
    Ex Parte SIZEMORE.
    (No. 10687.)
    Court of Criminal Appeals of Texas.
    June 20, 1928.
    1. Constitutional law <§=>250, 272 — Fines <§=>l —Special county road law, limiting convicts’ credits on tines and costs for work on county farm to less than allowance under general statute held invalid (Smith County Special Road Law, § 3; Code Cr. Proc. 1925, art. 793; Const. Bill of Rights, §§ 3, 19; Const. U. S. Amend. 14, § I),
    Smith County Special Road Law (Acts 35th Leg. [1918] 4th Called Sess. c. 17), § 3, providing that no county convict, whether working on public roads or county farm, shall be credited with more than 50 cents per day on his fine and costs, held invalid’as in effect prescribing different penalty for same offense as Code Cr. Proc. 1925, art 793, allowing $3 per day to convicts working on farms, in violation of Const. Bill of Rights, §§ 3,19, and Const. U. S. Amend. 14, § 1.
    2. Constitutional law <§=>251 — “Law of the land” in Bill of Rights means general public law operating equally on every member of community; “due process of law” (Const. Bill of Rights, § 19).
    “Law of the land,” as used in Const. Bill of Rights, § 19, prohibiting deprivation of life, liberty, etc., except by due course of the law of the land, means same as “due process of law,” and contemplates general public law operating equally on every member of community.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]
    3. Constitutional law <§=>209, 251 — Due process and equal protection of law are secured by law operating on all alike.
    Due process of law and equal protection of the law, under Const. U. S. Amend. 14, § 1, are secured, if the law operates on all alike and does not subject the individual to arbitrary exercise of governmental powers.
    
      4. Constitutional law @=>250, 272 — Legislature cannot prescribe penalties- for general offenses different than those prescribed by general law under guise of law prescribing penalties for violating local road law (Const, art. 8, § 9; Const. U. S. Amend. 14).
    Legislature cannot prescribe penalties for general offenses, differing from those defined and prescribed by Penal Code and applicable to entire state, under guise of law'prescribing penalties, under Const, art. 8, § 9, for violations of local road law.
    Commissioners’ Decision.
    Original application by H. T. Sizemore for a writ of habeas corpus to the Superintendent of the County Poor Farm of Smith County. Relator discharged.
    Gentry & Gray and Nat Gentry, Jr., all of Tyler, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. .State’s Atty., of Del Rio, for the State.
   MARTIN, J.

Relator filed an original application before this court for a writ of habeas corpus alle£ing that he is illegally restrained by the superintendent of the county poor farm of Smith county.

The facts with reference to his restraint show that he pleaded guilty on May 8, 1926, to the offense of sending threatening letters, and his punishment was assessed at a fine of $100 and 90 days in jail; that the total fine and costs amounted to the sum of $128.60, and that he has been confined from May 8, 1926, until the 6th day of December, 1926, which he alleges is more than sufficient to discharge the judgment, rating his time at $3 per day upon his fine and costs.

Relator is held under and by virtue of a clause in the special road law for Smith county passed at the Thirty-Fifth Session of the Legislature of Texas (Fourth Called Session, c. 17). The portion of said law' under which relator is held is attacked as being unconstitutional, for the reason that it is in violation of article 3, § 35, of the Constitution of the state of Texas, which provides, in substance, that no bill shall contain more than one subject which shall be expressed in its 'title.

Without deciding the point presented, we think that portion of said law herein discussed is clearly invalid for other and different constitutional reasons than that given, and upon which we prefer to base this opinion,

The part of the law under attack is as follows:

“Sec. 3. The commissioners’ court shall require all able-bodied male convicts not otherwise employed, to labor on the public roads and under such regulations as they may prescribe, and each convict so worked shall reoeive a credit of fifty cents per day for each day he may worh ten hours, to be applied first to his fine and then to his costs. * * * Provided that the commissioners’ court may require all county convicts to work on the county farm and provided further that no convict shall hereafter be credited on his fine and costs with more than fifty cents per day.”

Article 793, C. C. P., provides:

“When a defendant is convicted of a misdemeanor and his punishment is assessed' at a pecuniary fine, if he is unable to pay the fine and costs adjudged against him, he may for such time as will satisfy the judgment be put to work in the workhouse, or on the county farm, or public improvements of the county, as provided in the succeeding article, or if there be no such workhouse, farm or improvements, he shall be imprisoned in jail for a sufficient length of time to discharge the full amount of fine and costs adjudged against him; rating such labor or imprisonment at three dollars for each day thereof.”

