Full opinion text
Mr. Chief Justice PHILLIPS delivered the opinion of the court. This motion assails the constitutionality of the recent Act of the Legislature (Acts of 1917, chapter 76, p. 142), authorizing the Chief Justice of the Supreme Court, or any two of the justices thereof, to designate a committee of three of the justices of the Courts of Civil Appeals, empowered to pass upon petitions for writs of error seeking a review of causes by the Supreme Court, except in certain classes of cases, referred to them by the Supreme Court, and grant or refuse the writ, or dismiss the petition, in accordance with the practice of the Supreme Court. It is urged that on account of the invalidity of the Act we should consider the petition for writ of error in the case, it having been previously by us referred to the committee of judges and passed upon by them adversely to the plaintiff in error. A number of similar motions have been filed in other cases. The Act became immediately effective upon its approval by the Governor. Its administration was inaugurated by the court’s designation, on March 28, 1917, of three justices selected from different Courts of Civil Appeals to serve in the capacity authorized until its further orders, and the reference to them of pending petitions for writs of error, except in the classes of cases exempted from the Act’s operation. The Act was set in motion because of'the court’s view that it was constitutional and valid, the various grounds urged against it in all these motions having then been fully considered. Had we not determined it to be a valid Act, we would not have proceeded under it. It was intended, therefore, that our action in inaugurating it should serve as in effect a judgment in respect to its validity, and should be so understood. In view of these motions it is but proper, however, that we should state the grounds which in our opinion sustain the Act. We have not the time now, in the closing hours of the term, nor the inclination to pursue the subject at length. The validity of the Act may be established upon principles so plain and unmistakable that any extended discussion of the question is, in our judgment, unnecessary. It should be stated that Mr. Justice Hawkins did not agree with the majority of the court in their determination of the validity of the Act. He accordingly dissented from the court’s action in proceeding under it, announcing that he would later file an opinion expressing his views. He has not completed his opinion, but will file it when finished. Because of the court’s previous settlement of the' question, he concurs in its present action in overruling this and other like motions, referring, however, to his opinion, to be filed, for a statement of his position. The Act, as is revealed upon its face, had for its purpose relieving this court, for a season, from the necessity of reviewing the large number of petitions for writs of error presented to it, so as to enable it, during such period, to devote its time to its cause docket and bring an end to its congested condition. For a number of years the petitions for writs of error filed annually in the court, seeking revision of judgments of the Courts of Civil Appeals, have been in excess of 500 in number, gradually increasing each year. Each requires deliberate and accurate consideration. To keep abreast of them, practically the whole time of the court has been required throughout each term. The result was an enforced neglect of causes in which writs of error had been granted and which were pending for submission and decision. Postponement of the decision of those causes by the condition thus brought about amounted in many instances to a denial of justice. By giving the petitions for writs of error its constant attention, the court had been able to keep that docket fairly cleared. But this was true only because it had given them nearly its whole time in each term. Had its time been given in equal degree to the decision of pending causes, the congested condition of the latter docket might have been obviated; but it recognized that in that event the petitions for writs of error would accumulate so rapidly as to result in a similar congestion in respect to them. It is sometimes, overlooked that with the inauguration of the Courts of Civil Appeals as a part of our judicial system, the jurisdiction of ■ the Supreme Court was fixed in the Constitution for the review, originally, of causes determined by but three of such courts, and only three of those courts were originally established. The Courts of Civil Appeals have, however, been trebled in number. There are now nine of them. In the meantime, the jurisdiction of the Supreme Court has remained substantially unchanged,-—to no appreciable extent diminished in respect to the time necessarily required for its proper examination of causes presented to it on petition for writ of error. With the jurisdiction of the Supreme Court, in other words, originally adjusted so as to enable it to properly review causes emanating from but three appellate courts, it has of late years, with substantially no change in its jurisdiction, been charged with the duty of reviewing causes emanating from nine appellate courts. It was the realization of this that has caused it during this latter period to chiefly give its time to the consideration of causes presented on petition for writ of error in an effort to dispose of them as currently filed, leaving it, as already stated, no sufficient time for the decision of pending causes. This was a condition imperatively demanding relief in the interest of an efficient administration of the law. To relieve it in a practical and inexpensive way by making use of the existing judicial machinery of the State was the design of this Act. The thought of its framers doubtless was that under its operation for a short period the Supreme Court could clear its docket and be in position to resume the consideration of cases on petition for writ of error. For that reason the operation of the Act is in effect limited to the time necessary for that purpose. The invalidity of the Act is asserted both as it affects the duties and powers of the Courts of Civil Appeals, and as it relates to the exercise by the Supreme Court of the jurisdiction with which it is invested by law. The effect of the Act upon the Courts of Civil Appeals and their justices will be first considered. It is claimed that the use for the purposes of the Act of three justices from three different Courts of Civil Appeals will leave the courts of which they are members unable to perform their functions. This question was settled in City of Austin v. Nalle, 85 Texas, 520. It was .there held that under the statute prescribing that “a majority of the several Courts of Civil Appeals shall constitute a quorum for the dispatch of business,” a lawful Court of Civil Appeals is constituted by two members present and acting. . The Act, as it plainly shows, does not create a court. It simply defines and adds certain duties to those of the justices of the Courts of Civil Appeals already existing. The duties