state the question decided

part, or by said Jurisdiction Act (chapter 75) | a case shall as a whole, or even by said Jurisdiction Act by the Court of Civil Appeals in which error is (chapter 75) and said Relief Act (chapter 76) asserted in order that "the Supreme Court may taken together and construed as one statute, for at once see that such a question is presented as holding that the Legislature intended that such is contemplated by this provision"? (Italics mere "committee of judges" should exercise pow- mine.) And why should it provide also, as it ers and perform duties which said subdivision does, that "upon the showing of such an error 6 expressly undertook to confer upon the con- the Supreme Court may, in its discretion, grant stitutional Supreme Court by name? Let us a writ of error," for the purpose of conforming look that question squarely in the face on its the judgment of the Court of Civil Appeals "to merits. the decision made by it"? (Italics mine.) Such "discretion" evidently relates to the importance of the "error of law" to "the jurisprudence of the state," and "it" refers to the Supreme Court. No corresponding provisions appear in, or with reference to, subdivisions 1, 2, 3, 4, or 5 of article 1521. Why that difference between the sixth and the other subdivisions of that article, if not to leave cases arising under the other subdivisions subject to action by "any two" Justices of this court, or to reference to such "committee," under said Relief Act, and to prevent cases, within the terms of said sixth subdivision from being so acted upon or referred? For that difference I can find no other reason.

First, what is there in said subdivision 6, or in any other portion of said chapter 75, to declare or to indicate, or to suggest, or even remotely to hint, that the grant of appellate jurisdiction carried by that subdivision is to any extent or in anywise to depend upon any "opinion" of such "committee of judges"? Absolutely nothing. On the contrary, the declaration therein substantially to the effect that, even though such case shall present an error of law committed by the Court of Civil Appeals, such case shall not fall or lie within the appellate jurisdiction of the Supreme Court, unless, "in the opinion of the Supreme Court," such error is "of such importance to the jurisprudence of the state as requires correction," unequivocally and unambiguously restricts to the Supreme Court itself the exercise of that stated power and the performance of that indicated duty, and utterly excludes all idea of referring such a case to said "committee."

Any "committee of judges of the Courts of Civil Appeals" might readily and correctly ascertain whether in such a case an "error of law" had been committed by some one of those courts -but how could such "committee" know what would be "the opinion of the Supreme Court" as to whether such error vas of such importance as to require correction? Obviously that is a mental impossibility. I assume that the Legislature knew that was impossible, and did not intend to require or to authorize the Supreme Court or "any two of the Justices thereof" to require of such "committee" the performance of so absurd a task.

Very plainly the only classification of cases attempted by said subdivision 6 is solely in terms of "the opinion of the Supreme Court," without any mention of any "committee of judges." Obviously, then, the legislative intention was to make the exercise by the Supreme Court of its own judgment in such particular case through affirmative findings (a) that therein an error of law has been committed by the Court of Civil Appeals, and (b) that such error is of such importance to the jurisprudence of the state as to require correction, conditions precedent to the ultimate classification of such a case as onc within the appellate jurisdiction of the Supreme Court. Now, logically, those two questions must be determined at the very threshold of the exercise by that court of appellate jurisdiction in such case; and not until such judgment shall have been exercised by that court upon both such jurisdictional points, and really not until that court shall have found affirmatively upon both points, can the particular case be said to be within such appellate jurisdiction. It follows that not until then, if at all, is the Supreme Ceurt empowered by said Relief Act (even if it be valid) to "refer" to the "committee of judges" the application for writ of error in such case, and then there is no need of referring it, both jurisdictional issues having been decided already by the Supreme Court, and that decision having determined the disposition to be made of the "application." Moreover, if "applications" in cases arising under said subdivision 6 may be acted upon by "any two" Justices of that court, or if they may be referred to such "committee" for its final action thereon, why should subdivision 6 provide, as it expressly does, that until otherwise provided by rule of the Supreme Court, "the application for writ of error in such

