I respectfully enter my noncurrence to the disposition of this case by my brethren. Some of the reasons upon which I predicate this dissent are to be found in Ex parte Tom Young, 15 Texas Ct. Rep., 852. The phase of the law discussed in that opinion in regard to the special act applicable alone to the Counties of Williamson and Travis does not arise in this case, and therefore the reasons set forth in that dissent have no application here, but are pretermitted.
The Act of the Twenty-Ninth Legislature by express terms repeals such provisions of the prior statutes, found in the Revised Civil Statutes as are in conflict. Under the prior law the order for the special term was required to be entered during a regular term by the judge, the date for such special term to be fixed "at a date not less than thirty days after the adjournment of the regular term" (Rev. Civ. Stat., art. 1114); and limits specifically the authority of the court at such spe-term to the "transaction and disposition of the accumulated business undisposed of." (Art. 1113.),Articles 1115 and 1116 provide for notices and manner of service in regard to the undisposed of cases to be tried at the special term. (Sec. 1114.) By the terms of article 1117, no grand jury could be empaneled under the prior law. Under the Act of the Twenty-Ninth Legislature, page 116, special provision was made in the discretion of the judge for the calling and empaneling of the grand jury. Under the Act of the Twenty-Ninth Legislature, the judge may call a special term when he deems it advisable. This then is *Page 314 in direct conflict with that provision of the old law which requires the order to be entered at the regular term fixing the date for the special term at not less than thirty days, and which is in direct conflict with those provisions of the law with reference to notices and the manner of giving those notices. Under the new act no provision is made for notices, or of any character of service upon parties litigant whose cases are to be disposed of at the special term. There is no intimation in the new law as to how parties to the undisposed of business are to know their causes are to be tried. The whole matter is left to the discretion of the trial judge to call a court when he deems it advisable. So far as the terms of the latter act are concerned, notices are not required, and service upon the parties litigant notifying them that their cases are to be tried, is not intimated. The whole matter is arbitrarily left with the judge as to when and where or how he shall call the court for the special term. The Constitution provides for regular and special terms of the district court, and authorizes the Legislature to enact suitable laws for the holding of such court. By the express terms of the Constitution, this is legislative duty; and it requires at their hands appropriate legislation to put into operation both the regular and special terms of court. The Legislature cannot delegate its authority, under any provision of our Constitution of which I am aware, to another co-ordinate branch of the government. It certainly has no right to delegate its legislative power and function to a judge and make it discretionary with him to provide rules and regulations for the holding of courts and the manner of convening it, and the notices that are requisite in vacation. In other words, the Legislature cannot divest itself of its constitutional authority and invest a co-ordinate branch of the government with its legislative duty. Ours is supposed to be a country and a government of law, governed by law and not by the discretionary whims of its officers. It has always been understood in America and among our race that, before parties litigant could be called to trial, where their lives, liberties or property are involved, it should be done after due notice and statement of the cause of action, and of notice of the time and place where the trial should occur, and the court before whom the trial should be had. This has always been fixed and determined by law.
Now, we have before us a proposition, sustained by decision, that the judge can call a special term of court at his discretion arbitrarily and without provision for notice as to time or place of trial, and all of this to occur in vacation. He may call a special term when and where he pleases and arbitrarily give or omit notices to the parties litigant of the time or place; and dispose of the life, liberty and property of the citizenship, with or without notice.
It would take no reasoning, it occurs to me, to understand that where the Constitution authorizes a court and special terms of courts, it means a definite time and place, and that all parties who have business before that court should have ample time for preparation to try *Page 315 their matters of litigation pending before that court, and this independent of the whims or caprices or arbitrary discretion of the presiding judge. When the Constitution speaks of courts, it means courts; and all of the paraphernalia of courts as has been understood in the history of the Anglo-Saxon race, and especially under the constitutional forms of government in force in the American Union. The people of this country do not hold their lives, liberty and property subject to the arbitrary discretion of the officers of the government, but in accordance with the law of the land. The upholding of this arbitrary discretion of the judge is not "due process of law." The Legislature cannot, if it would, and ought not, if it could, delegate this legislative function and power to any branch of the judiciary, especially to the trial court. Our law holds the life, liberty and property of the citizenship of this country above arbitrary discretion.
In regard to the other questions in this case, I gave some expression to my view in the dissent in the Tom Young case, supra. I wish to say further and emphasize what I said in my dissent in the Tom Young case, that this character of case is not an "undisposed of" case, pending at the time of the adjournment of the regular term of the district court. The case was not pending there. The court had lost its jurisdiction by the appeal to this court. I desire to state further and emphasize, that this is not a case for trial within the contemplation of either the old or new act of the Legislature. One other thought, that our Code of Criminal Procedure provides that where in a death penalty, the case has been decided adversely to appellant and the judgment against him affirmed in the appellate court, sentence shall be pronounced against him at the next term of the court. This statute has not been amended or changed; it means a regular term of the court. Both the old and new statutes under discussion provide alone for the trial of undisposed of cases, with the addition under the new statute that authority was given the district judge to empanel a grand jury and try the new cases under indictments presented by that grand jury. This emphasizes the proposition that nothing but the trial of undisposed of cases is meant both by the new and old law, except as provided especially in regard to new indictments.
I have not deemed it necessary to go into any extended discussion of the matter. The construction placed upon these acts by my brethren in regard to the question involved, in my judgment, is erroneous, and their conclusion is adverse to the law as I consider it to be, and I therefore enter this dissent. *Page 316