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Fannin, Delta, Hopkins, and Franklin coun- The second, third, fourth, fifth, and sixth ties, in Texas, and from the Choctaw and assignments of error assail the validity of Chickasaw Nations, Ind. T., which constitute the acts of the legislature of 1879 and 1883 a large territory, a very small number of the (Acts 1879, p. 116, and Acts 1883, p. 83), upcitizens whereof are known to plaintiff. Be- on several grounds. The propositions urged sides, there were all the time many other under these assignments were decided adpersons buying cotton in Paris, who bought versely to appellants upon a former appeal a large number of bales in said market. in this case, and we do not feel disposed to That he has made diligent inquiry to ascer- question the correctness of that decision. tain the names of the persons from whom Johnson v. Martin, 75 Tex. 33, 12 S. W. 321. said defendants bought said cotton, and the The seventh, eighth, and ninth assignments precise date of each purchase. That he has of error attack the eighth section of the act propounded interrogatories, under articles of 1879, as being violative of both the state 2239 and 2240 of the Statutes of Texas, to and federal constitutions. The eighth secJohn Martin, Frank Fitzhugh, and T. W. tion of said act is as follows: "Sec. 8. It Johnson, in order to discover the number of shall not be lawful for any factor, commisbales bought by or for them, the names of sion merchant or any other person or perthe persons from whom they bought, and the sons to employ any one other than a regularprecise date of each purchase, but has been ly appointed and qualified public weigher, or unable to get the information desired. That his deputy, to weigh any cotton, wool, sugar he has exhausted all the means at his com- or hides required to be weighed, sold or ofmand to ascertain the facts above referred to,

fered for sale in any city having a public so as to be able to plead them more specifical

weigher duly qualified; and any person or ly, but is unable to get the necessary in

persons violating this provision shall be liaformation; and if the defendants, or any of ble at the suit of the public weigher of such them, have such information (which they city, or either of such public weighers, to ought to have, if any one), they conceal it

damages in any sum not less than five dolfrom plaintiff for the purpose of trying to

lars for each bale of cotton, bale or sack of defeat the ends of justice in this suit, by pre

wool, hogshead or barrel of sugar or bale of venting a fair trial and full investigation in

hides so unlawfully weighed, to be recovered to the merits of this case. (12) That he have in any court of such county having jurisdicjudgment against the defendants, and each

tion thereof; * * *" It is contended that of them, for five dollars a bale for each and

the failure to fix the maximum of the fine by every bale of cotton weighed by Speairs and

express terms in the statute renders the same Long, as employés of the defendants, in vio

obnoxious to the eighth and fourteenth lation of the statute and of plaintiff, as pub- amendments to the constitution of the United lic weigher, that the evidence may show on

States, and to sections 13 and 19 of the bill of the trial of this cause.

rights, as contained in our state constitution. September 5, 1893, appellants filed their The provision referred to in the eighth amendthird amended and third supplemental an

ment of the constitution of the United States swers, containing general demurrer and 16

has its origin in an act of parliament in 1688, special exceptions to plaintiff's petition, gen

entitled "An act declaring the rights and liberal denial, and special answers.

The gen

erties of the subject, and settling the succeseral demurrer and special exceptions of ap

sion of the crown,” which act sets forth pellants were each and all overruled. There

numerous grievances, and, among them, that was a verdict and judgment for plaintiff

"excessive bail hath been required of peragainst all the defendants for $1,825, from

sons committed in criminal cases to elude the which judgment this appeal is prosecuted.

benefit of the laws made for the liberty of the

subjects; and excessive fines have been imBurdett & Conner and H. D. McDonald, posed, and illegal and cruel punishments infor appellants. Hale & Hale and R. Wool- flicted.” And it is therein declared that exbridge, for appellee.

