text:
    FREEMAN v. GARRETTS.
    (No. 2510.)
    (Supreme Court of Texas.
    June 30, 1917.)
    Master and Servant «&wkey;lll(l) — Ratlroads —Duty of Railroad to Keep Brake Beam Sajus.
    Negligence cannot be predicated upon a railroad’s failure to make car brake beam safe for a switchman to step on as the car approaches him standing on the track in order to ride the car while making a coupling, since such appliance is not only wholly unsuited for such improper use of it, but it is one which, from its nature, cannot possibly be made safe for such use.
    [Ed. Note.' — For other cases, see Master and Servant, Cent. Dig. §§ 215, 255.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by J. N. Gerretts against T. J. Freeman, receiver. Judgment for plaintiff was affirmed by the Court of Civil Appeals (153 S. W. 1163), and defendant brings error.
    Reversed and rendered.
    Baker & Baker, of Waco, and Wilson, Dab-ney & King, of Houston, for plaintiff in error. Tom Connally, of Marlin, and A. G. Greenwood and T. B. Greenwood, both of Palestine, for defendant in error.
   PHILLIPS, C. J.

J. N. Gerretts, the plaintiff in the trial court, was in the employ of the defendant receiver in his operation of a railroad and was injured while in the performance of his duties. The injury was occasioned by his attempting to mount a brake beam of an approaching box-car which was being backed toward him to be coupled to a stationary car upon the track. The plaintiff ,was standing in the track as the car slowly approached him; when it reached him he caught hold of the grab iron at the end of the car with his hand and placed his left foot upon the brake beam, which, as he testified, shifted or “sheared” to one side, throwing his right foot into such a position as to be caught by the wheel and injured. His purpose in attempting to get upon the brake beam was to ride the car so as to open the knuckle of the coupler upon it whereby the coupling with the stationary car might be made. The brake beam was constructed of angle iron, both ends turned up and hollow in the middle. It extended across the car from wheel to wheel, being about four and a half feet long, and four or five inches wide. At each end .was a shoe designed to fit against each wheel when the brake was applied, for the purpose of stopping the car. There was evidence that when properly adjusted the play of the beam to the side was about three-quarters of an inch. The negligence charged was a defective condition in the beam which permitted a much greater play to the side, preventing, it was claimed, the plaintiff’s safely mounting it.

The beam was not placed upon the car as a place to ride. It was. obviously and inherently dangerous when attempted to be used as a place whereon to mount from within the track an approaching car. There was proof of an express rule by the defendant against its use for such purpose. There was also proof ,of its frequent use by brakemen for that purpose. The plaintiff contends that this use was so habitual as to necessarily amount to notice of it by the defendant, and because of this it is urged that the defendant was under the duty of exercising care to see that the beam was maintained in a proper condition so that brakemen could safely use it for that purpose. The case was submitted under a charge embodying that theory, and upon such theory it is that the case rests.

There was a ladder at the end of the car on its left-hand side as it approached the plaintiff, also a stirrup extending down from the car beneath the ladder, which the defendant contends were placed there as places for the brakemen to ride when performing the duty in which the plaintiff at the time was engaged. There was no ladder or stirrup at the end of the car on its right-hand side as it approached the plaintiff. He was on the right-hand side of the track before taking the position on it from which he attempted to mount the car. This was necessary, he said, to enable him to signal the engineer of the engine pushing the car.

It apparently would have been impossible, on account of the intervening distance, for a man standing upon a ladder or stirrup on the side of the car at its end to reach around and open the knuckle of the coupler. While this was true, the Court of Civil Appeals found that the plaintiff could have performed the particular duty without getting on the brake beam — either by running ahead the slowly moving car and adjusting the knuckle before it reached the other car, or by giving a signal and causing the car to be stopped while he adjusted the knuckle for the coupling.

It was not possible, in our opinion, for this brake beam to be kept in a condition which would render it safe as a place for one standing upon the track to mount an approaching car. It must be recognized, .we think, that it was the most dangerous means that could be used in an attempt to mount a car in that situation. Being constructed, as it was, of angle iron, with the ends turned up and hollow in the center, it is apparent that it furnished practically no surface for the foot, but only a narrow ledge for it to rest upon. Unless the foot struck it squarely in attempting to mount it with the car approaching, there was every likelihood that the foot would slip to one side, causing the loss of balance. This danger would be inevitably increased by the fact that the beam, to be serviceable for the purpose for which it .was constructed, was required to have some play both to the side and for forward and backward movement. It was plainly a highly dangerous instrumentality for the use which the plaintiff sought to make of it, — a use for which it was in no sense designed, and to which it could not be safely adapted, however perfect its condition as a brake beam. To say that the defendant was under the duty of keeping such an instrumentality safe as a place to mount an approaching car, would practically require the impossible. The law, with all its regard for the rights of others, does not exact the impossible of any man. It is supposed to be founded upon reason and fairness. Unless it possesses inherently those elements, it does not deserve the name of law and is not the law. It would be manifestly unjust to hold anyone to the duty of making an appliance safe for a given purpose, which, whatever the prudence exercised, could not be made safe for that purpose. We think this is true of a brake beam attempted to be used as the place for mounting an approaching car; and we therefore hold that negligence could not be predicated upon the defendant’s failure to make this brake beam safe for such use by the plaintiff upon the occasion which caused his unfortunate injury.

It is a universal rule that an employer is not .liable for an injury to the employé which results from the latter’s putting an appliah.ee to a wholly improper use. It is recognized that this rule is, in general, subject to qualification where it appears that it was customary for the appliance to be put to the improper use and the employer knew of such custom. But this qualification can have no application to an appliance which is not only wholly unsuited for the improper use which causes the injury, but is one which, from its nature, cannot possibly be made safe for such use.

To test this question, let it be supposed that this defendant had required the plaintiff and other employés to use the brake beam as the means for mounting an approaching car. Could it be doubted that that would be a negligent act of the most aggravated character? 'It would have amounted to a crime. Should he be held to the duty of doing that which, if done voluntarily, would subject him to just condemnation and penalty? Yet, to impose a requirement that a brake beam be kept in good repair so as to afford it as a means for mounting an approaching car, simply means in its effect that if it is kept in such repair the employer has acquitted himself of his full duty to his employés in this regard, and is at liberty, not only to invite that use of it, but to require it. The same rule which laid the duty would exempt from liability its performance. The result would be a license through the law for an employer to furnish to his employés for this purpose an instrumentality whose use, however perfect its state of repair, could not but constantly threaten them with loss of limb or life. We are not willing to subscribe to suela a doctrine. It seems to us that it would commit the law to countenance of a wrong rather than the protection of a right. With evidence of the existence of an express rule forbidding the use of a brake beam as the means of mounting an approaching car, — a rule manifestly intended for the protection of the employés, — we decline to hold that even its persistent violation would serve to impose upon the defendant a duty which he could not in reason discharge, and which, if performed to the fullest possible extent, would in its substantial operation compel him to invite injury to his employés.

If there were anything in this case showing that the plaintiff was required by the defendant to use the brake beam for the purpose to which he attempted to put it, the elements of actionable negligence would be fully presented. But such is not the case. The plaintiff’s attempted use of it was purely voluntary, and, as found, by the Court of Civil Appeals, its use was not necessary to the work in which he was at the time engaged.

It is sought to justify his use of the beam ■ by the claim that there was no other place upon the car where he could ride and open the knuckle of the coupler while the car was in motion. It may be true that this was the condition, but we think this contention is disposed of by the patent finding of the Court of Civil Appeals that the use of the beam was not necessary for the purpose of opening the knuckle.

Reliance is placed by the plaintiff upon Railway Co. v. Keith, 58 Tex. Civ. App. 323, 124 S. W. 695, decided by the Court of Civil Appeals for the Sixth District, in which a recovery by the plaintiff was sustained and a writ of error was refused. There an em-ployé attempted to mount a moving box-car upon and from the side by placing his foot against the end of the brake beam, which because of an alleged defective condition gave way and caused him injury. There was a finding that the employer knew of the customary use of the brake beam in that manner and for that purpose. We think there would be some difference between the degrees of danger attendant upon an effort to mount a moving car from its side and. upon its side by placing the foot against the end of the beam, and an attempt to get upon the beam from inside the track with the car squarely approaching the person making the attempt. But aside from this, an inspection of the petition for writ of error in that case discloses that no contention was made that negligence could not be predicated upon a failure to keep the beam in a condition safe for the use to which the plaintiff there put it. The position of the plaintiff in error in that case presented in this court was (f) that the beam was not defective, and (2) if it was, that there was no evidence showing it to have been negligent in not discovering the defect and remedying it prior to the injury.

