CIVIL GOVERNMENR TOWNES al ; s | | a dt ie eS Southwest Texas State “ec. . x College Ament secant 11 TY San Marcos, 7 am : pi eres i . iii Laat adn ge 2 Si i cases a eeraeeiami annie iste 2% Lee e te Cate rr . ON a i. tafe 1 eachers College “27 Meoarcos, 7 exas CIVIL GOVERNMENT zz THE UNITED STATES and in THE STATE OF ‘TEXAS A Text-Book on Civics BY JOHN C. TOWNES, LL. D. DEAN OF LAW DEPARTMENT THE UNIVERSITY OF -TEXAS LIBRARY: | | Southwest Texas State Teachers College ge San Marcos, Texas 2 PUBLISHED BY AUSTIN PRINTING COMPANY AUSTIN, TEXAS SI O56 COPY RIGH T i908 BY. JOHN C. TOWNES Electrotyped, Printed and Bound by AUSTIN PRINTING COMPANY AUSTIN, TEXAS a (UNIONS LABEL, SS ~~ PREFACE. This book has been written for use in the public schools in Texas. It deals with Civil Government in the dual form in which it exists in our American Institutions. The subject is presented in five parts. Part One treats of the ‘General Principles of Government; Part: Two, of the Gov- ernments in the Colonies, and during the Confederation ; Part Three, of the United-States; Part_Four,of the State | Government in Texas; and Part Five, of Some General Doctrines of Municipal Law. This arrangement is believed to be the most natural and convenient, and to give to the student the best opportu- nity to master the subject in all its phases. These general principles are the real spirit and genius of our institutions, of which our two Governments are the outgrowth and embodiment. These principles made,our forms of government not only possible, but practical and successful, but they worked slowly. It is therefore neces- a heginning of goverr ica and trace > their processes of development through the the Colonial Go d the Confederation up to the State and the Union This chronological order is import- ant. The pupil should understand that the States pre- ceded and created the Union. He should then be arv- quainted with the manner in which the United States Government was created, its nature, and the scope and limits of its powers. He should further understand the effect of all this upon the respective State Governments, 4. PREFACE their present powers and functions, and their relations to the United States and to individuals. In presenting these last matters, it is earnestly believed that it is bet- ter to deal specifically with some one State, and to pre- sent its government in concrete form. It is questionable whether a book which is so written as to be applicable equally to all the States can be the best for any one of them. As this text is prepared for use in Texas, it treats of Government in that State, in the belief that such a presentation is best for Texas schools. The study of government necessarily involves a consideration of its purposes and results, and as these are accomplished through laws, it seems that a complete treatment. of the subject requires at least a brief_presentation of some of the leading legal doctrines and_rules. This is the object of Part Five, under the head of Municipal Law. THe AUTHOR. Austin, TEXAS, January 25, 1908. ° CONTENTS. Part One Principles of Government. CHAPTER I. General Conception of Government..... 7 CHAPTER J]. Forms of Government................ 17 Cuapter III. The Development of Constitutional Government . 2.0... . cee eee ee eee ee eee 28 CuaptTer IV.- Necessity for Different Departments of Government . 2... 0... cece eee ees 30 CHAPTER V. Importafit Powers and Duties of Sov- erelonty and Government. .............0e0 eee 45 Cuaprer VI. Relation of the Individual to. Sov- ereignty and Government. .................6.. 08 Cuapter VII. Political Parties. .................. 67 Part Two Early Government in America. CHAPTER VIIUI. Government in the Colonies and Un- der the Confederation . ......0.......... 00008. 81 CHAPTER IX. The Preparation and Adoption of the Constitution of the United States . ............ 90 Part Three The United States of America. CHAPTER %. General Nature of the United States Government and its Relations to the States Com- posing It . oi... ec eee ee eens 97 GHAPTER XI. Legislative Department of the United States Government . ......... 0.0 c cece eee ees 108 Cuapter XII. The Powers of Congress ........... 120 CHAPTER XIII. Legislative Department The Pow- ers of Congress (Continued) . ...............0. 133 CuapTeR XIV. The Executive Department of the Federal Government . .......... 0.0.00. c ee eee 148 6 CONTENTS CHaprer XV. Judicial Department of the Federal Government . ......cc ccc cece cee eee eee ee eee 159 CHAPTER XVI. Restrictive Provisions of the Federal Constitution . ....... ccc cece ee ee ec eee eee eee 169 CHAPTER X VII. Guarantees in the Federal Constitu- tion to the States, and to the Citizens of the States and of the United States. .................000- 184. Part Four Government of the States, With Particular Reference to Texas. CHAPTER X VIII. The State Governments. ........ 195 CHAPTER XIX. Brief Historical Sketch of Texas. ... 207 CHaprer XX. The Constitution of 1876. .......... 221 CuaprER X XI. -The Legislative Department. ...... 234 Cuaprer X XII. The Executive Department. ...... 249 Cuaprer X XIII. The Judicial Department. ....... 255 CHAPTER XXIV. Restrictive Provisions of the Consti- tution of Texas. ....... 2... eee ee eee 273 CHAPTER XXV. Public Schools of Texas. ......... 281 CHaPTER XXVI. Miscellaneous Provisions of the Texas Coiistitution . .............000000. ..... 304 Part Five Municipal Law. CHAPTER XXVII The Nature, Subject-Matter, Source, Formation, Evidence, Results, and Classi- fication of Municipal Laws.. .................. 334 CHaprer XXVIII. Legal Rights and Their Classifi- C0) 6 er 343 CHAPTER. XXIX. Some of the More Important Legal Doctrines and Institutions PART ONE. PRINCIPLES OF GOVERNMENT. CHAPTER I. GENERAL CONCEPTION OF GOVERNMENT. General Idea. 'l'o govern is to control, to regulate, to cause one who is governed to obey the will of one who governs. Ideas Implied In. Governing therefore implies two per- sons: a governor, and one governed; the making of rules by the first for the control of the second, and the secur- ing of obedience to these rules from the one subject to them. Making Rules The governing person must exercise his judgment and will in determining what the other is to do. This determination, when formed and announced, becomes a rule of action to which the person governed must submit his will, and by which he must regulate his conduct. Communicating Rules. It is clear that it would be un- just to the one subject to control, for the one governing to make rules which he does not communicate to the one to be governed, and yet to hold him responsible for dis- obedience in breaking them. On the other hand, it would be unjust to the one having the right to govern for the one subject to government to be excused from obedience because he would not inform himself of rules which had been properly published. . Hence, we find that laws made for the government of a people are generally published before obedience to them is required, and, furthermore, that no one is excused for 8 Civiu GOVERNMENT disobedience because he has not taken the pains actually to inform himself regarding these after they are pub- lished. This is what is meant when we say that ignorance of the law never excuses one for breaking it. Interpreting Rules. Frequently the meaning of a rule is doubtful; different individuals may construe it dif- ferently. Hence, if every one subject to the rule is to be gvoverned alike by it, there must be some way by which to decide authoritatively what the rule means. This 18 interpreting or construing the rule. This is always done by him whose will is expressed in the rule. The inter- pretation placed upon it by him must be accepted by all others. Applying Rules. If those whol ar are subject to the rule always know, properly understand, and willingly obey, it, it, the matters we have just discussed would complete the process of governing. But quite frequently rules are not obeyed, and hence there must be provision made for ascertaining when disobedience occurs. This can be done only by investigating the conduct of those suspected of disobedience and by comparing this conduct with the rule. If the conduct conforms to the rule, there is no dis- obedience; if it does not conform, there is. By such com- parison, each person’s guilt or innocence is ascertained and declared. This bringing together of rule and conduct is applying the general rules to individual cases and passing judg- ment upon them. Enforcing Penalties for Disobedience. Conviction of disobedience does not of itself insure enforcement of law. The process must go further and inflict upon those who have been convicted such punishment as is appro- priate to the wrongs committed. Inflicting punishment for past wrongs cannot change the fact that the law has been broken, but it tends to prevent future violations not only by those punished, but also by others. Illustrations. All these conditions are present in school a _ Pa Pa /. PRINCIPLES OF GOVERNMENT 9 government. The teacher is the governing body; the pupils are those to be governed. The teacher makes rules and communicates them to the pupils. Some of the pupils obey; others do not. As to the first, the end of govern- ment is accomplished, and there is no need for further action. But as to the second, government has so far failed; and to make it effective, enforcement is neces- sary. So the teacher must investigate the’ conduct of those suspected of disobedience, judge them by the rules, and ptinish those found guilty. We find the same principles underlying all competi- tive games. Those having authority make and publish rules by which certain games are to be played. These are binding upon all who undertake to play in such games, but there are always some who will not voluntarily obey the rules. Therefore, the makers of the rules, antici- pating this, provide for the selection of officers whose duty it is to watch the game, detect disobedience, and ‘inflict the proper penalties. Necessity for Government. Government is necessary to the general well-being of every people. Man is a social animal. He neither will nor can live alone. Each indi- vidual is dependent upon others for his comfort and de- velopment, if not for his life. On the other hand, each has the capacity to disturb and injure others. Unfortu- nately there are some who are more disposed to injure others than to control themselves properly. Hence, there must be some governing body, having and exercising con- trol over individuals, severally and eollectively, in order to restrain them from unduly injuring one another or the community at large. If in any community every one were free to do just as he pleased, there could be no order nor security. The enjoyment of life, liberty, and “property by each individual would depend entirely upon his own capacity to protect himself. Liberty and prop- erty would in fact lose their meaning, and life would be stripped of all that makes it desirable. 