# Oates v. State

> Court of Criminal Appeals of Texas · June 23, 1909 · 56 Tex. Crim. 571

URL: https://www.frixlaw.com/law-library/cases/3927850

## Case

- **Full name:** Burrell Oates v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 23, 1909
- **Citations:** 56 Tex. Crim. 571; 121 S.W. 870; 1909 Tex. Crim. App. LEXIS 327
- **Precedential status:** Published
- **Opinion:** Addendum by Ramsey
- **Judges:** Brooks, Davidson, Ramsey
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3927850

## Opinion text

ON REHEARIHG.
June 23, 1909.
RAMSEY, Judge.
This case has been pending in the courts for many years and has attracted wide notoriety. The appellant has four times received in the trial court the death penalty, and his case has already been three times "reversed by this court. With the other reversals I have personally nothing to do, since they all occurred before I had the honor to sit as a member of this court. I am by law, however, charged with the responsibility for the result of this appeal. I am clear and firm in my belief that the Governor has no authority to appoint a special district judge in this State anywhere or under any circumstances. It is, of course, greatly to be regretted that we should
*584
be compelled so to decide. The Governor is by law charged with the enforcement of the law. He is, as we know, a lawyer of large experience and recognized distinction. In addition, in this case, we are advised that he has acted on the written opinion of the Attorney-General. If, therefore, we could set aside our own responsibility, and place our decision on the authority of these officers, our decision were an easy matter. But b3r law
we
must pass on and decide questions raised on the appeal of criminal cases. It is a responsibility we can not share with another. It is ours, and we must recognize and discharge it, although our decision conflicts with the opinions of others whose judgment is entitled, to respect, and although it results in the reversal of a judgment of conviction the fourth or even the forty-fourth time.. If the tribunal which condemned this man to die was not presided over by a district judge duly chosen and selected according to law, it had no more legal right to take his life, guilty or innocent, than a mob at night. There can be no court, in a legal sense, without a judge, and there can be no judge except as he may be elected and chosen under the Constitution, and agreeably to law. It, therefore, results that, however eminent in learning, and however fair in fact, may be the person who presides over the trial, unless he is in a legal sense a district judge the gathering, masquerading as a court, becomes of no higher dignity than the same number of respectable gentlemen gathered by chance on the street corner.
It is conceded, in the original opinion filed in the case, that if the Act of the Legislature approved June 19, 1897, is constitutional, that there exists in this State no authority in the Governor to appoint a special judge. There can be.no doubt of the correctness of that position. This act repeals articles 1069 and 1070 of the Revised Civil Statutes, which had given the authority to make such appointment. The Act of 1897, denying in express terms the authority to make such appointment, has now been on the statute books of this State for more than a dozen years.
No
court in this State has, until the decision in this case, held it invalid. Here is a man, a negro, to be sure, and 'probably a very guilty negro, who, by his counsel, stands up and demands the priceless heritage of a free man, to be tried according to the law of the land, and by a judge chosen and selected in accordance with the laws of his country. He relies on a statute passed with the set purpose and deliberate intention of denying .to the Governor the authority to appoint a district judge from private life to try his case. In such a case, unless it is clear almost beyond the peradventure of a doubt that such law of my country is unconstitutional, I would never be as one standing by and consenting to his death. I can not see, and do not believe, that this act is unconstitutional. To consent that it shall be so declared is to abdicate my position as a member of this high tribunal, or commit the unpardonable offense of refusing to speak out when every suggestion of honor and every consideration of public duty demands that I shall speak. But is the act in question unconstitu
*585
tional? We ought not so to hold except on such weight of authority or compulsion of reason as to leave the matter substantially free from doubt. The rule is elementary, and the authorities unbroken, that we ought, if possible, to sustain this law. A large deference should be paid to a statute duly enacted. • The same electorate which chooses us elects the Legislature. It is one of the three great departments of our government. This act seems to have been carefully drawn, and received the approval of a Governor whom envy itself would not deny the praise of a great lawyer. Again, through all these years it has remained on the statute book of the State, and is now a part of the statute law of this State. Again, it relates to a matter of procedure in our courts in the trial of cases both civil and criminal. What article of our Constitution does it offend? Let us see. The original opinion does not quote all of section 11, article 5 of our Constitution, relating to district judges. The section (so far as is important here) is as follows: “When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law. And the district judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. The disqualification of judges of inferior tribunals shall be remedied, and vacancies in their offices filled, as may be prescribed by law.” As stated in the original opinion, the portion of the above quoted section of the Constitution giving parties the right to agree on a special judge is self-executing, absolute, and is perfect even in the absence of legislation in respect to the matter. Parker County v. Jackson, 5 Texas Civ. App., 36. But it is the only portion of the constitutional provision Avhich is, by its terms, absolute. As to appointment, the language is, “a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by
law.”