How

Out of deference to the Legislature I assume that the quoted terms and provisions of subdivision 6, including those concerning the form of the application thereunder were inserted therein for some deliberate purpose, and that they have some meaning. If that purpose and meaning are not what I construe them to be, what are they? To deny those words that purpose and effect is practically to strike them out. can this court do that? Candidly, the peculiar phraseology of said subdivision 6, as a whole, is such that, were it not for the three exceptions set out in section 5 of said Relief Act, which undertook to authorize (a) the designation of such "committee of judges" and (b) reference to such "committee" of applications for writs of error, with certain exceptions, it probably never would have occurred to the mind of any man that any set of men, or agency, or tribunal, other than the "one Supreme Court," could exercise that power and perform that duty, or any part thereof. However, it has been suggested that said quoted expressions of subdivision 6 have no special significance, in that all other subdivisions of said article 1521, as it now stands, also look, impliedly, although not expressly, to the "opinion" and "discretion" and action of the Supreme Court thereon as an effective test of jurisdiction; and thereupon it is claimed and urged and held that all six subdivisions are therefore upon a common plane, and that the whole matter is controlled by said Relief Act (chapter 76), and that its general provisions authorizing reference to such "committee" of applications for writs of error in court, excepting only the three classes of cases cases within the appellate jurisdiction of this enumerated in section 5 of that chapter (sequor), apply to and include all cases falling within that subdivision 6 of said Jurisdiction Act (chapter 75).

* **

**

Said Relief Act declares: "It shall be the duty of the Justices of the Courts of Civil Appeals so designated act upon such applications for writs of error, to take up, consider and whether then pending or afterwards filed as may be referred to them by Supreme Court or any two Justices thereof, by granting, refusing or dismissing the same.' Section 3.

does not specifically require final action by the In support of the view that subdivision 6 Supreme Court itself upon applications based thereon, I am pointed, for an analogy, to said article 1521, as amended in 1913, and to the fact that said "substantive error clause" thereof (subdivision 6) also expressly invoked "the opinion of the Supreme Court," although the other subdivisions of that article, as then amended, invoked its opinion by implication only. The suggested analogy is purely fanciful for two reasons: (a) Because the classification of cases made in that subdivision 6-"those in

the Court of Civil Appeals | full of meaning and significance, while upon erroneously declared the substantive any other theory of construction they are law of the case"-is definite, complete, and op- utterly without legal meaning or force. erable, and because (b) when that statute was enacted, said Relief Act was not in existence, and there was neither a "committee of judges,' nor even a semblance of statutory authority for the designation of one, and, necessarily, and, in contemplation of said act of 1913, as well as of the Constitution, it was the duty of the Supreme Court to pass upon all applications for writs of error; hence the expression "in the opinion of the Supreme Court" as used in said "substantive error clause" of 1913 carried no restrictive meaning, and added nothing to the significance or legal force of that subdivision 6. But that status was changed, materially, by said legislation of 1917; and in the light of said Relief Act, authorizing the designation by the Supreme Court of what it calls a "committee" to perform, finally, a large share of the constitutional duties of that court, said abovequoted expressions of subdivision 6 of said article 1521, as it now stands, relating to the "opinion" and "discretion" and action "of the Supreme Court," become pregnant with meaning, and inflexibly restrictive in effect.

107 Tex. 457, 180 S. W. 597; McGrady v. Terrell, 98 Tex. 427, 84 S. W. 641; Railway v. Railway, 86 Tex. 537, 26 S. W. 54; Lufkin v. Galveston, 63 Tex. 437; Rosenberg v. Shaper, 51 Tex. 134; Lewis v. Aylott, 45 Tex. 190; 15 Michie's Tex. Dig. 965-967.

to challenge and elicit the opinion or action of the Supreme Court, as a court, rather than of "any two" Justices thereof, acting not as a court, and rather than of the "committee of judges," upon each of said two vital jurisdic tional issues. The supporting requirements of said subdivision 6, supra, prescribing, as not prescribed by statute with regard to any other class of cases, certain essentials of the application for the writ of error under subdivision 6. make perfectly clear the legislative intent that the Supreme Court, as a court, and it only. shall pass upon those applications. Was not the Legislature just as free to set out in one of the two chapters of that statute as in the other a limitation and restriction, in the nature of an exception, upon the power of the Supreme Court to "refer" appealed cases to such "committee of judges" for final action by such "committee" upon applications for writs of error? Certainly so. Ditto as to the restriction upon the new power of "any two" Justices of this court to act, out of court, on such applications.

