Appellant was tried in the County Court of Dallas County, and convicted of keeping a disorderly house. On the trial she interposed a plea to the jurisdiction of the County Court, based on the ground that the charter of the city of Dallas vested in the city court exclusive jurisdiction of said offense. An inspection of the charter of the city of Dallas existing at that time and now shows that her contention to the effect that the city court was given exclusive jurisdiction of said offense was correct; accordingly the constitutional question as to whether the Legislature had the power to confer jurisdiction of State cases upon the municipal court of Dallas is here presented. Under ordinary circumstances I should not feel called upon to express my views, inasmuch as I concur in the result reached in the opinion of my Brother Davidson. The question, however, is of such importance that I believe it my duty to supplement that opinion with at least some of the reasons which induce me to hold said charter unconstitutional so far as it seeks to give jurisdiction of State cases to the municipal court of Dallas. I am not unmindful of the gravity of the situation when a court is required to pass upon the constitutionality of an act of the Legislature, but the question is fraught with still greater embarrassment in this instance, because I feel constrained to differ not only with the presiding judge of this court, but with the able and exhaustive opinion of the Supreme Court of this State on this question. But entertaining, as I do, the belief that "it is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority, and that judges are *Page 669 chosen for the purpose of maintaining the limitations of the Constitution, without which free government can not exist," I should be recreant to the trust imposed in me by the people of the State if I did not, within the functions of my office, resist to the utmost any interference, even on the part of the Legislature, with the principles of the Constitution. Not even so high a tribunal should be permitted to violate its provisions with impunity. At the same time, "nothing but a clear violation of the Constitution, a clear usurpation of power prohibited, will justify the judicial department in pronouncing an act of the legislative department null and void." Actuated by such a sentiment, I have given the question that examination which so grave a subject demands, and I believe I shall be able, before I conclude, "to put my finger" upon the provision of the Constitution which the Legislature in passing the act in question, violated, or from which the prohibition necessarily arises.
1. I submit that corporation courts are mere incidents of municipal government, for the enforcement of municipal laws. This was their character at common law. See 1 Dill. Mun. Corp., secs. 424-426. In America our States have generally followed the above in construing the status and functions of municipal courts. It is conceded that in some of the States this is not the rule, but, as a general proposition, I think it may be safely stated that municipal courts are merely incidents of municipal corporations. They can not exist unless there is first in existence a town or city, which must be incorporated. Their jurisdiction and functions are coextensive with the town or city, and pertain to offenses against the municipal government which are made such by ordinances which may be passed for that purpose. As stated by Mr. Dillon (volume 1, sec. 428): "It is clear that it is competent for the Legislature of a State to create municipal courts with powers of local government, and to authorize them to adopt ordinances or by-laws, with appropriate penalties for their violation. The power to do this includes, by fair implication, the power to authorize violations of ordinances (where the acts are not criminal in their nature) to be tried and determined in a summary manner by a local or corporation tribunal." It may be conceded, however, that the Legislature may authorize municipal courts to exercise jurisdiction in State cases, unless some provision of the Constitution should be infringed. As stated above, in some of the States municipal courts are regarded as a part of the State judiciary, but these are the exceptions which serve only to prove the rule; and it is believed an examination of the cases will show that the Constitutions of such States are different from ours, and give warrant to the Legislature to treat these courts as a part of the judicial system of the State; or the history of such courts, in connection with the Constitution, is such as to authorize the conferring of such jurisdiction upon them. The cases which bear out this contention are cited in Harris County v. Stewart,91 Tex. 133. A number of States hold a different view. See La Fon v. Dufrocq, La. Ann., 350; State v. Maynard, 14 Ill. 419; Shafer v. Mumma, 17 Md. 331; Holmberg v. Hauck, 16 Neb., 337; *Page 670 Brown v. State, 79 Ga. 324. In our own State it has been held that it was entirely competent for the Legislature to create courts for the purpose of enforcing municipal ordinances. See Blessing v. State, 42 Tex. 641. And it has also been held that jurisdiction pertaining to State courts could not be conferred on municipal courts. These are decisions under a former Constitution, and hold that recorders and mayors could not be justices of the peace. See Bigby v. City of Tyler,44 Tex. 351; Holmes v. State, Id., 631. It is true, our courts have recognized the exercise of jurisdiction by municipal courts of State cases, and a number of cases are cited to that effect in Ex Parte Fagg, ante, p. 573. The constitutional question, however, was not made in those cases, and they can not be considered as authority upon this question. Jurisdiction in our State was originally ingrafted upon municipal courts of petty offenses against State laws under Constitutions which made corporation courts a part of the judicial system of the State. See Const. 