USA > Texas > Governors who have been, and other public men of Texas > Part 20
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The opinions of Judge West are to be found in Vols. 58 to 64, inclusive. Feeble health compelled him to resign, which he did on September 29, 1885, and Governor Ireland appointed Hon. Sawnie Robertson of Dallas to succeed him.
The admirable character of Judge West and the lesson of his useful life are fittingly portrayed in the report of the memorial exercises in the Supreme Court as reported in Vol. 66 of the Reports.
Judge Robertson was perhaps the youngest man ever appointed or elected to the Supreme Bench of Texas. He was reared, I believe, in Tyler, and is a close blood kinsman, if I am not mis- taken, of Hon. Horace Chilton.
He vindicated the opinion of his friends and the wisdom of Governor Ireland in complying with their request for his ap- pointment, for he proved to be a very able judge, as his opinions to be found in 64 and 65 Texas show in a most gratifying way. He too was compelled to resign from the bench owing to the in- adequacy of the salary attached to the office. He did not long survive his return to the practice, but died in the flower and prime of a splendid manhood.
The name of Reuben R. Gaines appears as a member of the Su- preme Court in Vol. 66, for the first time, the court being composed of Judges Willie, Stayton and Gaines, a triumvirate of Judges worthy of the highest traditions of the Supreme Court of Texas.
When Judge Willie resigned in March, 1883, Judge Stayton be- came Chief Justice; and Judge Alex S. Walker, who had long been one of the reporters of the court, was appointed associate justice. He had been district judge of the Austin District and was an able lawyer, and a man of high character. His opinion appears in Volumes 70, 71, and 72 of the Reports.
If I am not mistaken he was defeated for the nomination by
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Hon. John L. Henry of Dallas, who took his position on the bench January 1, 1889, and Judge Walker succeeded Judge Terrell in the capacity of Reporter.
Judge Henry was an East Texas man. He practiced for many years in Polk County, and later moved to Tyler-thence to Dal- las. He was lineally connected with the great orator Patrick Henry, and in the earlier stages of his professional career, was a very eloquent speaker, and was a most attractive, lovable and worthy man in every way.
Neither the greatest trials have been held, nor the greatest speeches been made in the stately temples of the law such as can be now seen even in small county seats, but the most primitive temporary court houses, in mere hamlets, have been the scene of great legal battles, and great professional triumphs.
When I was a little past my majority, and had been at the bar but a short time, I heard the trial of a contested will case in which Judge Henry was counsel for the contestants, both of whom were blind and close kin to the testator, but according to the will offered for probate, he had given his estate to entire strangers.
One of the beneficiaries was a lawyer of considerable means, a member of the bar of the district.
The trial was had in the county seat of a recently created county which had been cut off from other counties. Court was being held in a room built for a store, out of unplaned lumber in California box style, with no judge's stand, the Judge's seat being not exceeding four feet from the jury, and when Judge Henry was delivering the closing speech he was not half that distance from the foreman of the jury. The proponent and chief beneficiary under the will was sitting where Judge Henry could have laid his hand on him. I shall never forget his pero- ration.
He said-"Gentlemen of the Jury: Some of you and I have known each other a long time. We are not as young as we were when first we became friends. None of us have accumulated much of this world's goods, but the little store we have gotten together we want to go to our loved ones.
"The man who it is alleged made the will offered for probate wanted his property to go to my clients, whom you have seen sightless and poor. The will you are asked to uphold does not give them that property. Who knows but when you and I come to die, when our visions grow dim, when the death damp gathers on our brows, and we look for the last time on this earth upon our loved ones, that somebody inspired by selfish greed, will not stand by our dying pillow and wring from our wives and lit- tle ones their just heritage, as the man who claims under this will stood by the bedside of the uncle of my clients and wrung
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from him as he lay dying the heritage which was justly theirs?" There was a pleading pathos in his very tones which defies translation.
Tears stood in the eyes of more than one of the jurors when he had closed, and the verdict was in his favor.
The opinions of Judge Henry are to be found in Volumes 72 to 85, inclusive.