cessive bail ought not to be required, nor ex

cessive fines imposed, nor cruel and unusual FINLEY, J. (after stating the facts). The punishments inflicted. St. 1 W. & M. c. 2. first assignment of error is made the basis The declaration of rights, as contained in of the proposition that a recovery of a stat- this act of parliament, relates to the execuutory penalty cannot be had upon a petition tive and judicial departments of the governwhich fails to set out or specifically refer to ment of England. The language, as used in the statute creating the penalty. Courts take our federal constitution, is a limitation upon judicial cognizance of general laws, and, un- the authority of congress, and has no applider our system of pleading, it is only neces- cation whatever to the government of the sary to allege the facts upon which the recov- states. In re Kemmler, 136 U. S. 446, 10 ery is sought. The provisions of general Sup. Ct. 930; Pervear v. Com., 5 Wall. 475; statutory law governing the rights of the Fox v. Ohio, 5 How. 410; Barron v. Mayor, parties upon such a state of facts need not etc., 7 Pet. 243; Eilenbecker v. Plymouth Co., be alleged. Steph. Pl. 317; Chit. Pl. 215; 134 U. S. 31, 10 Sup. Ct. 424. The exact Gould, Pl. c. 3, § 16; 23 Am. & Eng. Enc.language used in the amendment of the fedLaw, pp. 286, 287.

eral constitution, namely, “Excessive bail shall not be required nor excessive fines im- jury over the property and liberty of a citiposed, nor cruel and unusual punishments zen, in this: that they may punish in their inflicted,” is found in our state constitution discretion. This, we apprehend, is not well (article 1, § 13; Bill of Rights). As used in taken. This right and duty of the jury, in our state constitution, this provision was fixing the punishment in accordance with doubtless intended to relate specially to the their discretion in the trial of common-law oflegislature of the state, and serve as a lim- fenses, has never been questioned, and is as itation on the exercise of its right to fix pun- old as the common law itself, and is made a ishments for the violation of its laws. It is part of it, and has always been the uniform likewise binding upon the judicial depart practice in Kentucky.” Mr. Cooley, in his ment of the government, and may be invoked work on Constitutional Limitations (page by the citizen in questioning the validity of a 402), further says: “It is certainly difficult legislative enactment or judgment of a court. to determine precisely what is meant by It is a safeguard thrown around the citizen 'cruel and unusual punishment. Probably by the sovereign people in their preliminary any punishment declared by statute for an declaration of individual rights, made by offense which was punishable in the same them a part of the organic law of the state way at common law could not be regarded government, and may not be disregarded by as cruel or unusual, in the constitutional any branch of the government. Does the sense; and probably any new statutory of statute violate this provision? The conten- fense may be punished to the extent and in tion is that the statute gives to the jury pow- the mode permitted by the common law for er to impose excessive fines, in that it fails offenses of a similar nature. But those deto fix the maximum penalty which may be im- grading punishments which in any state had posed, and for that reason the statute is vio- become obsolete before its existing constitulative of the constitution. At common law tion was adopted, we think, may well be held the amount of the fine to be imposed for the forbidden by it, as cruel and unusual." Is commission of an offense frequently rests in it a fair construction of the statute of our the discretion of the court and jury. The state to say that, because it fails to fix a fact that the statute does not fix the limit limit to which the penalty may be inflicted, of punishment does not affect its validity. In the jury is thereby warranted in imposing an Cooley, Const. Lim. p. 401, it is said: "With- excessive penalty? Is it presumable that the in such bounds as may be prescribed by law, legislature intended to authorize juries to do the question of what fine shall be imposed is that which is inhibited by the constitution? one addressed to the discretion of the court; Unless the clear language of the statute rebut it is a discretion to be judicially exer- quires such a construction, we should give to cised, and there may be cases in which a it that meaning which would harmonize the punishment, though not beyond any limit legislative intent with the organic law of the fixed by statute, is nevertheless so clearly ex- state, which reigns supreme over every decessive as to be erroneous in law." Mr. partment of government and citizen of the Bishop, in his work on Criminal Law (volume state. Under this rule to guide us, we can1, § 4910), upon this subject, says: "The or- not come to the conclusion that the statute dinary and appropriate common-law punish- authorizes an excessive penalty to be asment for misdemeanors is fine and imprison-sessed by the jury. It fixes the minimum ment, or either of them, at the discretion of

