The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-12-09
~

| Independent Of the courts OF the state, ana
| thence carried to the supreme court OIL
| tine United States. Ihe~yeai gruunl upon
which each Of these decisions rests is, that
| the Federal courts do not consider them
| selves bound to follow the State courts in
| the determination Of questions or wnicn
they have concurrent and Independent ju-
rsdction, and that, In determining what
| the law OF the state is as to the matter
under consideration, they VIII follow OF
disregard the decisions OF the State court,
es they deem best. 1t follows that the de-
| c.sions Of the supreme court OF the United
| States in those cases are not binding upon
the State courts as authority in tue deter
| mination of like questions. However I'M
| fortunate such conflict may be. the State
courts can not afford to surrender the in
dependent exercise OF their judicial pow er
over such questions.
| In the fourth class OF cases stated above
the Jurisdiction OF tho supreme court OF
/ the United States was appellate and ex-
orcised fy writ Ct error to the supreme court
of the State In such cases its decisions
| are binding as authority upon the State
courts and must be followed. AS before
shown, the supreme court Of the United
States, when exercising Its appellate juris-
diction over State court, and when gov
erned by the provisions OF the constitution
OF the United States, have held against the
contention that decision OF court is
law, and we believe that this class OF de-
cisions truly and correctly announce the
rule of law by which this case must be
governed.
II the decisions Of the supreme court
OF the United States are based upon tine
ground that the Federal court may at pleas.
uro disregard the decisions Of the highest
courts In the dif1ernt States, 1t can he
easily understood as the arbitrary exercise
of power; but when II is sought to sustain
nj bp oil md
that decision of any court or the recog-
milton by any department or all the de-
partments OF government can give validity
10 law which is contrary to the con3ttu-
ticn of a State and make valid that which
the legislature could not enact. we can not
comprehend how this can be. unless the
court is authorized TO exercise sovereign
rover. by which alone the constitution of
state can be changed. When courts speak
of the obligation of contracts thcy mean
the legal obligation or biriihs force Of
such contracts, and. II the law upon which
the validity of the contract depends be I'M
cons titutonal, IT is not Il law and never was
a law. and the pretended contract is void
and has no legal obligation which can be
violated.
Judge Brown here quotes at length iron,
the dissenting opinion Of Justice Miller III
the case of Gelpecke VS.. Dubuque. | Wall.
l15. to sustain his views as IN tie power
of the State courts as impairing the obliga
ton of contracts, and continues:
The proposition announced by Justice
Miller that decision Of a court is not a
law. but merely the evidence of what the
law is. and that when IL is overrued 1t
Is not a change OF the law, but declara-
ton and judicial accertiinacnt that 1t.
never was the law. Is supported by ample
authority. We believe this to be the true
rule and that decision of q court is not
In fact law, and, II enormously made,
can not make a law. Ii Is simply the dccla-
ration of the court as to what the law is
in the opinion of the judges. When an
erroneous decision ia overruled, 1t is then
AT If it had never been made. and the law
is to be considered as declared In the later
opinion.
Such a decision as that sought by appel.
LIANT would be violativc OF the fundamental
principles of our jurisprudence and an as
sumption Of power forbidden to be exercised
by the court and would involve the al.
ministration Of justice in many and insur-
mountsble difficulties. We believe that VIC
must do one Of two thincs-either overrulr
Higgins VS.. Hordages and restore Lufl:iT
VS.. Galveston. or we must maintain Hi;
gins VS. BordaEes and let the other case
stand overruled and as if it had never been
made We see no reason for changing our
opinion and we therefore stand by the las,
dcclsion-tho lien can not he enforced.
Question 2. In case no lien should be
enforced against the Homestead of appel.
lees, are they or appellee Henry w. Cortes
personally liable for the amount of the Ger.
ifcaies?"
II the terms of the charter OF Tie city or
Houston empowered that city to make The
ccsts of such improvement a personal
charge sgains: the owners OF the property.
and II the city has done So the appellecs
would he liable for the cost OF the Improve
m aud al ,,-I .
forced against their homestead.
Opinion by Brown, ].
NEW YORK. TEXAS AND MEXICAN
RAILWAY COMPANY Va GRANT |
GREEN; personal damage suit against
tho railway company-From Jackson
county. First district.-Reversed and 70
handed
This suit was brought by Green to re-
cover damages of the railway company sus-
tanned by him in the wreck of an engine !
and train belonging to the company. upon |
which he Was the engineer
The extent Of the injuries sustained by |
Green was a material issue In the case I
and one upon which there was a conflict in !
the testimony, DR., William Irwin was a |
witness for defendant on the trial below |
and testified on this issue by deposition.
Dhe OF the cross -interrosatcries pvopoundol /
TO him and his answer thereto was as fol.
lows.
cross -interrogatory-"l 1t not true that
you mad never treated any case Of railway
injury. save an injury to one 5. c. Abbott,
VINO had his fingers mashed, previous TO
your treatment OF Green? II you answer
IN the NEGATIVE, please name the cases"
answer to cross I'M vrrOSatory--"l have
n II t,rio IA.