In Railway Co. v. Anderson, 118 S. W. 1113, the same Court of Civil Appeals determined that an employé attempting from within- the track to mount an approaching car by means of the brake beam, — as the plaintiff here attempted to do, was guilty of contributory negligence as a matter of law, although there was shown a customary like use by employes of the brake beam for that purpose, and notwithstanding the urgent contention of the plaintiff, as is likewise here made, that he could not signal the engineer from the ladder on the left-hand side of the car, and, further, that he could not see ahead from the ladder on the right-hand side. Under a petition directly attacking this holding, a writ of error was refused by this court. If the mere attempt to so use the brake beam, amounted to negligence per se, negligence could not be predicated upon a failure to keep it in a condition proper for such use.

Upon a careful consideration of the case, we are convinced that the receiver was not liable under the law. The judgments of the District Court and Court of Civil Appeals are therefore reversed, and judgment is here rendered for the plaintiff in error.

YANTIS, X, absent.
      <&wkey;For other cases see same topic and .KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HAWKINS, J. PIA WHINS, L,

license: Public Domain

text:
    WHITE v. WHITE.
    (No. 2858.)
    (Supreme Court of Texas.
    June 30, 1917.)
    1. Jury <&wkey;>ll(5) — Right or Trial by Juey— United States Constitution.
    The Constitution of the United States does not expressly guarantee the right of trial by jury in any state court in any character of case.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 23.]
    2. Insane Persons <&wkey;7 — Proceedings to Determine Insanity — “Insanity.”
    Proceedings to determine insanity are of a civil, not a criminal nature, for “insanity” is not a crime; in contradistinction, it is a disease.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 15.
    For other definitions, see Words and Phrases, First and Second Series, Insane.]
    3. Jury <§=11(5) — Seventh Amendment — Application to State.
    Const. U. S. Amend. 7, relates only to trials in the courts of the United States.
    [Ed. Note. — For other eases, see Jury, Cent. Dig. § 23.]
    4. Constitutional Law t&wkey;313 — Due Process — Jury Trial.
    Const. U. S. Amend. 14, is not necessarily violated by an act substituting a commission for a jury in determining sanity, provided such provisions are in accord with the due course of law of the land.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 933.]
    5. Insane Persons <&wkey;18 — Jury <&wkey;10 — Inquisition — Constitution — “Trial by Jury.”
    There being under statute a right to jury trial in lunacy proceedings at date of the adoption of Const, art. 1, §§ 15, 19, and 29, providing that “right of trial by jury shall remain inviolate,” etc., Acts 33d Leg. c. 163, amending Rev. St. 1911, arts. 107-165, substituting a commission for a jury in such proceeding, is invalid, for a trial by jury means something more than a hearing before such a commission, and in civil eases it means a due and orderly trial before the statutory number of men, properly qualified for 'such jury service, impartial, residing within the jurisdiction of the court, drawn and selected according to statute, duly impaneled under the direction of a court of competent jurisdiction, and sworn to render an impartial verdict according to the law and the evidence, the hearing to be in the presence and under the supervision of a court duly authorized and empowered to rule on the evidence, and, except in courts of justices of the peace, to charge on the law of the case, and to set aside the verdict if, in the opinion of the court, it is contrary to the law and the evidence.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. § 27; Jury, Cent. Dig. §§ 15, 16, 27%.
    For other definitions, see Words and Phrases, First and Second Series, Trial by Jury.]
    6. Evidence &wkey;>63 — Presumption of Sanity.
    Failure of respondent in lunacy proceedings to deny in habeas corpus proceeding brought by her that she is a lunatic was of no consequence; the presumption of law being that she was of sound mind.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 83.]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Habeas corpus by Lillie White against J. A. White and others. Judgment of the Court of Civil Appeals (183 S. W. 869) modified the lower court’s order denying relief, and J. A. White brings error.
    Modified and affirmed.
    T. A. Falvey, C. W. Croom, Waters Davis, J. M. Goggan, and Breedlove Smith, all of El Paso, for plaintiff in error. Hudspeth & Dale, of El Paso, for defendant in error.,
   HAWKINS, J.

Is the lunacy statute which was enacted by the Thirty-Third Legislature (Acts 1913, e. 163, pp. 341-347) amending chapter 1, tit. 10, B.. S. 1911, unconstitutional? That is the main question in this habeas corpus proceeding, in which the district court of El Paso county, Thirty-Fourth judicial district, upheld said act as valid, but in which our Court of Civil Appeals for the Eighth Supreme Judicial District declared it void. 183 S. W. 369.

Under the provisions of said act, and upon the unanimous report of “six commissioners,” all of whom were physicians,- and without a trial before a court or a common-law or a statutory jury, defendant in error, Mrs. Lillie White, wife of plaintiff in error, was adjudged by the county judge of El Paso county to be a lunatic; the judgment ordering that she be conveyed to one of the lunatic asylums of the state for restraint and treatment. Thereafter, under an approved statutory bond of the husband and his sureties, it was ordered that she be delivered “into the care and custody of the said J. A. White as provided by law.”

Subsequently her attorney filed and presented to said district court her petition for a writ of habeas corpus, alleging that she was being illegally restrained of her liberty and confined by the sheriff, the constable, and said J. A. White, by'- virtue of proceedings instituted under said act, in said county court, and before the county judge of El Paso county, and that said act is null and void, in that it is “violative of the provisions of the Constitution of the United States prohibiting the .taking of life, liberty, or property without due process of law, and violative of the provisions of the Constitution of the state of Texas guaranteeing to your petitioner that her liberty shall not be taken from her without due process of law, and guaranteeing to her the right of trial by jury, as contemplated by the framers of the Constitution.”

The writ issued. J. A. White answered, stating, in substance, that pursuant to said proceedings in lunacy and bond, relator, his wife, was then in his custody “under reasonable restraint for the purpose of having her cared for and treated for her mental disorder and restrain her from committing injury to herself or others,” and that “she is in fact of unsound mind, and liable, if not restrained, to do herself and others great injury.”

The record sets out no answer by the sheriff or constable; however, the order denying the writ recites that they and J. A. White made due return of said writ, and, as the opinion of the Court of Civil Appeals states:

“It was developed on the habeas corpus hearing that appellant was being guarded by deputies from Constable Montoya’s office, Montoya having answered that he held appellant by virtue of a warrant for her arrest issued out of the justice. court of said county.”

Upon the heating relator was remanded to the custody of her husband; whereupon she appealed to said Court of Civil Appeals. Therein her attorneys insisted that said act. is unconstitutional for the reasons above mentioned, and because it attempts to confer judicial power upon said commissioners, and that therefore appellant should be set at liberty. J. A. White there contended: First, that said act is valid; and, second, that even if it is unconstitutional, it was the duty of the district court to affirm the judgment which declared respondent to be a lunatic, “as it appeared from the respondent’s answer to the writ of habeas corpus (which was not controverted or impeached) that the applicant was insane, needed restraint, and was being restrained and cared for by her husband for the protection of herself and the public.”

That court held, in substance: (1) That, in their relation to jury trials, the Sixth, Seventh, and Fourteenth Amendments are inapplicable; (2) that the “judicial power” of the state is not lodged in the “commission” prescribed by said act in such manner or extent as to render the statutory proceedings invalid as not affording “due process of law” or “due course of the law of the land”; and (3) that the notice prescribed by said act was sufficient, but that said act denied the right of “trial by jury” guaranteed by section 15, art. 1, of our state Constitution, that right having previously existed. However, holding that a proper affidavit charging defendant in error with insanity had been filed, that court so modified the judgment below as to remand her to the sheriff of the county of her residence for a reasonable time, for proceedings under the old law, and, as so modified, affirmed it. A motion for a rehearing was overruled, and the husband appealed to this court.

The case presents here no issue as to the regularity of the proceedings if the statute is valid. The questions for our decision are these:' (1) Is the act valid? (2) If the act be held void, what is the proper disposition to be made of Mrs. Lillie White?