Hon. John W. Stayton who, as I have said, succeeded Judge Willie as Chief Justice in March, 1888, was elected to the position in November of that year.
The memory of that great judge is too fresh in the minds and hearts of the bar and bench of Texas to make necessary any ex- tended comment at my hands. Nothing can be added to the tributes paid his memory by the bar, and by his associates, which are to be found in the 87th volume of Texas Reports. I had the melancholy pleasure of drafting the tribute which was adopted by the Bar Association of Texas and which was pre- sented to the Supreme Court by Ex-Attorney General J. H. Me- Leary.
It is a striking illustration of the truth that "life is but a fleet- ing shadow," that of the three Judges then on the bench, the five members of the committee on resolution of the State Bar As- sociation, and the two distinguished lawyers who addressed the court, ten in all, only two are now living, that accomplished and cultured lawyer, Jas. B. Stubbs of Galveston, and myself.
Judge R. R. Gaines succeeded Judge Stayton as Chief Justice, and the name of Hon. T. J. Brown appears as a member of the court first in Volume 86.
My recollection is that he was appointed by Gov. Hogg, and he remained a member of the court until his death. The name of Hon. Leroy G. Denman appears first as a member of the court in Volume 87. He was appointed by Gov. Hogg, and in the con- vention at Dallas in 1894 there was a very close contest for the nomination between him and Major F. Charles Hume of Galves- ton. Judge Denman was successful.
The friends of both men were earnestly active, and the dele- gates to no convention ever had the opportunity to choose be- tween two men better qualified for service in the Supreme Court of a great State.
The court composed of Judges Gaines, Brown and Denman con- tinued until May 1, 1899, when Judge Denman resigned for the same reason I have heard, that influenced many of his prede- cessors; inadequate salary. Gov. Sayers appointed to succeed him Hon. Frank A. Williams who was and had been for some- thing more than six years a member of the Court of Civil Appeals for the First Supreme Judicial District.
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I have heard that Gov. Sayers did not know, and had never seen Judge Williams when the appointment was made.
Before, and when Judge Williams was elected to the Court of Civil Appeals Bench he was judge of, I believe, the 3rd district of Texas, in any event it was the district composed of Houston, Anderson and Henderson counties. His home was at Crockett, where before he went upon the bench he practiced law in con- nection with his brother-in-law, the late Col. David A. Nunn, a very able lawyer, and a man of high character and who was greatly and justly esteemed for his courage, integrity, high pro- fessional ideals, and legal ability.
My district was the one next on the South (the 12th) and I once, and perhaps oftener, exchanged districts with Judge Wil- liams as he was disqualified in a number of cases in the district court of Houston County. His appointment by Gov. Sayers met universal approval, for he had on the district bench, and on the intermediate appellate bench, demonstrated a very high order of ability, and he added, if possible, to his reputation on the Su- preme Bench.
The Supreme Court of Texas when composed of Judges Gaines, Brown and Williams commanded the unqualified respect of law- yers in and out of Texas.
In the summer of 1910 the State Bar Association of Virginia and Maryland held their annual meeting at Hot Springs, Virginia, a very beautiful spot.
The business sessions were held separately, but all meetings for social enjoyment were held jointly, and of course a banquet was a part of the proceedings. It was a very fashionable and very expensive hostelry, so much so that the man who went there when the rates usually charged were in force, had to have a plethoric purse, but the management in order to induce the meet- ing of the two associations there, put the rate at $3.00 a day table d' hote. I heard that the usual rate was from ten to twenty dollars a day a la carte. I assume they knew that rate would be be prohibitive to the average lawyer, as it certainly would have been to me, so they reduced the rate to the extent stated above.