1845, art. 4, sec. 1; Const. 1861, art. 4, sec. 1; Const. 1866, art. 4, sec. 1. Under said Constitutions, in 1856, at the time of the adoption of our first Penal Code and Code of Criminal Procedure, the Legislature passed certain articles, to wit, articles 98, 929, 930, Code of Criminal Procedure, which gave to mayors and recorders the same jurisdiction to try State cases as justices of the peace. More recently, however, larger jurisdiction than of mere petty offenses has been from time to time vested in municipal courts by special charters to cities. The constitutionality of these acts has for some time passed unchallenged. Nor was public attention called to the fact that the Constitutions under which these courts were authorized to exercise jurisdiction as State courts were no longer in existence. No doubt, much of the confusion which has arisen on this subject was occasioned by the fact that said articles of the Code of Criminal Procedure passed in 1856, when the Legislature had the right to enact them, were brought forward from time to time by the codifiers, and so continued in force. It is submitted, however, if these articles of the Code were unconstitutional when brought forward, they did not get to be constitutional by simply being re-enacted and adopted as general laws, and jurisdiction exercised thereunder. If the clause of the Constitution which authorizes the conferring of jurisdiction upon mayors' and recorders' courts of State cases was repealed by being omitted from the new organic law, which was passed in 1869, then said courts ceased to be a part or our State judicial system, and no authority remained with the Legislature to clothe them with jurisdiction appertaining to State courts.
2. In order to present this question clearly, I submit that corporation courts are not now named as a part of the judicial system of the State, and, if they are to be regarded as such, this claim must rest on one of two propositions: (1) They either constitute a part of the judicial system of the State, despite the fact that they are not named in the Constitution, or (2) they become such by virtue of the creative power of the Legislature under the Constitution. Discussing these propositions in *Page 671 their order, I insist that corporation courts constitute no part of our judicial system. The fact that our Constitution once named these corporation courts as a part of our system, and afterwards, in the formation of new Constitutions, the other courts formerly named were retained in the judiciary article, but corporation courts were dropped therefrom, to my mind is strong, if not conclusive, evidence of an intention to eliminate such courts from our judicial system. I do not deny that in one sense municipal courts are a part of the judicial system of the State, inasmuch as they enforce certain local State laws, but I do deny that they are State courts in the sense that they are a part of the State judiciary, as contemplated by the Constitution; and I emphatically deny that the inherent right exists in the Legislature under the Constitution to confer jurisdiction of State cases upon municipal courts. While such courts, in a qualified sense, are a part of the judicial power of the State, they are merely incidents of municipal corporations, and they can only exercise such power as properly belongs to municipal government; that is, to enforce such ordinances as a city or town has a right to pass. And I maintain that a city or town has no right to pass an ordinance making that an offense against the city which has been declared a crime against the State. The State, by its laws, having already occupied the territory, the Legislature can not delegate authority to municipal governments to encroach upon, much less indirectly annul, State laws. It is conceded that all judicial power is derived from the State, and unless the power of the Legislature is limited by the Constitution, either express or implied, then the Legislature is omnipotent in itself, either to create courts or confer jurisdiction upon existing courts. Now, our Constitution vests the judicial power of the State in the Supreme Court, Court of Criminal Appeals, Courts of Civil Appeals, district, county, and commissioners courts, and justices of the peace courts. It is not necessary to go into the details of our judiciary article, but a reference thereto will show that the object of the Constitution builders was to mark out a complete judicial system. The entire State, including every county, is required to be divided into judicial districts. Each county is required to have a county court, and the counties are required to be divided into commissioners precincts, and thus commissioners courts constituted. So, with justices' courts, each county