When the trial court of a state has jurisdiction and power,
under state laws, to determine the law applicable to the case of an
indictment and trial for murder, and the prisoner, when convicted,
has an appeal to an appellate court of the state, of which he
avails himself, the circuit court of the United States for the
district, if applied to for a writ of habeas corpus, pending the
appeal, upon the ground that the proceedings are in violation of
provisions of the Constitution of the United States, may properly
decline to interfere.
A statute duly certified is presumed to have been duly passed
until the contrary appears.
When, in the trial of a cause, an objection is taken that the
legislature failed to comply with the provisions of the
Constitution in the enactment of a statute, it should be so
presented that the adverse party may have opportunity to controvert
the allegations and to prove by the record due conformity with the
constitutional requirements.
Whether a state statute has or has not binding force by reason
of compliance or noncompliance with the provisions of the
constitution of the state is a question for the state courts to
determine.
The case, as stated by the court, was as follows:
Dick Duncan was indicted by the grand jury of Maverick County,
Texas, for the crime of murder, and, having been arraigned, was
tried in the district court of that county and state, found guilty,
and his punishment assessed at death, and the court entered
judgment accordingly, from which he appealed to the Court of
Appeals. He was thereupon committed to the jail of Bexar County
upon the ground that there was no safe jail in Maverick County,
McCall, the appellee here, being Sheriff of Bexar County at the
time.
While the case was pending on appeal and on the 10th of April,
1890, Duncan filed in the Circuit Court of the United States for
the Western District of Texas his petition for a writ of habeas
corpus, to be discharged from custody on the ground that he was
deprived of his liberty and about to be
Page 139 U. S. 450
deprived of his life in violation of the Constitution of the
United States.
The petition set forth the finding of four indictments for
murder against petitioner, his arrest, trial, conviction and
sentence, and copies of the record were attached.
It was alleged that petitioner was deprived of his liberty
without due process of law and denied the equal protection of the
laws because the "Penal Code and Code of Criminal Procedure" of the
Texas, now and since July 24, 1879, recognized as law, under which
his alleged trial was conducted, were not enacted by the
Legislature of the State of Texas, and that the definitions and
rules in the supposed codes were materially different from the
definitions and rules of procedure prevailing before their alleged
adoption.
The petition then averred that the codes failed of enactment on
these grounds in substance: that the bill which contained them was
not referred to a committee and reported on in the house, and was
not read on three several days in each house as required by the
state constitution, and although the legislature dispensed with the
reading of the printed matter
in extenso, and provided for
a consideration on three several days, the bill was not so
considered; that the two houses of the legislature never agreed to
or came to a common legislative intent on the passage of the bill;
that neither house of the legislature kept a journal of its
proceedings as required; that an abortive attempt was made to
dispense with enrollment, and there was no enrollment of the bill,
or any substitute therefor; that there is no record in existence by
which the accuracy of said statutes can be verified; that the
legislature attempted to delegate legislative power to one Lyle,
who proceeded to embody the alleged codes into a printed book, the
volume known as the "Revised Statutes of Texas;" that the said
volume is not a copy of or identical with the bill said to have
been passed embodying them, but is widely variant therefrom, and
from the original bill on file in the office of the secretary of
state; that the alleged law set out in the Revised Statutes was
never considered or passed by the legislature of the state nor
considered
Page 139 U. S. 451
by the governor, and did not become a law; that the printing,
binding, distribution and codification of the volume known as the
Revised Statutes was never duly or legally authorized, and that the
entire system of penal and civil laws is involved.
It was further alleged that the Court of Appeals of Texas was
organized on the 6th of May, 1876, and that the judges selected to
sit upon the bench of that court were elected on the third Tuesday
in February, prior to the organization of the court; that the
present presiding judge of the court was at that time elected, and
has since continuously succeeded himself; that the court is
interested in the determination of the questions involved because
the statutes supposed to have been adopted attempted to make new
and important provisions for the exercise of jurisdiction and
judicial power by the court, and the civil statutes, which fixed
the salaries of judges, determined the jurisdiction of certain
judicial districts, and regulated the method of election of judges
in the state were attempted to be enacted at the same time and
mainly in the same manner as above set forth; that a decision by
any court of Texas upon the questions presented would tend to
disturb the alleged and recognized legal system and code of laws of
said state and cloud the title to office of the judges of the
state, and subject the court to severe criticism, and that
petitioner has cause to fear that the courts of Texas would be
unduly influenced to his prejudice.