thus added are those which the justices are to discharge as justices of such courts and only in their capacity as such. The Constitution,-—section .6 of article 5,—. after defining- the jurisdiction of the Courts of Civil Appeals, provides that “said courts shall have such other jurisdiction, original or appellate, as may be prescribed by law.” Under this provision the Legislature has without challenge conferred other jurisdiction upon those courts, namely, jurisdiction of causes not arising within their districts, but transferred to them under order of the Supreme Court from other districts. If the Legislature may bestow, generally, upon the Courts of Civil Appeals other jurisdiction than that specifically conferred by the Constitution, no sound reason can be advanced for denying it the right to equally impose upon the justices of them additional judicial duties which have relation simply to a method of appeal of causes determined by those courts. The Constitution declares that the judicial power of the State shall be vested in the courts named in section 1 of article 5 and in such other courts as may be provided by law. But this does not mean that no judge may be empowered by law to perform a judicial act having direct and proper relation to the exercise of the jurisdiction of the court of which he is a member. At an early time it was recognized that rights would suffer if judges were deprived of all authority to act except as courts. As the result, their exercise of judicial power in vacation and at chambers became an established practice. The writ of error has always been treated by this court as but a mode of securing revision of causes as upon appeal. Lucketts v. Townsend, 3 Texas, 119; Magee v. Chadoin, 44 Texas, 488. Granting that the allowance of the writ involves the exercise of judicial power, where is the constitutional provision which denies to the justices of the Courts of Civil Appeals the authority to allow an appeal from those courts to the Supreme Court ? Mot only is no such inhibition to be found, but the Constitution is utterly silent in respect to any method to be employed for the obtaining of a review by the Supreme Court of causes determined by those courts. Mothing is better settled than that in the absence of constitutional provision to the contrary, the Legislature may confer upon judges the authority to perform judicial acts necessary to a due administration of the law. As related to the revision of causes, a familiar instance of the exercise of such power by a judge, as distinguished from a court, is that authorized by the Federal statute which empowers the chief justice of a State Supreme Court to grant a writ of error in a certain class of cases as a means for their review by the United States Supreme Court. See Gleason v. Florida, 9 Wall., 779; Butler v. Gage, 138 U. S., 52. Mo doubt has ever existed, as we are aware, as to the authority of the chief justice of a State Supreme Court to so allow the writ, notwithstanding provisions of State Constitutions which vest in the State Supreme Court, as distinguished from its judges, the judicial power which it is to exercise. His act in such instances is valid simply for the reason that it is the exertion of a part of the judicial power reposed in the court, by a constituent member of the court acting for that purpose in a capacity not forbidden by the organic law of the State. If such a power may be constitutionally exercised by a judge of the Supreme Court of a State as applied to causes reviewable by the United States Supreme Court, it is difficult to perceive why it may not be also validly exerted by justices of the Courts of Civil Appeals as applied to causes not final in those courts. Attention has already been directed to the fact that the Constitution has made no provision whatever in respect to the method by which the appellate jurisdiction of the Supreme Court is obtained over causes which it is empowered to review. It is the absence of any such constitutional provision that determines the validity of this Act. The Constitution merely declares that 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.1’ Article 5, section 3. Hot only is no method provided by which its appellate jurisdiction may be called into exercise, but it is to be further noted that the Constitution does not irrevocably define and fix any certain appellate jurisdiction for the court, except that it “shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction.” A subsequent part of section 3 in terms conferred upon it appellate jurisdiction over three certain kinds of cases, but that jurisdiction was to subsist only “until otherwise provided by law.” To restrict is to limit, as said by Chief Justice Gaines in Maddox v. Covington, 87 Texas, 454. The clause, “under such restrictions and regulations as the Legislature may prescribe,” means under “such limitations and regulations” as that body may enjoin. Hence, it is within the power of the Legislature to limit and to change the appellate jurisdiction of the court. Maddox v. Covington. It would seem as scarcely open to debate that if the Legislature is thus authorized to limit and change the jurisdiction itself of the court,-— its very power to hear and determine causes, it is equally competent for it to establish in all its particulars the mode under which its jurisdiction is to be invoked and by the observance of which it may be obtained. The Constitution will be searched in vain for any provision which ordains the method by which a cause decided by a Court of Civil Appeal's shall gain entrance into the Supreme Court; or which gives to the Supreme Court the authority of determining its right to entrance there. Neither the right of appeal to the Supreme Court nor the manner of its exercise is mentioned in the Constitution. With this true, it is not to be questioned that the Legislature has the authority to establish the manner in which the appeal shall be taken, and, in doing so, declare where shall rest the authority of determining the right to have it allowed. Titus v. Latimer, 5 Texas, 433. To fix any given mode for an appeal is but to prescribe a regulation by means of which jurisdiction to hear the appeal may be acquired. To vest in the appellate court itself, or in some other authority, a discretionary power of deciding whether the appeal shall lie, is equally only a regulation of the manner in which the appeal is to be taken,— a part of the mode enjoined for the appeal, and to be observed' if the appellate jurisdiction is to be lawfully obtained. With the Constitution declaring that the Supreme Court shall possess and exercise appellate jurisdiction only under such limitations and regulations as the Legislature may prescribe, to do either, therefore, is only to do that which the Legislature is empowered to do by express provision of that instrument. The Legislature inaugurated the writ of error practice as the method whereby the appellate jurisdiction 'of the Supreme Court might be acquired. It also lodged in the Supreme Court the authority of determining the merits of the grounds advanced for the