Relator was arrested on a capias issued upon an indictment returned into the Criminal District Court of Harris County, wherein relator was charged, in substance, with unlawfully and wilfully and without cause abandoning his wife. He made application for writ of habeas corpus to Honorable J.K.P. Gillaspie, judge of said court, which, having been refused by him, relator filed his petition in this court seeking release.
We do not deem it necessary to state seriatim the insistences upon *Page 376 upon which relator predicates his release in this case, but suffice it to say that all of his positions raise the question as to the constitutionality and validity of the abandonment of wife or children statute to be found in the Act of the Thirtieth Legislature, page 133. We hold that said Act is totally invalid. It will be seen, from an inspection of said Act, that after relator is fined under the same, said fine shall be paid into court for the benefit of the wife, or to the guardian or custodian of the minor child or children. Section 6, article 16 of the State Constitution, reads as follows: "No appropriation for private or individual purposes shall be made." Then the article goes on and provides for a regular statement, under oath, and an account of the receipts and expenditures of all public money. The first clause cited of said section is the one that we hold absolutely invalidates the penal clause in the statute under consideration, since it provides that, when the relator is fined, that said fine shall be paid to the wife or the minor child or children. However beneficent the purpose of this legislation, all of which we readily and cheerfully concede, yet we must hold that no penal statute can be passed in this State, in the light of the provision of the Constitution quoted, which statute permits the fine after collection to be paid to the individual, whoever that individual may be. It clearly follows that, when the fine is imposed, that said fine becomes the money of the State of Texas. Then, for the law to provide that that money must be paid to the party injured by the violation of the law, is a direct appropriation of public funds for private or individual purposes. Suppose the Legislature had provided that, where a man beats another with a stick, or offers him any other unlawful violence other than death, that the fine that should be collected for said unlawful act should be turned over to the victim of said assault. Certainly it could not be insisted that this character of law would not infringe the provision of the Constitution cited. Nor would the fact that the husband is under moral and civil liability to support the wife and child render the act less obnoxious to the provision under consideration. The Constitution of this State does not, nor can it be, bent to meet beneficent purposes, however noble the design may be, because to appropriate this money of the State of Texas to support the wife and child would be equally in violation of the letter and spirit of the law as it would be to appropriate money for any other character of fine to the party who was injured by the violation of the law under which the fine was imposed.
The abandonment statute under consideration further provides, "that before the trial (with the consent of the defendant), or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto the court, in its discretion, having regarded the circumstances and financial ability of the defendant, shall have the power to pass an order, which shall be subject to change by it from time to time, as the circumstances may require, directing the defendant to pay a certain sum weekly to the wife, guardian or custodian of the minor *Page 377 child or children, and to release the defendant from custody, on probation, during the time of the imprisonment upon his entering into a recognizance, with two good and sufficient sureties in double the amount of the fine imposed, payable to the county judge." The condition of the bond, in substance, is that the defendant shall make his personal appearance in court, when ordered to do so by the court, during the suspension of imprisonment or probation, and shall further comply with the terms of the order, then the recognizance shall be void, otherwise in full force and effect. Section 28, article 1, of the State Constitution, provides: "No power of suspending laws in this State shall be exercised except by the Legislature." The clause of the statute under consideration, last cited, clearly authorizes the county judge to suspend the law in that he suspends the punishment. A law without a punishment, especially a penal law, has no validity or force whatever, and when one suspends the penalty he suspends the law. Therefore, we hold that this section of the Act in question violates the section of the Constitution last quoted.
Without passing upon the other questions in the other sections of the act, we will say that the bond authorized to be executed might be two thousand dollars, since the maximum fine could be one thousand dollars. In the light of this suggestion, it occurs to us that, even conceding the validity of the bond, which we do not, it should be made within the jurisdiction of the County Court. Furthermore, this statute is invalid, since it deprives the defendant of the right of trial by jury, which is also guaranteed by the Constitution. The first clause of the Act, in defining the offense, says, "That every person who shall, withoutgood cause, abandon his wife, and neglect and refuse to maintain and provide for her," etc. This section of the Act might be upheld on the theory that by the words "good cause" the Legislature intended to say "lawful cause," that is, further to say, those causes enumerated under the divorce law, and hence might be upheld on the theory that the Legislature did not intend to punish the husband for failing to support or for having abandoned the wife, except for those causes expressly decided in the divorce law of this State. If this is the meaning of the Legislature in the Act under consideration, then, if this legislation is reenacted, or similar legislation is passed, the basis for a prosecution should be succinctly and clearly laid down.
Relator is accordingly discharged.
Relator discharged.