The differences between the prior statutes and codes and those
of 1879, which petitioner claimed operated to abridge his rights,
privileges, and immunities as a citizen of the United States and to
deprive him of due process of law, seem, as he sets them up, to be
that by the prior law, the punishment of murder in the first degree
was death, and the jury could not assess the punishment, so that
imprisonment could not be inflicted if the crime were of that
degree, whereas this could be done under the later law; that by the
prior law, grand juries were composed of not less than sixteen
persons, while by the later, twelve was the number, though this was
as prescribed by sec. 13, art. V of the constitution; that
challenges
Page 139 U. S. 452
to the array were allowed under the prior law for corruption in
the summoning officer and the willful summoning of jurors with the
view of securing conviction, whereas, under the later law, where
the jurors called upon the trial had been selected by jury
commissioners in accordance with a law to that effect enacted in
1876, the challenge to the array was not allowed, but it was not
averred that petitioner attempted to challenge the array; that
under the prior law, the indictment must charge the offense to have
been "felonious" or done "feloniously," whereas, under the Codes of
1879, these words might be omitted, as they were in this instance,
and that under the prior law, sheriffs were prohibited from
summoning any person as a juror found within the courthouse or yard
if jurors could be found elsewhere, but that some of the jurors who
tried him were so summoned, although other jurors could have been
found in the county.
The Sheriff of Bexar County filed exceptions to the jurisdiction
of the circuit court and assigned, among other reasons, that the
petition showed upon its face that the matters in controversy did
not arise under the Constitution, laws or treaties of the United
States, nor did the adjudication or determination of the same
involve a construction thereof, but that the matters arose solely
under the Constitution and laws of the State of Texas, and their
determination involved exclusively the construction of the state
constitution and laws; that it did not appear from the petition
that petitioner was restrained of his liberty and illegally held in
custody for an act done or omitted in pursuance of a law of the
United States or of an order, process, or decree of a court
thereof, or that he was in custody in violation of the Constitution
or of a law or treaty of the United States, and that the circuit
court had no power or jurisdiction to release petitioner from
custody, inasmuch as he was held by a duly authorized and qualified
officer of the state under and by virtue of a judgment of a court
of the state, in and by which he had been tried, convicted and
adjudged guilty of a crime against the laws of the state, as
appeared from the facts set forth in the petition. And the
respondent further excepted, upon the ground that the petition
Page 139 U. S. 453
was wholly inadequate and insufficient to authorize the relief
sought because it appeared from its allegations that the petitioner
was arrested upon an indictment charging him with the commission of
the crime of murder in violation of the laws of the state; that he
was arraigned and duly tried and convicted of the crime as charged,
and was by the court, in accordance with the verdict, sentenced,
and was now held to await the execution of that sentence, unless
reversed by the Court of Appeals of Texas, wherein the case is now
pending on appeal from the court below, and that even if the
validity of the present Penal Code and Code of Criminal Procedure
of Texas were legitimately assailed, yet the petition was wholly
insufficient because there was no allegation that the provisions of
the old code, which in such an event would have remained in force,
were in the least dissimilar from the present, or that he would
have been tried in a different way, or that he would have or might
have received a different or lesser punishment.
May 14, 1890, the circuit court, on hearing the application,
dismissed the petition and denied the writ. From that judgment
petitioner appealed to this Court.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
By section 1, Article V, of the Constitution of Texas, the
judicial power of the state was vested
"in one supreme court, in a Court of Appeals, in district
courts, in county courts, in commissioners' courts, in courts of
justices of the peace, and in such other courts as may be
established by law."