issuance of the writ, and hence, when it should be allowed. But there is no vested right in that mode of appeal. These provisions of the law did not come from the Constitution. They are the creatures of the Legislature. What the Legislature may create, it may alter. Unless granted by the Constitution, the right of appeal itself is but a privilege; it is not an irrevocable right. It pertains merely to the remedy, and may be modified by the Legislature at discretion. If, for illustration, instead of adopting the writ of error practice in respect to the review by the Supreme Court of causes from the Courts of Civil Appeals, the Legislature had established the giving of bond, with the approval of which the Supreme Court should have nothing to do, as the mode of appeal from those courts, it can not be doubted that such an act would have been valid. With the right of appeal in such cases not a constitutional right, but a creation purely of the statute law and subject to the limitations of that law, with it thus pertaining merely to the remedy which the Legislature has full authority to restrict, to change and to regulate, neither can it be doubted that it would have been competent, as a mere question of legislative power, for the Legislature to have given to the Courts of Civil Appeals, themselves, the authority of determiniug when an appeal from their judgments should lie. Such an authority is not novel in the legal procedure of the country, whatever may be the divergence of views in respect to the wisdom'of it. In a number of jurisdictions the right of appeal has had a like restriction imposed upon it. In 3 Corpus Juris, page 1080 (notes), will be found a collection of eases instancing such a limitation upon the -right as found, in the legislation of different States. In Tennessee, for illustration, it was provided by the Code at the time of the decision of Sigler v. Vaughan (1883), 11 Lea, 131, that it was within the discretion of the chancellor to grant an appeal from the overruling of a demurrer by the chancery court. In Alabama, it was likewise ruled in Griffin v. Bank, 9 Ala., .301, that an appeal from an interlocutory decree dissolving an injunction in the chancery court, must be taken before the chancellor. In Connecticut, it was determined in Montville Street Railway Company v. New London, etc., Co., 68 Conn., 418, 36 Atl., 811, that an appeal from the decision of a single judge of the superior court must be allowed by him. There is, of course, an obvious difference between jurisdiction,—the power of a court to hear and determine causes, and the doing of those things necessary to call that power into play. To confer jurisdiction upon a court is not to give it authority to determine the mode of resort to-its jurisdiction, or the power of deciding how, when, and in what manner its jurisdiction may be obtained. Some means must be provided as the instrumentality of bringing the cause under the power of the court in order for the court to have and exert power over it. Such means are purely remedial in their nature. They pertain merely to the manner or mode by which jurisdiction is acquired, not to its exercise after it is acquired. They are essentially matters of legislative control in the absence of some express constitutional direction upon the subject. This was clearly recognized by the court in Schleicher v. Eunge, 90 Texas, 456, where it was said: “Under amended section 3 of article 5 of the Constitution, as we have seen, this court is tó exercise its appellate jurisdiction under such restrictions and regulations as the Legislature may prescribe. When, therefore, .the Legislature prescribed that the petition for the writ of error should be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing in that court, we think that it was intended that a compliance with that requirement should be as a condition precedent to exercise.of the jurisdiction.” An Act of the Legislature is not to be lightly struck down. It is to be held valid unless forbidden by the superior law of the Constitution .either in express terms or by necessary implication. As before stated, the Constitution does not purport to deal with the question of the regulation of appeals to this court from the Courts of Civil Appeals except in its remission of the entire subject to the legislative authority. The Act is, in our opinion, a valid Act, and the motion is accordingly overruled. IN EE SUPEEME COUET DOCKETS EELIEE ACT OF 1917.
DISSENTING OPINION. ■Mr. Justice HAWKINS. House bill No. 39, entitled “An Act to relieve the crowded condition of the dockets of the Supreme Court,” etc., hereinafter called relief Act, was passed by the Thirty-fifth Legislature, and approved March 15, 1917, effective immediately. Acts 1917, chapter 72, page 142. Shortly afterward, treating said statute as valid, and without then writing upon the subject, our Supreme Court, acting as a court, this writer dissenting, undertook to put it into operation, thereby, in effect, upholding its constitutionality. San Antonio & Aransas Pass Ky. Co. v. Blair, opinion by our Chief Justice Phillips, filed June 27, 1917; Bacon v. Bates, 57 Texas, 409; Railway Co. v. Shannon, 100 Texas, 389, 100 S. W., 138; Henderson v. Beaton, 52 Texas, 29; concurring opinion in Terrell v. Middleton, 191 S. W., 1140; People ex rel. Morgan v. Hayne, 83 Cal., 111, 7 L. R. A., 348; Smith v. Odell (Wis.), 1 Pinn, 449; In re Letcher (Mo.), 190 S. W., 20. Indeed, the first mentioned opinion, after referring to the motion in that case and to somewhat similar motions in numerous other eases in this court, as assailing the constitutionality of said Act, very plainly declared: “The Act was set in motion because of the court’s view that it was constitutional and valid, the various grounds urged against it in all these motions having been fully considered. Had we not determined it to be a valid Act, we would not have proceeded under it. It was intended, therefore, that our action in inaugurating it should serve as in effect a judgment in respect to its validity, and should be so understood.” The manner and form in which said attempt to put said Act into operation was made, and in which various proceedings thereunder have been conducted by the “designated justices of Courts of Civil Appeals” with the sanction and approval of the Supreme Court, and by that court itself, likewise constitute practical constructions of said Act, most of which, it seems, are to be adhered to, controlling and directing its operation and effect. From said opinion in the Blair case, the following explanation is taken: “It should be stated that Mr. Justice Hawkins did not agree with the majority of the court in their determination of the validity of the Act. He accordingly dissented from the court’s action in proceeding under it, announcing that he would later file an opinion expressing his views. He has not completed his opinion, but will file it when finished. Because of the court’s previous settlement of the question, he concurs in its present action in overruling this and other like motions, referring, however, to his opinion, to be filed, for