In the Cole Case Judge Phillips invoked that principle with the effect of practically nullifying what I consider the utterly inconsistent and consequently repealing provisions of that subdivision 6 of article 1521, while in this instance he refuses to apply that same principle, with the effect that the restrictive force of this subdivision, this subdivision 6 of article 1521, also is effectively denied. In other words, in the Cole Case, where the principle was not applicable, it was applied, while in the present case, wherein it is applicable, application of the principle is denied by a majority of this court. In both instances the legislative will, as I understand it, is thwarted, and in that respect only are said majority decisions consistent. Said decision in the Cole Case and the action of the majority of this court with regard to what I consider the restrictive provisions of subdivision I cheerfully concede that these two acts, treat6 of article 1521, as amended in 1917, presented as one statute, might have been more artistithe two extremes, and said opinion in the Haver- cally drawn, and that the legislative intent bekker Case, in which I concurred, represents would, indeed, be more clearly apparent if the the middle and true ground relative to the ap- fourth stated limitation or exception upon said plication of the above-stated principle of statu- power of reference had been set out, expressly tory construction. and specifically, in section 5 of said Relief Act, instead of by necessary implication only in subdivision 6 of said Jurisdiction Act; but that, unquestionably, is a mere matter of mechanics, not affecting the meaning or legal effect of the two acts treated and applied as one. To hold otherwise is to sacrifice the heart of legislative intent upon the altar of form. I am unwilling to do that.

The principle which Chief Justice Phillips so recently and so forcibly invoked in the Haverbekker Case, concerning the opening of the road, and which previously he had invoked in the Cole Case, concerning subdivision 6 of article 1521 as amended by the act of 1913, is largely identical with the principle which I invoke here concerning subdivision 6 of that same article as amended by said two-chaptered statute of 1917. The application of that principle to the immediate issue here under consideration is obvious, and fully sustains my conclusion that said subdivision 6 of article 1521, as it now stands, was intended, and should be construed and applied, as establishing a fourth restriction and exception upon the statutory power of this court to "refer" to said "committee" applications for writs of error.

It has been suggested, in support of the view that controlling effect should be given to said Relief Act, that in enacting said subdivision 6 of said chapter 75 the Legislature was mindful of the three stated exceptions concerning reference of cases, as set out in section 5 of chapter 76. The reply is that the converse is just as true. This court should presume, conclusively, that in enacting the provisions of said section 5 which set out said three exceptions upon that power of reference in language which does not purport to include all exceptions or restrictions relating to such power, the Legislature was mindful also of the additional or fourth, restriction or exception upon that power, which by necessary implication is set forth in said subdivision 6, and meant that all four exceptions should be effective. Both acts are essential parts of one statute, and neither said section 5

Studying said two acts of 1917 together as contemporaneous portions of but one statute, and applying said approved principles of construction, we find that the one consistent legislative purpose was not to authorize reference to said "committee" of cases falling within the appellate jurisdiction of this court by virtue of said subdivision 6 of article 1521, as therein amended, but to constitute that entire class of cases a clear-cut restriction upon the statu-nor said subdivision 6 controls the other. tory power of "any two" Justices of the Supreme Court (section 5), acting otherwise than as a court, to pass upon applications for writs of error, and also a distinct and inflexible exception to said power of the Supreme Court to refer "applications" to such "committee."