By section 3, the jurisdiction of the supreme court was confined
to civil cases; by section 6 it was provided that "the Court of
Appeals shall have appellate jurisdiction, coextensive
Page 139 U. S. 454
with the limits of the state, in all criminal cases of whatever
grade;" and by section 8 that "the district courts shall have
original jurisdiction in criminal cases of the grade of felony."
The District Court of Maverick County was created and organized by
an Act of the legislature of Texas approved March 25, 1887. Laws of
Texas, 1887, p. 46. It had jurisdiction to try the offense of which
petitioner was accused, and acquired jurisdiction over his person
and the offense charged against him through the indictment and his
arraignment thereon. He was charged with the commission of the
crime of murder, which he did not deny was a crime against the laws
of Texas, and that the penalty therefor was death. What he
complained of in his application to the circuit court was that in
the matter of indictment and trial, he had been subjected to the
provisions of statutes which had not been enacted in accordance
with the state constitution. The district court had jurisdiction
and the power to determine the law applicable to the case, and if
it committed error in its action, the remedy of petitioner was that
of which he availed himself -- namely, an appeal to the Court of
Appeals of the state. Under these circumstances, the circuit court
properly declined to interfere.
Ex Parte Royall,
117 U. S. 241,
117 U. S. 245,
117 U. S. 255;
Ex Parte Fonda, 117 U. S. 516.
Nor does the contention of counsel in respect of the Court of
Appeals justify any other conclusion. Under sections 5 and 6 of
Article V of the state constitution, the Court of Appeals was
created as a court of last resort in criminal matters, its powers
and jurisdiction defined, and the salary, tenure of office, and
qualifications of its judges prescribed. The determination of the
validity or invalidity of the Civil or Penal Codes of 1879 would in
no respect affect that court in these particulars, if the
extraordinary claim of counsel in this regard were entitled to any
consideration whatever in this proceeding. Unquestionably it is a
fundamental principle that no man shall be judge in his own case,
and the Constitution of Texas forbids any judge to sit in any case
wherein he may be interested
Page 139 U. S. 455
or where either of the parties may be connected with him by
affinity or consanguinity within such degree as may be prescribed
by law or where he shall have been counsel in the case, and
specific provision is made for commissioning persons to hear and
determine any case or cases in place of members of the supreme
court or appellate court who may be therein thus disqualified.
Const. art. 5, sec. 11. But no such question arises, or could
arise, upon this record.
The Constitution of the State of Texas was submitted by the
convention which framed it to a vote of the people on the third
Tuesday of February, 1876, for their ratification or rejection, by
an ordinance passed for that purpose, and it was provided that, if
ratified, it should become the organic and fundamental law of the
state on the third Tuesday of April following, and also that at the
same time that the vote was taken upon the Constitution, there
should be a general election held throughout the state for all
state, district, county, and precinct officers created and made
elective by the instrument, and that if the Constitution were
ratified, certificates of election should be issued to the persons
chosen. Jour.Const.Con. 772, 780.
The constitution was ratified, and the petition alleged that the
judges of the Court of Appeals were elected to their positions on
the third Tuesday in February, 1876, and that the Court of Appeals
was organized on the 6th of May of that year, from which counsel
argues that the conclusion should be drawn that the present members
of that court are not even officers
de facto. The
suggestion requires no observations here.
We repeat that, as the district court had jurisdiction over the
person of the petitioner and the offense with which he stood
charged, it had jurisdiction to determine the applicatory law, and
this involved the determination of whether particular statutory
provisions were applicable or not, and hence, if the question were
properly raised, whether a particular statute or statutes had been
enacted in accordance with the requirements of the state
constitution.
It is unnecessary to enter upon an examination of the ruling
Page 139 U. S. 456
in the different states upon the question whether a statute duly
authenticated, approved, and enrolled can be impeached by resort to
the journals of the legislature, or other evidence, for the purpose
of establishing that it was not passed in the manner prescribed by
the state constitution. The decisions are numerous, and the results
reached fail of uniformity. The courts of the United States
necessarily adopt the adjudication of the state courts on the
subject.
South Ottawa v. Perkins, 94 U. S.
