *Page 594 associated with them and remaining in force. And with equal propriety the differences between the provisions of a new Constitution and those of a previous one, and the construction placed upon the latter when in force, may be regarded by the courts in ascertaining the purpose and real meaning of the new provisions." In support of this text the author cites Houseman v. Commonwealth, 100 Pa. St., 222, 230; Buckelew's Const., Pa., pp. 45, 46; People v. Blodgett, 13 Mich. 147. See also Endl. on Interp. Stats., sec. 397. So, in Texas, it is said, as found in White's Annotated Criminal Procedure, page 33, section 30: "Another rule of construction is that, when the Constitution defines the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. Holley v. State, 14 Texas Crim. App., 505; Ex Parte Brown, 38 Tex.Crim. Rep.. So, if the statement made by Judge BROOKS as to amendments of Constitutions is true, by the authorities supporting that proposition the proposition is fully sustained — cogently supported — that it applies to a new Constitution in its entirety. How it could apply to amendment to Constitutions, and not to a new Constitution, I do not understand, for the rules which govern one must necessarily apply to the other.
I have thus hurriedly and crudely stated some of my reasons for dissenting from the opinion rendered by Judge BROOKS. It would have afforded me pleasure, if the crowded condition of the docket would permit the time, to have more thoroughly gone into these matters.