The articles of the Revised Statutes which the act purports to amend relate to lunatic asylums and other asylums, and provide for restraint and care of insane persons, etc. The following presents the most material features of said amendatory act, some of its provisions being omitted:

Under the head of “Judicial Proceedings in Cases of Lunacy” it provides, in substance:

Article 150: For the institution of such proceedings by filing an affidavit “with any county judge” or “before any justice of the peace” charging that the person therein named is “a lunatic,” or is “non compos mentis,” and that the welfare of such person or of others requires that such person he placed under restraint or treatment, or that such person is “a convict confined in the state penitentiary,” such affidavit, if made before a justice of the peace, to be transmitted to the county judge, and for issuance of a writ for the apprehension of such person, returnable to the county judge, and for docketing the affidavit on the probate docket as an ex parte proceeding, naming such person as respondent.
Article 151: Eor the style and address of the writ, and for service thereof by reading it to the person named therein and by delivering a copy thereof to such person, and also for taking him into custody, and for having- him at such times and places as may be directed by the commission provided for, unless some other person shall, by bond, undertake his care and restraint and his appearance throughout such proceedings, etc.
Article 152: Por appointment by the county judge of “a commission to be composed of six persons * * * which * * * shall investigate and determine the allegations in said affidavit,” to be composed in whole or in part of physicians, in a stated ratio to the population of the county, except that “in any county as many of said six commissioners shall be physicians as may be possible for the county judge to obtain thereon, regardless of population.”
Article 153: Por administration to such commissioners of an oath to make due investigation into the allegations contained in said affidavit and a true report thereof.
Article 154: For organization of such commission by election, by its members, of one of them as chairman, whereupon they shall “proceed to enter upon an investigation of the allegations of said affidavit,” a majority to fix “places and times of hearing any evidence they or either of them or their counsel, may desire thereon,” and for issuance of process for witnesses.
Article 155: That the county attorney shall appear and represent the affiant; that the respondent shall also be entitled to counsel, and if' the respondent has no counsel, the county judge shall appoint counsel for him; and that the commission shall notify such counsel of all times and places fixed for the hearing of testimony.
Article 156: That “said commission need not remain together at any time, but a majority of same must be present at the hearing of any testimony, * * * but each member of said commission shall personally examine the respondent”; that each commissioner shall have power to administer oaths, compel attendance of witnesses and punish for contempt, for punishment of false swearing or perjury before said commissioners or either of them, and that said commission “shall conclude its investigation within ten days from its organization, and, upon finishing its investigation as determined by a majority thereof, shall file with the county clerk a report of its findings, which report shall be read by the county judge to the respondent in the presence of a majority of said commission, and which report shall state (a) whether or not the respondent is of unsound mind, and (b) if the respondent is of unsound mind whether or not he should be placed under treatment for such mental condition, and (c) if he is of unsound mind, whether or not he should be placed under restraint; and if the findings of the commission, or a majority thereof, are as to the preceding matters in the negative, nothing further in the report shall be made; but if the first and either one of the second and third matters are in the affirmative, by said commissioners or a majority thereof, then the report shall further show (d) the age and nativity of the respondent; and (e) a general summary of the nature, extent and duration of such person’s mental unsoundness and (f) whether or not insanity is hereditary in his family, and (g) whether or not the respondent is possessed of any estate exempt from forced sale, and if so, of what it consists, and its estimated value, and if the report shows that the respondent is possessed of no estate exempt from forced sale, it shall further show what persons there are, if any, who are liable for his support; and such report shall contain (h) such further observations as a majority of the commission may deem pertinent.”
Article 159': That “if subdivisions a, b, and c of such report be concurred in by a majority of said commission, judgment shall thereupon be pronounced by the county judge in the presence of the respondent, as follows: If the majority report shows that the respondent is not of unsound mind, or that he is of unsound mind but that it is not necessary that be he placed under treatment or restraint, the county judge shall pronounce judgment that the respondent be discharged. If subdivisions a, b and c of said report be concurred in by a majority of said commission and such report shows that the respondent is of unsound mind and that he should be placed under treatment or restraint, judgment shall be pronounced, in the presence of respondent, adjudging the respondent to be a lunatic and ordering him to be conveyed to one of the lunatic asylums of the state for restraint and treatment. If three of said commissioners report one way on subdivisions a, b and c, and three report the other way, the county judge shall pronounce judgment in the presence of respondent that the respondent be discharged. Whatever judgment (that) is pronounced shall be entered by the county judge on the docket in such proceeding.”
Article 160: That “if the report of a majority of said commissioners shows that the respondent is possessed of an estate exempt from forced sale, or that some person is legally liable for his support the county attorney shall at any time thereafter, upon the request of the superintendent of any lunatic asylum of the state, cite the guardian of the estate of such lunatic, or other person liable for his support, to appear at some regular term of a court of the county of such adjudication having jurisdiction of the amount involved, then and there to show cause why the State should not have judgment for the amount due it for the support and maintenance of such lunatic; and if sufficient cause be not shown, judgment may be entered against such guardian or person so cited for the amount found to be due the state, which judgment may be enforced as in other cases. 'The state in such cases shall in no instance recover more than five dollars per week for the support and maintenance of any lunatic, and the certificate of the superintendent of the lunatic asylum as to the amount due the state shall be sufficient evidence to authorize the court to render judgment.”
Article 161: For conveyance of the respondent to some specified lunatic asylum of the state, or for his care and treatment by some other person under bond and for setting aside the judgment of lunacy when such lunatic is discharged from the asylum as cured.
Article 163: For fees in stated amounts to be allowed by the commissioners’ court, of county clerk, sheriff or constable, county attorney, counsel appointed for respondent, of each “commissioner,” of the person conveying the lunatic to the asylum, and of the guards and female attendant if any, “provided that such fees shall not be allowed except to the commissioners, unless the respondent has been adjudged insane.”
Article 164: That the amount of said fees be reimbursed to the county out of the estate of the respondent when the report of the commissioners shows that he is possessed of an estate exempt from forced sale, or by the person liable for the support of the respondent, and that “if same be not reimbursed to the county, then the county attorney shall cite the guardian of the estate of such lunatic, or other person liable for his support, to appear at some regular term of a court of the county of such jurisdiction, having jurisdiction of the amount involv-. ed, then and there to show cause why the county should not have judgment for -the amount of fees paid by the county in such lunacy proceeding; and if sufficient cause be not shown, judgment may be entered against such estate or other person so cited, for the amount _ of such fees so paid out by the county, which judgment may be enforced as in other cases.”

In addition to the effects of the adjudication that the respondent is insane, relating to payment of fees, support, etc., and by force of "Other and pre-existing statutes, under a valid judgment declaring a person insane, a guardian may be appointed to take charge of his estate, both real and personal, and, for certain purposes and under proper proceedings and orders of court, to sell all such property. A receiver of such property may be appointed. So long as such judgment remains in force, the person thereby declared insane cannot make legal disposition of his property. R. S. tit. 64; also article 3609. A lunatic may not vote. Const. Tex. art. 6, § 1. Nor is this list .of consequences complete. The act should be upheld by the courts unless it is clearly unconstitutional.

It is contended here, in behalf of defendant in error, that the act is repugnant to the Sixth, Seventh, and Fourteenth Amendments of the Constitution of the United States in that it denies the right of trial by jury.

The Constitution of the United States does not expressly guarantee the right of trial by jury in any state court in any character of case.

The Sixth Amendment is not applicable to this case, because it relates to (a) only criminal prosecutions (b) in courts of the United States. Brown v. New Jersey, 175 U. S. 174, 20 Sup. Ct. 77, 44 L. Ed. 119; West v. Louisiana, 194 U. S. 258, 24 Sup. Ct. 650, 48 L. Ed. 965.

Proceedings under said act of 1913 are of a civil, and not of a criminal, nature. Insanity is not a crime; in contradistinction it is a disease. Defendant in error was not ohaiged with any violation of law. Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Ex parte Singleton, 72 Tex. Cr. R. 122, 161 S. W. 123; In re Crosswell, 28 R. I. 137, 66 AtL 55, 13 Ann. Cas. 874. In the Legate Case it was said:

“It is the cause of restraint which determines whether the proceeding to remove the restraint be a criminal or a civil case.”

Likewise it is the nature of the complaint which determines whether the action is a civil or a criminal action.