260;
Post v. Supervisors, 105 U.
S. 667;
Railroad Co. v. Georgia, 98 U. S.
359.
In
Town of South Ottawa v. Perkins, where the existence
of a statute of Illinois was drawn in question, MR. JUSTICE
BRADLEY, delivering the opinion of the Court, said, 94 U.S.
94 U. S.
268:
"As a matter of propriety and right, the decision of the state
courts on the question as to what are the laws of a state is
binding upon those of the United States. But the law under
consideration has been passed upon by the Supreme Court of
Illinois, and held to be invalid. This ought to have been
sufficient to have governed the action of the court below. In our
judgment, it was not necessary to have raised an issue on the
subject, except by demurrer to the declaration. The court is bound
to know the law without taking the advice of a jury on the subject.
When once it became the settled construction of the Constitution of
Illinois that no act can be deemed a valid law unless, by the
journals of the legislature, it appears to have been regularly
passed by both houses, it became the duty of the courts to take
judicial notice of the journal entries in that regard. The courts
of Illinois may decline to take that trouble unless parties bring
the matter to their attention, but on general principles, the
question as to the existence of a law is a judicial one, and must
be so regarded by the courts of the United States. This subject was
fully discussed in
Gardner v. Collector. After examining
the authorities, the Court in that case lays down this general
conclusion:"
"That whenever a question arises in a court of law of the
existence of a statute, or of the time when a statute took effect,
or of the precise terms of a statute, the judges who are called
upon to decide it have a right to resort to any
Page 139 U. S. 457
source of information which in its nature is capable of
conveying to the judicial mind a clear and satisfactory answer to
such questions, always seeking first for that which in its nature
is most appropriate, unless the positive law has enacted a
different rule."
6 Wall.
73 U. S. 511. Of
course, any particular state may, by its constitution and laws,
prescribe what shall be conclusive evidence of the existence or
nonexistence of a statute, but, the question of such existence or
nonexistence being a judicial one in its nature, the mode of
ascertaining and using that evidence must rest in the sound
discretion of the court on which the duty in any particular case is
imposed.
And it has been often held by state courts that evidence of the
contents of legislative journals, which has not been produced and
made part of the case in the court below, will not be considered on
appeal.
Illinois Central Railroad Co. v. Wren, 43 Ill. 77;
Bedard v. Hall, 44 Ill. 91;
Grob v. Cushman, 45
Ill. 119;
Hensoldt v. Petersburg, 63 Ill. 157;
Auditor
v. Haycraft, 14 Bush. 284;
Bradley v. West, 60 Mo.
33;
Coleman v. Dobbins, 8 Ind. 156.
The distinction is recognized between matters of which the court
will take judicial cognizance "immediately,
suo motu," and
those which it will not notice "until its attention has been
formally called to them." Gresl.Eq.Ev. 292, 306. As to the last,
Mr. Gresley says:
"It will not point out their applicability nor call for them,
but if they are once put in by either party, it will investigate
them and will bring its own judicial knowledge to supply or assist
their proof, and will then adopt them as its own evidence,
independently of the parties."
Jones v. United States, 137 U.
S. 202,
137 U. S. 216.
As a statute duly certified is presumed to have been duly passed
until the contrary appears (a presumption arising in favor of the
law as printed by authority, and, in a higher degree, of the
original on file in the proper repository), it would seem to follow
that wherever a suit comes to issue, whether, in the court below or
the higher tribunal, an objection resting upon the failure of the
legislature to comply with the provisions of the Constitution
should be so presented that the adverse party may have opportunity
to controvert the allegations
Page 139 U. S. 458
and to prove by the record due conformity with the
constitutional requirements.
People v. Supervisors of
Chenango, 8 N.Y. 325.