a statement of his position.” The term of our court having ended, I come now, in the spare time of vacation days, to a fulfillment of my said promise. The cardinal vices of said relief Act are twofold: First. Its utter and reckless disregard of elementary and fundamental constitutional limitations and restrictions, relating to : (a) The separation of the legislative and the judicial powers of government. (b) The investiture, delegation and exercise of legislative power. (c) The investiture, delegation and exercise of judicial power. Second. In depriving litigants of cherished valuable and Constitution-given rights relating to: (a) The authoritative action by the Supreme Court itself, in contradistinction to the action of any other court, tribunal or aggregation of individuals, upon cases within the appellate jurisdiction of the Supreme Court. (b) The decision of such causes by the Supreme Court, as a court, in contradistinction to action by two members thereof acting merely as justices. (c) The services of chief justices and associate justices of Courts of Civil Appeals. And, following in that motley train, comes a whole brood of lesser evils. Before setting out the text of said relief Act I call special attention to the following features of the situation: 1. Said relief Act transfers from the law-making department, consisting of the House of Representatives, the Senate, and the Governor, and delegates (a) to the Supreme Court, as a court, and (b) to a majority of the justices of that court, as justices, and (c) contingently, to an uncertain and shifting aggregation of justices of Courts of Civil Appeals powers which are distinctly and purely legislative, and which have been vested by the Constitution of Texas in the law-making department alone: towit, the power of determining, to a great extent, what cases shall and what cases shall not be reviewed by the Supreme Court. 2. It transfers from the Supreme Court, as a court, (a) to a majority of the justices of that court, acting otherwise than as a court, and (b) contingently, to said aggregation of justices of Courts of Civil Appeals, powers which are distinctly judicial, and which have been vested by the Constitution in the Supreme Court alone: towit, the power to pass upon appeals to that court. 3. It combines, contemporaneously, in one set of persons, and, contingently, in another set of persons, both legislative and judicial powers, as aforesaid, in contravention of the express declaration of said Constitution that each such power shall be confided to a separate body of magistracy. 4. It contemplates and authorizes' that some three “designated justices of Courts of Civil Appeals,” hereinafter called designated justices, not constituting a court, or even an organized tribunal or board, and not acting within the jurisdiction of, or in the exercise of judicial power conferred by the Constitution or laws upon, the courts of which they are members, and not in the exercise of powers conferred by the Constitution upon them as justices of those courts, and not acting under the solemnities of any oath pertaining to their duties in the premises, and not acting according to any unvarying statute or fixed rule, but acting merely as a nondescript aggregation of individuals, and as they, in the particular case, and at the time, may see fit (a) shall pass upon all referred applications for writs of error in cases which will aggregate perhaps about ninety-five per cent of all cases appealed from our nine Courts of Civil Appeals, determining, finally, therein, whether the particular case shall or shall not be admitted into the Supreme Court for actual review upon its merits and final decision by that court, and (b) shall-pass, also, and finally, upon the merits of all appeals in which they refuse writs of error, amounting in practice to about eighty per cent of all referred cases, all such actions of such designated justices, whether dismissing or refusing or granting the writ of error, to be without any official record thereof and without any provision for enforcing such action in any cause. 5. It deprives litigants in the Supreme Court of the services and judgment of all members of that court (a) in passing upon applications for writs of error in all cases referred to such designated justices, and (b) in passing finally upon the merits of all causes in which writs of error are refused by such designated justices, such latter class of cases comprising an overwhelming majority of all causes within the continuing appellate jurisdiction of the Supreme Court. And, even though no application in any case be so referred, said Act may, .and at the option of any two members of the Supreme Court, will, in all but three classes of cases, substitute, in lieu of the action of the Supreme Court, as a court, upon the application, the final action of any two members of that court, acting in term time or in vacation, as justices only, and not as a court. 6. The operation of the Act, in so far as such designated justices arc concerned, is wholly contingent upon the exercise by (a) the chief justice, or (b) any two justices, of the Supreme Court, of the option therein conferred upon that court and justices thereof. 7. It almost constantly disrupts and disturbs some three Courts of Civil Appeals, and, indirectly, throws additional cases upon the dockets of all other Courts of Civil Appeals. 8. It compels some three justices of as many Courts of Civil Appeals to leave their own courts to which they were elected, and generally even their own supreme judicial districts, and to forego the exercise of the high judicial powers conferred by the Constitution upon those courts, and the discharge of duties for the performance of which they were sworn, and, at the State Capitol, to exercise extraneous powers and discharge different duties imposed upon them by the Legislature only, in cases not then within the jurisdiction of any Court 'of Civil Appeals. 9. It deprives litigants in those bereaved courts, indefinitely, and possibly continuously for an entire term or more, of the services and judgment of such designated justices, respectively. 10. The duties of such designated justices, as prescribed by said relief Act, are being performed by them under appointments or designations not made as required by the express provisions of the Act. 11. In the absence of any provision of the Constitution, or of said Act, or of any other statute therefor, a majority only of said designated -justices are acting, from time to time, and are exercising, finally, all of the powers conferred upon them by said Act, in numerous causes in which some third designated justice happens to be disqualified by reason of the fact that the appeal is from a decision of the Court of Civil Appeals of which he is a member. 12. In the absence of any constitutional or statutory authority therefor, all decisions and actions of such designated justices are being reported, from week to week, to the Supreme Court, in the form of mere unsigned memoranda, and are being announced by that court, in open court, and are being recorded in its minutes, as the official “Actions of the Committee of Judges of Courts of Civil Appeals on Referred'Applications.