# Ex Parte Wilbarger

> Court of Criminal Appeals of Texas · February 21, 1900 · 41 Tex. Crim. 514

URL: https://www.frixlaw.com/law-library/cases/3976079

## Case

- **Full name:** Ex Parte Lonnie Wilbarger.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 21, 1900
- **Citations:** 41 Tex. Crim. 514; 55 S.W. 968; 1900 Tex. Crim. App. LEXIS 32
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Hehdersoh, Brooks, Davidson
- **Cited by:** 20 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/3976079

## Opinion text

*521
DAVIDSON, Presiding Judge.
I dissent from the conclusion reached hy the majority of the court, and from the reasoning of Judge Henderson. I do not believe the act of the Twenty-sixth Legislature discussed by Judge Henderson is constitutional. If the Legislature has the authority to create and confer jurisdiction on the corporation courts mentioned in said act, then it had the same authority to confer jurisdiction on the corporation courts in existence before their repeal hy said act. If a corporation court has ever existed in Texas, except hy creative act of the Legislature, it has escaped my attention. The Constitution, prior to 1869, in one form or another expressly recognized corporation courts, and those corporation courts preceding the Constitution of 1866 were simply recognized as such hy those Constitutions. In the Constitution of 1866 they were made an integral part of the State judiciary. But hy none of those Constitutions were corporation courts created. They were simply recognized as Legislature courts. Those courts were brought into existence hy virtue of the “creative power” of the Legislature, and not hy the Constitution. Then it would follow that tney were legislatively created courts. The corporation court authorized by the city charter of Dallas, and discussed in the Coombs case, 38 Texas Court Reports, 648, was the creature of the Legislature,—as much so as is the corporation court created. hy the Twenty-sixth Legislature. If the proposition is correct that the corporation courts of Texas, in all their history, were brought into existence by the “creative power” of the Legislature, and not by the Constitution, then it would necessarily follow that all the jurisdictional power they could exercise was “conferred” upon them by legislative enactment. This is as true in regard to the corporation courts in existence prior to the decision in the Coombs case as it is under the act of the Twenty-sixth
Legislature;
for in the last act the court was first created, and then its jurisdiction was conferred and defined. I do not understand how a legislative court can have any power “conferred” upon it until it has been first created or brought into existence. The conferring of power is an incident to its creation. Whether conferred in the same act or in subsequent acts would he immaterial. I know of no valid course of reasoning which could hold otherwise. Again, the corporation courts created under the act of the Twenty-sixth Legislature are as much an incident to the municipal corporation as were those created by the Legislature prior to that time. Neither under the prior Legislature nor under the act of the Twenty-sixth Legislature can said courts exist in the absence of the municipal corporation. Whenever the municipal corporation ceases to exist, the court will also cease to exist. The reading of the act itself demonstrates the truth of this statement. I agree to that portion of the opinion, however, which holds the two provisions mentioned hy Judge Henderson unconstitutional. I deem it better to state this much, so as to hasten the disposition of the case, on account of the confusion which seems to he abroad in the State in regard to
*522
the attitude of these corporation courts, and may later state the reasons for my dissent more fully. Believing the act unconstitutional, the judgment should have been reversed and the prosecution ordered dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3976079. Public record. Not legal advice.