By the Constitution of Texas, each house of the legislature must
keep a journal of its proceedings, and publish the same, and the
yeas and nays of either house on any question shall at the desire
of three members present, be entered on the journals (Art. III,
sec. 12); no law shall be passed except by bill, and no bill shall
have the force of law until it has been read on three successive
days in each house and free discussion allowed thereon, but in case
of imperative public necessity (which necessity shall be stated in
a preamble or the body of the bill) four-fifths of the house in
which the bill may be pending may suspend this rule, the years and
nays being taken on the question of suspension, and entered upon
the journal (secs. 30, 32); no bill shall be considered unless it
has first been referred to a committee and reported thereon, and no
bill shall be passed which has not been presented, referred, and
reported at least three days before final adjournment (§ 37); the
presiding officer of each house shall, in the presence of the house
over which he presides, sign all bills, and the fact of signing
shall be entered on the journals (§ 38); no law passed by the
legislature except the general appropriation act shall take effect
or go into force until ninety days after the adjournment of the
session at which it was enacted unless, in case of an emergency the
legislature by a vote of two-thirds otherwise direct, said vote to
be taken by yeas and nays and entered upon the journals and the
emergency to be expressed in a preamble or the body of the act (§
39). By the law prior to 1876, the journals of the respective
houses were required to be furnished to the public printer for the
purpose of being printed by the clerical officers of each house
(PASCAL's Dig. § 4872); and the secretary of state was required to
distribute the printed journals (
id., § 5092); and similar
provision was made by the Act of June 27, 1876 (Laws of Texas,
1876, p. 36), as also by the Revised Statutes of 1879 (Rev.Stats.
p. 577, § 4012
et seq.). When printed, the manuscript
journals were to be returned and filed in the archives
Page 139 U. S. 459
of the legislature. Pasch. Dig. art. 4872; Laws of Texas, 1876,
p. 36. It was the duty of the Secretary of State to keep, publish,
and distribute the laws, (Pasch. Dig. arts. 5091, 5092, 4872,
et seq.; Laws of Texas, 1876, pp. 35, 313; Rev.Stat. 1879,
pp. 395, 577, � 2722
et seq.).
The Revised Statutes of Texas containing the code in question
were officially published in 1879, with the certificate of the
secretary of state as to the date when the law enacting them went
into effect, and that the volume was a true and correct copy of the
original bills on file in his department. For eleven years prior to
the conviction of Duncan, these Codes had been recognized and
observed by the people of Texas, had been amended by the
legislature and republished under its authority, and their
provisions had been repeatedly construed and enforced by the courts
as the law of the land.
In
Usener v. State, 8 Tex.App. 177, the validity of the
Penal Code in respect of its adoption by the legislature was passed
upon and the law upheld, and that case was quoted with approval in
Ex Parte Tipton, 28 Tex.App. 438, a decision rendered as
late as February, 1890. This decision ruled that an authenticated
statute should be regarded as the best evidence that the required
formalities were observed in its passage, and that the courts would
not exercise the power of going behind it and inquiring into the
manner of its enactment, and
Blessing v. Galveston, 42
Tex. 641;
Central Railway Co. v. Hearne, 32 Tex. 547, and
Day Co. v. State, 68 Tex. 526, were cited in support of
the proposition. In one of these cases, it was decided that the
judicial department should not disregard and treat as a nullity an
act of the legislature, because the journals of one or both houses
failed to show the passage of the bill in strict conformity with
all the directions contained in the constitution, and in another
that it would be conclusively presumed that a bill had been
referred to a committee and reported on before its passage, as
required by the constitution.
The language of the court in
State v. Swift, 10 Nev.
176, was quoted approvingly in
Usener v. State and
repeated in
Ex Parte Tipton:
"Where an act has been passed by the
Page 139 U. S. 460
legislature, signed by the proper officers of each house,
approved by the governor, and filed in the office of the secretary
of state, it constitutes a record which is conclusive evidence of
the passage of the act as enrolled. Neither the journals kept by
the legislature nor the bill as originally introduced nor the
amendments attached to it nor parol evidence can be received in
order to show that an act of the legislature, properly enrolled,
authenticated, and deposited with the secretary of state did not
become a law. This Court, for the purpose of informing itself of
the existence or terms of a law, cannot look beyond the enrolled
act, certified to by those officers who are charged by the
constitution with the duty of certifying and with the duty of
deciding what laws have been enacted."