-” Aside from the record, it is, unfortunately, a fact that such actions of the designated justices are being announced from week to week, by various newspapers, as the actions of the Supreme Court. The precedents in constitutional and statutory construction thus set will, I doubt not, long prove to be radically, though insiduously, pernicious in both theory and practice; and the actual operation of the statute, as so construed and applied, almost certainly will entail many grave and untoward consequences, extending through coming years. Especially is that to be apprehended in cases in which referred applications for writs of error have been or shall be refused, by only two, or even by three, designated justices; and the general danger is aggravated by the lack of statutory provision for preserving, or even for making an official record or report of their action upon or in relation to such referred applications, or for enforcing the findings or actions of such designated justices. Never before, in the history of this State, have there arisen in court such important issues so radically affecting our judicial system. The resulting situation is, in my estimation, one of surpassing gravity. Legislators derive all their powers from the people, through .the Constitution; how, then, eán they disregard it without destroying the very foundation of their authority? Vattel, p. 31; Kilbourn v. Thompson, 103 U. S., 190 “The difference between a free and an arbitrary government I take to be—that in the former, limits are assigned to those to whom the administration is committed; but the latter depends upon the will of the departments, or some of them. Hence.the utility of a written Constitution.” Nelson, J., in Kamper v. Hawkins, 1 Va. Cases, 23. But of what benefit are limitations and restrictions in a written Constitution if they are not to be observed and enforced? “Written Constitutions are the product of deliberate thought. Words are hammered and crystallized into strength, and if ever there is power in words it is in the words of a written Constitution. Behind the words is the power of a free people operating through the medium of "a constitutional convention, called together for the purpose of framing a fundamental and inviolable system of government. - Of all governmental instruments it is the most solemn and powerful. Its grants are unalterable, its delegations of power unchangeable and its commands supreme. Until the people themselves shall annul or change their Constitution, all must obey its mandates. ... “The Legislature can not for any purpose cross the line which separates the departments and secures the independence of the judiciary. It is not the length of the step inside the sphere of the judiciary that summons the courts "to assert their constitutional rights and demands of them the performance of their sworn duty, for the slightest encroachment is a wrong to be at once condemned and resisted. As Daniel Webster said, and Mr. Calhoun substantially repeats, the ‘encroachment must be resisted at the first steps/ ” State ex rel. Hovey v. Noble, 118 Ind., 350, 4 L. R A., 101. “The creation of 'a thousand forests is in one acorn, and Egypt, Greece, Borne, Gaul, Britain, America, lie folded already in the first man. Epoch after epoch, camp, kingdom, empire, republic, democracy, are merely the application of his manifold spirit in the manifold world.” Emerson’s Essay on History. So I see in said relief Act the vital germ which already has broken down constitutional barriers upon legislative authority, and has worked a clear usurpation of supreme judicial power, and materially has disturbed the constitutional operations of the Supreme Court and of Courts of Civil Appeals, and which, if it has not already done so, soon may convert all our courts into mere legislative dependencies instead of a co-ordinate department of government, and, in due progression, trample-upon our Bill of Bights and all the liberties and privileges of the-individual. “If the Legislature may infringe this Constitution, it is no longer fixed; it is not this year what it was the last; and the liberties of the people are wholly at the mercy of the Legislature.” Roane, J., in Kamper v. Hawkins, 1 Va. Cases, 20. The transcendent issue which lies wrapped up in said relief Act is this: Shall plain provisions of the Constitution of Texas be ignored?' The vital spirit of that issue sits, seen or unseen, at the healrthstone of every citizen of this State. The supreme mission of the Supreme Court of Texas has been, while administering justice between litigants, ever to uphold the fundamental principles upon which our State government was founded; to keep visible the established lines of demarcation between the powers of the-three co-ordinate departments, and to stay the encroachments of any one upon another; to maintain the essential elements of enlightened jurisprudence as written in our State Constitution; to preserve to the-keeping of the courts, all the judicial power, except as otherwise expressly provided by the Constitution; and fearlessly to retain and justly to exercise, as a court, in all the causes and matters properly within its own clear and continuing jurisdiction, not a part only, but all and every applicable portión, of that exclusive supreme judicial power which has been vested in it, as a courtj and all this, not for the sake of the judiciary or of that particular court, but because it is a function and duty of that court to do so, and because an actual separation of the three great powers of government is essential to real liberty, and because an independent judiciary constitutes the true cornerstone of all’ government among freemen. For years I have earnestly advocated the adoption of such amendments of our Constitution, and such valid legislative and other measures' as, together, would enable our Supreme Court to get and stay abreast of its work; nevertheless, upon questions as to the validity of said' relief Act that -intense desire of mine must yield to the applicable and plain provisions of the Constitution; and upon questions involving constructions of said Act that desire must yield to the phraseology of the Act itself. Cost what it may, I will not sacrifice the Constitution— our social compact—upon the altar of but seeming temporary expediency. It was for use in just such emergencies that the Constitution was adopted. I regret that these constitutional questions arise under a statute which directly affects the full exercise of the judicial power of the court of which I am a member; but in the premises I am no more free to withhold a candid expression of my matured judgment than if those questions related solely to any other constitutional court. “The question which faces us is not one of discretion, but of imperative duty. The duty of maintaining the separation of the departments of the government and the integrity and existence of the courts as established and organized by the Constitution is one of the most important