10 Civi, GOVERNMENT Political Power. The power within any people which makes and enforces the laws by which that people 1s governed, and which protects that people from outside in- terference, is called political power. Subject Matter of Political Power In advanced com- munities this power does not undertake to control men in everything that they may feel, think, say, or do, but only in those matters and to such extent as is necessary in order to protect each individual in his just and equal rights, and the community at large from disorder. To state it differently, political power extends only to such conduct on the part of those subject to it as is injurious to the just and equal rights of other individuals, or to the general welfare of the community. Purpose of Government. The purpose of government is to protect each individual and the general public from undue and unjust interference by others. Such protec- tion enables each to work out his own development along his chosen lines of action, so long as he does notin so do- ing unjustly encroach upon the equal and similar rights of others. It is often found that the best and surest means of protection against individuals is to develop them to such a state of self-respect and self-helpfulness as to relieve them from the temptation to injure others, or to enable them to resist such temptation if it should be presented. Sovereiguty. A certain amount of political power is sovereignty. How much of such power there must be to entitle it to that designation is doubtful. This is one of the questions upon which it is hard to reconcile theory and practice. The theorist says that to be sovereign, political power must be supreme and unlimited. It is certain that such power as this is sovereign. Still, the practical question arises, may not power limited in some respects still be soverelgn? If we answer this in the negative, do we not go too far? Under such a definition, has there ever been PRINCIPLES OF GOVERNMENT 11 or could there ever be a sovereign? Has there ever been a state whose power was not limited as to territory? Rome boasted that she was Mistress of the World, yet there were always outlying districts over which her power did not extend.- It seems that if we are to deal with sovereignty as a practical thing, we must accept terri- torial limitations upon it. Is this the only limitation whith can be admitted? Must sovereignty necessarily be unlimited as to subject-matter? May not political power which is the highest and ultimate power over designated public affairs be justly termed sovereign as to those affairs, though there may be other matters which affect the same people over which it has no authority? Practically it seems that the people of the United States and of the several States have answered this question in the affirmative. In our Amiecran institutions we have the people of the United States exercising political power over designated matters, operating through the United States Government; and the people of the respective States exercising political powers over all matters not within the jurisdiction of the people and Government of the United States, and operating through their respective State Governments. The jurisdiction of the people of the United States and of their Government extends through- out the territory of all the States, and embraces all per- sons within them, but it includes only such matters as are given over to this people.and this Government in the Federal Constitution. The jurisdiction of the people of each State and of their Government extends to so much of the territory of the United States as is within the boundaries of the particular State, and to so many of the people of the United States as live within that State. It does not include those matters given over to the people of the United States and their Government; but over all other matters it is supreme. So we have two peoples and two governments operating in the territory and over the inhabitants of each State; yet each people and each 12 Crvi GOVERNMENT government is limited as to the matters over which its powers extend. Each within the sphere of its political activity is the highest and uncontrolled power, subject to no other authority and accountable to no other for its conduct. Each is equally without power as to the matters properly within the jurisdiction of the other. This is the practical condition in which the citizens of the United States are placed, and from which there is no escape ex- eept by revolution. We must, then, either accept this idea of sovereignty limited as to subject-matter, or agree that there is no sovereign power in our American institutions. The Constitutions of the United States and of the several States are based upon the theory of sov- ereign power over limited subject-matter, and the Su- preme Courts of the United States and the several States hold to and announce the same doctrine. On such author- ity we may safely accept it. The Seat of Sovereignty. In different peoples sover- eignty is seated or vested in different persons. In some, it is in one individual; in others, in more than one, but yet a small number; in others, in a large proportion of those governed; and, perhaps, in a very few instances, in all of those governed. These differences in the location of sovereignty are the principal distinctions which separate the different forms of government. We are, however, concerned with them now only in so far as they affect the necessity for organ- ization by sovereignty for the purpose of exercising its powers. Organization Where All Political Power is in One Per- son. In those peoples in which sovereign power is vested without limitation in one individual, he can exercise these powers to a large extent in person. Therefore there is no need for extensive organization. What the ruler wills is law, and he can apply and enforce this law at his pleas- ure. This is the extreme of centralized power, and results in the simplest, though far from the best, form of govern- PRINCIPLES OF GOVERNMENT 13 ment. This condition, or something approaching it, has existed at some time in almost every country of which we have any knowledge. Organization Where Political Power is Distributed Among a Few. When sovereign power is vested in more than one person, even though the number is small, some arrangement for concerted action becomes necessary. In such a people the law represents the joint will of all those invested with sovereignty, not the will of a single in- dividual. This joint will can only be developed and as- certained by concert of action. After their joint wiil is ascertained, they must act together in applying and en- forcing it. Entering into a common understanding as to the manner of accomplishing all this is simply or- ganizing for the exercise of their political power, or for governing. Organization .Where Political Power is Widely Dis- tributed. In many peoples sovereign power is distrib- uted among a large number of persons, frequently among thousands, and in some cases among millions. It is mani- festly impossible for such numbers as these to continu- ously act together in the exercise of their powers. Gov- erning is a continuous process. These large numbers therefore must either abandon the. undertaking as im- practicable, or devise some method of organization by which the ordinary exercise of these powers can be en- trusted to a few, leaving the great body of the people free to go about their usual occupations. On the other hand, if all political power were given over to the few, this would be limiting sovereignty to those thus endowed, and the community would thereby be placed in the class previously considered. How can these difficulties be avoided and the desired end be accomplished ? The world struggled long to find a practical answer to this perplexing question. The best yet given is Represen- tative Democracy. This is the form of political organiza- tion in which sovereign power is vested in and retained SYIEEC 14 CIVIL GOVERNMENT by all or by a large proportion of those governed, who act personally and directly in the exercise of their great- est and most important functions, but who delegate to certain of their number authority to represent and act for them in the ordinary processes of governing. This organization is more complex than is required in those communities in which all power is in an individual or in a small number. Its end, however, is the same: to enable those vested with political power to exercise it in the control of those subject to such power; in other words, to enable sovereignty to govern. Definition of a Government. le. They de- sired a more efficient means, and so they in 1890 amended the second section of the Article just quoted by adding the words, ‘‘and to the further accomplishment of these objects and purposes may provide and establish all req- uisite means and agencies, invested with such powers as may be deemed adequate and advisable.’’ This gave the Legislature verv large discretion in the matter of railroad regulation. In its first session thereafter it created the State Railroad Commission. The State Railroad Commission. This is a body com- posed of three officers known as Railroad Commissioners, who are elected by the voters of the State, hold office for six years, and receive an annual salary of four thou- sand dollars each. Their duties, stated very generally, are as follows: First. It is a bureau of information as to the rail- roads within the State. In this line of its work it ob- tains, and makes a matter of permanent record, com- plete information as to all railroads in Texas. This in- 326 Civi GOVERNMENT formation covers the location of the lines, the original cost of construction, their present condition and value; all facts concerning rolling-stock and equipment, the manner and expense of operation, including all running arrangements with other lines; all stocks and bonds and other debts outstanding; the volume of freight and pas- senger business done, and the charges, general and spe- cial, made for service, and all other matters which prop- erly enter into and form part of the business and .opera- tion of the roads. Second. It has authority to make such rules and reg- ulations as to the conduct of their business by railroads as shall ‘‘regulate railroad freight and passenger tariffs, correct abuses and prevent unjust discrimination and ex- tortion on the different railroads in this State.’’ This power is.clearly legislative in its nature. Under it the Commission fixes freight charges, requires the building and maintenance of stations, regulates railroad crossings, and makes a great many other rules relating to the bus- iness and operation of the roads. Third. It investigates alleged abuses or wrongdoing by the roads, and adjudges penalties against them if they are found guilty. It cannot enforce these penalties, but if they are not paid it can order suit brought in the proper court on the matter. Their conclusion is taken as making out the case against the road, and entitling the State to judgment, unless the railroad can produce tes- timony to show its injustice or illegality. It is evident that these powers are very great, and that they embrace matters belonging to each of the de- partments of Government which are usually required to be kept separate. This grouping of powers in the Com- mission is based on the authority conferred upon the Legislature in the concluding portion of Section 2, Ar- ticle X, as amended, the amendment being quoted above. Removal From Office: Impeachment of High Crimes and Misdemeanors. Charges may be preferred by the GOVERNMENT OF THE STATES 397 House of Representatives before the Senate against anv elective State executive officer, or against any judge of a district or higher appellate court. Such charges are tried by the Senate. It requires a vote of two-thirds the Senators present to convict. The punishment is re- moval from office and future disqualification to hold office. Persons convicted are still subject to indictment and trial. During the impeachment the officer is sus- pended from office. : The judges of the appellate courts and of the district courts are also subject to removal by the Governor, ‘‘for willful neglect of duty, incompetency, habitual drunken- ness, oppression in office, and other reasonable cause which shall not be sufficient ground for impeachment,’’ when convicted thereof by a.two-thirds vote of each House. .In such proceeding the accused is entitled to be advised of the charges against him, to offer testimony, and to argue his case. Record of the whole proceeding is made. This proceeding is called an address. A district judge is further subject to removal by the Supreme Court upon conviction by that tribunal of in- competency, partiality, oppression, or other official mis- conduct, or in case his habits are such as to unfit him for the office, or in case he habitually neglects his official duty. The charge in such case must be made under oath by at least ten lawyers who are licensed to practice in the Supreme Court, and who actually practice in the dis- trict court presided over by the accused judge. The ac- cused is entitled to trial on the charge. The Legislature is authorized to provide for removal of other officers by general law. Several statutes have been enacted under this. Most, if not all, of these pro- vide for removal by the district court after regular trial. Amendments to the Constitution Amendments to the Constitution are prepared by the Legislature and submit- ted by it to the people for adoption or rejection. Be- fore any amendment can be submitted to the people, it 328 Civit GOVERNMENT must pass each House by a vote of two-thirds, taken by yeas and nays and entered on the Journal. When amendments are submitted to the popular vote they are published at length in numerous newspapers through the State. They may be submitted at a special election called for that purpose, but are frequently voted on at a general election. A majority of the votes cast regarding an amendment is necessary to its adoption. There are several other Constitutional provisions of importance, but they can be more easily considered in eonnection with the subjects to which they respectively relate, and are taken up in Part V, under Law. RECAPITULATION. The State can tax every thing and person within its jurisdiction, in any wise it sees fit, unless forbidden by the Federal Constitution. All taxes must be equal and uniform. Ad valorem taxes must be in proportion to the value of the thing taxed. Taxes can only be imposed for public purposes, and by general laws. General ad valorem taxes are limited to thirty-five cents on the one hundred dollars. Public funds can only be used for public purposes. Counties are the most important subdivisions of the State. They are made for the convenience of the peo- ple of the whole State in carrying out the State laws. They are supported by taxes levied by the commissioners court within the limits fixed by law. Cities and towns are political subdivisions made for the convenience of persons living within them. They are incorporated by the State under general enabling acts. Ifa city has 10,000 inhabitants or over, it may be given a special charter. A private corporation is an agency created’ by the State and private persons for the purpose of carrying out designated purposes. They are now created by general GOVERNMENT OF THE STATES 329 enabling acts. The State may amend or repeal charters granted by it under the present corporation laws. Railroads in Texas are public highways, and railroad companies are common carriers. Such companies are subjected to special control by the State on account of the public nature of their business and the special ad- vantages allowed them. The special method adopted by Texas for the regula- tion of railroad companies is the State Railroad Com- mission. This Commission consists of three Commission- ers elected by the people of the State, and it has author- ity to ascertain all facts concerning railroads within Texas which are of interest to the public; to fix railroad charges, and generally to supervise and regulate railroad operation in regard to State traffic. Impeachment is the general method provided in the Constitution for removal of State elective officers and judges of the district and higher courts. ~° Judges of the appellate and district courts may also be removed by address. | The Constitution may be amended. The Legislature submits amendments to the vote of the people, and if a’ majority of the vote of the people is in favor of an amendment, such amendment is adopted. QUESTIONS. I. 1. ‘To what uses did Texas put her public lands in the beginning of her history? 2. What is a land certificate, and how was land acquired under it? 3. What was necessary to acquire lands under the pre-emption laws? Under the law as to making homes on public lands? 4. How did Texas have her school lands surveyed? Can school lands be sold? 5. Why is it necessary to have records of land titles? What provision is made for keeping such«records ? II. 1. Give the substance of the Constitutional provisions as to taxation as summarized in the text. 2. State generally the effect of. the Constitutional provisions as to State revenues and debts due the State and counties. Ill. 1. What sources of revenue have counties? What limita- tions are there on the county’s power to go in debt? 2, How may 330 CiviL GOVERNMENT cities and towns be created in Texas? By whom are the business affairs of a city managed? Why do cities need very small legis- lative powers? What are local laws made by a city called? How are the revenues of cities provided? Are there any limits on the amount of taxes a city may levy? IV. 1. What is a private corporation? 2. How may such cor- poration be formed?- 3. What powers have they? 4. What con- trol has the Legislature over them? V. 1. Why are public highways necessary to the life of a com- munity? 2. What is the need of railroads? 38. On what prin- ciple is the State justified in granting special privileges to railroad companies and exercising special control over them? 4. What is the State Railroad Commission? 5. Summarize the powers and duties of the Railroad Commission. VI. I. Who are subject to impeachment? 2. What is an ad- dress, and who is subject to that? 38. By what other method may a district judge be removed from office? VIT. 1. How may the Constitution be amended? THOUGHT QUESTIONS FOR REVIEW. I. 1, Over what matters do new States coming into the Union have jurisdiction ? IT. ], Why is it necessary to have minor political subdivisions of the States? Point out the differences in the relations between a State and its counties and those between the Federal Government and a State in the Union. 2. In what respects do counties and cities differ from each other? ITI. 1. Why was it necessary for the Convention of 1836 to provide two plans of government? 2. Give briefly the principal characteristics of the government of the Republic of Texas. IV. ° 1. What motives prompted the adoption of the Common Law? 2. What difficulties were there with regard to adopting it in its entirety ? 3. How did the Texans meet the situation? GOVERNMENT OF THE STATES 331 V. 1. What causes led to the Texas Annexation? 2, What changes necessarily took place in the sovereignty of the people of Texas and in their government when she ceased to be a Republic and became a State in the Union? VI. 1. How does the prevalence of restrictive provisions in the Con- stitution of 1876 show the influence of the Reconstruction experi- ences of the people? VII. 1. What is there in the Constitution of Texas that shows that Texas is a Christian State? 2. What is there in it that guarantees religious freedom to each individual ? 3. What is in it that teaches equality of right and oppertunity ? VIII. 1. What is the highest political right? | 2. How can you reconcile the statement that ours is a govern- ment of, by,.and for the people, with the fact that an individual’s right to vote is derived from the sovereign, and that the privilege is conferred upon only a minority of the people? 3. What are the advantages of the ballot as a means of voting? IX, 1. Why must different rules be applied to acts of a State Legis- lature and to acts of Congress in determining their constitution- ality ? 2. What are the advantages of having two Houses in the State Legislature ? 3. Why does the Senate alone pass upon the fitness of appoint- ments made by the Governor? 4. Why should the bills for raising revenue originate in the House of Representatives ? 5. What is the advantage of having a bill read three times be- fore its passage? 6. What advantages to the public arise from the Governor’s veto power? X. 1. What are the differences in the relations between the Gov-: ernor and the heads of the executive departments of the State on the one hand, and the President and his Cabinet on the other? Which is the better arrangement? 2. Why does the State have both a Comptroller and a Treas- urer ? 332 Civit GovERNMENT 3. What special reasons are there for a General Land Office in Texas? 4. Why are the duties of the Attorney General more onerous now than in the past? 5. Why does the State need a Superintendent of Public Instruc- tion, and which of his duties do you ‘regard the most important? 6. Consider carefully and come to a definite conclusion as to the need for each of the appointive State executive offices. XI. 1. Why is a judicial department of government necessary? 2. Make an accurate definition of jurisdiction as apphed to a court. 3. What is the necessity for courts of original jurisdiction? Of courts of appellate jurisdiction? 4. What good purpose is subserved by making the district courts courts of general jurisdiction? 5. Why are the most important vases put within the jurisdiction of district courts? 6. What is the necessity for having courts of probate?) Why should such courts meet often? 7. Why does Texas .need so many appellate courts? 