Now it is true that said Relief Act (chapter 76) in section 5, after declaring that, "when deemed expedient," the Supreme Court still may pass upon any application for a writ of error in any case, specifies only three exceptions, to wit: (1) Cases involving "dissent"; (2) cases involving "conflict" in decisions; and (3) cases in which a statute of the state has been "declared void by a Court of Civil Appeals"-and couples such exceptions immediately with the express declaration that in such exceptional cases "the application for a writ of error shall be passed upon by the Supreme Court." But just as effectively, and almost as plainly, said Jurisdiction Act (chapter 75) declares such fourth exception by placing through said subdivision 6 within the appellate jurisdiction of this court an additional class of cases which is there defined, as herein above shown, only in terms of "the opinion of the Supreme Court." The legal effect of that mode and form of classification is

The primary and proper and immediate and legal effects of section 5 of chapter 76 were, not to authorize the reference to such "committee" of applications for writs of error, out (a) specifically to preserve intact the pre-existing power of the Supreme Court with reference to passing upon the merits of any and all applications for writs of error "when deemed expedi ent," and (b) to confer that power, for the first time, upon "any two" Justices of that court, and (c) to make it mandatory upon that court, as a court, to pass upon "applications" in three certain classes of cases. Said section 5 declares: "The Supreme Court shall still have power to act upon applications for writs of error, when deemed expedient, and the same power is hereby conferred upon the Justices of that court, action by any two of whom shall be sufficient. And in any cause in which the judges of the Courts of Civil Appeals shall have disagreed, or which the Court of Civil Appeals shall have held differently upon the same question of law the holding of another Court of Civil Appeals or of the Supreme Court, or shall have declared void a statute of the state, the application for writ of error shall be passed upon by the Supreme Court." (Italics mine.)

Did the Legislature, by there enumerating | same." Section 3. That act did not provide or three, and only three, restrictions or exceptions contemplate that the Supreme Court and said upon the power to "refer" applications bar it- "committee" shall make two bites at the same self, conclusively, from setting out a similar cherry," or two investigations of the same quesand additional and fourth restriction in the tion of law as set out in the same "application." other chapter of that same statute? Of course Nowhere does any law confer authority upon not; and there, in such other portion of the the Supreme Court, or upon any two Justices same statute, said fourth restriction stands, thereof, or upon such "committee" for partially as conspicuous as a Dutch barn. referring, or for only partially acting upon any application. No real analogy is presented by the practice under which Courts of Civil Appeals "certify" particular questions of law to this court for decision, because that practice is expressly authorized by law. R. S. arts. 1619, 1620.

But for that statute, that power would not exist; so here, in the absence of a statute authorizing such partial reference of and such partial decision upon "applications," such power is nonexistent; and the exercise of that power is in the very teeth of our Constitution and of said statute, and is a nullity. "There are not sides" to that feature of this matter. That remark applies also to the kindred question relating to the assumed power of partial recall, and for that matter of any recall by this court of any "application" once referred to such "com

It is true that the first, second, and third restrictions upon the stated power of reference are set out specifically, while the fourth stated restriction upon the same power (which lastmentioned restriction operated, as well, to limit the stated statutory power of "any two," Justices of that court) is made by necessary implication only; but, according to all standards and all generally recognized rules of statutory construction, both methods or forms of expressing legislative purpose and intent should be held equally effective. However expressed, such purpose and intent, when ascertained, are conclusive upon all courts. In this instance, and as hereinabove shown, the intent of the Legislature to restrict to "the Supreme Court" itself rather than to leave to such "committee" in cases arising under said subdivision 6 the determination of the issues as to whether the al-mittee.' leged "error of law" on the part of the Court of Civil Appeals was committed, and also whether such error if any, is "of such importance to the jurisprudence of the state" as to require "correction," are absolutely and unquestionably certain, and logically constitute, by necessary implication, and in legal effect, a positive and fourth and binding exception upon said power of the Supreme Court to "refer" cases to such "committee of judges" for its action thereon in dismissing the application or in granting or in refusing the writ.