that the judiciary is required to perform. It is the duty of the courts to uphold the Constitution as it is written, and to yield no part of their right or authority. Judges are chosen for the purpose of maintaining the limitations of the Constitution, without which free government can not exist. As was said by the Court of Appeals of Yew York: “ Tf this provision were intended solely for the protection of the judges they might waive it, but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the State, intended for the benefit of the people, and to secure to litigants a forum in which they might have their controversies adjudged. The jurisdiction which the Constitution preserves in the courts named is inalienable, and carries with it the corresponding duty on the part of these courts to exercise it when called upon in proper form to do so/ Alexander v. Bennett, 60 N. Y., 204.” State ex rel. Hovey v. Noble, 118 Ind., 350, 4 L. R. A., 101, by Chief Justice Elliott. Consequently, but with due and respectful deference to the joint committee of distinguished lawyers who stood sponsor to the Legislature for the constitutionality of said relief Act, and to the legislative department, and to my associates, whose determination of the issues herein discussed is by section 2 of article 5 of our Constitution made binding, I consider it my unquestionable duty to express here, in permanent form, and once for all, my deep-rooted and settled convictions (a) that, for various reasons, said statute is unconstitutional, and> therefore, void; (b) that even though it be held to be constitutional and valid, it well may be doubted whether, as it stands, or in connection with kindred previous and contemporary legislation, it is intelligible and workable; and (c) that even if it is both valid and workable, the practical construction which the Supreme Court has so placed upon it, in several material particulars, is seriously erroneous. A statement and discussion of at least some of the grounds supporting those conclusions will, I trust, at least make plain my own attitude: in the premises, and may also serve, in future years, as a marker, along the new and rugged way, for a wholesome return to the beaten paths and established principles so plainly blazed out and defined by our organic law, and heretofore generally recognized and followed by the Legislature.and by all the courts of this State. The multiplicity, complexity and inter-dependency of the questions and legal principles which are involved, and the fact that one who writes a dissenting opinion is at the laboring oar, and, unlike the majority of the court, is not in a position to rest his judgment upon a mere ex cathedra statement of his views, account for, and possibly, in some degree, excuse the length to which this opinion may run, and also some repetition. The situation, as I view it, certainly calls for something more than mere quotation of the Constitution. Said relief Act is as follows: “An Act to relieve the crowded condition of the dockets of the Supreme Court by further regulating the mode in which and the conditions on which judgments of the Courts of Civil Appeals may be brought before the Supreme Court for revision, granting additional powers to the chief justice and associate justices of the Supreme Court and of the Courts of Civil Appeals as incidental to the offices held by them; providing for compensation of certain justices of the Courts of Civil Appeals while acting as herein provided, and declaring an emergency. “Be it enacted by the Legislature of the State of Texas: “Section 1. It is made a condition of obtaining a review upon writ of error by the Supreme Court of .any final judgment of any Court of Civil Appeals that good cause therefor first be shown in an application for such writ, as heretofore required, the sufficiency of such cause to be determined as herein provided. “Sec. 2. Provided, the chief justice of the Supreme Court or any two of the justices thereof are empowered as soon as this Act shall become a law, by a writing to be recorded in the minutes of the Supreme Court, to designate three of the justices of the Courts of Civil Appeals to act as hereinafter provided. The powers given to the chief justice, or associate justices, of the Supreme Court, may be exercised from time to time as long as reason therefor may exist, and the personnel of the designated justices of the Courts of Civil Appeals may be changed as often as may be found advisable, by relieving one, or more, and designating another, or others, in order to interfere as little as possible with the work of the Courts of Civil Appeals, such action to be in writing and recorded, as before; and not more than one justice shall be designated to serve at any one time from any one of these courts. “Sec. 3. It shall be the duty of the justices of the Courts of Civil Appeals so designated, upon receiving notice thereof, to assemble together at the capital of the State and to take up, consider and act upon such applications for writs of error, whether then pending or afterwards filed as may be referred to them by (the) Supreme Court or any two justices thereof, by granting, refusing or dismissing the same in accordance with the practice of the Supreme Court heretofore prevailing; and such designated justices may make such orders and give such directions incidental to the consideration and disposition of applications, as are sanctioned by such practice. “Sec. 4. The granting of an application shall admit the cause into the Supreme Court to be proceeded with by that court as heretofore provided by law. The refusal or dismissal of an application shall have the effect of denying the admission of the cause into the Supreme Court, except that motions for rehearing may be made to such designated justices in the same way as such motions to the Supreme Court have been heretofore allowed; provided, that the refusal or dismissal of any application shall not be regarded as a precedent or authority in any other cause; and, provided, that no one of such justices shall participate in acting upon an application in a cause decided during his incumbency by the court of which he is a member. “Sec. 5. 