Again, the last clause provides that “the disqualification of judges of inferior tribunals shall be remedied, and vacancies in their offices filled, as may be prescribed by law.” Again, the Constitution says: “And the district judges
may
exchange districts, or. hold courts for each other when they may deem it expedient, and
shall
do so when required by Iuav.” EA-ery district judge in Texas is chosen with reference to, and presumably Avitli a knoAvledge of the constitutional provision. That he may be required and compelled to exchange districts under such regulation, and by such directions as the law provides, does not to my mind admit of any doubt. Now then, as I conceive the error in the majority opinion, consists in this: (1) The present statute does recognize the right of parties to agree on a judge, when the law fails to provide one duly elected and serving at the salary fixed by laAV. It in terms provides that, “in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to
*586
select or agree upon an attorney of the court for the trial thereof.” Thus it is obvious, as I believe, that the existing law does authorize and recognize the right given by the Constitution to agree upon a judge. The right to voluntarily exchange districts and the right to require such exchange is fixed and granted in the same section of the Constitution as that which guarantees the right to agree on a trial judge. One is of no more importance or dignity than the other. They may and do both exist in the same section, and dwell together in harmony under the same shelter. They both, when properly construed, mean this, and no more than this: District judges, when elected, shall under the regulations and rules fixed by law try all cases pending in the courts wherein they preside. For reasons deemed' sufficient, and in the manner and by the person named by law, they may be required to exchange. When no judge elected in the particular district appears qualified to try the case, and when no duly elected judge on proper exchange appears, then, since the law fails to supply a duly elected officer, the constitutional provision is effective and available, and the right to select a judge by agreement is granted. Let us see if this is not the true and clear intent of the Constitution. In the first place, society and the public have some rights. They are interested as well as the immediate parties in the proper administration of justice. They are interested in the integrity and tried capacity of the judges. The law and the State has the right to say to the litigant: Here is a judge possessing the qualification of the Constitution, and approved and chosen by the voters of his district. To him the law requires you to submit your case for decision. The same Constitution, too, provides that, to prevent delay or the denial of a prompt hearing, and the due administration of justice, that a system of exchange may be arranged and provided by law. Then, too, the public and society at large have some rights in the matter of expense. If, and when provision is made for the prompt and orderly trial of cases by judges duly chosen and serving at a fixed salary to be paid in any event, shall it be held that these officers may be thrust aside and private persons chosen at public expense to do their work, because for any reason it may suit litigants better? The error of the majority, as I conceive, is found in the fact that they do not recognize, which seems to me to be clear, that the Constitutional right of agreement applies and obtains only when the law fails to supply a judge duly chosen. If this constitutional right is superior to the other constitutional provisions contained in the same section, and is available at all times and under all circumstances, its application would, or at least could, be made an instrument and means of judicial anarchy. Under my construction, that the constitutional right to agree upon a district judge applies and is available only when the law fails to supply a judge not disqualified in the constitutional sense, perfect harmony in our judicial system is assured. Again, the makers of our Constitution recognized that men must first be lawyers before they could become judges. Slight reflection under our fre
*587
quent change of judges would have suggested, and obviously did suggest to them, that these practicing lawyers called from the bar to the bench on short notice would be disqualified from having been counsel, and for other reasons, in many cases pending before them, and the consequent necessity of making provision for furnishing the courts and litigants with duly chosen judges to try, under a system of exchange, cases in which the regular judge of the district was disqualified. Let us suppose that either voluntarily, or under direction of the Governor in the manner prescribed by law, the district judge of Travis County, to secure the trial of a case in which he is recused, exchanges benches with the district judge of the neighboring county of Fayette. That learned judge duly accredited appears at the time stated, takes his seat on the bench, and begins the call of the docket. He is met with the announcement that the parties litigant in all the cases triable before him have agreed on another person or other persons to try such cases. A similar course may be pursued in Fayette County. Can they be thus ousted from their jurisdiction and be set aside at the whim and caprice of litigants, and the public burdened with the expense of a special judge, when under sanction, both of the Constitution and the statute of our State, there is present a duly elected and qualified judge, ready, able and willing to hold court and try the cases set for' hearing, without even a suggestion of disqualification? I can not think so. How, remember that the Constitution prescribes that “the district judges may exchange districts or hold courts for each other when they may deem it expedient, and