penalty, and leaves the jury a discretion to the court. It extends to all cases for which go beyond it; but this discretion must be exthe law has not provided some other specific ercised in reason and justice, and in suborpenalty. For example, if the statute forbids dination to the constitutional provision here and condemns an act of a public nature, and invoked. The fourteenth amendment to the is silent as to the punishment, the common constitution of the United States provides law imposes, for disobedience, fine and im- that "all persons born or naturalized in the prisonment. A majority of the Connecticut United States, and subject to the jurisdiccourt held that a fine must be for a limited

tion thereof, are citizens of the United States, sum, and not for all of the defendant's prop- and of the state wherein they reside. No erty, and imprisonment for a stated number state shall make or enforce any law which of years, and not for life; but this distinc

shall a bridge the privileges or immunities of tion is doubtful, as one of principle." In citizens of the United States, nor shall any the case of Bottom v. Com. (Ky.) 32 S. W. state deprive any person of life, liberty or 140, referring to a charge of the trial court property without due process of law, nor to the effect that, if the jury found the de

deny any person within its jurisdiction the fendant guilty, they would fix his punish- equal protection of the laws.” Section 19 of ment at a fine "at any sum within your dis- the bill of rights is to the same effect, and in cretion, or at imprisonment in the county jail this language: “No citizen of this state shall any length of time within your discretion, or be deprived of life, liberty, property, priyboth by fine and imprisonment," etc., the ileges or immunities, or in any manner discourt says: “These instructions seem to be franchised, except by the due course of the in usual form., and the chief objections to law of the land.” Neither of these provisions them made by counsel in their argument are, is in any sense violated by the statute in first, that they give arbitrary power to the question. The propriety of legislative enactments in this form, under our system of laws, , or persons to employ any one other than a appears to us to be very questionable. It is regularly appointed and qualified public quite easy to fix the maximum of fines and weigher, or his deputy, to weigh any cotton, penalties in express terms of the statute, and wool, sugar or hides required to be weighed, the scope below the fixed maximum would sold or offered for sale in any city having a seem to be a sufficient domain to be governed public weigher duly qualified; and any perby the discretion of the jury. As, however, we son or persons violating this provision shall find nothing in our constitution and laws pro- be liable at the suit of the public weigher of hibiting legislation in this form, and as we such city, or either of such public weighers, find that such statutes receive the sanction to damages in any sum not less than five dolof the common law, and are enforced by | lars for each bale of cotton, bale or sack common-law courts, the mere fact that such of wool, hogshead or barrel of sugar or bale form of legislation is thought to be ill ad- of hides so unlawfully weighed, to be recovvised furnishes no reason why, as a court, ered in any court of such county having juriswe should decline to enforce the statute. diction thereof; provided, any owner shipping Again, this statute has been twice reviewed any produce named in this act to any town or by our supreme court, and, while this par-city having a public weigher may by written ticular question was not brought before the instructions authorize his factor, commission court for adjudication or decision, the stat- merchant or agent to have such produce ute was treated by the court as a valid stat-weighed by private weighers, if he prefers ute. Watts v. State, 61 Tex. 181; Johnson so to do, and in all such cases the prohibitions v. Martin, 75 Tex, 33, 12 S. W. 823. The as- and penalties embraced in this section and in signment of error cannot be sustained.

the preceding section shall not apply." The tenth assignment urges that the peti- This act makes it unlawful for any factor, tion of plaintiff seeks to recover for more commission merchant, or any other person than one penalty up to the time of bringing other than the public weigher in the city or the suit, and that the special exception direct- town having a public weigher, to weigh, or ed at that feature of the petition should have employ any one other than the public weigher been sustained. The very terms of the stat- or his deputy to weigh, cotton, wool, hides, or ute under which the cause of action arises sugar, except under certain named conditions, and the liability is claimed clearly indicate to wit, “provided, any owner shipping any that such a suit may be maintained under it. produce named in this act to any town or The assignment is without merit.