The Seventh Amendment “relates only to trials in the courts of the United States.” Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678; Edwards v. Elliott, 21 Wall. 557, 22 L. Ed. 487; Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436; Ohio v. Dollison, 194 U. S. 447, 24 Sup. Ct. 703, 48 L. Ed. 1082; Bolln v. Nebraska, 176 U. S. 83, 20 Sup. Ct. 287, 44 L. Ed. 382.

The Fourteenth Amendment is not directly contravened by the provisions of the act which substitute a “commission” for a jury, nor do those provisions at all infringe upon it if they are in accord with the due course of the law of the land.

“A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship, which the states are forbidden by the Fourteenth Amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings.” Murray’s Lessee v. Hoboken L. & I. Co., 18 How. 280, 15 L. Ed. 372.

Due process of law is process according to the law of the land. This process in the states is regulated by the law of the state. See, also, Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232; Bolln v. Nebraska, 175 U. S. 83, 20 Sup. Ct. 287, 44 L. Ed. 382.

The validity of said act is assailed upon the additional grounds that it contravenes the following provisions of the Constitution of Texas:

“The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” Bill of Rights, art. 1, § 15.
“No citizen of this state shall be deprived of life, liberty, property, * * * except by the due course of the law of the land.” Id. art. 1, § 19.
“To guard against transgressions of the high powers herein delegated, we declare that everything in this ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.” Id. art. 1, § 29.

Under the quoted provisions of our Bill of Rights it is contended in behalf of the defendant in error that she was entitled to, but was denied, trial by jury. We sustain that contention. The right to a jury trial was not waived, but was asserted seasonably.

A trial by jury means something more than a hearing before a commission such as that prescribed by said act. With us in civil cases it means a due and orderly trial before the statutory number of men, properly qualified for such jury service, impartial, residing within the jurisdiction of the court, drawn and selected according to statute, duly impaneled under the direction of a court of competent jurisdiction, and sworn to render an impartial verdict according to the law and the evidence, the hearing to be in the presence and under the supervision of a court duly authorized and empowered to rule on the evidence, and, except in courts of justices of the peace, to charge on the law of the ease, and to set aside the verdict if, in the opinion of the court, it is contrary to the law and the evidence. Capital Traction Co. v. Hof, 174 U. S. 13, 19 Sup. Ct. 580, 43 L. Ed. 873, citing Opinion of Justices, 41 N. H. 550; 24 Cyc. 98.

A duly constituted jury is an “integral part of the court.” Mascall v. Com’rs, 122 Ill. 623, 14 N. E. 47, 24 Cyc. 98. Obviously the commission is not a jury. The statute does not so designate it. The manner of its selection and its composition are essentially different from, that of a jury, under other statutes, for the trial of other civil cases. The judge of the court does not rule upon the admissibility of the evidence, and, it seems, need not be present while it is being adduced. No one commissioner need hear all the evidence. Many of the functions of the commission are widely different from those of .a jury. The findings of the commission are final, and are conclusive of the issue as to the sanity of the respondent. They may not be set aside by the court or judge. Moreover, upon the findings of the commission, a judgment of a stated character must be entered ; and from such judgment the respondent can in no event appeal, and consequently cannot have a jury trial in the district court. Cockrill v. Cox, 65 Tex. 669. The right to trial by jury is one which from time immemorial has been distinctly recognized in the jurisprudence of many nations. As it exists with us, it is traced through Magna Charta. Blackstone’s Coin.; Proffatt’s Jury T. § 24; 24 Cyc. 101. Ever since that pre-ex-istent right was enshrined, in substance, in that bulwark of human liberty, it has held a sacred place in English and American history, and has been embodied, in one or another form, in the organic law of every American state; yet in certain respects its precise scope and effect, as worked out and declared by the courts of various states, has been far from uniform, and especially is that true in its relation and application to persons of unsound mind. The fundamental and settled principle of construction relative to constitutional guaranties of the right of trial by jury have been succinctly stated thus:

“The provisions of the state Constitutions, however worded, are uniformly construed as not conferring a right to a trial by jury in all classes of cases, but merely as guaranteeing the continuance of the right unchanged as it existed cither at common law or by statute in the particular state at the time of the adoption of tho Constitution. In cases where the right existed prior to the Constitution, it cannot be denied, and this applies to cases of a similar character arising under statutes enacted subsequently to the adoption of the Constitution.” 24 Cyc. pp. 101, 102, and cases cited.

Under said provisions of our state Constitution, and especially under the provision that “the right of trial by jury shall remain inviolate,” which language has formed a part of every Constitution of this state and of the Constitution of the republic of Texas as well, and of many Constitutions o-f our sister states, with a well-established import and meaning, the defendant in error clearly was entitled to a trial by jury, in the full constitutional sense, if that practice prevailed in this state, according to then existing laws, at the time of the adoption of said provisions as portions of our present state Constitution of 1876.

In Cockrill v. Cox, supra, the rule was stated thus by this court through Mr. Justice Robertson:

“A provision preserving the right of trial by jury, expressed in substantially the same language, it is said, is to be found in all the state Constitutions, and it has been uniformly construed to perpetuate the right in the cases in which it exists, under the laws in force and practice prevailing at the date of the adoption of the particular Constitution. Cooley, Const. Lim. 506.”

See, also, Taylor v. Boyd, 63 Tex. 541; Railway v. Morris, 68 Tex. 49, 3 S. W. 457; Tolle v. Tolle, 101 Tex. 33, 104 S. W. 1049; Davis v. Davis, 34 Tex. 24; Doving v. Hazelwood (Civ. App.) 184 S. W. 355; Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102; Sporza v. Bank, 192 N. Y. 8, 84 N. E. 406; State v. Holtcamp, 235 Mo. 232, 138 S. W. 521; Elks Inv. Co. v. Jones (Mo.) 187 S. W. 74; Ex parte Dagley, 35 Okl. 180, 128 Pac. 699, 44 L. R. A. (N. S.) 389; Tabor v. Cook, 15 Mich. 322, and cases cited; In re Moore, 72 Cal. 338, 13 Pac. 880; 31 Cent. Dig. p. 183, § 15, and eases cited.

Under the law of this state and the practice as they existed when the above-quoted provisions were embodied in and adopted as portions of our present state Constitution, one charged with insanity was, it seems certain, entitled to and was given a trial by jury. At common law trial upon a charge of insanity was before a jury. Bus well on Insanity, p. 35; 2 Maddock’s Chan. 728. See Shumway v. Shumway, 2 Vt. 341, and Howard v. Howard, 87 Ky. 616, 9 S. W. 411, 1 L. R. A. 610, wherein that procedure is explained.

“The common law of England (so far as it is not inconsistent with the Constitution, or the Acts of Congress now in force)” was adopted by the Congress of the republic of Texas by act of January 20, 1840, and has been in force in this state ever since. Laws 1840, p. 1; 2 Gam. Laws, 177; Grigsby v. Reib, 105 Tex. 600, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011.

The act of the Congress of the republic of Texas approved December 20, 1836, “organizing the inferior courts,” etc., authorized -the Chief Justice of the county to hold a probate court (section 25), and to appoint “guardians to minors, idiots, and lunatics” (section 24), and provided for appeals from all decisions or orders of the probate court to the district court (section 26), and declared that “the common law of England, as now practiced and understood, shall, in its application to juries and to evidence, be followed and practiced by the courts of this republic, so far as the same may not be inconsistent with this act, or any other law passed by this Congress” (section 41). Acts 1836, pp. 153-157; 1 Gam. Laws, 1213-1217.

The act of December 22, 1836, “establishing the jurisdiction and powers of the district courts,” provided for the drawing of juries therein. Laws 1836, p. 207; 1 Gam. Laws, 267. It may be presumed that it was contemplated that they would be called to act in cases as at common law.