shall
do so when
required
by law.” How, article 1069, as fixed by the Act of June 19, 1897, undertook to carry into effect the constitutional provision of enforced exchanges. This the Legislature had the right to do. Evidently they believed that the public good so required. This was, and is, a matter of public policy, which, since authorized by the Constitution, we ought not, and can not, control or set aside. In this very act, too, they provide for, and in express terms recognize, the right of litigants to agree on a special judge, and also make provision for his induction into office, and prescribe the manner and method of his qualification and the preservation of the authentic evidence thereof. If the act denied the authority in a proper case to have a judgment by agreement, the question would be more serious. But here, so far from denying such right, it is both granted and recognized in express terms. It is granted in case where the regular judge is disqualified, and where for sickness or other reasons rendering it impossible to exchange, and where, as a result of the failure of the law to supply a judge, the right to have one by agreement becomes available. Section 3 of the act in question furnishes a key to its own proper interpretation. It says: “The fact that, under the present law, there is a heavy annual expense entailed Upon the State for the payment of special judges, which could be avoided by the regular district judges exchanging,” etc. Thus we have here a plain statement of the purpose of the law, It undertakes, among other things, (1) to authorize the
*588
Governor, on receipt of evidence of the disqualification of any district judge, “to designate some district judge in an adjoining district to ex'change districts for the purpose of disposing of such case or cases;” (2) it provides, in case of such disqualification of the district judge, and where circumstances are of a character “rendering it impossible to exchange,” that the parties or their counsel shall have the right to select or agree upon an attorney of the court for the trial thereof. (3) It provides the manner of evidencing the proper qualification of the special judge chosen by the parties. (4) Host important of all, it omits what has formerly been in terms provided for, any authority giving power to the Governor to appoint a special district judge in any case. (5) In the emergency clause it sets out the reasons for the enactment of the law.
“Then, granting that the latter clause of the statute of 1897 is, by reason of its position, unconstitutional, does it necessarily follow that the remainder of said act is? We say not. This court quotes from Black and Cooley on Constitutional Limitations. The language of the two authors is practically identical. The quotation is as follows: ‘But when the parts of a statute are so mutually connected and dependent, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not have passed the residue independently, if some parts are unconstitutional and void, all the provisions which are thus dependent, conditional or connected, must fall with them. But if the purpose of the statute is to accomplish a single object only, and some of its provisions are void, the whole must fall,
unless sufficient remains to effect the object without the aid of the invalid, portion.
And if the unconstitutional clause can not be rejected without causing the statute to enact what the Legislature never intended, the whole must be adjudged invalid.’ That same authority, on page 211, further says, in that connection: Tf, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.’ Again, on page .214, he saj's: Tf there are any exceptions to this rule they must be of cases only where it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the Legislature will be defeated if it shall be held valid as to some cases and void as to others.’ Again, the same author, on page 215 of said work, as quoted by the Supreme Court of Texas in Western U. Tel. Co. v. The State of Texas, in 62 Texas Rep., on page 634: ‘When, therefore, a part of a statute is
I should be content to rest the decision on the above ground, but there is another basis for my conclusion, which is so forcibly and clearly expressed in appellant’s motion for rehearing that I adopt it without change as my own views:
*589
unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, dependent on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance.