city having a public weigher, may by written The eleventh, twelfth, and thirteenth as- instructions, authorize his factor, commission signments are not well taken, and it is not merchant or agent to have such produce deemed important to discuss them.

weighed by private weighers, if he prefers so Under the fourteenth and twenty-second as- to do, and in all such cases the prohibitions signments, based upon the ruling of the court and penalties embraced in this section and in upon special exceptions to the pleadings, and the preceding section shall not apply.” In the the refusal of a special charge requested, the case of Watts v. State, supra,—the cause arisproposition is urged that the defendants Mar- ing under the act of 1879, as amended by the tin, Wise & Fitzhugh and Johnson & Long act of 1883,-our supreme court held that bought the cotton from producers or other any person may lawfully pursue the business owners, and the vendors, at the instance of of private weigher of cotton, etc., and solicit the purchasers, carried the cotton to the ware- business in a town or city having a public house company to be weighed, and the ware- weigher. Upon that point it is said: “The house company, under previous arrangements law then permits private parties to weigh cotwith the defendant purchasers, weighed the ton shipped to a city, under certain circumcotton, and that no liability exists against the stances, forbidding it if these do not exist. defendants therefor. The act of 1879 (Acts The appellants, if requested by the factor, 16th Leg. p. 116) creates the office of public who exhibited the written instruction to that weigher, provides for his appointment, quali- effect from the owner, were authorized to fications, duties, etc.; and the seventh and weigh the produce covered by such instruceighth sections of the act are as follows: tions, and as to it their powers were as great

"Sec. 7. It shall not be lawful for any person as those of the relator (public weigher] himother than a regular appointed weigher, or self. This being the case, we can see no reahis deputy, to weigh any cotton, wool, sugar son why they should not be allowed to pursue or hides required to be weighed, sold or of- the occupation of private cotton weighers, so fered for sale in any city having a public licit business of the kind they were allowed to weigher duly qualified. Any person or per- receive, and make the necessary preparations sons so offending shall be deemed guilty of a to comply with a legal request for their serymisdemeanor, and upon conviction before any ices in that respect, their business being concourt of competent jurisdiction, shall suffer a fined to private cases in which private weighfine of five dollars for each and every bale ing was allowable. There would certainly be of cotton, bale or sack of wool, hogshead or no illegality in their soliciting owners, in perbarrel of sugar, bale or loose hide so weighed. son or by letter, for such employment, or in

"Sec. 8. It shall not be lawful for any fac- seeking it from factors who had received tor, commission merchant or any other person the necessary written instructions. The form or manner of the solicitation could not be a to be weighed by private weighers. Under matter of importance, and we therefore see the letter of this provision, an owner present no impropriety in their holding themselves upon the ground, controlling his produce, out to the world as persons willing to do an could not have it weighed by a private weighact which the law expressly authorizes them er; and a private weigher, acting upon his to do." Under authority of this case, the request, either verbal or written, would not Lamar Warehouse Company should be treat- be protected. The provision only applies ed as having the right to solicit and engage in to a case where the produce is handled by the business of weighing cotton. As a cor- a factor, commission merchant, or agent, poration, it could only act through its sery- for the real owner. Are the rights of the ants and agents, and it had the right to em- owner so restricted by the act as amendploy whom it pleased to transact its business ed? In the Watts Case, above cited, Chief in a legal manner. Under the strict terms of Justice Willie says: "For the purposes of the act of 1879, no one other than the public this case, it is not essential for us to deweigher, or his deputy, was authorized to do cide whether the amendment of the first secsuch weighing, except upon the written au- tion of this statute by the act of 1883 chanthority of the owner who had shipped the ged the law in this respect or not. It certainproduce to such city or town to a factor, com- ly does not interfere with the right of the mission merchant, or agent. Whether that owner of produce to have it weighed by priact should receive the construction of taking vate weighers, but, if it has any effect, it alaway from the owner, under all other condi- lows that to be done by direct request of such tions, the right to control and direct as to who owner, without the intervention of the factor should weigh his produce, to say the least of or commission merchant. We do not now it, is very questionable. But it is unneces- pass upon that question, as it is unnecessary sary for us to pass upon that point in this for a decision of this appeal.” We are of