The act of February 5, 1840, “regulating the duties of probate courts,” etc., authorized those courts “to appoint guardians for idiots, lunatics, and persons non compos mentis, on full proof” (see section 54), and relieved guardians of the necessity for giving bond on appeal (section 58). Acts 1840, pp. 128, 129; 2 Gam. Laws, 302-303. That status seems to have existed down to the passage of the act of March 20, 1848, which specifically directed the Chief Justice of the county to “cause twelve competent jurors of the county to be summoned, who shall be sworn to inquire and a true verdict render, whether such person is of sound mind or not.” Acts 1848, c. 159; 3 Gam. Laws, 295. The same provision, substantially, was incorporated into section 8 of Act Feb. 5, 1858, c. 93, as follows:

“If information in writing be given to any chief justice of a county, that any person in his county is an idiot, or lunatic, or non compos mentis, and that the welfare of himself or of others, requires that he be placed under restraint, and said chief justice shall believe such information to be true, he shall order such person to be brought before him, and twelve competent jurors of the county to be summoned, who shall be sworn to inquire and a true verdict render, whether such person is of sound mind or not; whereupon, the matter shall be tried, and if the jury shall return a verdict that ■ the person is not of sound mind, and that he should be placed under restraint, the same shall be recorded, and the chief justice shall thereupon order him to be sent to the lunatic asylum,” unless bond be given, etc. 4 Gam. Laws, 989. of a probate court; they shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, * * * transact all business appertaining to 'estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and commop drunkards” (article 5, § 16), and that “a jury in the county court shall consist of six men” (article 5, § 17).

No change .as to jury was made by the amendatory acts of December 16, 1863 (5 Gam. Laws, 697), and November 13, 1871 (Laws 1871 [2d Sess.] p. 24; 7 Gam. Laws, 26). Thus the situation stood, it seems, on February 15, 1876, when the people ratified our present Constitution, and as portions thereof its above-quoted provisions.

Shortly afterward, by act of August 15, 1876, the county courts having been reorganized, the Legislature amended the above-quoted portions of section 8 of said act of 1858 by substituting the words “county judge” for the words “chief justice” and by making some unimportant changes in phraseology, but retaining the requirement that the issue be tried by “twelve competent jurors.” Acts 1876, c. 95, § 1; 8 Gam. Laws, 974. In connection with said change it should •be remembered that our then recently adopted Constitution provided that “the county court [s] shall have the general jurisdiction

Whatever else may have been the effect of that legislative action retaining at “twelve” the number of jurors in such cases, it emphasizes the here now important fact that under the pre-existing laws of Texas trials of such insanity cases had been by juries. By the Revised Statutes of 1879 the number of jurors in such cases was reduced to six. Article 108. That change probably was in deference to said section 17 of article 5.

Upon the whole careful investigation has led us to the conclusions that the foregoing reflects the status of our laws upon the subject at the dates mentioned, and that at the time of the adoption of the quoted provisions of our present Constitution, as portions of that instrument, persons charged with insanity were entitled to a trial by jury, and consequently substantially the same pre-exist-ing right of trial by jury in insanity cases is perpetuated by our organic law and now exists in this state. Whether that right goes to the extent of placing twelve men upon the jury or is fulfilled by a jury of only six men is a question the decision of which is not material to the disposition of this appeal, inasmuch as the act here under consideration neither provides nor allows in such cases any jury whatever. To practically the same effect, regarding the above-mentioned early laws of Texas, was the decision of the Court of Civil Appeals in this case, and also the decision of’ our Court of Civil Appeals for the Seventh Supreme Judicial District in Loving v. Hazelwood, 184 S. W. 355, now pending in this court.

Our conclusion as to the effect of our Constitution, under the stated circumstances, finds strong support in the decisions of various states.

In Shumway v. Shumway, 2 Vt. 339, upholding the right of an appeal from a decree appointing a guardian of a person of unsound mind, it was said:

“It would be dangerous in the extreme to give courts of probate (which can have no jury) final jurisdiction of causes of such vast importance as it respects the liberty and happiness of our citizens. * * * We find from an examination of the authorities that the inquisition is only presumptive evidence of lunacy or insanity, and that a traverse of it is a right by law, and may be sent to a court of common law to be tried by a jury. * * *
“The foregoing principles are clearly established in Maddock’s Chancery, pp. 729, 731, 737, 738; also in 3 Atkins, p. 184, and 1 Vesey Jun. 455.”

In Pennsylvania it was declared:

“No man can be deprived of his liberty without the judgment of his peers and it matters not to the law whether the alleged cause of detention -is insanity or crime.” Com. v. Kirkbride, 2 Brewst. (Pa.) 419.

In an action to cancel a deed for mental inoompetency of the grantor, it was held that, in accordance with tbe principles and practice of tbe common law, tbe issue as to tbe grantor’s sanity “should be settled by bis peers — a jury of bis country.” Howard v. Howard, 87 Ky. 616, 9 S. W. 413.

Tbe right of jury trial in such cases was upheld in Smith v. People, 65 Ill. 375, and in Hamilton v. Traber, 78 Md. 34, 27 Atl. 229, 44 Am. St. Rep. 258.

“Tbe mere fact of the existence of insanity cannot of itself take away or abridge the civil rights of the subject, since under a constitutional government no man can be deprived of his ■liberty without the judgment of his peers; and it matters not to the law whether the alleged cause ^of his detention be insanity or crime.
“It being admitted that under a constitutional government no person is to be deprived of his personal liberty or of his power to enter into contracts binding himself or his property without due process of law, the Conclusion follows that no person can lawfully be declared insane, his personal liberty restrained, and the control and management of his property taken from him by a judicial determination of the issue of insanity vel non, unless, upon the original trial of the issue, or an appeal therefrom, such person may, as matter of right obtain the verdict of a jury upon the facts and evidence produced. This is a rule recognized by the English law, Lord Eldon having laid it down as unquestionable that the crown has not in England the power of taking upon itself the care of any individuals, either as to their persons or property, on the ground that they are of unsound mind, without tbe verdict of a jury, citing Shelf. Lun. 35, 60; Bryce v. Graham, 2 Wils. & Shaw, 481, 517. The rule is believed to be supported by the weight of authority in the United States.”

Buswell, Insanity, §§ 19 and 24.

None of tbe authorities cited in behalf of the plaintiff in error seems to us of very serious weight or controlling force on tbe issue as to tbe right of a trial by jury.

Tbe constitutionality of said act was attacked in a habeas corpus proceeding in our Court of Criminal Appeals, an'd therein a majority of that court said:

“If we could properly decide the question, we might hold the act constitutional” — citing various cases hereinbelow mentioned. Ex parte Singleton, 72 Tex. Cr. R. 122, 161 S. W. 123.

But the point was not decided; that court bolding that it was without jurisdiction over tbe case.

In Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102, tbe right which was denied was that of a jury trial in a habeas corpus proceeding. Tbe reasoning therein supports our views herein. The next preceding statement is true of Dennee v. McCoy, 4 Ind. T. 233, 69 S. W. 858, and of Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873.

The decisions in Black Hawk Co. v. Springer, 58 Iowa, 417, 10 N. W. 791, Chavannes v. Priestley, 80 Iowa, 361, 45 N. W. 766, 9 L. R. A. 193, and In re Bresee, 82 Iowa, 573, 48 N. W. 991, were under the Iowa Constitution, which provided that “no person shall be 'deprived of life, liberty or property without due process of law.” Const, art. 1, § 9. They all rest substantially upon the propositions: (a) That said provisions applied “only to criminal prosecutions or accusations for offenses against the criminal law, where it is sought to punish the offender by fine or imprisonment”; and (b) that “the inquest of lunacy by a board of commissioners is in no sense a criminal proceeding.” The right of trial by jury guaranteed by our Constitution is not so restricted.

In Dowdell, Petitioner, 169 Mass. 387, 47 N. E. 1033, 61 Am. St. Rep. 290, the decision concerning the right of trial by jury related to only said fourteenth amendment. The court said:

“It has been declared repeatedly that the phrase ‘due process of law’ does not of itself require a trial by jury in states where the usage and statutes are otherwise. Montana Co. v. St. Louis Co., 152 U. S. 160, 171 [14 Sup. Ct. 506, 38 L. Ed. 398]; Hurtado v. California, 110 U. S. 516 [4 Sup. Ct. 111, 292, 28 L. Ed. 232]; Walker v. Sauvinet, 92 U. S. 90 [23 L. Ed. 678].”

In Kansas v. Linderholm, 84 Kan. 603, 114 Pac. 857, the jury in the probate court, and also the jury in the district court, consisted of four persons, one of whom was a physician, as prescribed by statute. It was held that the right of trial by jury had not been violated. The status of the law and practice in such matters prior to- the'adoption of the Kansas Constitution is not shown.

In Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165, which arose under an Alabama statute, the court said:

“We accept as conclusive the ruling of the Supreme Court of Alabama that the jury which passed on the lawful issues in the lunacy proceeding was a lawful jury.”