If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must standi
Now, tested by these rules, must the first portion of the Act of 1897 fall because the second portion is unconstitutional? We can not see why or where. Is one a condition of the other ? If so, which is the condition of or for the other? One had been in operation from its own force since 1876; the other was enacted by virtue of an entirely different power granted by the Constitution. Was one of them a consideration or compensation for the other, as it was held in the case of the Texas & P. Ry. Co. v. Mahaffey, in 98 Texas, 392 , cited by this court, in which it was held that that portion of the statute requiring the railroads to redeem tickets was a consideration or compensation for the legislation providing a penalty for scalping in railroad tickets? If so, which is the condition or compensation for the other? Should the latter clause be stricken out as unconstitutional, would what remains be what the Legislature intended? What remained would be that the Governor should not be permitted to appoint judges, and thus increase the expenses of the judiciary, but should designate district judges to exchange benches, and thus eliminate that expense. The Legislature evidently so intended, because the purpose of the act was economy in that line. This act had a single object, viz.: economy. Now, the whole must fall ‘unless sufficient remains to effect the object without the aid of the invalid portion.’ Economy, the purpose of the bill, is attained in all cases where a special judge is not agreed on. That is the effect, without the aid of, and in spite of the latter clause. Would the Legislature have passed the first part without the latter, or unconstitutional clause? The purpose of the act, as stated in the emergency clause, rvas economy. This court says, in its opinion, that, because most special judges were agreed upon, and, therefore, most of the expenses come from that source, therefore it is reasonable to conclude that the Legislature would not have attempted any retrenchment at all had it known it could not have gone through the entire subject. That conclusion does not seem even plausible. It was absolutely beyond the power of the Legislature to retrench in that particular. The Legislature is supposed to have known that. Then, would you presume
*590
they would undertake no retrenchments at all simply because there were some they could not effect? Then if these clauses are not mutually connected, nor dependent, are not conditions, considerations nor compensations of each other, one may be carried into effect without the aid of the other, one may be rejected without causing the other to enact what the Legislature never intended, and one of them might have been passed by the Legislature without the other, then it occurs to us that every constitutional objection to declaring the one unconstitutional and sustaining the other has been fully met. But let us follow the author a little further. He says, ‘If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected,
it must stand f
The remaining portion, after eliminating the last clause, is as follows: ‘Whenever any case, or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby'; but the judge presiding shall immediately notify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the Governor shall also notify both of said judges of said order, and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases.’ Is that not complete within itself? If not, what is lacking? Is it not capable of being fully executed in accordance with the expressed legislative intent, economy, wholly independent of either the rejected part, or any other statute, as to that matter? If not, in what respect is it lacking? We contend that, by no rule laid down by Hr. Cooley, must the first clause fall perforce the fact that the last clause is unconstitutional. We further contend that that provision, as contained in the Act of 1879, has no force, and is as injurious to the statute, coming at the first, as it is in the Act of 1897, coming at the last. It has no force anywhere. We think this assignment is well taken, and that the appellant was tried without a legally constituted judge. That in that respect he is deprived of his life without due process of the law of the land. That he has been deprived of his rights under the Fourteenth Amendment to the Federal Constitution.”
It seems to be thought that, inasmuch as the provision of the Constitution in respect to the right of parties to agree on a judge precedes, in the section quoted, the clause in reference to appointment, and the matter of exchange of judges, both voluntary and enforced, that it' is paramount, and in a sense exclusive, and superior to these wise and important provisions. I have rather been inclined to construe them as parts of the same general scheme of providing a trial judge in the absence or because of the disqualification of the regular judge, and that no significance is to be attached to the order in which these provisions appear. I have endeavored, in interpreting this section of our Constitution, to follow the rule laid down by Cooley in his great work on
*591
Constitutional Limitations, which is as follows: “Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other classes or portions of the same law. It is, therefore, a very proper rule of construction, that
the whole is to be examined with a view to arriving at the true intention of each part;
and this Sir Edward Coke regards as the most natural and genuine method of expounding a statute. If any section of a law be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that
effect is to be given, if possible, to the whole instrument,
and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory. This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another, so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.”