In Usener's case, the court declared that although not feeling
in duty bound to do so, yet it had nevertheless examined the
journals of the two houses, with regard to the bill entitled "An
act to adopt and establish a Penal Code and a Code of Criminal
Procedure for the State of Texas," and arrived at the conclusion
that the act had received the legislative sanction in strict
conformity with the constitution, so that, if driven to such
examination, the court was unhesitatingly of opinion that there
would be no difficulty in the way of establishing that fact by them
in every essential particular. It is insisted that the extent of
the disregard of constitutional requirements was not fully
developed in that case, and that its authority was overthrown by
Hunt v. State, 22 Tex.App. 396. But we are not called on
to conclude how this may be or to anticipate the ultimate judgment
of the courts of Texas, if they consider the controversy still an
open one. If the question of the in validity of the codes was
presented to the District Court of Maverick County, it must be
assumed that it adjudged in favor of their validity, and, as the
case has been carried to the Court of Appeals, that it will there
be adjudicated in accordance with the law of the state, and when so
determined, it is entirely clear that that adjudication could not
be reviewed by the circuit court or by us on habeas corpus. And the
result must be the same if the question has not been raised by the
petitioner in the state courts.
Page 139 U. S. 461
We may remark in conclusion that the magnitude of the operation
of the objection to these statutes does not affect the principles
by which the result is reached. This is not the case of a system of
laws attacked upon the ground of their invalidity as the product of
revolution. By the Constitution, a republican form of government is
guaranteed to every state in the union, and the distinguishing
feature of that form is the right of the people to choose their own
officers for governmental administration, and pass their own laws
in virtue of the legislative power reposed in representative
bodies, whose legitimate acts may be said to be those of the people
themselves; but while the people are thus the source of political
power, their governments, national and state, have been limited by
written constitutions, and they have themselves thereby set bounds
to their own power as against the sudden impulses of mere
majorities.
In
Luther v.
Borden, 7 How. 1, it was held that the question
which of the two opposing governments of Rhode Island -- namely the
charter government or the government established by a voluntary
convention -- was the legitimate one was a question for the
determination of the political department, and when that department
had decided, the courts were bound to take notice of the decision
and follow it, and also that as the Supreme Court of Rhode Island,
holding constitutional authority not in dispute, had decided the
point, the well settled rule applied that the courts of the United
States adopt and follow the decisions of the state courts on
questions which concern merely the constitution and laws of the
state. Mr. Webster's argument in that case took a wider sweep, and
contained a masterly statement of the American system of government
as recognizing that the people are the source of all political
power, but that, as the exercise of governmental powers immediately
by the people themselves is impracticable, they must be exercised
by representatives of the people; that the basis of representation
is suffrage; that the right of suffrage must be protected and its
exercise prescribed by previous law and the results ascertained by
some certain rule; that through its regulated exercise, each man's
power tells in the constitution
Page 139 U. S. 462
of the government and in the enactment of laws; that the people
limit themselves in regard to the qualifications of electors and
the qualifications of the elected, and to certain forms of the
conduct of elections; that our liberty is the liberty secured by
the regular action of popular power, taking place and ascertained
in accordance with legal and authentic modes, and that the
Constitution and laws do not proceed on the ground of revolution,
or any right of revolution, but on the idea of results achieved by
orderly action under the authority of existing governments,
proceedings outside of which are not contemplated by our
institutions. 6 Webster's Works, p. 217.
Discursive as are the views of petitioner's counsel, no
violation of these fundamental principles in this instance is or
could be suggested.
The State of Texas is in full possession of its faculties as a
member of the union, and its legislative, executive, and judicial
departments are peacefully operating by the orderly and settled
methods prescribed by its fundamental law. Whether certain statutes
have or have not binding force it is for the state to determine,
and that determination, in itself, involves no infraction of the
Constitution of the United States, and raises no federal question
giving the courts of the United States jurisdiction.
We cannot perceive that petitioner is being otherwise dealt with
than according to the law of the land.
The judgment of the circuit court is
Affirmed.