8. What is the reason for requiring felony cases to be prose- cuted by indictment? 9. What are the differences between an examining trial and a final trial on a criminal charge? XII. 1. In what way do restrictive provisions in a constitution pro-, tect individuals? 2. Is there anything in the Constitution of the United States which protects an individual against State legislation. (a) As to freedom of speech? (b) As to seizures or searches? (ce) As to trial by jury? (d) As to-due process of law? (e) As to bail and habeas corpus? " 3. What advantage is there in having the same guarantee in both the State and Federal Constitutions? XIII. 1. What arguments are there in favor of public schools? 2. Why should such a system include all grades of schools? 3. What is the advantage of having a State Superintendent of Public Instruction? 4. What is the advantage of having teachers submit to examina- tion and procure certificates? GOVERNMENT OF THE STATES 333 5. Why is it desirable to have special taxes levied fer the sup- port of schools, and why are the people of each school district per- mitted to determine this for themselves? 6. What are the advantages and disadvantages of independent school districts? 7. What advantage does the State receive from the maintenance of the common schools? Of the normal schools? Of the Industrial School for Girls? Of the Agricultural and Mechanical College? Of the State University? XIV. 1, Why was it desirable at an early day for Texas to encourage immigration? What land laws did she pass for that purpose? 2. Why were so many of the lands granted in the early days of the Republic not surveyed? How has this disturbed titles later? 3. Why is it desirable to sell the school lands of the State? ’ XV. 1, Why cannot a State tax the salary of a Federal officer or the United States tax the salary of a State officer? 2. Why can taxes only be collected for public purposes? 3. Why is it desirable to have a maximum tax rate in a State- Constitution ? 4. Why are cities permitted to collect local taxes, and why is a maximum limit put on this tax? 5. Why is it important not to let the Legislature remit debts due to the State or counties? 6. Why are so many restrictions placed around railroad com- panies in the Constitution? 7. Why is a Railroad Commission regarded as necessary? 8. How can the combination in this Commission of legislative and judicial powers be justified? PART FIVE. MUNICIPAL LAW. CHAPTER XXVIII. THE NATURE, SUBJECT-MATTER, SOURCE, FOR. MATION, EVIDENCE, RESULTS, AND CLASSI. FICATION OF MUNICIPAL LAWS. Definition of Municipal Law. There are a great many kinds of law, as the word is used in common gpeech. We speak of Divine Laws, of Moral Laws, of Natural Laws, of Social Laws, and others. Though each of these has its influence upon and in a way enters into the for- mation of Municipal Law, none of them, nor any com- bination of them, of itself constitutes Municipal Law. ‘‘Municipal’’ primarily indicates pertaining to a walled eity. Walled cities were once the most stable and ef- fective governments the world knew, and hence, came to represent very aptly governmental authority. In this derivative sense we still use the adjective as applied to Law. A municipal law, then, is one which originates with sovereignty, and proceeds from it through govern- mental agencies to all those subject to control by it. It is the will of the sovereign represented in continuous rules of conduct, determining for all subject to the sov- ereign what they must and what they must not de; it is the mass of the rules which sovereignty makes whereby to control those whom it has the right to command. Subject-Matter of Law. It is clear from these state- ments that the law regulates persons and their behavior, or conduct. It is these with which it deals. In its pri- mary, or, as they are called, its substantive regulations, it declares what persons shall do or shall not do, and Municipal LAw 33) what penalties shall be imposed for disobedience. In its secondary or adjective regulations it provides the means and methods of inflicting penalties when they are de- served. Source of Municipal Law. Municipal law in repub- liean governments has its origin in the judgments and consciences of the people. The sober second thought of the people is the source of all law which abides; and no rule of conduct which does not abide is worthy to be called law. But this public sentiment and opinion is not law so soon as it springs up. It lacks authoritative form and sanction. The opinion must be transformed into law by proper political processes. Formation of Municipal Law. These processes are of two recognized or regular kinds: first, enactments by the Legislature; second, recognition by the Courts. If the Legislators elected by the people are really rep- vesentative of them, they will have the same opinions and judgments as their constituents, and these will be expressed in the laws enacted. This is the simplest and most direct form of law-making. Laws thus made cover a great many of the facts and conditions which arise in life. In early times there were no regular legislative. bodies, and many matters were unregulated by statutory law. When cases arose before the courts involving these mat- ters they would be decided according to the customs existing among the people in similar cases. These customs were but the expression of public opinion, as they were the rules by which the great majority governed them- selves when left to their uncontrolled choice of conduct. These decisions of the courts, thus growing out of the customs of the péople, in turn began to be taken as evi- dence of the customs recognized in them, so that the fact that a certain matter had been decided in a certain way in former cases came at length to be regarded as convine- ing proof that the custom was in accord with the decis- ions. By this process the opinions of the majority passed 386 CiviL GOVERNMENT from simple customs into customary laws, usually called the Common Law. When a number of these decisions of the courts were studied together, it would be found that the same idea of right and honesty and public con- science which led to one of them led to others, and that taken together they represented certain general ideas and beliefs of right and wrong. These general ideas and beliefs are called principles, and, having been ear- ried through custom into law, they are called legal prin- ciples. When a case arose on matters regarding which there had been decisions, these decisions were followed. If a ease arose which was different from all those previously adjudged, the judges would seek through their former decisions to find the general principles which those cases expressed, and would apply these previously recognized principles to the new facts, and decide according to them. This is a very brief yet fairly correct explanation of the origin of Common Law. Evidences of the Law. The evidences of constitutional law as made by constitutional conventions are in the con- stitutions which they form and propose. The evidences of the law as enacted by legislatures are in the records of these bodies, or the authenticated copies of these laws thus enacted, published by the government. We know and speak of these as statutory or written law. The evidences of customary or common law are the de- cisions of the courts in adjudged cases and the published reports of these decisions. Hence, the evidences of the law are the constitutions adopted by the people, the stat- utes passed by the legislatures, and the decisions of the higher courts. The Results of Law. The result of proper municipal law and its enforcement is to define and protect legal rights of the public and of individuals, and thus to es- tablish and secure the public peace and the libertv of the people. The process may be illustrated in this way: In rr MuNICcIPAL LAw 337 a community without law each man would deal with his neighbor just as he chose, so far as he had the power to enforce his choice. The strong man could overpower the weak man, and make him serve him, or he could imprison or kill him, as he might prefer. The weak would have no choice, or rather no protection in such choice. He could not have legal rights. But when a power from without intervenes and says to both the weak and the strong, you must each be governed by my judgment and my choice I will say how you shall behave toward one another then the strong must cease his oppression and the weak be allowed to enjoy the benefits of restraint upon his opponent. The intervening power in munici- pal affairs is sovereignty, and the express judgment and choice of sovereignty is law. To illustrate more specifi- eally, if at the time the sovereign power asserted itself one of the strong was holding in subjection one of the weak, and the sovereign intervened by enacting and en- forcing a law that all slaves must be set free, we readily see that the law, by declaring its rule of conduct for the master and by compelling him to obey, had given liberty to the slave. The process is similar in all cases. Putting restraint on the conduct of others protects and gives rights and freedom to those for whose benefit the re- straints are imposed. The enjoyment of just rights on equality with others is Civil Liberty. Classifications of Municipal Law: Criminal and Civil Law. One of the greatest classifications of law is into Criminal and Civil. Criminal Law is the mass or sum of the rules which the sovereign makes to protect the public. Civil Law is the mass or sum of the rules which the sovereign makes to protect the individuals in their rights. It very frequently happens that the public and some private individuals are interested in the same thing or matter. When this is so, there will be both Criminal and Civil laws regarding it. Take the ownership of property. The public is justly in- 338 CIvIL GOVERNMENT terested in the protection of property.” A community in which no one could own anything could not be a pros- perous or a happy one. Hence, there are criminal laws protecting property. But every individual is specially interested in the things which he owns and needs, and is entitled to protection regarding them. Hence, there. are laws protecting him in his private rights of property. To illustrate: If one man has a horse and another steals it, this is a crime against the public for which the thief may be punished. It is also a violation of the property rights of the owner of the horse, and for this violation he can have redress under the civil law. Division of Civil Law. Civil Law is subdivided into two great divisions, which, speaking roughly, we may call Contract Law on the one hand and Non-Contract, or Tort Law, on the other. Contract Law is the mass or sum of those rules which regulate the making, construing, and enforcement of agreements. Non-Contract or Tort Law is the mass or sum of those rules which regulate the private legal rights and duties of men in the absence of agreement. For ex- ample: If A meets