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 Courts of Civil Appeals shall have held differently upon the same question of law from 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. “See. 6. The powers herein conferred upon the chief justice and associate justices of the Supreme Court and of the Courts of Civil Appeals are declared to be incidental to the offices held by them respectively. “Sec. 7. Justices of the Courts of Civil Appeals shall be entitled to have their actual and necessary expenses incurred in going to, remaining at and returning from the capital in the .discharge of the additional duties hereby imposed 'upon them, paid out of the State Treasury from warrants drawn by the Comptroller, based upon itemized accounts of such expenses, verified by the certificate or affidavit of the claimant. “Sec. 8. The great delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof, create an imperative public necessity and an emergency for the suspension of the constitutional rule requiring bills to-be read on three several days in each house, and for putting this Act in force from and after its passage, and it is accordingly so enacted.” The Constitution of Texas provides: “The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be eon-tided to a separate body, of magistracy, towit: Those which are legislative to one. those which are executive to another, and those which are judicial -to ano.ther; and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others except in the instances herein expressly permitted.” Sec. 1, art. 2. “The legislative power of this State shall be vested in a Senate and. a House of Representatives, which together shall be styled The Legislature of the State of Texas/ ” Sec. 1, art. 3. “Ho law shall be passed except by bill.” Sec. 30, art. 3. Following up the above mentioned sharp distinction in classification of governmental powers, article 5, the present judiciary article of our Constitution, as amended in 1891, in making a careful distribution of judicial power, provides: “The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in courts of justices of the peace, and in such other courts as may be provided, by law. . . . The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” Sec. 1, art. 5. “The Supreme Court shall consist of a chief justi.ce and two associate justices, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to the decision of a case.” Sec. 2, art. 5. “The Supreme Court shall have appellate jurisdiction only, except as herein specified, which shall be co-extensive 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. Hntil otherwise provided by law the appellate jurisdiction of the Supreme Court 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 question of law, or where a statute of the State is held void. The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law; and, under such regulations as may be prescribed by law, the said courts and the justices thereof may issue the writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto- and mandamus in such cases as may be specified, except as against the Governor of the State. The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to- ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.” See. 3, art. 5. “The Court of Criminal Appeals shall consist of three judges, any two of whom shall constitute a quorum; and the concurrence of two judges shall be necessary to a decision of said court.” . Sec. 4, art. 5. “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may- be prescribed by law. The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. The Court of Criminal Appeals shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.” Sec. 5, art. 5. “The Legislature shall as soon as practicable after the adoption of this amendment divide the State into not less than two nor jnore than three supreme judicial districts and thereafter into such additional districts as the increase of population and business may require, and shall establish a Court of Civil Appeals in each of said districts, which shall consist of a chief justice and two associate justices, who shall have the qualifications as herein prescribed for justices of the Supreme Court. Said Courts of Civil Appeals shall have appellate jurisdiction co-extensive 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. Provided, that the decisions of said courts shall be conclusive on all questions of fact brought before them on appeal or error. “Each of said Courts of Civil Appeals shall hold its sessions at a . place in its district to be designated by the Legislature, and at such time as may be prescribed by law. . . . Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.” Sec. 6, art. 5. Concerning District Courts and district judges and their powers, our Constitution provides, among other things: “Said courts and the judges thereof shall' Have power to issue writs of habeas corpus, mandamus, injunction and certiorari and all writs necessary to enforce their jurisdiction.” Sec. 8, art. 5. And in providing for County Courts and county judges, and defining their powers, it declares: “And the County Court, or judge thereof, shall have power to issue writs of injunction, mandamus and all writs necessary to the enforcement of the jurisdiction of said court, and to issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the County Court or any other court or tribunal inferior to said court.” Sec. 16, art. 5. That Constitution provides, also: “No person shall hold or exercise, at the same time, more than one civil office of emolument except that of justice of the peace, county commissioner, notary public, and postmaster, unless otherwise specially provided herein.” Sec. 40, art. 16. “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Sec. 13, art. 1. “No citizen of this State shall be deprived of life', liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Sec. 19, art. 1. Said provisions in our organic law fairly contemplate and require, among other things: 1. That, except as therein provided, the Legislature, only, shall exercise legislative power; it can not be delegated. 2. That, with the exceptions therein specifically mentioned, all the “judicial power” of this State shall be vested in courts, as courts; it can not exist elsewhere. 3. That, as constituting such distinct exceptions, only certain carefully enumerated powers shall vest in justices and judges of certain enumerated courts other than Courts of Civil Appeals, to be exercised in the capacities of justices or judges, in chambers or in vacation, and not as a court. 4. That the appellate jurisdiction of the Supreme Court is, indeed, largely the subject of legislative control; but the judicial power of that court, having been conferred thereon by the Constitution itself, can not be shifted elsewhere by even the Legislature.' This vital distinction is of paramount and controlling importance; but it is one which said relief Act seems wholly to have disregarded. And upon that rock of our Constitution said opinion of the majority of our Supreme Court in the Blair case must suffer ultimate shipwreck. Calling our granite Capitol a kite will not make it fly. “There is no magic in mere words to change the real into the unreal.” Neither the lapse of time nor practice of courts or judges can vindicate the exercise of judicial power under an unconstitutional statute. Titus v. Latimer, 5 Texas, 433; Rochelle v. Lane, 105 Texas, 350, 148 S. W., 560. 5. That the Constitution itself having expressly defined the appellate jurisdiction of the Supreme Court, subject only to such changes as the Legislature may see fit to malee therein, in conformity with the terms and provisions of that instrument, any and all such changes must be made, directly, by the Legislature itself, in the exercise of its own judgment and discretion. And such power may not be exercised, even by the Legislature, except through a statute which specifies, unconditionally, what classes of eases shall, or shall not, fall and lie within that jurisdiction,—a statute which operates alike, at all times, upon all cases of the same class and character. 