R.H. Ward and J.W. Maddox, for application. — If the jurisdiction
of the Court of Civil Appeals was not final herein, then it was its duty to file
conclusions of law and fact, and it was the right of applicants that said court
should do so. Upon that proposition there can be no controversy.
The Constitution, section 3, article 5, as amended in 1891, declares, that the appellate
jurisdiction of this court "shall extend to questions of law arising in cases of
which the Courts of Civil Appeals have appellate jurisdiction." The Court of Civil
Appeals had, under the Constitution, appellate jurisdiction of this cause; therefore
the Supreme Court has appellate jurisdiction of this case upon the question of law
involved; and the jurisdiction of the Court of Civil Appeals is not final.
This proposition is manifest, unless the expression, "under such restrictions and
regulations as the Legislature may prescribe," empowers the Legislature to deny
the jurisdiction conferred by the Constitution. And we think it can not be seriously
contended that the language of the Constitution was intended to confer such power;
for had such been the intention, the language would have expressly conferred the
power, as in the following instances:
"Section 5, article 5: The Court of Criminal Appeals shall have appellate jurisdiction
* * * in all criminal cases of whatever grade, with such exceptions * * * as may
be prescribed by law."
Here the Legislature is expressly authorized to make exceptions to the jurisdiction
conferred by the Constitution.
"Section 8, article 5: * * * The District Court shall have appellate jurisdiction
and general supervisory control over the County Commissioners' Court, with such
exceptions * * * as may be prescribed by law; and shall have general original jurisdiction
over all causes of action whatever for which a remedy or jurisdiction is not provided
by law or this Constitution, and such other jurisdiction, original and appellate,
as may be provided by law."
The Legislature is here expressly empowered to make exceptions to the jurisdiction
conferred; and also to enlarge the jurisdiction by extending it beyond those cases
enumerated in the Constitution.
"Section 22, article 5: The Legislature shall have power, by local or general law,
to increase, diminish, or change the civil and criminal jurisdiction of County Courts."
Here the power is unmistakably conferred to increase, diminish, or change the jurisdiction.
But no such power is conferred in article 5, sections 3 and 6, of the Constitution.
Section 6, article 5, declares, the appellate jurisdiction of the Courts of Civil
Appeals shall be * * * "coextensive with the limits of their respective districts,
which shall extend to all civil cases of which the District Courts or County Courts
have original or appellate jurisdiction, under such restrictions and regulations
as may be prescribed by law."
Can it be seriously contended, that the intention was to empower the Legislature
to deny appellate jurisdiction to the Courts of Civil Appeals, in any case, within
their respective districts, of which the District or County Courts have original
or appellate jurisdiction? If the language used empowers the Legislature to deny
jurisdiction in any such particular case, then why does not the same language empower
the Legislature to deny the jurisdiction in the respective districts, and limit
it to less than the entire district? We submit that neither the one nor the other
was intended, but that the intention was that the jurisdiction should be exercised
in all such cases, and in the entire district.
Section 3, article 5, declares, that the appellate jurisdiction of the Supreme Court
* * * "shall be coextensive with the limits of the State. Its appellate jurisdiction
shall extend to questions of law arising in cases of which the Courts of Civil Appeals
have appellate jurisdiction, under such restrictions and regulations as the Legislature
may prescribe."
This section, like section 6, confers appellate jurisdiction within a stated and
definite area — the one coextensive with the limits of the State, the other
coextensive with the limits of the respective districts; and these provisions alike
confer appellate jurisdiction in a definite class of cases — the one "shall
extend to questions of law arising in cases of which the Courts of Civil Appeals
have appellate jurisdiction; the other shall extend to all civil cases of which
the District Courts or the County Courts have original or appellate jurisdiction."
And in each the same identical power is conferred upon the Legislature. So that
the reasoning which1 applies to the one also applies with equal force to the other.