B and asks him to lend him fifty dol- lars, promising to pay him back in a month, and B agrees to let him have the money and does so, this is an agree- ment, and, speaking generally, A will be bound by his promise to B to repay the money. This binding promise is a contract. All the rules regulating the rights and duties of A and B growing out of that agreement are matters of Contract Law. Again, A meets B and strikes him and. injures him. Here there is no agreement be- tween the parties about the matter. A never promised B either that he would or would not strike him. The actions of the parties have no relation to agreement in any way. If the legal nature and effect of these acts is to be determined, we would have to examine the rules of Non-Contract or Tort Law. By ascertaining the facts in detail, and judging them by the rules of Tort Law, MunicipaL Law 339 we could decide whether A had acted lawfully or un- lawfully. If he acted lawfully, he would not owe B any damages. If he acted unlawfully, B would be entitled to have A pay him what he had suffered and lost as direct results of the blow. Same Act as Affected by Different Kinds of Law. We must not have the idea that the separation of the law into classes is so complete that the same act cannot be within the application of more than one of these sets of rules. We have just:seen that the same act of taking the horse was‘ both a violation of the criminal law and of the law of torts. The same act may be a crime, a tort, and a breach of contract. This is not often so, but occasionally it is. There is nothing in the nature or class- ification of law to prevent it. Substantive and Adjective Law. Law is also divided into substantive and adjective. This division extends through all the classes we have considered above. That is, there is substantive criminal law; contract law, and tort law; and there is adjective law of each of these classes. Substantive Law consists of all those rules which de- fine legal rights and determine the redress which may be obtained for their violation. Adjective Law consists of all those rules which pro- vide means by which to secure the redress which the sub- stantive law allows, and which regulate the methods of obtaining it. Thus, the laws which define ownership of property, and which determine to what extent an owner shall enjoy the use and benefit of the thing owned, and the remedy he is entitled to, if his right is molested. are substantive. The law organizing the court to which- the owner must apply to obtain the provided remedy, and the rules of proced- ure in that court which control the trial of the case and the enforcement of its judgment, are adjective. Further Classifications of Municipal Law. There are 340 Civit GOVERNMENT a number of other classifications of Municipal Law, which result in the frequent use of many qualifying or explan- atory terms in connection with it. It is not expedient to take these up in detail, but a few of them should be dealt with briefly. Written Law is all law which has proceeded from direct action of legislative power. It includes constitutions or- dained by the people, and statutes enacted by the legis- lature. Unwritten Law includes all the law which has grown up from the customs of the people, and their adoption and enforcement through the courts. Common Law means, in some uses, the whole body of the unwritten law. When used in contrast with Equity, it means so much of the Unwritten Law as was enforced in and through the ancient English courts which existed before the establishment of Courts of Equity. When used in contrast with Roman Law, it means the whole body of English jurisprudence. Equity is that system of law which is administered through Courts of Equity, or Chancery Courts, as they are also called. It is of much later origin than the Com- mon Law, and is a system built up in England, and adopted in the larger part of America, for the purposes of recognizing and enforcing rights which the ancient common law ignored, and of giving remedies which could not be obtained from Common Law Courts. Its rules are supposed to have originated in the conscience of the King, and are announced by the Chancellor as the representa- tive of the King. In course of time, howéver, these rules have become fixed by precedent, and are now as well settled as and can no more be enlarged or departed from than the doctrines of the Common Law. Roman or Civil Law is the system of law established by Rome in the days of her supremacy, and perpetuated with various modifications through and in the nations of central, southern, and southwestern Europe and their MunicreaL Law 341 American dependencies. It is of peculiar interest in Louisiana, Texas, New Mexico, Nevada, and California, as it had been in force in these sections before their settlement by Anglo-Americans, and their laws are now largely influenced by it. The term Civil is often used to indicate Roman Law. This use of the word must be kept in mind and distinguished from its meaning when used in contrast with Criminal Law, as is done in one of our preceding paragraphs. Military Law is that which governs the armed forces of the United States; that is, the standing army and navy, and the militia when in active service. It has no application to any one not in the military service. Martial Law is that which is enforced by military com- manders in the government of communities in which for some cause the civil officers and courts can not perform their duties. It is a substitute for ordinary municipal law, to prevent temporary anarchy, which would other- wise exist. It should never be continued longer than is made necessary by the existing conditions. RECAPITULATION. Municipal law consists of the rules made by sovereignty whereby to control those whom it has the right to com- mand. The subject-matter of municipal law is persons and their conduct. Municipal law in a republic has its origin in the com- mon judgment and sense of right of the people. Municipal law is formed by direct act of the people, as in adopting a constitution, or by act of the people, through representatives as statutes, or by the customs of the people, as recognized by the courts. Municipal law, by defining and protecting just rights, develops liberty. Criminal law consists of the rules which sovereignty makes in order to preserve good order and protect the rights of the public. 342 Civit GOVERNMENT Civil law consists of the rules which sovereignty makes to protect the private rights of individuals. Contract law regulates the making, construing, and en- forcing of agreements. Tort law regulates the privileges, rights, and duties of individuals which do not depend directly on contract. Substantive law determines what rights a person has under the law. Adjective law provides the means and regulates the proceedings by which substantive rights are protected. Written law includes all constitutions and statutes. Unwritten law includes all law originating in custom and declared by the courts. Common law has three meanings: first, all English jurisprudence; second, all the unwritten English law; and, third, the law administered in law courts as dis- tinguished from equity. Equity includes the rules of right and wrong enforced through courts of chancery, and is supposed to be based upon the King’s conscience. Roman law is the laws of Rome as modified by the various Latin peoples. Military law is that which controls the army and navy. Martial law is that. which is administered by officers of the army and navy in a community under their con- trol, for the purpose of preventing disturbances and crimes. QUESTIONS. I. 1. Define municipal law. 2. Why is not public opinion law when it is first formed? 3. How is the unwritten law made? 4. What are the results of the establishment and enforcement of good laws? II. 1. Why is it desirable to divide law into classes? 2. Name the different classifications, and explain each. 3. Give an example of an act which is contrary to both criminal and tort law. III. 1. What three meanings does common law have? 2. What is equity, and what was its origin? 3. Why is knowledge of Roman law: important in Louisiana, Texas, and California? 4. What are the differences between military and martial law? MuNICcIPAL LAW 343 CHAPTER XXVIII. LEGAL RIGHTS AND THEIR CLASSIFICATION. Importance of Legal Rights. If it is true, as hereto- fore stated, that the purpose and result of good govern- ment is to determine and protect legal rights, and thus to establish public order, justice, and liberty, the impor- tance of legal rights is apparent, and some undestanding of them is most desirable. Definitions of Legal Rights and Duties, and Their Re- lations to Each Other. A legal right is a claim or ad- vantage the enjoyment of which is protected by law. The protection afforded to a right is never absolute. It extends only so far as is consistent with the general good of society, and as the just and equal protection of the rights of other persons will permit. Even the legal right to life is not absolute. The government may de- mand military service of its citizens, even though this involves danger to their lives; or the individual may for- feit his life by serious violation of law and may be exe- cuted for his otfense. The protection which the law gives to a legal right comes largely through the control which the law exer- cises over other persons regarding the protected claim or advantage. Thus the right which an owner has in his property is enjoyed principally by reason of the law requiring all others to leave the thing owned by him un- molested, and thus give him opportunity to use and en- joy it. This legal obligation resting on one person to respect and leave unmolested the rights of others is a legal duty. There can be no legal right unless some cne is subjected to the legal duty to respect it, and there can be no legal duty unless some one has a legal right which the one owing the duty is bound to respect. A 344 CivIL GOVERNMENT legal right and the legal duty of others to observe it are correlative. Classification of Legal Rights The claims and advan- tages in which individuals are proteeted by law are nec- essarily very numerous, and very different in nature and consequence. This renders orderly arrangement of them imperative and difficult. As a result, a great many classi- fications have been made, and a great many distinguish- ing words have been applied to different rights to indi- cate the different classes into which they have been sep- arated. We will adopt the classification which is the simplest and the most helpful in understanding the law in its present state. On this basis legal rights are classified as follows: Per- sonal Rights, Rights against Particular Persons, Rights in Persons, Rights in Things, Political Rights, Civil Rights, and Remedial Rights. Personal Rights. These are those rights to which a person is entitled simply as a member of the human race and of society. They include bodily security; security to the