Missouri, Kansas & Texas Railway Co. v. Gregory

Mr. Justice HAWKHSTS, concurring in the judgment overruling the motion for rehearing, delivered the following opinion:

The application of plaintiff in error for a writ of error was dismissed by this court for want of jurisdiction, the suit being one which properly might have originated in the County Court. Dismissal resulted from an application of the views expressed by a majority of this court in Cole v. State, 106 Texas, 473 , 170 S. W., 1036 , to the effect that Revised Statutes, article 1521, as amended by the Thirty-third Legislature (Gen. Laws 1913, ch. 55, p. 107), was controlled by Bevised Statutes, 1591, a much earlier statute, which declares final the appellate jurisdiction of Courts of Civil Appeals in certain enumerated classes of cases, including "any civil case appealed from a County Court, or from a District Court when, under the Constitution, a County Court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the State or the validity of a statute,” and that, consequently, cases,within the potential jurisdiction, of the County Court were not within the appellate jurisdiction of the Supreme Court.

An analogous situation is presented by our present jurisdictional statute, article 1521, as amended by General Laws 1917, chapter 75, page 140.

it is true that I have never concurred in the above mentioned construction and application of article 1521, as amended in 1913. McFarland v. Hammond, 106 Texas, 579 , 173 S. W., 645 ; Spence v. Fenchler, *214 107 Texas, 443 , 180 S. W., 597 . Nevertheless the rule of construction announced in Cole v. State seems to have become the settled doctrine controlling our practice, and recently has been reaffirmed by action of my present associates.

Moreover, and whether said rule of construction as applied to said amendment of 1913 was sound and correct or not, I am constrained to believe that under general and well settled and sound rules of statutory construction it should now he held that inasmuch as the decision m Cole v. State was rendered in 1914, long prior to the enactment of our said present jurisdictional statute, and had been applied, thereafter, by this court in a great number of cases and continuously down to the last amendment of said article 1521, effective July 1, 1917, that article, as it now stands, should he construed and applied in the light of said former decision and practice. Under the circumstances, had the Legislature intended otherwise, it rationally would have employed different or additional words in said Act of 1917, and would have repealed or amended, expressly, said older statute, article 1591, which, upon its face, does appear to" conflict with the later provisions of article 1521 as it now stands. It follows that the motion for rehearing should he overruled. The foregoing is presented merely as an expression of my individual views.

Opinion filed June 19, 1918.