is required to have not less than four and not more than eight justices of the peace, unless a county shall contain a city of 8000 or more inhabitants, in which case such city is authorized to have two justices of the peace. The organization of these courts is set out in the judiciary article. The officers authorized to hold them are named, and their functions and duties prescribed. Not only so, but control is given to the district court over all the subordinate courts, and they are authorized to remove the officers of such courts on sufficient cause. The article goes still further, and provides how vacancies in such courts are to be filled. It is not a case where the Constitution is silent on the subject, for that instrument speaks; and the maxim, "Expressio unius est exclusio alterius," becomes *Page 672 the rule. As was said in a New Jersey case (see Harris v. Vanderveer, 21 N.J. Eq. 424): "In an examination of these sections, the first thing that 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, jurisdiction, and even the very existence, of the civil courts would have been placed under the control of the Legislature. They could have been altered or abolished by that body at will." If the Constitution stopped here, I apprehend that no one would be bold enough to declare that any State jurisdiction could be vested in municipal courts. The Constitution of 1891, however, goes a step further, and authorizes the Legislature to create "other courts." This same power was contained in the Constitution of 1876, and was construed by Judge Roberts in Ex Parte Towles, 48 Tex. 413. See also Gibson v. Templeton, 62 Tex. 555; Ex Parte Whitlow,59 Tex. 273; Williamson v. Lane, 52 Tex. 335 [52 Tex. 335]; Whitener v. Belknap, 89 Tex. 273 [89 Tex. 273]. I quote from Judge Roberts in the Towles Case as follows: "It was certainly the object of the framers of our Constitution to mark out a complete judicial system by defining generally the province of each of the courts by reference to the objects confided to the action of each, and the relation of each to the others. To that extent it must be held to be permanent, and not subject to change by the action of the Legislature, except as a change may have been provided for. This is plainly, though incidentally, indicated by a special provision for a change in the jurisdiction of the county court." Now, if the creative power of the Legislature under the Constitutions of 1876 and 1891 is the same in this respect, then I maintain that the construction must be the same. That the creative power is the same I think no one will deny. If Judge Roberts' opinion was sound when written, it is equally sound now, when applied to the Constitution of 1891. And I insist, in this connection, if corporation courts existed throughout the State at the time of the adoption of our Constitution (and this no one will deny), and they were regarded as a part of the judicial system of the State, why were they not named in that instrument? Evidently these courts were not regarded as a part of the judicial system. Other courts were named in the Constitution. These were not; and if they are to be regarded is a part of our judicial system, they are so by a higher law than the Constitution itself. Nor must it be forgotten that our judiciary article is flexible, fully adequate to meet all the demands of the present and the immediate future. The amendment of 1891 makes the district court more elastic, and enlarges its jurisdiction, and as many district courts can be created as the necessities of litigation may require. True, there can be but one county court, but the jurisdiction of this court is cast in such shape as that there can never be any danger of overcrowding it. And when we come to the justices' courts, which have jurisdiction of petty offenses, such as it is claimed mayors and recorders ought to have jurisdiction to try, we find that *Page 673 the Constitution authorizes an increase of the justices of the peace where such cities have over 8000 inhabitants; thus negativing the idea that it was intended that municipal courts should constitute a part of the judicial power of the State for the trial of even petty offenses. It will not be contended that the Legislature, in the face of the Constitution limiting the number of justices of the peace in a county, could directly create a greater number of justices than is provided by the Constitution. If the Legislature could not create a greater number of such justices in any county directly, it is a self-evident proposition that they could not do so indirectly. Therefore they could not indirectly constitute mayors and recorders of cities justices of the peace, for this would be doing by indirection what the Constitution prohibits directly. See Holmes v. State, 44 Tex. 631, where this question was directly decided; and also Bigby v. City of Tyler, 44 Tex. 351 [44 Tex. 351]: "When the Constitution, as the source of judicial power, vests that power in designated tribunals, the Legislature can neither vest it elsewhere, nor create new judicial offices, nor divide the duties of the judicial office designated by the Constitution. The Constitution can not be evaded by a change in the name of an office, nor can an office be divided, and the duties assigned to two or more offices under different names, and the appointment to the offices made in any