I stood that rate four days. I had a very highly esteemed friend from Richmond, Virginia, who was elected president of the Bar Association of that State, and through him I met many lawyers. In the course of the speech-making at the banquet a distinguished lawyer from Baltimore in the course of an admir- able speech said, "Until in the comparatively recent past I looked very lightly upon Texas lawyers and Texas Courts. I rarely paid any attention to a reference to a Texas case. I thought most of the law in Texas Reports was "horse-back law" and treated it accordingly, but a few years ago my personal en- gagements called me to Texas, in connection with a receivership
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case (The Kirby Lumber Company, receivership), and I was thrown in contact with many Texas lawyers, and met the Judges of the Supreme Court of Texas, and I returned home and an- nounced that I had been mistaken as to Texas lawyers and courts. My opinion of both was entirely revolutionized, as will be the opinion of any other lawyer who meets Texas lawyers and Texas judges as I did."
The frank and complimentary statement of one of the leading lawyers of a great city was very gratifying to my State pride. The conclusion reached was not surprising to me, because I knew he had met Reuben R. Gaines, Thos. J. Brown, Frank A. Williams, Thos. H. Franklin, Leroy G. Denman, Presley K. Ew- ing, Sam Streetman, Frank Andrews, T. H. Ball, Joe H. Eagle, and others of like standing-all worthy representatives of the able bar of a great State.
Associate Justice T. J. Brown was appointed Chief Justice Jan- uary 3, 1911, to succeed Hon. Reuben R. Gaines, who had re- signed and on the same day Hon. W. F. Ramsey, who had been a member of the Court of Criminal Appeals, was appointed as- sociate Justice. Judge Frank A. Williams resigned to take ef- fect April 1, 1911, and Hon. Joseph B. Dibrell was appointed to succed him. Judge Ramsey resigned April 1, 1912, and Hon. Nelson Phillips was appointed his successor.
Hon. W. E. Hawkins was elected in November, 1912, and suc- ceeded the Hon. Joseph B. Dibrell.
The court thus came to be composed of Judges Brown, Phillips and Hawkins. Judge Brown died May 26, 1915, and Associate Justice Phillips was appointed Chief Justice and Hon. J. E. Yan- tis was appointed Associate Justice. On the resignation of Justice Yantis Hon. Thomas B. Greenwood was appointed Associate Justice. Judge Gaines was a member of the Court for about 25 years. His name first appears as that of one of the members of the Court in Vol. 66.
Judge Brown was a member of the Court for about 22 years, and left an enduring record of most valuable service. Both had been very able and efficient district judges, and their opinions which are to be found in many volumes of the reports demon- strate that they were lawyers of the first order of ability, and when on the bench they were deeply entrenched in public es- teem and confidence.
Upon the golden anniversary of the marriage of Chief Justice Gaines he was presented by friends and admirers with a hand- some token of esteem in the form of a gold watch and chain. It was my privilege to be permitted to participate in paying a tribute to one who as man and judge so fully deserved it.
Judges Ramsey and Dibrell displayed marked ability as appel- late judges, and their retirement from the bench was deeply
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regretted. Judge Ramsey has since retirement been entrusted with important financial responsibilities, and has proved as ef- ficient in the field of finance, as he was in that of the law.
Judge Hawkins will be succeeded by Hon. Wm. Pierson of Hunt County, and will be followed into retirement by the good wishes of many friends to whom he has endeared himself by many attractive traits of character. He has left on record opin- ions which have proved most instructive and helpful to the bar.
Since the last paragraph was written Judge Pierson has quali- fied and taken his seat on the bench. He had long experience on the trial bench in a populous district, in which there is an exceptionally able bar, and the enthusiastic support he received where he was best known is strong testimony to his professional and moral fitness for the position which he holds.
The promotion of Associate Justice Phillips to the Chief Jus- ticeship was more than perfunctory compliance with established custom. It was the award of deserved honor to a man who had as Associate Justice demonstrated his ability to meet the de- mands of the position in such way as to preserve and perpetuate the exalted traditions of the court, and who as Chief Justice challenges the admiration, and commands the respect and con- fidence of the bench and bar of Texas.
Since the foregoing paragraph was written, it has become known to me that my connection with the Commission of Appeals will in all probability terminate at an early day, and for that reason I feel at liberty to express myself concerning the Chief Justice with greater freedom than I should have done had this been written a year carlier, or than I would do were my term of office to be extended.
Since he, in the last analysis, is vested with the power and charged with the duty of passing upon my work, were I to be continued on the court anything I might say might be attributed to unworthy motives.