In 1883 the legislature passed an act opinion that the amendment has the effect amending the law of 1879. This amendatory which seems to be intimated by the learned act purports to amend only sections 1, 2, and chief justice. It removes the restrictions ap9 of the act of 1879, leaving sections 7 and 8 parently placed upon the power of the owner to stand as passed in 1879. In amending sec- over his own property, and makes it lawful tion 1, which originally provided for and reg- for private weighers to weigh his produce at ulated the appointment of public weighers, his instance. A factor, commission merchant, the act of 1883 provided for and regulated or agent to whom he might ship his produce their election, and added this new matter to cannot lawfully have it weighed by a private the section: “Provided nothing herein con- weigher, except upon written instructions tained shall be construed so as to prevent any from the owner; but, where the owner acts other person from weighing cotton, wool or for himself in having the produce weighed, hides when requested so to do by the owner the statute does not limit the exercise of his or owners thereof." The two enactments are right to select the weigher, nor the right of now to be regarded as one law, and we have the person selected by him to do the weighsection 1 declaring that "nothing herein con- ing. The object of the act is clearly the protained shall be construed so as to prevent any tection of the owners of produce from false other person from weighing cotton, wool or weights, and from the fraudulent conduct of hides, when requested so to do by the owner their factors or agents in rendering false acor owners thereof," while sections 7 and 8 counts of such weights of produce. The statbroadly prohibit any other person from weigh- ute should be so construed as to accomplish ing or employing any other person than a pub- this object, but it should not be given such lic weigher, under this limitation: "Provided, a range as to interfere with the complete any owner shipping any produce named in dominion of the owner over his property. this act to any town or city having a public Applying these principles to the case before weigher, may by written instructions, author- us, if Martin, Wise & Fitzhugh and Johnson ize his factor, commission merchant or agent, & Long, defendants, purchased the cotton to have his produce weighed by private weigh- from the owners, agreeing to pay therefor cerers, if he prefers so to do, and in all such tain prices upon receipt of the weights, gave cases the prohibitions and penalties embraced them tickets addressed to the warehouse in this section and the preceding section shall company, requesting it to weigh cotton for not apply." Does the statute, as it now their account, and the vendors of the cotton stands, place any limitation upon the right carried the cotton to the warehouse company of the owner to control in the matter of the to be weighed, presenting such written reweighing of his produce, when he is present quests, and the warehouse company weighed and acts for himself? It will be seen that the the cotton, then the cotton was weighed upon express terms of the act of 1879 provided for the requests of the owners thereof, and no liabut one contingency in which it was lawful bility was incurred by the defendants. The for private persons to weigh, or employ pri- case was not presented in this light in the rate weighers to weigh, such produce, name- court below, and its judgment must be rely, when the owner had shipped the cotton versed. It is not clear from the pleadings of to a factor, commission' merchant, or agent, plaintiff that the cotton was weighed under and given written instructions authorizing it circumstances that rendered any of the defendants liable in damages to the public of the judgment was made, and upon the weigher, and the court below should have sus- hearing of said motion the court reopened the tained the thirteenth special exception urged case, rendered judgment quashing the attachupon that point.

ment, and for the assignee for the amount of There are many other assignments of error the debt sued for and against the receiver, presented, which we deem it unnecessary to etc. The judgment recites that the East Line consider. On account of the errors indicated, Lumber Company was insolvent at the time in ruling upon exceptions and instructions to of the levy, and for that reason the assignee the jury, the judgment of the court below is was not entitled to preference by virtue of the reversed, and the cause remanded.

levy if the attachment was valid. The pro

ceedings were duly excepted to, and the asLIGHTFOOT, C. J., disqualified and not signee brings up the cause for review by writ sitting

of error.