manner except as authorized by the Constitution," See People v. Albertson, 55 N. Y., 57. The same observations hold good with reference to our county court system, for the Constitution (article 5, section 15) limits the authority of the Legislature to the creation of only one county court in each county. The Legislature therefore can not, directly or indirectly, create more than one county court by conferring jurisdiction upon inferior courts, for the Constitution has limited the jurisdiction of justices of the peace in criminal matters to cases where the fine imposed does not exceed $200. It has also placed a limitation upon the jurisdiction of said courts in civil matters. Therefore the justice's court jurisdiction can not be increased in the face of the Constitution, so as to include those offenses where the fine is in excess of $200 as a punishment. It is true that the Constitution has provided that the jurisdiction of county courts may be changed, increased, or diminished, either by local or general law; but this jurisdiction can not be conferred, as before stated, upon justices of the peace, because the Constitution has limited the jurisdiction of justices' courts. Therefore there is but one court mentioned in the Constitution upon which the Legislature may confer jurisdiction taken from the county court, and that is the district court. The district court, by sections 7 and 8 of article 5 of the Constitution, is the only court specifically mentioned in the Constitution which could exercise any jurisdiction that might be taken from the county court by local or general laws passed by the Legislature for that purpose. It will therefore be seen, if the language of the Constitution means what it says, or says what it means, that there may be as many district *Page 674 courts in the State of Texas as the Legislature may see proper to create or bring into existence. Then the conclusion is irresistible that under our Constitution, if the Legislature creates other courts, they can only exercise such jurisdiction as might be exercised by the district court as an original court, or such court with the jurisdiction of the county court conferred upon it by the local or general law passed by the Legislature for that purpose. And it follows, as a corollary to this, if the Legislature can not create an additional county court to that provided by the Constitution, then it can not create a mayor's or recorder's court with co-ordinate jurisdiction with that court; nor can it create mayors' or recorders' courts, directly or indirectly, justices of the peace courts, and confer upon them jurisdiction appertaining to such courts, because, as before stated, the Constitution has set the bounds to their jurisdiction and authority. Then it follows as a logical conclusion, if the Legislature can create of a municipal court a State court, it must be with the jurisdiction pertaining to a district court. So it occurs to me that we reach the inevitable conclusion that our judiciary article prohibits the conferring of jurisdiction upon mayors' or recorders' courts which would make them co-ordinate with county courts or justices of the peace courts. And I believe that the declaration of Judge Roberts in the Towles Case, supra, is equally as applicable in the construction of our judiciary article of 1891 as it was in the construction of our judiciary article of 1876. The people intended to preserve our judicial system intact. The terms used, in my opinion, can bear no other construction. The district court is the basic principle upon which the entire system is founded; and the whole may be likened to some noble oak, towering with Olympian majesty and imperial supremacy above the lesser trees of the forest. The bole or trunk, vigorous and strong, springing — a graceful colonnade — from the ground, to bathe its leafy foliage in the clouds, fitly represents the district courts. This, supported and nourished by the county courts and commissioners' and justices' courts, may be aptly termed the roots of the system, which strike down deep into the rich alluvial soil of our jurisprudence. The Courts of Civil Appeals stretch their giant limbs above and around, and with their superb setting reach out to catch the winds and dews and sun-shine, to give them back again, and to shadow, fertilize, and fructify the soil beneath. While high over all, standing like armed sentinels to guard the sacred domain, crowning the summit, are the Supreme Court and the Court of Criminal Appeals. Others can be created, but they must be of like kind, and grafted into the system by skillful hands. Thus completed, unique in outline, perfect in symmetry, and vigorous in its strength and growth, this magnificent temple of justice, builded by the framers of our Constitution, is well fitted to meet and grapple with all the demands of litigation, and to withstand the sinister touch of the fawning sycophant, or the ruder assaults of brute force and unchained power, no matter by whom set in motion. *Page 675