Again, it should be remembered that this is not a case in which a citizen is asserting the constitutional right to agree on a judge to try his case. If such a case were presented, and we had before us the appellant, asserting his right to be tried before a special judge on whom, with counsel for the State he had in a proper manner agreed, and who had accepted the trust, and qualified as by law provided, then, indeed, the question would be presented that he had been denied the constitutional right to be tried by a judge selected and agreed on under the terms of the Constitution. But here no such right is asserted by him. Nor should or can we say that the law is invalid as to him because he has not raised a question or asserted a right which we may think he might have asserted.
Nor can it be said that Mr. Lemmon, who assumed to preside as judge, was in any proper sense a de facto officer. If the Act of 1897 is valid, then the Governor was wholly without warrant to appoint him as special judge to try this case. Cooley defines a de facto officer
*592
as one "who, by some color of right, is in possession of an office, and for the time being performs its duties with public acquiescence, though having no right in fact.” An intruder, he defines as one "who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.” "No one,” he says, “is under obligation to recognize or respect the acts of an intruder, and for all legal purposes! they are absolutely void.” Cooley, Const. Lim., p. 751; Plymouth v. Painter, 17 Conn., 585 ; Peck v. Holcombe, 3 Port., 329 ; Petersilia v. Stone, 119 Mass., 465 . The matter has been so ruled in our own courts. Franco Texas Land Co. v. Laigle, 59 Texas, 339 ; Brumby v. Boyd, 66 S. W. Rep., 874 ; Cox v. Houston & T. C. Ry. Co., 4 S. W. Rep., 456 ; Weatherford v. State, 31 Texas Crim. Rep., 530 ; 21 S. W. Rep., 251 . In Brumby v. Boyd,
supra,
the court say: "When an appointment to office is not merely irregular or informal, but is absolutely void, ¡the appointee, though attempting to discharge the duties of the office, is not an officer de facto. That one whose claim to an office is under a void appointment is not a de facto officer, but a mere intruder, is urell settled.” In the earlier case of Franco Land Co. v. Laigle, 59 Texas, 339 , the court uses this language: "A de facto authority can not arise when there has been absolutely no election or appointment, or what is equivalent, one that is absolutely null and void, and not merely irregular or informal.” If these views are correct, then appellant has been denied the right to be tried by a judge selected under the law, and has been forced to submit his case before one assuming to act as judge, but who was in truth a mere intruder. He is sought to be convicted for an offense against the laws of his State. To this law and its guaranties lie makes appeal. If this is to be denied, and liis life taken under the judgment of a tribunal unknown to the law, I want it written in the nooks and the record to show that I had in the most solemn and earnest manner protested against his condemnation by an extra-judicial tribunal. If these views are incorrect, then, as I believe, there is no other question raised in the record on which we ought to reverse the case. I think the evidence shows him guilty beyond doubt. We have heretofore upheld the validity of the jury-wheel law, and this course has been followed and approved by our Supreme Court on a refusal of a writ of error. I share in the views of Judge Brooks on the issue of the alleged misconduct of the jury, a^d assume my full share of the responsibility for the conclusion on this question, as stated in the original petition. The length of this opinion, and the fact that we are so soon to adjourn, and the pressure of many cases and questions, prevent my going into the matter at length. Ordinarily, I would be disposed to coincide with the conclusion at which Judge Davidson arrives, but under the facts of this case the general rule has, as I conceive, little or no application. Here the only jurors who could possibly, under the evidence, have been influenced by the discussion and happenings in the jury room, knew, when taken as jurors? every fact mentioned in their discussions^ and this fact was
*593
well known to appellant and his counsel when they were accepted as jurors. These jurors knew of the former convictions of appellant and the conviction, and presumably execution, of Holly Vann. With knowledge of these facts they were voluntarily accepted as triers of his caso. Notwithstanding such knowledge, they declared they could and would give him a fair and impartial trial. The mention of these matters in the jury room adds nothing to what they already knew, and of which appellant was fully advised when he accepted them as jurors. I think the Arnwine case,
supra,
is directly in point, and that there was no reason, under the entire evidence, why, on this account, a new trial should have been granted.
Judge Davidson agrees that the motion shall be granted, which is now done, and the judgment of conviction is reversed and the cause remanded. He will write his views separately.
Reversed and remanded.
BROOKS, Judge, dissents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3927850. Public record. Not legal advice.