In re Chow Goo Pooi (C. C.) 25 Fed. 77, was a case in which the relator was held not entitled to a jury trial, the act of Congress authorizing his extradition involving an exercise of the police power not involving punishment. By the terms of the act the order is to be made, not by any court having power to summon a jury, but “before some justice, judge, or commissioner of a court of the United States.”

In re Clark, 86 Kan. 539, 121 Pac. 492, 39 L. R. A. (N. S.) 680, Ann. Cas. 1913C, 317, was a habeas corpus case in which the relator, as defendant in a prior criminal case, had been found by the jury to be insane. The court held that he had received the benefit of due process of law, citing In re Brown, 39 Wash. 160, 81 Pac. 552, 1 L. R. A. (N. S.) 540, 109 Am. St. Rep. 868, 4 Ann. Cas. 488, which is to the same effect.

In the matter of William Ross, 38 La. Ann. 523, arose under a statute which provided that the person represented to be a lunatic should be brought before the judge at chambers, and if, after inquiry, the judge found that such person should be sent to the insane asylum, lie should make out his warrant addressed to the sheriff 'directing him to convey such person to such asylum.

Upon habeas corpus proceedings it was contended that the judge had no right to hear and determine at chambers, and that the trial and decision of the matters were without “due process of law.” Held, the relator had not been denied 'due process of law. No issue seems to have been made upon the point that the trial was without a jury. If the Louisiana Constitution declared that “the right of trial by jury shall remain inviolate,” that fact is not disclosed by the report of the case, nor 'does it show the status of pre-exist-ing laws relating to trial by jury.

In Fant v. Buchanan (Miss.) 17 South. 371, it was held that a statute providing for a jury of six in inquests of lunacy did not conflict with the provision of the state Constitution that “the right of trial by jury shall remain inviolate,” nor with said fourteenth amendment. Therein the court said:

“The fact that the Code of 1880 provided for an inquest by six men, and was in force when the Constitution of 1890 was adopted, and conferred on the chancery court full jurisdiction in eases of idiocy, lunacy, and persons of unsound mind, is suggestive that the grant was made with reference to the manner in which the jurisdiction had been and was being exercised under the statutes of the state.”

It was held:

“The Legislature, in regulating the exercise of its jurisdiction by the chancery court to which a jury does not belong except as specially provided by legislation, might dispense with a jury or prescribe any number it pleased, without violating any provision of the Constitution.”

That reasoning as to the right of the Legislature to dispense with jury trials is not applicable to our judicial system and laws, and it is obnoxious to our Constitution when it is read in the light of pre-existing Texas laws relating to jury trials in lunacy cases.

In re Crosswell, 28 R. I. 137, 66 Atl. 55, 13 Ann. Cas. 877, was a case wherein it was held that “due process of law” was afforded by a statute which provided that an insane person might be placed in any hospital of a certain class upon a certificate from two practicing physicians of good standing stating that such person was insane, but making it the duty of the court, upon an application for a writ of habeas corpus thereafter, “to inquire and determine as to the sanity or insanity or the necessity of further restraint of the person confined at the time such application was made,” an’d further providing for a trial of issue before a jury, at the discretion of the court, and for his discharge from confinement “if it appears upon the verdict of a jury or in the opinion of the court, that such person is not insane or is not dangerous to himself or others, and ought not longer to be confined.” In so far as the right of a jury trial is not made absolute, that decision may conflict with our views; but the status of the law of that state with regard to juries in such cases prior to the adoption' of its Constitution, is-not shown.

The asserted right having existed at common law and in various' American states, and especially in Texas prior and down to the adoption of our present Constitution, so much of said act of 1913 as relates to a hearing before a commission, in lieu of the time-honored trial by jury, is invalid; and, inasmuch as that vice obviously permeates said entire act, we hold it void as a whole. The effect, of course, is to leave the old law in force.

Failure of defendant in error to deny in the habeas corpus proceeding that she is a lunatic is of no consequence; the presumption of law being that she is of sound mind. In re Phillips, 158 Mich. 155, 122 N. W. 554; note in 44 L. R. A. (N. S.) 119.

Necessarily defendant in error would be entitled to full liberty were it not for the fact that, in compliance with the requirements of the old law, an affidavit charging her with lunacy has been presented to the county judge. For further proceedings under R. S. 1911, art. 150 et seq., she should be remanded to the custody of the sheriff of El Paso county, and if such proceedings be not instituted within ten days after issuance of the mandate of this court, she should be released from all restraint.

The judgment of the Court of Civil Appeals is modified to the extent of fixing such definite time limit within which such further proceedings may be instituted, and, as so modified, it is affirmed.

YANTIS, J., absent and not sitting.

Addendum by

PIA WHINS, L,

only. Certain other questions are presented. It is true that decision thereof is not essential to a disposition of this appeal; nevertheless, inasmuch as they are constitutional in character and recurrent in nature, I think that they, too, should be discussed.

1. As to notice.

Due process of law requires due and reasonable notice in proceedings to determine whether a person is of sound or unsound mind. To that effect are reason and nearly all the authorities, although a few cases in other states hold such notice unnecessary as being valueless to an insane person, thereby assuming the very fact which is to be determined.

Such notice is not in express terms required by said act of 1913. However, in view of the requirements of the common law and our law and practice in regard to notice in other civil cases, and constitutional requirements relating to notice and an opportunity to prepare and to be present and to defend, I think that, in support of said act, it should be construed as contemplating that such due notice shall be given. That view is supported by many high authorities. The record in the case' at bar is such as to justify indulgence of the presumption that such notice was given.'

2. As to judicial power.

The judicial power of this state is vested, by our Constitution, in “courts,” except that in carefully enumerated matters and for specified purposes it is vested in certain justices and judges. Article 5. Said act apparently attempts to confer upon the county judge, rather- than upon the county court, jurisdiction and authority to perform the specified duties and to exercise the stated powers, including the pronouncement of judgment, under stated circumstances (article 159), and the entry of the order setting aside such judgment whenever the lunatic shall have been discharged from the asylum as cured and the superintendent shall so certify (article. 161). That impression is somewhat heightened, perhaps, by the fact that various earlier Texas laws on the subject, including those set out in R. S. 1911, appear much more clearly to- impose the more serious of those duties upon the county court as a court. Whether, under our Constitution, those powers validly may be conferred upon and exercised by the county judge, as a judge, and not as a court, is a question which seems to me to lie upon the face of the act, calling for consideration, although not specifically presented by the litigants; and upon that point my mind is not now fully satisfied. It may be that the law which the act of 1913 sought to amend is not fairly open to such possible objection; but, if it is, the point suggested may be best determined in proceedings based upon that old law.

However, regardless of the suggested distinction between the “county court” and the “county judge,” in the matter of the exercise of judicial power, it is clear to my mind that said act of 1913 practically places the exercise of such power, nót in the court, nor yet in the judge, but in the commission, and in the superintendent. The, act arbitrarily requires that the original judgment shall be of a certain prescribed character, and with stated legal effects, to be determined solely by the nature of the report of the commission ; and, under the stated conditions, such judgment may result in depriving the respondent of his liberty and of his property. Likewise the certificate of the superintendent controls the judgment of restoration. Evidently neither the report nor the certificate is merely to , aid the court or the judge in the exercise of judicial power.