Article 793, C. C. P., was the only general law which dealt with the matter under controversy in effect in 1926. There has since been an amendment to same, which, however, does not affect the present case. If its provision of allowance of $3 per day to a convict working on a farm will prevail over a local and special law applying to Smith county which only allows such- convict 50 cents per day, then relator is entitled, to his discharge. In other words, the question presented is whether said portion of the local road law of Smith county, not in fact relating to roads, but to allowances on fines generally, and not operating upon all the citizens of Texas alike, but applying only to Smith county, and which' clearly is in opposition to the terms of the general statute, is a valid law. A and B plead guilty to the same offense, and each receives a fine of $60, but A happens to be in Smith county and B in another county of the state. Each is unable to pay 'his fine, but A in Smith county must serve 120 days, while B in another county serves 20 days. Is a law valid which in its practical operation thus assesses six times as much punishment for the same offense on the same identical penalty in one county as it does in another? Would a law be valid which prescribed a minimum penalty of one year for murder in Travis county and six years for murder in Smith county? These questions answer themselves. It is true that the terms of the law itself do not prescribe different penalties for the same offense, but in its practical operation the quoted portion of the Smith county road law has this effect, and it thereby does indirectly what obviously it could not do directly.

Section 19 of our Bill of Rights provides that:

“No citizen of this State shall be deprived' of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
“ ‘Law of the land’ is interpreted to mean a general public law, operating equally upon ev'ery member of the community.” In re Jilz, 3 Mo. App. 246.
"No state shall * * * deny to any person within its jurisdiction the equal protection of the laws, * * * nor shall any State deprive any person of life, liberty, or property without due process of law.” Section 1, art. 14, United States Constitution.

Due process of law under the Fourteenth Amendment and the equal protection of the law are secured if the law operates on all alike and do not subject the individual to the arbitrary exercise of the powers of government. Duncan v. Missouri, 152 U. S. 382, 14 S. Ct. 570, 38 L. Ed. 485; Hurtado v. California, 110 U. S. 535, 4 S. Ct. 292, 28 L. Ed. 232.

Do laws operate equally upon the citizens of the commonwealth of Texas which will imprison under like verdicts one man for a month and another for six months? Manifestly not.

Section 3 of the Bill of Rights to the state Constitution provides: “All free men, when they form a social compact, have equal rights.”

A law which makes different punishments follow the same. identical criminal acts in the different political subdivisions of Texas violates both our state and Federal Constitutions. It fails to accord equal rights and equal protection of the law, and a conviction under it is not in due course of the “law of the land.” In re Jilz, 3 Mo. App. 246; Re H. F. Mallon, 16 Idaho, 737, 102 P. 374, 22 L. R. A. (N. S.) 1123; and Jackson v. State, 55 Tex. Cr. R. 557, 117 S. W. 818, are cited in support of our view in their reasoning.

We think the principles announced in the case of Ex parte Jones, 106 Tex. Cr. R. 185, 290 S. W. 177, apply in some degree to the instant ease. It was there held that article 793, C. C. P., superseded and controlled an ordinance of the city ofDallas which allowed only 50 cents per day to be credited upon the fine of a convict for labor performed. Provisions similar to those quoted in our state Constitution have been a part of Anglo-Saxon jurisprudence since there was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condemned but “by the lawful judgment of his peers and the law of the land.” “Law of the land” has the same legal meaning as “due process of law,” and one of its accepted meanings is- that quoted above. In re Jilz, 3 Mo. App. 243; 3 Words and Phrases, First Series, pp. 2227-2232.

. We are not here passing upon the validity of the Smith County Road Law, except that particular provision under attack. Nor are we unaware of the cases of Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921; Young v. State, 51 Tex. Cr. R. 366, 102 S. W. 117; and Bluitt v. State, 56 Tex. Cr. R. 527, 121 S. W. 168, which construe that portion of article 8, § 9, of the state Constitution, reading as follows:

“And the Legislature may pass local laws for the maintenance of the pubiie roads and highways, without the local notice required for special or local laws.”

It will be observed that the instant case arose out of a conviction for an offense denounced by the Penal Code and applying to all Texas, and not for a violation of the Smith County Road Law. Whatever may be the right of the Legislature to prescribe penalties under article 8, § 9, of the Constitution for violations of the provisions of a local road law, it could not, we think, under the guise of such a law', prescribe penalties for general offenses differing from those defined and prescribed by the Penal Code and applicable to the entire state. In this particular, at least, the instant case distinguishes itself from the cases of Young and Bluitt, supra.

Believing, therefore, that the quoted portion of the said Smith County Road Law is unconstitutional, and it appearing that relator has served all the time required of him under the general statute, the relator is ordered discharged.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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