mind; security to the moral ‘nature; freedom of action; the right to contract; the right to acquire, hold, and dispose of property; the right to carry on business; the right to form special relations; and. freedom of thought, of conscience, of speech, and of reputation. The individual is not protected to the same extent in regard to all these; but, so far as legal protection is extended, the claim or advantage is a legal right. All these rights exist in behalf of the person having them, against the whole world. Every one must respect them. Some of these rights we will consider briefly. Protection to the Body. The sovereign recognizes that the public is interested in the bodily well-being of every person, and, hence, there are many criminal laws made to punish injuries done to the body. The offenses thus punished extend from assault and battery through all intermediate grades to murder in the first degree. A MunicipaL Law 345 battery is the unlawful application of force to the body of another with intent to injure him. An assault is a real attempt to commit a battery. If an assault or bat- tery is of a specially serious nature, it is punished more severely. . Homicide is taking human life. All homicide is not unlawful. An officer of the law may take life in the discharge of his official duty. A private person may kill another in proper self-defense or by accident. No one of these is a violation of law. Notwithstanding the fore- going facts, homicide is usually a very serious offense, with severe penalties attached. If it takes place under the influence of a sudden passion arising from an ade- quate cause, but which still is not sufficient to justify it, it is called manslaughter, and punished by a relatively short term in the penitentiary. If it is committed ma- liciously, it 1s murder, and is punished by longer impris- onment or by death. Besides the protection afforded the body under criminal law, there is a broader recognition of the individual’s rights in his own body. This is pro- tected by Tort Law. . In dealing with the body from this point of view, we may say that the very general rule is that the application of force by one person to the body of another is unlaw- ful, and will subject the person applying the force to suit by him to whom it is applied. This rule is subject to five exceptions. First. The use of force is not unlawful and actionable when applied in obedience to the commands of the law, as when an officer arrests a criminal under a proper war- rant; Second. When it is applied in proper self-defense; Third. When it is applied reasonably by one having special authority to do so, as by a parent in the moderate chastisement of his child; Fourth. When it is applied under the license of the law, or of the person subjected to it, as in case of the 346 CiviL GOVERNMENT ordinary contacts of life, or by a surgeon to a patient; and, Fifth. When it is the result of an inevitable acci- dent; that is, where it occurs without any legal fault on the part of any one, as in case of a cyclone blowing a passenger car over and injuring passengers. Freedom of Action. The State also protects the indi- vidual in his freedom of action. No man is allowed to go everywhere he pleases, but sovereignty claims and exercises the exclusive authority to determine for itself to what extent each individual shall be restrained. Any restraint imposed by one individual upon another, beyond or in addition to that commanded or permitted by law, is an invasion of his legal right, and punishable criminally, and will support a civil action. This wrong is called false imprisonment. Right to Contract. This is the privilege of acquiring, modifying, or relinquishing other legal rights bv agree- ment. . An agreement is a meeting of the minds of two or more persons, each having the same understanding and the same will, concerning the matter involved. It em- bodies both understanding and will. If the parties do not understand the matter alike, there can be no agree- ment. If, for example, one person has two horses, and offers to sell a certain one of them, but the person to whom the offer is made thinks that the offer applies to the other horse, and accepts, there would be no sale. The owner has not sold the horse he intended to part with, because the other did not consent to buy it; and the pur- chaser has not bought the other horse, because the owner did not consent to sell it. This is a case of mistake. ' Let us change the illustration somewhat. Suppose that the owner of a horse finds that the animal is wild and vicious, and henee is of little value. He is not satisfied to take the real value for him; so. when he goes to sell him he claims that he is gentle and reliable, and by such MounicipaL Law 347 false statements induces another to buy him. Here the parties both are dealing with the same horse. They have in mind the same price, but they do not alike understand the qualities of the horse. The seller knows that he is vicious. The buyer has been made by the seller to be- lieve that he is gentle. There is no genuine agreement which the law will enforce against the buyer. This is a ease of fraud. Both the foregoing illustrations show failure of mutual meeting of the minds of the parties. Let us take another illustration. One person makes an unjust claim to property which really belongs to an- other. He goes to the real owner, presents a pistol, and forces him to sign a paper setting out that the property belongs to the wrongful claimant, and to promise to de- liver it to him. Here both persons understand the facts alike, but there is no meeting of their wills. The one who signs the paper through fear does not really agree to the facts set out in it. He only signs it to prevent a greater evil, his serious bodily hurt. The paper is not an agreement. The promise to deliver cannot be en- forced. This is an example of coercion, or duress, op- erating not on the understanding, but on the will. These examples show that mistake, which is innocent misunderstanding of the facts; or fraud, which is decep- tion of one party by another as to material facts; or co- ercion, which is the overcoming of the will of one of the parties by force or threats, will prevent true agreement. A legal, enforcible agreement is called a contract. The right to enter into such agreements is the right to con- tract. . This right is subject to limitations. These lmitations relate to four matters connected with or involved in agree- ments. First, there must be competent parties to the agreement. An agreement by an insane person or an in- fant cannot ordinarily be enforced. Second, there must be consideration, real or implied by law. A consideration is something of value which the promisor gets or is to 348 Civin GOVERNMENT get, or something of value with which the promisee parts or is to part. A promise to make a gift is not enforcible by law. Third, the agreement must not be contrary to law. If one person promises another to pay him a ecer- tain sum of money for killing a third person, and the promisee kills the third person, he cannot sue for and recover the money which was promised him. Fourth, the agreement must be in the proper form. It is true that in most instances agreements may be made verbally, but the law may require them to be in writing; and, in those instances in which it does this, promises made in other ways cannot be enforced. If an agreement is genuine and has the foregoing char- acteristics, the law will recognize and compel the parties to stand by it. By such recognition and enforcement the law protects the claims which each party to the agree- ment has against the other by reason of it. This makes these claims legal rights. The right to contract is one of the most important which men enjoy. Without it no business could be carried on, and society could not possibly sustain itself. The Right to Acquire, Hold, and Dispose of Property. This right relates to the capacity to own things. It is not actual ownership of any particular thing which is a property right, but the right to own. If a pupil owns a book, the right he has in that book is a property right. If the teacher tells him he must buy a book, the capacity in the pupil to buy is a personal right in him. He has this right to buy while he is on the way to the bookstore, though he does not then own any book at all. He buys a certain book, and the law recognizes his right to keep the title to it. This right to retain title to the book is a personal one also. He subsequently desires to sell the book. He has the right to do so. This is the personal right of disposition. If he finds another pupil who wishes to buy the book, the owner, in selling the book, exercises his personal right of disposition of the book, MunicipaL Law 349 The property right of ownership of particular things will be considered later. This right to acquire, hold, and dispose of property is also limited by law. A man can only acquire property in legal ways. He can own only certain kinds of things, and can dispose of them only ac- cording to law. Right to do Business. The right to do business grows out of the right to contract and the right to acquire, hold, and dispose of property. Doing business is only exercis- ing these two rights in connection with each other. As each of these rights is limited, the right: resulting from their combination is also limited. The State can restrict the kinds of business in which men may engage, regulat- ing some and prohibiting others. Freedom of conscience and of speech have been con- sidered in connection with the Bills of Rights of the United States and of Texas.