I have never been on terms of personal intimacy with him, and during the nineteen months that I have been a member of the Commission of Appeals, have been in his office only a few occasions. My visits have never extended beyond a few minutes, given to the discussion of a case, or cases, in which the record had been assigned to me. I am under no personal obligation to him, except for the patience and courtesy which he has mani- fested towards me with relation to my official work, which I here gratefully acknowledge.
He has not always agreed with the conclusions I have reached, and in many instances has convinced me that I had fallen into error.
I make these preliminary statements in order to show that I write from a wholly impartial and impersonal point of view.
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The mind of the Chief Justice is one of crystalline clearness, and he penetrates quickly to the very core of every case, and by rea- son of his strong intellectual endowment, and thorough famil- iarity with fundamental legal principles, he is able to state the reasons of the Supreme Court for granting the writ of error, in any case, with a clearness and terseness that would be impossible if he were a lawyer of only average ability.
I was very forcibly impressed with his ability to state in con- crete and condensed form controlling legal principles, by the memorandum prepared by him in granting the writ in a very recent case. The original case grew out of a very novel state of facts, and was one of great importance. There have been a few cases similar to it in Texas, but upon the whole it was in large measure a case of first impression, yet on less than a half page of letter paper he set forth every principle of law applicable to the question at issue, with such luminous clearness that the member of the Commission to whom the record was assigned had but little to do beyond setting forth the facts and the conten- tions of the opposing parties, and state the conclusion reached in harmony with the memorandum prepared by the Chief Justice, in doing which he copied the memorandum in full.
It is known of all men that for three quarters of a century the position of Chief Justice of the Supreme Court of Texas has been, at all times when the government of the State was under the control of its own people, filled by men of the first order of ability, but in my judgment no man who has held that exalted position was intellectually the superior of the present Chief Justice.
I am aware that this statement expresses a high measure of praise, but it is the statement of my deliberate and sincere con- viction. Were it not, it would not have been made, for I have not written herein a line, or word, that I did not believe to be true.
I am under the impression that Judge Greenwood did not seek, or expect appointment to the Supreme Court Bench, but that Gov. Hobby tendered him the position without solicitation on his part.
He has abundantly justified the good opinion of his friends and the judgment of the Governor. It is to be regretted that his worthy father could not have lived to see the son he trained in the way of the law, take his place on the bench of the Supreme Court of his native State.
Of the thirty-eight men who have occupied positions on the Supreme Bench of Texas only seven are living, and three of these constitute the present court. Of the ex-judges the four living are Judges Williams, Ramsey, Dibrell and Hawkins.
Writing in the light of my limited experience as a member of an adjunct branch of the Supreme Court, engaged in doing the
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same character of work that Supreme Court Judges are required to do, I wonder that any are living. It is a matter of surprise to me how men retain their mental and physical vigor, who re- mained on the bench as long as did Judges Gaines and Brown.
In this day of stenographers and typewriting machines, it is also marvelous to me how the original judges of the Supreme Court, who had no such labor and time-saving devices at hand, could have done so much and such arduous and valuable work, and could have written such enlightened and profound opinions with such limited libraries.
Only a few days ago one of my colleagues in the course of what I consider a very able opinion harked back 74 years to the first volume of Texas Reports and found in the case of Sutherland vs. DeLeon a most apposite authority in support of his conclu- sion in a present day question of great difficulty.
There must needs be enduring vitality in an opinion rendered nearly three quarters of a century ago, when it is found applica- ble to a case involving large interests, which arose only in the very recent past under entirely changed legal, industrial, and social conditions.
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CHAPTER XXIX
THE SUPREME COURT ON ITS OWN DISQUALIFICATION.
The reports of the Supreme Court of Texas disclose that in a number of cases one or more of the judges have declined to sit in cases to which certain life insurance companies were parties, on the ground that the judge or judges so recusing themselves were policy holders, holding policies which participated in the earnings of the company.