The judgment is in every instance, indeed, pronounced by the court or the judge; but that, it seems to me, is purely formal, and in practical effect neither the court nor the judge really .exercises one whit more of judicial discretion and power than does the clerk who records the judgment. I do not believe that the prescribed procedure involves due exercise of judicial power within contemplation of said judiciary article 5, and for that reason, if for none other, I regard the entire act as invalid.
      ifc^For other oases see same tapie and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILDIPS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. BAILEY.
    (No. 9792.)
    (Supreme Court of Texas.
    July 2, 1917.)
    1. Commerce <@=310 — States — Power-to Regulate.
    In the absence of legislation by Congress, a state may prescribe its own rules in respect to particular subjects of interstate commerce which do not constitute a direct burden upon such commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Eig. § 8.]
    2. Telegraphs . and Telephones <@=27 —» Nondelivery oe Message — Law Governing.
    Measure of damages recoverable for breach of a contract for the nondelivery of an interstate telegraph message is governed by the law of the state from which the message is sent.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 80.]
    3. Evidence <@=380(1) — Laws of Sister State —Presumptions.
    Where no evidence is introduced as to the law of a sister state, it is presumed to be similar to the law of the forum.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101.]
    4. Telegraphs and Telephones <@=27 — Negligent Nondelivery of Message — Damages.
    In an action for the negligent nondelivery of an interstate telegraph message, damages for mental distress may be recovered, where the negligence occurs in this state, and such damages are recoverable under the law of the state from which the message is sent.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 80.]
    5. Commerce <@=8(7) — Interstate — Burden Upon.
    The allowance of damages for mental distress in an action for negligent nondelivery of an interstate telegraph messag'e does not impose a direct burden upon interstate commerce.
    6. Telegraphs and Telephones <@=54(6)— Limitation of Liability — Validity.
    The stipulation of a telegraph company limiting its liability for damages for nondelivery of a message, whether caused by the negligence of its servants or otherwise, to $50, in the absence of payment of additional charge based on greater value, is void under the law of this state or of Tennessee.
    [Ed. Note. — For other cases, .see Telegraphs and Telephones, Cent. Dig. §§ 44, 46.]
    7. Commerce <@=38(7) — Federal Statute — Construction.
    Act Cong. June 18, 1910, c. 309, 36 Stat. 539, subjecting telegraph companies engaged in interstate business to the Interstate Commerce Act for certain purposes, does not supersede all state laws as to liability of telegraph companies for a negligent nondelivery of an interstate message and as to the. right of such company to stipulate for exemption from such liability, since that subject is not dealt with in the act, and it need not be assumed that it was the intention of Congress to exert its authority o-ver the subject in the absence of its clear manifestation.

      8. Commerce <@=»8(1) — State and Federal Legislation — Conflict.
    State laws on interstate commerce are not to be held inconsistent with federal laws unless they present an absolute conflict, or a purpose on the part of Congress to legislate on the particular subject is clearly revealed.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5.]
    9. Telegraphs and Telephones <§=»26%, New, yol. 17 Key-No. Series — Statute — Construction.
    The act of Congress conferring power on the Interstate Commerce Commission to pass on reasonableness of regulations of interstate telegraph companies does not make such companies’ regulations establishing the measure of their liability for. negligent nondelivery of interstate messages controlling until they are declared to be unreasonable by the commission after complaint duly made.
    10. Commerce <®^85 — Interstate Commerce Commission — Powers.
    The Interstate Commerce Commission has no power to promulgate rules of law as to the measure of the liability of telegraph companies for negligent nondelivery of interstate messages; federal legislative power over this subject being' exclusively in Congress.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 138.]
    11. Telegraphs and Telephones <§=»54(2)— Dimitation of Diability — Carmack Amendment.
    The provision of the Carmack Amendment (Act Cong. June 29; 1906, c. 3591, § 7, pars. 11, 12. 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]), that no contract, etc., shall exempt a common carrier from the liability thereby imposed, does not apply to telegraph companies.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 40, 46.]
    Action by T. C. Bailey against the Western Union Telegraph Company. The court of Civil Appeals affirmed judgment for plaintiff (184 S. W. 519), and defendant brings error.
    Writ denied on rehearing.
    See, also, 171 S. W. 839.
    Chas. S. Todd, of Texarkana, and N. D. Dindsley, of Dallas (Albert T. Benedict, of New York City, of counsel), for plaintiff in error. Mahoffey & Keeney, of Texarkana, for defendant in error.
   PHILDIPS, C. J.

The material question presented by the case, is, in substance, whether the legislation of Congress, subjecting telegraph companies engaged in interstate business to the Interstate Commerce Act (Act COng. Feb. 4, 1887, c. 104, 24 Stat. 379) for certain purposes, has the effect of superseding all State laws as to the damages recoverable for a negligent failure to deliver an interstate message, and as to the right of such a company to stipulate for exemption of liability for its own negligence. We reviewed the question fully upon the original presentation of the petition for writ of error, and have again considered it in response to an urgent motion for rehearing, in support of which a great many authorities have been cited.

The message in the case was one sent from a point in Tennessee to a point in Texas.' It was addressed to the plaintiff and advised him of the serious illness of a brother who died the day following. Because of the negligence of the company occurring in Texas, it was never delivered to the plaintiff, who did not learn of his brother’s illness and death until his receipt of a letter some days after his burial. Upon the trial, damages were awarded the plaintiff for the mental distress suffered by him in consequence of the negligent failure to deliver the message, iu accordance with the established rule in this State upon that subject The judgment was affirmed by the Court of Civil Appeals for the Sixth District. 184 S. W. 519. The opinion of that court upon a former appeal, where the question involved ivas discussed in an elaborate and able opinion by Mr. Justice Hodges, is to be found in 171 S. W. 839. On the back of the telegraph blank used for transcribing the message at the sending office was 'a stipulation to the effect that the company should iu no event be liable for any damages for the non-delivery of the message, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount, it was stated, the message was valued, in the absence of a statement thereon of a greater value when offered for transmission and the payment of, or an agreement to pay, an additional sum, based on .such value, equal to one-tenth of one per cent thereof.

In the absence of legislation by Congress the right of a State to prescribe its own rules in respect to particular subjects of interstate commerce, which do not constitute a direct burden upon such commerce, is undoubted. Railway v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915E, 942; Telegraph Company v. Milling Company, 218 U. S. 406, 31 Sup. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815. While the measure of the damages recoverable for the breach of the contract for the non-delivery of the message in this case would be governed by the law of Tennessee, the place of the making of the contract, no evidence was adduced as to the law of that State upon the subject. It is therefore presumed to be similar to the law of this State. The correctness of the rule ■which in this State permits the recovery of damages for mental distress, and which allows such damages even in the instance of an interstate message where the negligence occurs in this State and such damages are recoverable under the law of the State from which the message is sent, furnishes no test of this immediate question. The real test of it is: Does the enforcement of such a rule constitute a direct burden upon interstate commerce? It cannot be said to impose any such burden. It is no more of a burden upon such commerce than is a penalty prescribed by a state for misconduct of an interstate carrier occurring within its borders, the lawfulness of which, in the absence of legislation by Congress upon the particular subject, has in different instances been repeatedly affirmed by the Supreme Court of the United States. Telegraph Company v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105; Railway Company v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853; Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. 627, 41 L. Ed. 1064; Railroad Company v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268.

The stipulation upon the back of the message, amounting in its effect to an attempt to exempt the company from the consequences of its own negligence, was void under the law both of this State and the State of Tennessee. Telegraph Company v. Neill, 57 Tex. 283, 44 Am. Rep. 589; Railway Company v. Smith, 123 Tenn. 678, 134 S. W. 866.

The legislation of Congress referred to is the Amendment of June 18, 1910, to the Interstate Commerce Act, Supp. 1912, Fed. Stat. Ann. 112. If this Amendment was an exertion by Congress of its authority over the subject of the liability of telegraph companies for the negligent non-delivery of interstate messages, including that of their right to provide by contract that they should be exempt from such liability, or if it clearly manifested a purpose on the part of Congress to extend its authority over those subjects, the rules of the State upon them are, of course, superseded. But we do not regard the Amendment as open to any such construction. It is not necessary to here set it out, but its examination reveals that it classifies telegraph companies doing an interstate business as common carriers within the meaning of the A.ct; requires that their charges shall be just and reasonable; prohibits every unjust and unreasonable charge; permits their classification of messages and the charging of different rates therefor; and, further, in section 15 as amended (Comp. St. 1916, § 8583), empowers the Interstate Commerce Commission to determine, after complaint made, whether their charges, regulations, or practices are unjust, unreasonable, discriminatory, or otherwise in violation of the Act, and, if it be of the opinion that they are, to prescribe those which are just, fair and reasonable. There is no mention of the liability of such companies for negligence. That subject is not dealt with or touched upon. If it had been the purpose of Congress to legislate upon it, we think it would have done so in terms clear and unmistakable. We are not required to assume that such was the intention in the absence of its clear manifestation. The laws of a state as they may be properly directed to the .subjects of interstate commerce are not to be held as inconsistent with an act of Congress unless they present an absolute conflict, or unless, at least, a purpose on the part of Congress to legislate upon the particular subject is clearly revealed. As was said in Railway Company v. Harris, 234 U. S. 419, 34 Sup. Ct. 793, 58 L. Ed. 1377, L. R. A. 1915E, 942, “this rule rests upon fundamental grounds and should not be disregarded.” It was furthermore affirmed in that case:

“It is of course settled that when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded. Northern Pacific Ry. v. Washington, 222 U. S. 370, 378 [32 Sup. Ct. 160, 56 L. Ed. 237]; Erie Railroad Co. v. New York, decided May 25, 1914, 233 U. S. 671 [34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138]. But it is equally .well settled that the mere creation of the Interstate Commerce Commission, and the grant to it of a measure of control over interstate commerce, does not of itself, and in the absence of specific action by the Commission or by Congress itself, interfere with the authority of the states to establish regulations conducive to the welfare and convenience of their citizens, even though interstate commerce be thereby incidentally affected, so long as it bo not directly burdened or interfered with. Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 623 [29 Sup. Ct. 214, 53 L. Ed. 352]; Southern Ry. Co. v. Reid, 222 U. S. 424, 437 [32 Sup. Ct. 140, 56 L. Ed. 257].”

