We have considered carefully the contentions made in the able motion for rehearing filed by the State. The writer is of opinion that the corporation court of the City of Texarkana was legally created in 1907 as part of a special charter *Page 312 then granted said city by the legislature; and that said court was rightfully given jurisdiction of misdemeanor cases arising within the city limits over which the county court of Bowie county had original jurisdiction. The jurisdiction of this court was attacked and the question above stated was decided in line with the above statement in Ex parte Abrams,56 Tex. Crim. 465, 120 S.W. Rep. 883; Ex parte Parker,56 Tex. Crim. 544; Ex parte Clark, 120 S.W. Rep. 892, and Frick v. State, 124 S.W. Rep. 922, none of which have been overruled, — but on the contrary have been approved. This same thing was substantially held in Ex parte Wilbarger, 41 Tex. Crim. 514, 55 S.W. Rep. 968, and Ex parte Hart, 41 Tex. Crim. 581, 56 S.W. Rep. 341, wherein corporation courts were upheld whose jurisdiction was fixed by the general law of 1899, enacted in pursuance of the provisions of the 1891 amendment to Sec. 1, Art. 5 of the Constitution, — by whose express language the legislature was empowered to create "other courts" beside the district, county and justice courts, and to "conform the jurisdiction of the district and other inferior courts thereto." The jurisdiction of such courts was upheld and all opinions contrary thereto overruled. Substantially the same thing was held by our Supreme Court in Harris County v. Stewart, 91 Tex. 133, and May v. Finley, 91 Tex. 354, in which were discussed the scope and effect of said constitutional amendment of 1891. These authorities, and especially Ex parte Wilbarger, Harris County v. Stewart, and Ex parte Abrams, supra, so fully cover the identical points here raised, and are reasoned so logically and set out conclusions in such plain and unanswerable terms as that the writer deems it only necessary to cite them as in complete settlement of the questions above adverted to.
This much is said in view of the fact that the writer is not in accord with much of the reasoning and many of the deductions of the original opinion and is of opinion that said court was and is legally constituted. However, since the rendition of the opinions of this court above mentioned, the people of this State adopted in 1912 what is known as the Home Rule Amendment, being Sec. 5, Art. 11 of our present Constitution, in which cities of more than 5000 population were given the right to adopt or amend their charters with the following limitations: "Subject to such limitations as may be prescribed by the legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of *Page 313 the general laws enacted by the legislature of this State." At the time of the adoption of said Home Rule Amendment there was on our statute books a general law passed by the Regular Session of the 26th Legislature creating corporation courts in all incorporated towns and cities of Texas, and providing that such courts should have jurisdiction of criminal cases arising within the corporate limits of such town or city, concurrent with the justice court, when the punishment was by fine only, and in cases where the maximum fine did not exceed $200.00. (Sec. 2, Chap. 33, General Laws 26th Leg., Regular Session.) This section is now Art. 1195, Revised Civil Statutes 1925.
The writer is of opinion that from the adoption of said Home Rule Amendment the jurisdiction of Texarkana Corporation Court in criminal matters was as fixed by the general law of this State above referred to, and hence said court was thereafter without jurisdiction to try this applicant or any other person for an offense punishable by confinement in the county or city jail.
If it be contended that the language of the Home Rule Amendment above quoted is prospective in effect and that it did not take from charters already in existence powers therein enumerated, even though same were in contravention of the general laws of this State, we would reply that we can not uphold a contention which would necessarily result in the abrogation of one of the most sacred of the very fundaments of our government, viz.: that all men have equal rights before the law and that no man or set of men is entitled to governmental privileges above his fellows. The language of the Home Rule Amendment does not compel prospective interpretation of its terms. While authorities hold that when used as indicative of past, present or future operation, the word "shall" commonly refers to the future, — see Jones v. Bank, 17 Colo. App. 79; Murphy v. McKeon, 53 N.J. Eq. 406; Meadowcroft v. People, 45 N.E. Rep. 991; Stisser v. N.Y. Cent. Ry. Co., 52 N.Y. Supp. 861, — this will be found to be the result of accompanying words or the use of "shall" in such connection as necessitates such interpretation. Other authorities give the word a present or what might be called a retrospective effect. Shanklin v. McNamara, 26 P. 345; Wright v. Roseberry, 121 U.S. 488; Kelly v. Owen, 74 U.S. (7 Wall.) 496; Mason v. Heyward, 5 Minn. 74; Forbes v. State, 43 A. 626; Outcalt v. Outcalt, 42 N.J. Eq. (15 Stew.) 500; Fitzpatrick v. Simonson, 86 Minn. 140; Maysville L. Ry. Co. v. Herrick, 76 Ky. 122. Most if not all of these cases cited are in point and sustain *Page 314 our view of the correct interpretation of the word "shall" when used as in our Home Rule Amendment at the place referred to. If the framers of the Constitution had meant to attempt to give any part of our citizenship vested rights in purely governmental functions, they could have easily said so by inserting after the first word "charter" in the quoted part of the Home Rule Amendment the words "hereafter adopted." They did not do so, and, in consequence with what we conceive to be our duty to so construe laws as to bring about harmony and unity of application and effect, — we will not do so by construction.
Being of opinion that said court was constitutional in its creation and functions, and that it still is save as herein set forth, but believing that since 1912 and now said corporation court has been and is without jurisdiction to try a misdemeanor offense punishable by imprisonment, and that this much of the conclusion as expressed in the original opinion is correct, the motion for rehearing by the State will be overruled.
Overruled.