Said "committee" is not a court, and in Railway v. Blair, supra, my Associates expressly so declared. Said practice is palpably violative of section 3 of said Relief Act. For both reasons the power of making and promulgating rules (not in contravention of any statute), governing procedure in "courts," is not applicable to proceedings in relation to, or before, or by, such "committee." Const. art. 5, § 25; R. S. art. 1524. But I apprehend that even if said legislation of 1917 expressly authorized the Supreme Court at will to recall referred cases from the further consideration and action of said "committee." that would be wholly inadequate to authorize the Supreme Court to require or to permit the "committee" to pass solely upon the question as to whether or not a particular case arising under said subdivision 6, which shall have been referred by the Supreme Court to such "committee," is or is not one in which the Court of Civil Appeals committed an error of law, and to deny to such "committee" the determination of the question as to whether such error is or is not so hurtful to the jurisprudence of this state as to require correction. The mandatory duty of the "committee" is that of "granting, refusing, or dismissing" all referred applications. The deplorable truth of the matter is that the whole conception and practice of such partial reference, and of such recall, of "applications," being absolutely unauthorized by law, constitute nothing on earth but the sheerest acts of judicial legislation on the part of the Supreme Court.

It follows that in referring to such "committee" applications based upon said subdivision 6 of article 1521, as it now stands, this court at once exceeded its constitutional and also its statutory power and authority, and expressly failed, and, in effect, declined, to discharge and perform duties which said subdivision 6, if valid, imposed upon this court, as a court, and upon it alone, and by necessary implication, excluded from its power of reference, or subdelegation, to such "committee of judges." But if said subdivision 6 ought to be construed as permitting such reference of "applications" based thereon, that is merely an added reason for holding that entire subdivision unconstitutional. 3. Subdivision 6 having been so held valid, and having been construed, in conjunction with said Relief Act, as authorizing reference to such "committee" of "applications," may such reference be for the restricted and sole purpose of having such "committee" determine simply whether such application presents an "error of law" committed by a Court of Civil Appeals? And, that question having been decided affirmatively by such "committee," may the Supreme Court thereupon recall such application, and determine for itself whether such error is or is not "of such importance to the jurisprudence of the state" as, in its opinion, "requires correction"? Certainly not. If either that power of partial reference of applications or that pow- All arguments of convenience and of feasibiler of recall exists in the Supreme Court, whence ity which have been or can be advanced in supis it derived? Not from the Constitution, nor port of said adopted practice cannot legalize from any other statute, nor yet from said leg-it; nor can they, in my estimation, justify this islation of 1917, which alone attempts to au-high court in setting such conspicuous example thorize such designation of three associate jus- of rank usurpation of power and authority, and tices of Courts of Civil Appeals to act, finally, on all referred applications for writs of error. Said Relief Act (chapter 76) declares it to be "the duty" of such "designated Justices" (now known as the "committee of judges") "to take up, consider and act upon such applications for writs of error * * * as may be referred to them by Supreme Court or any two Justices

Even if it were shown or conceded that said adopted practice is in some or even in all respects superior to that prescribed by said legislation of 1917, that would not add one iota to this court's power in the premises, nor properly control the construction of that statute; that would be proper matter for consideration by the lawmaking department only.

of utter disregard of the plain and mandatory provisions of a statute which this court itself has so declared valid.

In support of my views, as hereinabove expressed, I refer to my opinion entitled "In re Supreme Court Dockets Relief Act of 1917," not yet officially reported; Railway v. Blair, 196 S. W. 1153.

quired by the court, and fixes a salary of $2,400 per annum in lieu of all other fees and per diem allowances. Held, that such section of the act so far regulated the affairs of said county as to be unconstitutional as a local and special act.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Regulate.]

Error to Court of Civil Appeals, Fourth Supreme Judicial District.

Action for injunction by George C. Altgelt against Charles X. Gutzeit and others. To review a judgment of the Court of Civil Appeals (187 S. W. 220), affirming a judg ment for defendants, plaintiff brings error. Judgments reversed, and cause remanded.

E. P. Lipscomb and Geo. C. Altgelt, both of San Antonio, for plaintiff in error. Boyle & Storey, of San Antonio, for defendants in

error.