This brings me to the second proposition or subdivision of the subject, to wit: Did the Dallas city court become a State court by virtue of the creative power of the Legislature under the Constitution? I am not prepared to say that municipal courts can not be habilitated, and brought into our judicial system, and made to do double service, both as municipal and State courts, as was done in Helfreid's Case, 2 Nott McC., 233. But when this is attempted it must be done by creative act, and not by merely conferring jurisdiction as upon State courts. By an examination of the various acts of the Legislature creating State courts and municipal courts, the difference will be apparent; and it will become evident that the Legislature never intended to make any municipal court in the State of Texas a State court. On the contrary, the attempt has always been simply to confer jurisdiction of State cases upon these courts. By way of example, take the Dallas County Criminal District Court and the City Court of Dallas. In the first it is evident that the Legislature went about the performance of its duty under the Constitution to create a State court. They exercised a care. It is a general act, and under a proper caption. The jurisdiction of said court is carefully provided for, and made to conform to the other district courts in that county. A seal is prescribed for said court. A judge, and his selection, together with all the officers thereof, are provided for; the terms of said court are fixed; and we know, without question, that here the Legislature intended to create a State court. Now, turn to the act creating the City Court of Dallas. In the first place, it is a special act of the Legislature. (It does not occur to me that the Legislature could undertake to perform this duty under a special act.) The caption of said act is, "An act to incorporate the city of Dallas, and grant it a charter." This itself would, under a provision of our Constitution, render the attempt to create a State court null and void. See Ex Parte Fagg, ante, p. 573, and authorities there cited. The city judge gets his official status not from the State, but from the city, and his compensation is entirely from the city. The very seal of the court is provided for by the city. The process does not run in the name of the State, but in that of the city. Throughout the act it is referred to as a city court, having jurisdiction of city cases by ordinances. Section 27, in providing for process, says that it shall be served and executed in the same manner as process issued from a State court, and the practice and procedure of the State courts shall govern, etc. Now, if it was State court, why not refer to it as such, instead of referring to it as a city court, and authorizing its procedure to be conducted in some cases as the practice and procedure in State courts, as far as applicable and practicable? It is not necessary to go further into details; but to my mind it is evident that the Legislature did not intend to create a State court of this, but a city court, and merely attempted to confer jurisdiction upon it to try certain State cases. If it was an already existing State court, it would have been perfectly competent for the Legislature to have done this; that is, to *Page 676 confer jurisdiction upon it. If it was not a State court, before they could confer jurisdiction upon it it was obligatory upon the Legislature to create and make of it a State court. I think it is clear, viewing this matter from any standpoint, that the City Court of Dallas did not have jurisdiction to try said offense of keeping a disorderly house, neither as an existing State court under our Constitution, nor as a State court created by the Legislature under that instrument. It may be said that the holding of these acts of the Legislature attempting to bestow jurisdiction of State cases upon municipal courts unconstitutional will be productive of great confusion; but, if this be conceded, it would not justify us in holding that an act deemed unconstitutional should be held valid. The argument ab inconvenient has no place here. I do not, however, agree to the proposition that municipal courts are better fitted to try this character of cases, or any State case, than State courts, and I do not believe that the history of municipal government in this State will show this. It occurs to me that one difficulty in dealing with such offenses has been that the Legislature has atempted to confer a dual jurisdiction, thus creating a divided responsibility, which appears to have been shirked more or less by both tribunals. As a result, there has been confusion, and a failure to properly administer the law. I believe the State courts were created for the purpose of trying State cases, and that, when the responsibility is placed alone on them to deal with bawdy houses and gambling saloons in towns and cities, a great forward step will have been made in the administration of law and in the suppression of these vices. As a result, there will no longer be regulation, but suppressions; and if the State courts fail to meet the responsibility thus cast upon them, the people will know whom to hold responsible for failure to discharge duty. At any rate, as long as the State laws remain as they are upon the statute books, State offenses must be enforced by State courts; and if it is deemed against public policy that jurisdiction over certain offenses should remain with the State courts, but that the same should be vested in municipal courts, let the Constitution be changed, or let the Legislature repeal the State laws on certain subjects altogether, and then the cities will have authority, by ordinances, to deal with these offenses. *Page 677