The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-10-27
/ MANDAMUS MAY ISSUE
~ vacation d the Sspremc Court, 1t
Is Decided.
n pIcHr TO FILE MOTION FOR REHFARlNG
=. (, .susal to Issue . Writ of Error
Il Not Supported by Ar
tlcle DIT.

aa,vs Hines vs.. Charles s. Morse. clerk,
IA the Missouri Kansas and Texas Rail-
III company Of Texas, petition for man
\ Janus;
This proceeding was petition addressed
!. N. chief justice and associate justices
!, the supreme court, for writ OF man
,.mus to compel the clerk Of that court to
,r.nsspn 20 the clerk Of the court OF civil
.cc..as for the Firt supreme judicial dis
4 III a certified copy of the order of the
sunrenss court refusing a writ OF error In
~ case Of the Missouri. Kansas and Texas
Railway company against Olive Hines. The
nalter under consideration was heard and
detsrmined during the last vacation, but
the preparation OF the opinion was post
copxd until Ale beginning of the present
term. SO that all the judges of the court
might confer and agree upon 1t, when pre-
pared
The cuse of the Missouri, Kansas and
Texas Railway company against Hines, he
lore mentioned. was brought 10 the su-
promo court upon an application for writ
q error during its last term. The APP
nlintion was refused near the end of the
/
IN fifteen days from tpe order refusing the
writ the applicant railroad company filed
motion for a rehearing Thereupon the
defendant in the application demanded of
tho clerk that he should transmit to the
court OF civil appeals AT Galveston, a ctT-
tiiisl copy OF the order of refusal and
all file papers sent up from that court.
TIE clerk, acting upon what had been the
uniform practice in the supreme court,
,,l1 h H.
the motion for a rehearing should be over
ruled.
TIE petition for the writ of mandamus
alleged these facts and the Missouri Kan
sas and Texas Railway company having
been made party defendant, appeared
eri pleaded to Our jurisdiction as judges
In vacation TO hear and determine the mat
ter, and also excepted to the petition for
insufiiclency The case was ably presented
on both sides by oral argument and re-
solved Itself into these tive questicus:
First: Have the judges of the supreme
court during vacation the power to grant
writ OF mandamus in any case? and
Second: Is the applicant fer writ of err
ror, whose application has been refused
| By the supreme court, entitled of right to
| Gle motion for rehearing?
/. Section of article of our constitution
/ which provides for die organization Of the
supreme court and defines the powers and
Jurisdiction which are conferred upon ii
snd which may be conferred by the lsgisla-
ture, contains this provision: -
The supreme court and the justices thereof
shall have power to issue writs OF slabeas
corpus as may be prescribed by law, and
under suoS regulations as may be pre-
scribed by law the said court and the JUS
tices thereof may issue the writs of man
damus, procedendo. certiorari, and such
other writs AS may be necessary to enforce
It's Jurisdiction. Upon the con-
strtction Of this provision ths determlna-
tion Of the first question must depend.
Courts, the terms OF which are fixed by
law, have no power to sit save during term
Time unless. for special reasons. authority
70 hoN special session, or TO hear and de-
teImine some special class or classes OF
cases during their ordinary vacation, be
eoDierred upon them. This latter authority
y not infrequently given to courts or TO
rne 1rdge or Judges thereof, and when II
constitution or statute confers the power,
no reason is seen why the authority can not
b. exercised
II the latter part of tine provision under
coasderation had read: "And under such
regulations as may be prescribed by law
me said court may issue wriss
mandamus, procedendo, certiorari, and
sucn other wrhs as may be necessary TO
ENFORCE It's jurisdiction" it IS clear that
seeIe would have been no power to issue
zoe writ in this case except in term time.
me constitution limits Tie session of
me supreme court to specified term OF
uine months and fixes the place where 1t
mus Sit and does not specially provide
lor tne exercise OF its jurisdiction at any
ooer Tune or place. 1t follows that II can
~ ct no other time or place.
but the provision In question confers
sne same Jurisdiction with respect TO the
ntxs cheren specified. upon the justices
Ie supreme court, which are conferre
uion the court itself and neither directly
LOT indirectly limits the time or fixes
w place at which they are to Sct In
ne exercise OF the jurisdiction thereby con-
Ired they may act, as justices of the
aWeme court and not as the court itself,
.'ner In term time or vacation. Tie pow
Y ioweyer is limited 10 the grant Of such
Veess as may he necessary TO enforce
~ Jurisdiction OF the court. Tias pro-
Roa' IN our opinion, Is a wise one. IL
10y oe necessary TO issue o writ to enforce
" jurisdiction Of the court in vacation
vel as in term time, and for this reason.
s'ess, the power was conferred upon
. Justices Of the court. The present case
'@s to illustrate Me point. Here the
- being without a decision OF the SUI
I've court to guide him ami pursuing
~, asuai practice Of the court. cautiously
s s.iaed to transmit to the court of ciyii
ppFsis certificate necessary to prompt
r,Vecement of Judgment of chat court
although the relator felt aggrleved
1,s course, she would have been without.
-aeuy but for she power conferrgt upon
- Justices of the court. to hear and
rmine in vacation the case made by
er Petition.
ihis brings US to the discussion OF
sesond question. The provisions 81
~ neyised Statutes with reference u
suoh lot a rehearing in the supreme court
,tvuhd in chapter of title %, and are
~: W. Any party desiring rehear-
any matter determined by said court
WITHIN fifteen days after the date OF
OF the Judgment or decision OF the
~, ~, nie with The clerk OF said court his
s.,i IN writing for rehelring thereof,
sLfch motion the grounds relied upon
A4e reneartng shall be distinctly snecl-
aud the name and Residence OF the
- OF me opposing party, il known.
- not Known, then the name and resi-
oi the opposing party rs shown in
.eooro provided that should the court
within les time than fifteen days
me renditlon OF the judgment 1t may
suen rules and regulations in refer
me f,iIiag OF the motion as to I,
em u1M for the promotion OF the
OF all the parties concerned
- 20. Upon the filing of such mo-