- Right to Reputation. Character is what a man really is, reputation is what he is believed to be. Every man is legally entitled to a reputation equal to his character. No one should make a false defamatory statement against him. If he does, it is actionable. To this there are two exceptions, called privileged communications. The first. exists as to the false statements made by an officer of the Government in the discharge of his official duty, as by a Legislator in the course of a debate. This privilege has no limitations, and is called absolute. The second exists as to statements by private persons made in good faith on a subject on which it is his duty to speak, which statement he believes to be true, but which proves to be false. This privilege is limited. If the statement is made in bad faith or with malice, the exception does not apply and the person making the statement is liable for the damages. Rights Against Particular Persons. IJn calling the rights just considered personal, the word ‘‘personal’’ re- fers to the person who has the right. The word ‘‘per- 350. CiviIL GOVERNMENT son’’ in the class now being considered refers to the one who owes the duty to the one who has the right; for example, one person lends another a sum of money, the borrower promising to repay at a certain time. By this transaction the lender acquires a legal right to demand and receive the money from the borrower when the pay- ment is due, and the borrower assumes the correlative duty of making such payment. .This right which the lender has to get back his money is not one which he ean enforce against all persons, but it exists only against the borrower. It is therefore called a right against a particular person. These rights usually arise from contract. They include the whole of those important and varied rights which one party to a contract has against the other party, because of the unperformed promises contained in the agreement. Every legally enforcible agreement results in one or more such rights. A few of these rights against particu- lar persons exist without contract, as the rights which a parent has against his child, or a child against a par- ent. These are rights of imperfect obligation, which will be considered later. ' Rights in Persons. This is a new classification of rights. It is not yet accepted by all, but it represents ac- curately certain classes of claims which cannot be placed conveniently or serviceably in any other class. These are claims and advantages which certain persons are recognized by law as having in the personal qualities and efficiency of others. They can only exist where there are special relations between the persons, such as parent and child, husband and wife, master and servant, ete. A parent is legally entitled to the wages earned by his child during the latter’s minority. He therefore receives advantages from the qualities in the child which enable him to earn wages. The law recognizes this fact, and if any other person unlawfully destroys or impairs these qualities in the child the parent thereby sustains legal MunicipaL Law 351 wrong, and may sue for the loss occasioned him. On the other hand, the child is entitled to support and education from the father. If any one unlawfully kills the father, this under many modern statutes is a legal wrong against the child for which he may maintain a suit. These ex- amples illustrate rights which one person has in another. Rights in Things. These are rights of property usually expressed by the term ownership. Ownership in the full- est sense includes the right to possess, use, enjoy, profit 'y, modify, and dispose of the thing owned. Thus if a man owns a house, he can oceupy it, and use it himself; can rent it to another and collect the rents; can change it to suit his own ideas; or he ean sell it. This is the fullest estate which the law knows. Such an estate in land is called a fee simple. He who hag such a title is called the general owner. In the illustration, we spoke of the owner renting the house. By that is meant that the general owner of the house, by a contract with some one else, can permit that person to have the use and en- joyment of the house which belongs to the general owner. This does not end the title of the general owner, but it limits it and gives the renter rights of property in the house. These rights of the renter are. called special ownership. Special ownership is some one or more of the rights embraced in general ownership, existing for a limited time or to a limited extent, in one not the general owner. Almost anything can be owned. The exceptions usually given are human beings, air, natural light, and running water. Political Rights These are rights to participate in the exercise of political power. The most usual of them are the right to discuss political questions, to petition gov- ernmental officers, to vote, and to hold office. These have been sufficiently discussed in other connections. Civil Rights. Civil rights are rights to equal protection of the law, to due process of law, and equal enjoyment of public privileges. 352 Civiu GOVERNMENT Remedial Rights. Remedial rights are rights to remedy which arise in behalf of one having a right of any of the classes discussed above, whenever such right is in- vaded. It is a right to a remedy for the violation of a right of any other kind. Thus, if one man owns a piece of property and another takes it, the owner at once is entitled to a remedy against the wrongdoer for the in- jury done him. RECAPITULATION. A legal right is a claim or advantage which the law protects. A legal duty is an obligation which the law enforces. This protection and enforcement are accomplished by control of the conduct of individuals. Personal rights are those which one has as a member of society. The body is protected by both criminal and tort law. The general rule is that the use of force by one person upon the body of another is unlawful. There are five exceptions in tort law, and more in criminal law. The law imposes such restraint on the freedom of ac- tion of the individual as it regards necessary to protect the public and private persons, and it is unlawful for in- dividuals to add to these. The right to contract is the right to create, modify, or destroy legal rights by agreement. This right also is limited by law in important respects, namely, those re- lating to parties, considerations, form, and purpose. Mistake is mutual misunderstanding of the parties. It prevents agreement. Fraud is deception resulting in the disadvantage of the person deceived. It entitles the deceived person to avoid the agreement. Duress or coercion is the overpowering of the will of the person coerced so that he signifies assent to that to which he does not really agree. It has the same effect as fraud. MunrIcIPAL Law 353 The right to acquire and hold and dispose of property is the recognized capacity to become the owner of prop- erty, and to enjoy and use it, and pass the title to others. The right to do business is subject to control of law. The sovereign can regulate different businesses, and, if they are harmful to the public, can prohibit them. Reputation is what one is supposed to be. A man has a right to a reputation equal to his character. Rights in persons are claims or benefits which one per- son has in the life or capacities of another. Rights in things are ownership of some kind. General ownership includes the right to possess, use, modify, profit by, and dispose of the thing owned. Special ownership consists of one or more of the rights going to make general ownership, enjoyed for a limited purpose or limited time. Political rights are rights to share in sovereign power or its exercise. Civil rights are rights to equal enjoyment of public eonveniences and privileges. Remedial rights are rights to redress for violation of any of the foregoing rights. QUESTIONS. I. 1. What is a legal right? 2. Are such rights absolute? Why? 3. How may the right to life be forfeited? 4. How can control of other persons result in the establishment of legal rights? II. 1. Enumerate the principal kinds of legal rights. 2. What are included in personal rights? To what extent does the law protect the body? 3. What is the difference between the legal capacity to acquire property, and actual ownership of a particular thing? 4. What is the right to contract? Is it of any im- portance in the business world? Why? In what four respects does the law limit the right to contract? 5. What is the difference be- tween denying religious liberty and in punishing for acts committed in the name of religion? 6. What is the difference between char- acter and reputation? To what reputation is a person entitled? Are there any exceptions? III. 1. What are the differences between rights against par- ticular persons and rights in particular persons? 2. If a child is injured so he cannot work, who loses his wage-earning capacity ? 12 354 Civit GOVERNMENT 3. Who suffers the physical pain caused by the injury? 4. Ought the same person to collect damages for these two items? Why? IV. 1. What is general ownership, and what component rights does it include? 2. What is special ownership? V. 1. Name the principal political rights. 2. Give an example of a civil right; of a remedial right. CHAPTER XXIX. SOME OF THE MORE IMPORTANT LEGAL DOC- TRINES AND INSTITUTIONS. Persons. The law deals with persons and their con- duct, and these often affect and are affected by things. Persons are of two kinds: natural, which includes all human beings; and artificial, which includes such com- binations of natural persons as the law recognizes as having legal rights and owing legal duties. Artificial persons are called corporations. Normal persons are those who are under no restric- tions or disabilities, either in fact or in law; in other words, ordinary persons. When persons have not nor- mal capacity, or. are so circumstanced that they cannot exercise their faculties to an ordinary degree, they are abnormal, and are said to be under disability. Some disabilities are actual, as insanity, infancy, drunkenness, duress, etc. Some are imposed by law, as in ease of a capable and well-developed minor who is under twenty- one years of age. This is legal minority after the person is in fact capable of caring for himself. The disability resulting from the marriage of a woman at common law belongs also to this class. The general rules of law are made for normal persons; but wherever disability exists the law takes it into account and modifies the general rules so as to protect the abnormal person from improvi- dent conduct on his part, and from imposition by others. Combinations of Persons. Natural persons are per- MounicrpaL Law 359 mitted by law to co-operate in many ways, and form combinations of many sorts. Some of the most frequent of these we will consider. The Family. The earliest and most important of all human institutions is the family. The family is formed by marriage, and usually consists of a husband and wife and their children. The ties between them are the most sacred and enduring of all human relations. The dif- ferent members of a family are dependent on each other for happiness and success to a very large extent. At common law the woman almost lost her legal identity by marriage, but this is changed very much in Texas. The family has very real recognition in Texas. The homestead laws are for its benefit. Under these laws every family is entitled to a home, which cannot be taken from it for the payment of debts due by any of its members, unless the debt is for the purchase money of the home, for improvements made upon it, or for taxes due on it. The husband cannot sell the homestead un- less the wife is willing and joins him in the deed. If the husband dies, the home, if there be one, must still be protected by the probate court in the administration of the estate. If the family has no home, the probate court must set aside money from the estate with which to buy one. This court must also let the family keep certain kinds of personal property, and enough provisions for a year. In Texas the property of the husband and wife is gov- erned very much as it was under the Spanish-Mexican laws in force there before 1836. All the property which belongs to the husband at the time of the marriage re- mains his. He also owns all the property which is given to him, or inherited by him, or which