if there had been no trial below. See Giles v. Shaw, 146 Oil. 28, 203 P. 1103. In ,Kirksey v. state, 58 Tex. Cr. R. 188, I25 S.W. 15, Judge Davidson said, when an appeal from convictionin juSticecourt is taken to the county court, the case shallbe tried a6 if it has never been tried. Again, in Martoniv. State, 74 Tex. Cr. R. 64, 1.66S.W. 1169, the same great judge said that our statuteprovide6that when convictionoccurs in an inferiorcourt and appeal is prosecutedto the county court,the trial in the county court shall be as if there had been no trial In the justicecourt."
Having determinedthat the legislativeintentas to fines concerhsitselfonly with the fine imposedon appeal,the question occurs as to the dispositionof such fine. Article877 says the fine Hon. Nelson Quinn, Page 3 (WW-1079)
is to be paid, along with the costs of the corporationcourtinto the municipaltreasury. The finesassessedon appeal is in lieu of and substitutedfor the Pine imposedby the corporationcourt.
It is suggestedthat Article877 might contraveneSection 24 of Article 16 of the Constitutionof Texas. That Sectionlays down this rule:
"The Legislatureshall make provision6for laying out and workingpublic roads, for the buildingof bridges,and for utilizingfines, forfeitures,add convictlabor to all these purposes."
There aresseveralressonswhy w6 do not find,thelanguage in this Section coutrolling.
First, the very languageof the Sectionimplies.th+ the Sectionis not self-operating.It says, "The Legislatureshall T .ll. The natural impllcation,of make prOViSiOU6,. this languageis that broad discretion,is.leftto.the &agisl$+e aS~,tothe I+nS, character,and proportiopof,fines,etc. to be used,onroads.,
Secondly,this Section,if it were tO,bs interpreteda6 invalidating Article 877,;would~haveto be,shown to be an earmarking of the funds and labor so derived. Earmarkingof funds is know to be among the poorestmethods of financialcontrol. The gross inefficiency that derive6from thiS~practi.ce is detrimentalto the interestsof the people,and this fact must have been known to the framersof this Section. It follows,therefore,that the intentof the framersmust have been to utilize only 6UCh fines, forfeitures,and convictlabor as was necessaryto the maintenanceof the public roads.
Thirdly,at the time of the enactmentof this Section,which was a part of the originalConstitutionof 1876, we are informedby the learnedannotatorof the Vernon'sTexas Constitution,". . . the demoralization followingthe Civil War led to an unprecedenteddis- regard for law, and to an increasednumber of arrestsand convictions. The prisonpopulationtrebled in a singleyear, and additionalemploy- ment for convictshad to be found. It was thoughtthat road building might take care of this problem. . .". Since some convictssimply cannotbe used on roadwork,e.g. those under penaltyof death, females, the ill, it followsthat the framersdid not intendthat ethe availableconvictlabor shouldbe used in this way. Indeed,we can- not assume that the framerswould have intendedto put the State in the positionof the Sorcerer'sApprentice. We think that the framers' likewisedid not intendto channelall the fines and forfeituresthat,,. may be derived,from whatever soul-ce, into the supportof the public roads. Hon. Nelson Quinn,Page 4 (WW-1079)
For the reasonsstated,it is the opinionof the Attorney Generalthat Article877, V.C.C.P.me8118that upon convictionafter a trial de novo 'fromthe CorporatiouCourt,three items shall be collectedof the defendant,to-wit: (a) the costs incurredin the CorporationCourt, (b) the Cost6 Incurredin the