The question is, does the language of the Constitution confer express power upon
the Legislature to deny the jurisdiction conferred by the Constitution? For, as
held in Ex Parte Whitlow, 59 Tex. 274 , without such express authority as is given
in section 22, article 5, the Leoislature has no power to take from or add to the
jurisdiction conferred upon these courts by the Constitution.
Section 42, article 3, requires the Legislature to pass such laws as may be necessary
to carry into effect the provisions of the Constitution." And section 4, article
5, provides, that "until otherwise provided by law," that is, until the Legislature
has passed such laws as are necessary to carry into effect the entire provision
declaring the jurisdiction of the Supreme Court, "the appellate jurisdiction shall
extend to questions of law, arising in the cases in the Courts of Civil Appeals
in which the judges of any Court of Civil Appeals may disagree, or where the several
Courts of Civil Appeals may hold differently on the same questions of law, or where
a statute of the State is held void." Thus, in advance of statutory provisions,
making the Constitution self-executing as to these three classes of important cases.
The Constitution, in providing that the appellate jurisdiction of the Court of Civil
Appeals shall extend, both as to law and facts, to all civil cases of which the
District or County Courts have original or appellate jurisdiction, and that the
appellate jurisdiction of the Supreme Court shall extend to questions of law in
such cases, confers a definite and certain jurisdiction, to be exercised to the
full extent conferred; but "under such restrictions and regulations as may be prescribed
by law." The power conferred upon the Legislature by this expression is not to change,
diminish, or increase the jurisdiction conferred, but to restrict and regulate the
exercise thereof.
Article 1011a restricts the exercise of the Supreme Court jurisdiction where it
provides, that "all cases shall be carried up to the Supreme Court by writs of error
* * * upon final judgment, and not on judgments reversing and remanding causes,
except in the following cases, to wit:" naming eight classes of important cases
which may be carried to the Supreme Court when no final judgment has been rendered
by the Court of Civil Appeals. And, mark you, this statutory restriction does not
deprive the Supreme Court of jurisdiction in causes that are reversed and remanded,
but restricts the exercise thereof only until such time as the Court of Civil Appeals
shall render a final judgment, when the Supreme Court may exercise the jurisdiction
conferred by the Constitution.
And article 1011b regulates the exercise of the Supreme Court jurisdiction by providing
with particularity what shall be done by one who desires to sue out a writ of error.
We submit that the intent and meaning of sections 3 and 6, article 5, is, that the
jurisdiction there conferred shall be exercised without change, diminution, or increase,
but that it shall be exercised "under such restrictions and regulations as may be
prescribed by law." It is not that the jurisdiction may be denied, but that the
exercise thereof may be restricted and regulated. Had it been intended that the
Supreme Court should not exercise the entire jurisdiction conferred upon it by the
Constitution, the Legislature would have been empowered to make exceptions, as in
sections 5 and 8, article 5, or would have been expressly empowered to change, increase,
or diminish the jurisdiction, as in section 22, article 5.
And it can not be contended that the Supreme Court has not appellate jurisdiction
in this cause, upon the ground that a boundary case is strictly a fact case; for
this is untenable, it being well settled, as
held in Bolton v. Lann, 16 Tex. 112 , that "what are boundaries is matter of law;
where they are is matter of fact." And in this cause plaintiffs presented ten assignments
of error, all of which are questions of law only.
If the Legislature may deprive the Supreme Court of appellate jurisdiction in a
boundary case, it may do so in any other case; and there is no limit to which the
Legislature may not deny the jurisdiction conferred upon this court; for there is
no jurisdiction conferred by the Constitution which the Legislature may not take
away.
It is true that this court in more than one case has held that it has no jurisdiction
in a boundary case; still, it must be borne in mind that the constitutionality of
chapters 14 and 15 was not raised, called in question, nor considered by the Supreme
Court in such cases. Const. 1891, art. 5, secs. 3, 5, 6, 8, 22; Ex Parte Whitlow, 59
Tex. 274 ; Laws 1892, chap. 15, sec. 5, p. 26; Laws 1892, chap. 14, arts. 1011a,
1011b, p. 20.