expressions of mine therein (page 1190 of 196 | roads in his precinct to perform all the acts reS. W.) to the effect that the words "in the opinion of the Supreme Court," as used in subdivision 6 of article 1521 as amended by said act of 1913, and also in subdivision 6 of that article as amended by said Jurisdiction Act (H. B. 38) of 1917, are mere surplusage, and that the meaning of each subdivision of said article, as amended in 1913, and as amended in 1917, would be the same, whether embodying said quoted expression or not. The principal question there under consideration was the validity or invalidity of said Relief Act; and a subsidiary question involved its construction, to some extent, and my reference there to provisions of said Judiciary Act (chapter 75, H. B. 38) was merely by way of obtaining a side light. As the context there shows, I was endeavoring, mainly, to establish the proposition that, from a constitutional standpoint, final action upon any application for a writ of error, whether by the Supreme Court itself or by the "committee of judges," involves the exercise of a power which is, at the same time, both judicial and supreme; and from that standpoint, and in that sense, the expressions to which I refer were correct. Moreover, as there applied to article 1521, as amended in 1913, said expressions were correct in an unrestricted sense, inasmuch as the classification of cases there made by that subdivision 6 "those in which * ** ** the Court of Civil Appeals has erroneously declared the substantive law of the case"--would constitute, in the absence of the words "in the opinion of the Supreme Court," a definite and complete assertion of legislative will and judgment prescribing jurisdiction, and there was then no statute authorizing or attempting to authorize reference to the "committee of judges" of any application for a writ of error. But, as ap-. plied to subdivision 6 of article 1521 as amended by said Jurisdiction Act of 1917, in testing out the issues here under consideration (as to the sufficiency and validity of the attempted classification of cases set out in subdivision 6, and as to the authority to refer to said "committee of judges" applications in such cases) the above-mentioned former expressions of mine are too broad, and really are incorrect, in that, as hereinabove shown, and upon both of those issues, the words "in the opinion of the Supreme Court" have a vital and controlling effect, in the one instance forbidding such reference of such applications, and in the other delegating from the Legislature to the judiciary the duty and the operative work of prescribing, to a great extent, the appellate jurisdiction of this

court.

ALTGELT v. GUTZEIT et al. (No. 2890.)
(Supreme Court of Texas. March 13, 1918.)
STATUTES 94(1)—LOCAL AND SPECIAL ACTS

-ROAD LAWS-REGULATING AFFAIRS OF
COUNTY."

Const. art. 3, § 56. forbids the enactment of any local or special law regulating affairs of counties. Article 8, § 9, as amended, authorizes the Legislature to adopt a local law as to maintenance of public roads. Vernon's Sayles' Ann. Civ. St. 1914, art. 3870, provides that each county commissioner shall receive $3 for each day engaged in holding commissioners' court. Article 6901 constitutes county commissioners supervisors of public roads each to receive $3 per day for the time actually so employed. Loc. & Sp. Acts 33d Leg. c. 77, § 5, providing for a road system in Bexar county, requires each precinct county commissioner to supervise the

PHILLIPS, C. J. This suit involves the validity of Section 5 of the special act of the Thirty-Third Legislature making provision for a road system for Bexar County. Chapter 77, Regular Session Local and Special Laws.

The section reads:

"Each precinct county commissioner shall inspect and supervise from time to time all roads in his precinct, and shall do and perform any and all acts required of him by the commissioners' court, and all other duties required of him by law as county commissioner, and shall receive for his services an annual salary of twenty-four hundred dollars ($2,400.00) per annum, to be paid out of the general fund of the road and bridge fund, or any other available fund or the special road and bridge fund, in monthly installments, and shall be in lieu of all other fees and per diem of all kinds now payable or that may hereafter be allowed by general law."

The question is whether this amounts to a law "regulating the affairs" of the county and hence within the inhibition of Section 56 of Article 3 of the Constitution which declares that, except as otherwise therein provided, the Legislature shall not pass any local or special law regulating the affairs of counties, cities, towns, etc., and, further, that no local or special law shall be enacted where a general law can be made applicable, or is to be held as properly incident to a law for the maintenance of the public roads, Such as the Legislature, under amended Seetion 9 of Article 8, may adopt as a local law without the previous constitutional notice.

We regard the section as a plain attempt to fix the compensation of the commissioners for all services required of them by law. The amounts payable to county commissioners in return for the discharge of their gen eral duties are fixed by general laws, as they should be. It is provided by Article 3870 that they shall each receive three dollars for each day they are engaged in holding a term of the commissioners' court; but

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