The quashing of the attachment by the court is complained of upon two grounds:

1. Because the court "had overruled the ROGERS v. EAST LINE LUMBER CO.

motion to quash said attachment at last term (Court of Civil Appeals of Texas. June 26, of court, and the defendants nor receivers did 1895.)

not except to said ruling, and said judgment JUDGMENT-CORRECTION-AFFIDAVIT FOR ATTACH- rendered at last term of court was final, and MENT_VARIANCE-INSOLVENT CORPORA

could not now be changed; and no sufficient TIONS-ATTACHING CREDITORS. 1. Where, in attachment, a judgment is

reason is shown for changing said ruling." rendered for plaintiff for his debt, refusing The action of a court upon a motion to quash foreclosure of the attachment lien, and overrul. an attachment becomes final upon a trial of ing a motion to quash the attachment, the

the cause and a final judgment rendered court cannot, at a subsequent term, in passing on a motion to correct the entry of judgment,

therein. The judgment of the court rendered reopen the case, and render another judgment, at the January term was final. It is well setquashing the attachment.

tled that after a term of court has ended the 2. Where both the petition and the affida. vit for attachment correctly describe the in

minutes of the court may be amended at a debtedness and state the aggregate amount subsequent term, but in passing upon a modue, the mere recital in the affidavit that the tion to amend a final order the court cannot additional 10 per cent. on the sum due, provid. retry the case, and render a different judged for in the notes sued upon, amounts to more

ment from that theretofore rendered. It must than it really does, is not such variance as will vitiate the attachment.

confine its investigation to what was done at 3. The levy of a writ of attachment on the the former term, and only enter nunc pro tunc property of an insolvent corporation does not

the precise order made at the former term. give the attaching creditor's demand priority over the claims of unsecured creditors.

City of Brownsville v. Basse, 43 Tex. 441;

Ximenes v. Ximenes, Id. 458; Chestnutt v. Error from district court, Marion county;

Pollard, 77 Tex. 88, 13 S. W. 852. While it John L. Sheppard, Judge.

was error for the court to reopen the case for Attachment proceedings by T. J. Rogers, as

the purpose of considering the motion to signee, against the East Line Lumber Com

quash, its action in this respect becomes impany. There was a judgment quashing the

material, as, under our view of the case, attachment, and plaintiff brings error. Af

plaintiff was not entitled to a foreclosure of firmed.

the attachment, no lien having been created W. T. Armistead and F. H. Prendergast,

upon the property by virtue of the levy therefor appellant. S. T. Todd and C. H. Culber- of. son, for appellee.

2. “The court erred in quashing the at

tachment on account of the variance between RAINEY, J. T. J. Rogers, assignee, plain the affidavit and petition, because there was tiff in error, brought suit against the East no such variance as to justify the quashing Line Lumber Company, a corporation, defend- of the attachment.” Plaintiff's petition sues ant in error, for debt. Subsequently, to wit, to recover on two notes and an account, all of January 29, 1893, plaintiff sued out a writ of which are correctly described, and are attachattachment, which was levied upon personal ed to and made a part of the petition; the agproperty of defendant. On February 1st fol- gregate amount being $5,381.06. The affilowing, in a different proceeding, a receiver davit for attachment states that the facts was appointed for the East Line Lumber Com- stated in the petition are true, that the depany, who was afterwards made a party to fendant is indebted in the sum of $5,381.06 this suit. At the January term of court, 1894, (the amount sued for), the notes and accounts the cause was tried, and a judgment rendered are properly described therein; but, after overruling motion to quash the attachment, setting out the notes correctly, the further for plaintiff for his debt, and refusing to statement is made “that 10 per cent. on both foreclose the attachment lien. The minutes of the above-described notes amounts to $230 of the court failed to show the overruling of

when suit was instituted on each of the motion to quash the attachment, and fail- said two notes, which are attached to the petied to make disposition of the receiver. At a tion, and marked 'Exhibit A' and 'Exhibit B,' following term a motion to correct the entry | respectively.”

respectively.” The notes provided for an ad.

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