is willed to him, during marriage. The same is true as to the wife. All that she owns at her marriage, all that is given to her, or which she inherits, or which is willed to her, is hers. This property belonging to the husband and to the wife 356 CiviL GOVERNMENT respectively is called separate property. All other prop- erty which either the husband or wife acquires during marriage, In any other way than those stated above, be- longs to both, each having an equal undivided interest in it, and is called community property. During marriage the husband has control of the com- munity property, with the right to sell it, unless it be homestead. He also has charge of the wife’s separate property to manage, but he cannot sell it. He, of course, has control and power to sell his separate property, un- less the home be on it. Marriage does not affect the man’s capacity to contract except as to the sale or the mortgage of his homestead. It has an extensive effect on the woman’s capacity to contract. During marriage she cannot make contracts except for necessaries for herself or her children, for the improvement of her separate property, or in the disposi- tion of her separate property. If the property is land, the husband must join with her in the sale; if it is per- sonal property, this last point is not clearly settled. The husband owes to the wife the duties of love, con- sideration, support, and protection. The wife owes to the husband the duties of love, care, companionship, and such reasonable assistance as their circumstances render proper. Parents owe to their children the duties of support, care, education, and proper training; and the children owe to their parents the duties of obedience, respect, and service. Master and Servant. When one person employs an- other to do anything for him under his direction, the em- ployer is called a master and the employed a servant. This is a very common relation, and the duties due from each of these parties to the other are settled with rea- sonable certainty. As the relation is formed by agree- ment, the parties can usually fix these duties between themselves, but they rarely do this. In absence of such MuniciPaL Law 307 agreement, the duties which the master owes the servant are to use reasonable care to furnish him a reasonably safe place in which to work, reasonably safe tools with which to work, reasonably competent fellow-workmen, and, if the employment is complicated, to make reason- able rules to govern him and his fellow-workmen in carrying on the work. He also must pay him the agreed wages or the reasonable value of the service. The ser- vant owes the master the duty to serve him faithfully, obey his orders, and to use reasonable care not to injure his premises or tools, or other persons. Principal and Agent. When one person employs an- other to represent him in carrying on some business transaction, the employer is called a principal and the employed an agent. The principal owes the agent the duty to deal fairly with him and pay him his compensa- tion. The agent owes to his principal the duty of faith- ful observanee of all his orders and instructions, of the utmost fidelity in accomplishing the purpose for which he is employed, of communication of all information which he gets in connection with the agency, and of accounting to him for all profits made in the agency business. The servant represents the master, and the agent the principal, in performing duties for them; if, in such per- formance and within the scope of the employment, either unlawfully injures a third person, the master or prin- cipal, as the case may be, is responsible to the third per- son for such injury. Partnership. A partnership is a combination of two or more persons who respectively contribute money, la- bor, and skill to a business enterprise which they conduct for their joint profit. The law does not look upon a partnership as a thing apart from its members, but re- gards the members of the firm as having all the rights and owing all the debts growing out of the partnership business. Each member is the agent of the firm to act for it in carrying on the business, and each is liable to 358 . Civiu GOVERNMENT all firm creditors for the full amount of the firm’s debts. If one partner pays more than his share of these debts, he can force the others to repay him. Private Corporations. Private corporations are created by the interested individuals, with the cooperation of the Government, for the purpose of accomplishing some definite object. There are certain advantages in this form of cooperation not in any other. Among these are concentration of power in the management, and, or- dinarily, freedom from personal hability by the mem- bers for debts of the corporation. A corporation, as to its business operations, is dealt with by the law as if it were a being separate and distinct from its members, so that rights to which it is entitled are not regarded as rights of the members, and duties which it owes are not their duties. This is usually expressed by saying that a corporation is a legal entity, capable of sustaining legal relations in its own behalf. Almost all business corpora- tions issue stock. Those getting up the corporation de- termine how much money will be needed to carry on the contemplated business, and fix on that as the amount of the capital of the corporation. Different persons promise to pay in such parts of the capital as they feel disposed. This is called subscribing for or taking stock in a cor- poration. In lieu of these promises, or the money, if that is paid, the corporation gives them formal statements that they have promised to pay, or have paid, the respec- tive sums subscribed, and are entitled to share in all the rights and benefits of the corporation in the proportion which their subscriptions bear to all the capital of the corporation. These rights in the corporate enterprise are shares of stock, and the statements issued by the cor- poration are called certificates of stock. The owners of stock are called stockholders or shareholders. Each sub- seriber for stock must pay the company the amount of his subscription. A part of it must be paid in cash. The balance is to be paid at the times stated in the sub- MunicipaL LAw 359 scription and charter of the company, if they provide for that. If they do not, it is payable at such times, and in such amounts, as the directors of the corporation deter- mine. The amount which the directors require to be paid in at any one time is an assessment, and the demand for it is a call. In Texas now one-half of the subscription must be paid in when the corporation is formed, and all within two years. When the subscription is fully paid, the stock becomes paid-up stock, and the holder ordinarily is not subject to any further assessment. In some corporations, as, for instance, National Banks, if the company fails, every holder of stock is liable to pay an additional sum equal to the stock held by him. If the corporation succeeds, the profits it makes may be kept in the company to enable it to do a larger bus- ness, in which case they are called surplus; or they may be divided and paid to the stockholders in propor- tion to their stock, in which case they are called divi- dends. Shares of stock may be sold or otherwise dis- posed of by the owner. The effect of a sale is to sub- stitute the purchaser for the seller in all future dealings with the corporation. Assessments made thereafter must be paid by the buyer, and dividends declared thereafter are paid to him. After those desiring to form the corporation have se- cured sufficient subscribers for stock, they take out a charter. It is the charter which gives the corporation life, and all its powers and privileges are determined by that. It cannot lawfully do anything not authorized by the charter. The general policy of the corporation within the hmits of its charter powers is determined by the stockholders, who ordinarily adopt its by-laws. They also elect the directors. These directors are a board of managers, who have actual control of the corporate affairs. They select the officers and general representatives of the cor- poration. 360 Civit GOVERNMENT A corporation can only act through agents, and it is entitled to the benefit of their lawful acts and subject to liability for their unlawful acts, just as a natural per- son is for the conduct of his agents. Common Carriers A common carrier is one who e¢ar- ries goods and passengers as a business for all who de- sire to patronize him. He does not have to carry all sorts of goods, or to all places, or over all routes, or with all kinds of vehicles; but, within the limits of the business he holds himself out as doing, he must carry for all without unjust discrimination either in the ser- vices rendered or the charges made. The law imposes on a common carrier very great re- sponsibility. He is practically an insurer of the safe delivery of goods entrusted to him; that is, he must de- liver such goods uninjured at the point of destination within a reasonable time after he receives them, and can- not excuse himself from liability for injury to them un- less he can prove that the injury was caused by natural causes, operating in such unusual and unprecedented manner that the occurrence could not have been fore- seen and prevented, as a cyclone; or by the nature of the thing shipped, as the natural decay of fruits; or by a public enemy, as in case of war or an insurrection; or by some wrong of the person making the claim, as that he had stolen the goods; or by the action of the law, as when the goods are taken by an officer under command of a lawful writ. A common earrier of passengers is not an insurer of their safety, but he must use the highest practicable care for them. Property. Things owned are called property. Land and things permanently attached to it are called real property. Things attached to land are called fixtures. If the attachment is permanent in fact or in legal pre- sumption, it is called a permanent or immovable fixture, and is regarded as a part of the land. If not permanently MunicrpaL Law 361 attached, it 1s called movable, and is not land. All prop- erty not real is personal or movable property. The highest right which a person can have in a thing is called general ownership. A right in property less than general ownership is called special ownership. 2 = t iD = Ea 4) ra] cc a = FE ae foe! Lt cs 128. we. 25) Civil government in the Ey United States and in the state Ge of Texas. 54.056 SOUTHWEST TEXAS STATE COLLEGE LIBRARY SAN MARCOS, TEXAS Library rules are necessary in order that the Library may be of the greatest use to the largest number of patrons. The rules will be posted in conspicuous places in the library and borrowers are asked to keep themselves informed as to the time for returning books, fines for overdue books, ay PRINTED IN U.S.A, auaaiiaes ee arate recast f ! Seid rian ee Raat i ae x aa ‘ : : petites AE Eee sest au H na ess oe i e ‘ i sence ce