Quoting from other decisions of that court this is also said in that opinion:

“In Reid v. Colorado, 187 U. S. 137, 148 [23 Sup. Ct. 92, 47 L. Ed. 108], the court, speaking by Mr. Justice Harlan, said: ‘It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said— and the principle has been often reaffirmed— that “In the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be dix-ect and positive, so that the two acts could not be reconciled or consistently stand togethei-.” Sinnot v. Davenport, 22 How. 227, 243 [16 L. Ed. 243].’ In Savage v. Jones, 225 U. S. 501, 533 [32 Sup. Ct. 715, 56 L. Ed. 1182], the court said: ‘When the question is whether a Federal act ovei-rides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Oongi-ess within the sphere of its delegated power (citing cases). But the intent to supersede the exercise by the state of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not 'to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the state.’ ”

The conferring of power, under the Amendment of 1910, upon the Interstate Commerce Commission to pass upon the reasonableness of regulations of interstate telegraph companies, does not in our opinion amount to an affirmance hy Congress that such companies may, through their own regulations, establish the measure of their liability for negligence, fixing conclusive rules' upon the subject having all the force of positive law. Xet such would be the effect of a holding that because of the provisions of the Amendment the stipulation referred to, upon the message in this ease must be allowed to absolutely control the company’s liability here. It would certainly impute to Congress a lax regard for the public interest if it is to be said that it intended to leave these companies free to establish, through their own stipulations, the rules governing their public duties and obligations, making them competent, in a word, to declare the law of the land in.respect to their liability for negligent failure to observe them.

To sustain the contention of the plaintiff in error as to the force of the stipulation referred to is but to hold that it has all the virtue of a law exempting it from liability for its own negligence except in an insignificant amount, at least until it is declared unreasonable by the Interstate Commerce Commission after complaint duly made. But we do not understand it to be the function of the Interstate Commerce Commission to promulgate rules of law upon this subject. It is the province of Congress to do that; and Congress only, in our opinion, is invested with Federal legislative power over the subject. The Supreme Court of the United States has never, to our knowledge, held by any authoritative expression that the Commission is so empowered, and we do not feel warranted in anticipating such a decision.

Even in cases admittedly controlled by the Federal law where it is held that an interstate carrier of property may by fair and reasonable agreement limit the amount recoverable to an agreed value, the agreement is not permitted to'include exemption against the negligence of the carrier or its servants. The basis of the holding that such an agreement may be entered into is the advantage given the shipper in obtaining, as the consideration for the agreement, the lower of two or more rates proportionate to the amount of the risk. Express Company v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. But the present ease rests in no such circumstances. There is nothing in this record to show that any rate lower than the ordinary rate for a message of its class was charged for transmitting the message.

The contrast between this legislation and that of Congress relating to the liability of interstate carriers of property very strongly indicates, we think, that the regulation of the liability for negligence of interstate telegraph companies was not in the mind of Congress. In the latter is found express and definite provision upon the subject, accompanied by the emphatic declaration that “no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.” These provisions of the Carmack Amendment • do not apply to telegraph companies, as held by the Interstate Commerce Commission itself.

That they do not apply to such companies, and that without some similar legislation this class of common carriers is left without any regulation of their liability for the consequences of their negligence convinces us that Congress did not intend that the Amendment of 1910 should embrace the subject.

We therefore adhere to our decision denying the writ of error, and the motion for rehearing is overruled.
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author: MORROW, .T.

text:
    SMITH v. STATE.
    (No. 4518.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Criminal Law <@=>1099(1) — Appeal — Statement op Facts — Time oe Filing.
    Under Vernon’s Ann. Code Or. Proe. 1916, ai't. 844a, a statement of facts in the county court must be filed during the terra, except when an order of court is made extending the time, and then it must be filed within the time as extended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 286&-286S, 2874.]
    2. Criminal Law <@=>1097(4) — Appeal—Absence oe Statement oe Facts.
    A judgment will not be reversed on account of rulings on the admission of evidence in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2934, 2938, 2939.]
    3. Criminal Law <@=>290 — Former Conviction-Necessity oe Pleading.
    In the absence of a plea of former jeopardy or former conviction, evidence showing that defendant had been convicted in federal court for the same transaction is immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 666.]
    4. Criminal Law <@=>1166% (12) — Harmless Error — Remarks oe Court — Local Option Election — Publication.
    In view of Rev. St. art. 5722, providing that entry by county judge of fact of publication of result of local option election shall be sufficient prima facie evidence of such publication, a remark of the judge that it is conclusive proof is harmless, where there is no contest about the publication.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3125.]
    5. Intoxicating Liquors <@=>236(1) — Local Option Election — Burden oe Prooe.
    State sustains burden of proving that local option election has been held and notice published, by proof of the entry by the county judge of fact that order of commissioners’ court declaring result of- election has been published.
    Appeal from Polk County Court; B. F. Bean, Judge.
    Jock Smith was convicted of the offense of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    E. B.. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, .T.

Appellant’s conviction was by a jury verdict assessing Ms punishment at a fine of $25 and 20 days’ imprisonment in the county jail, upon an indictment charging him with the sale of intoxicating liquors in prohibition territory.

The term of court at which appellant was tried adjourned on the 3d day of February, 1017. The statement of facts was filed on the 24th diay of the same month, which was more than 20 days after the adjournment of the term, and upon this ground the Assistant Attorney General has filed a motion to strike out the statement of facts, which, under article 844a, Vernon’s Code of Criminal Procedure, must he sustained. Looper v. State, 62 Tex. Cr. R. 98, 136 S. W. 792; also other cases cited in Vernon’s O. C. P. p. 824. Under this article, as construed, statement 'of facts in the county court is rer quired to be filed during the term, except when an order of the court is made extending the time. An order in the present case was made extending the time 20 days.

'The first and third bills of exception relate to the exclusion of testimony proffered by the appellant to show that he had been convicted in the federal court for the same transaction upon which this prosecution is based. These bills, as qualified, deny this fact, and declare that such prosecution that was had against him in the federal court was for selling intoxicating liquors without a revenue license contrary to the laws of the United States. In the absence of a statement of facts, this court, under its established practice, would be precluded from reversing on account of the rulings upon the admission of evidence. Hobbs v. State, 28 S. W. 814; Oakery v. State, 158 S. W. 285; and other cases cited in Vernon’s C. C. P. art. 844, note 9, p. 814. However, if the bills were considered, we find no plea of former jeopardy or former conviction. Even if this testimony would have been admissible under any circumstances, our attention has been called to none under which it would be material in the absence of pleas of this character.

Bill No. 2 complains of the remark of the court to the effect that the order of the commissioners’ court declaring the result of the local option election and prohibiting the sale of intoxicating liquors had been published for four successive weeks was conclusive proof of the publication. Article 5722 of the Revised Statutes prorides that the entry by the county judge of the Tact of publication shall be sufficient prima facie-evidence of the publication. In view of this statute, we are unable to comprehend how the remark of the county judge would have been harmful, especially in view of the fact that the record does not disclose there was any contested issue about the publication. The burden of proof was upon the state to prove that the election had been held and notice published, but this was done by the certificate mentioned, and was sufficient, under the rulings of this court, to authorize an instruction to the jury that prohibition was in effect. Branch’s Ann. P. C. § 1233, p. 697, and cases cited; Irish v. State, 34 Tex. Cr. R. 130, 29 S. W. 778.

We have reviewed the bill of exceptions, and, finding no error, it is the order of the court that the judgment of the lower court be affirmed.
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