6. That any and all such cases as shall so fall and lie within the appellate jurisdiction of the Supreme Court, whether such jurisdiction shall then exist (a) by virtue of the enumeration in the Constitution of the three classes of cases mentioned in said section 3 of article 5, or (b) by virtue of some statute specifically enlarging or diminishing that jurisdiction (and, as a corollary, that all questions involved in ascertaining or determining that jurisdiction) shall be passed upon and decided by the Supreme Court itself, as a> court, the concurrence of two justices thereof being sufficient, however, to control the action of that court. 7. That each court in our judicial system, as occasion therefor may arise, shall exercise all of the jurisdiction and all of the judicial power conferred, and shall perform all of the duties imposed upon it by the Constitution and laws, and that each justice and each judge of any such court, as occasion may require, shall, himself, exercise all powers and perform all duties so conferred or imposed upon him as such justice or judge; and, as a corollary, that every justice or judge of -any court shall be and remain, as far as reasonably may be possible, and with rare exceptions, in attendance thereon, during its terms, contributing his entire working time and energies to the consideration and proper disposition of cases coming before such court, and to matters, if any, properly coming before him as such justice or judge of such court. 8. That no justice of any Court of Civil Appeals shall, at the same time, hold any other office of emolument. 9. That, inasmuch as Courts of Civil Appeals exist by virtue of express provisions of the Constitution and statutes, with certain definitely prescribed judicial powers and duties, the Legislature, whether acting directly or through delegated authority, has no power to invade those courts and take therefrom duly elected or appointed qualified and acting justices thereof, and impose upon them, either as such justices or as individuals, additional conflicting powers, and require of them, at the State Capitol, which in all instances save one is far removed from the location of their respective Courts of Civil Appeals, the exercise of powers and the discharge of duties which in nowise are related to the constitutional or statutory jurisdiction or powers or duties of Courts of Civil Appeals, or of members thereof, and which materially interfere with the proper exercise of powers and the efficient discharge of duties which the' Constitution and laws have imposed upon them as members of those high appellate tribunals, such legislative action constituting an unwarranted invasion of their rights and privileges as members of those courts. 10. That the Legislature shall not deny to litigants in the Supreme Court the exercise, by that court, in their eases, of the supreme judicial power which exists in that court only, nor deliberately, and for extended periods of time, deprive litigants in any Court of Civil Appeals of the services and judgment of the chief justice or of an associate justice of that court. The above mentioned plain and undeniable features of the fundamental law of the land—embodying basic principles of our entire judicial system—should be kept in mind in studying said relief Act, and by them its validity should be tested; and, if it be found or held valid in the light of those principles, its terms and provisions should be construed and applied. For the sake of perspective, certain salient features of said relief Act are outlined, just here, consideration of details being reserved, for convenience, to subsequent portions of this discussion. A. Its purpose is “to relieve the crowded condition of the dockets of the Supreme Court/5 and to prevent “delays, often amounting to a denial of justice, in the disposition of business in the Supreme Court, owing to the accumulation of more work than can be done by the judges thereof.55 Caption; sec. 8. B. Toward that highly laudable objective it moves along converging lines, as follows: . (1) “By further regulating the mode in which and the conditions on which judgments of the Courts of Civil Appeals may be brought before the Supreme Court for revision.55 The “mode55 of the appeal to the Supreme Court, so further regulated, is the long established statutory appeal by means' of a petition or application for a writ of error, Revised Statutes, article 1540 et seq., not embracing presentation of cases upon “certified questions.55 Rev. Stats., art. 1619. The newly added and more onerous condition precedent fox obtaining a “revision55 (caption), or a “review55 (sec. 1) by the Supreme Court, of any such appealed case,—or, in other words, for securing “the admission of the cause into the Supreme Court55 (sec. 4), for consideration and review by that court, upon its merits,—is that such application shall first be granted. Sees. 1 and 4. (2) By creating two additional instrumentalities or agencies which may pass upon all but an excepted few applications for writs of. error, “dismissing55 or “refusing55 or “granting55 same, the exercise of that power by one of those new agencies being contingent upon the authorized reference of the application. Caption; see. 3. Under the terms of the relief Act, the.power of dismissing, refusing, or granting such applications, which heretofore has been restricted to the Supreme Court, as a court, now may be exercised (a) by that court, as heretofore, or (b) by any two justices of that court, acting as such justices, and not as a court, in term time or in vacation, or (c) with certain stated exceptions, and contingently, by any three “designated justices of Courts of Civil Appeals/5 acting otherwise than as a court, in term time or in vacation. Secs. 5 and 3. C. The powers of said three several and distinct instrumentalities or agencies in relation to dismissing, refusing, and granting “applications55 upon which they, respectively, are authorized to act (excepting the power to act upon motions for rehearing thereon, which seems to be restricted to such “designated justices of Courts of Civil Appeals55 in cases so referred to them, see. 4) are, for the most part, co-ordinate, being largely incidental in nature and character, and having, in most respects, precisely similar legal and practical effects, viz: (1) Dismissal or refusal of an application for a writ of error has the primary effect of “denying the admission of the cause into the Supreme Court,” except that when such dismissal or refusal is by designated justices of Courts of Civil Appeals a motion for a rehearing may be filed and they may act thereon; and has, also, the ultimate effect of finally disposing of the appeal. Thereunder what, under our Constitution, is legislative power is to be exercised by each of said three instrumentalities or agencies, in determining whether a particular cause shall or shall not be admitted to the Supreme Court “for revision” upon its merits. Const., art. 5, see. 3; and judicial power