It may be that the position taken is sound in law and in con- formity with the meaning of the Constitution (Section 11, Art. 11), hence is mandatory on the judges, but I am sure that there is not a lawyer in Texas who would have raised the slightest ob- jection to any judge of the "Supreme Court of Texas," using that phrase in the sense in which I use it, who has been on the bench in the past, or who is on that bench now, sitting in any case to which any insurance company was a party, if the judge held not only one, but a dozen policies in it.
Without examining the constitutional provision the thought is suggested to the mind of every lawyer that for a Supreme Judge to recuse himself on such a ground gives the Constitution a very strained construction; yet such action evidences that del- icate sense of judicial propriety which is instinctive in gentle- men and is always commendable.
It is in striking and gratifying contrast to the action of the Supreme Court of one Northwestern State beyond the "Rockies".
A law was enacted which allowed each of the judges who after his election changed his actual residence to the Capital, the sum of $50 a month in consideration of the increased expense of living and of his expense of traveling to and fro from such legal residence.
The State Auditor refused to issue the warrants, whereupon one of the judges instituted a proceeding for mandamus to re- quire him to do so. The action was brought in the Supreme Court. It seems that there was no law authorizing the appoint- ment of special judges in that State as there is in Texas. This being true, the court had either to hear the case or lose $50 a month while on the bench. They heard it, and issued the man- damus and got the money.
There was a lawyer in that State who was of the opinion that the court had no right to do what it did. Therefore he published the opinion in pamphlet form with many references to author- ities as foot notes. The publication is before me as I write.
The lawyer disclaimed any intent to impeach the integrity of the court in which he expressed entire confidence, or even to be discourteous, and it seems to me that he proceeded to do in a courteous way what he did, and he did it well. He protested per-
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sonal esteem for every member of the court. He said he was not attacking the court, but the system, and said, "If we have not, as it appears we have not, placed it beyond the power of the judges to sit in their own cases, then as citizens we should do so." I agree with him.
His deference and courtesy did not, it seems, operate as an offset to his boldness, since the court fined him $500, which he told me he paid.
I do not believe the Supreme Court of Texas would have sat in such a case if the monthly stipend provided by the law had been $5,000 a month of instead of $50.
The members would have waited till some constitutional or statutory provision had been enacted, by the terms of which a special court could have been constituted.
I have had the experience of trying one case (on the criminal docket) in another State, and have attended court proceedings and seen Supreme Courts of other States, and in every instance had my respect for the law and forms of procedure, and the courts of Texas increased.
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CHAPTER XXX. THE COURT OF CIVIL APPEALS.
The Courts of Civil Appeals are so numerous, and the changes in their personnel have been so many, that to deal with the names of all the judges of them would extend this modest volume far beyond reasonable limits, which point I fear it has already reached.
Except the Court at Galveston I have appeared very rarely be- fore any Court of Civil Appeals, and have never been on terms of very intimate friendship with any of the early judges of those courts except Chief Justice C. C. Garrett of the First District.
He and I were college mates at Washington and Lee University where he won the highest possible distinction as a student. He was a laborious, studious man, and highly educated, and while he was devoid of any of the gifts of a public speaker, wrote ad- mirable opinions, and was a most efficient and capable judge. As I recall no judge on the Civil Appeals bench had a less number of writs of error granted against his opinions.
He was a man of exceptional purity in his private life, and in every way a most attractive gentleman for whom I had a deep attachment. His death-I believe in the summer or fall of 1905 -caused me sincere sorrow. I have frequently recalled with a smile my only appearance before the Fort Worth Court when my friend I. W. Stephens, also a Washington and Lee man, was a member of that court.
A merchant had bought goods when, as my client alleged, he knew he could not pay for them. I contended as the law is laid down in Talcott vs. Henderson, 31 Ohio State Reports, "that in- ability to pay, is the legal and logical equivalent of intention not to pay", and sued to recover the goods.
Counsel for appellee, before the argument began, asked me how I expected to accomplish anything by my appeal, when the judge in the trial court sitting without a jury had found there was no legal or moral fraud. I replied that the judge could not by any ruling or holding transmute "chips and whetstones" into assets, or falsehoods into truths.
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