Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2007 The Storm Between the Quiet: Tumult in the Texas Supreme Court, 1911-21 Michael S. Ariens St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Michael S. Ariens, The Storm Between the Quiet: Tumult in the Texas Supreme Court, 1911-21, 38 St. Mary’s L.J. 641 (2007). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. ST. MARY'S LAW JOURNAL VOLUME 38 2007 NUMBER 3 ARTICLES THE STORM BETWEEN THE QUIET: TUMULT IN THE TEXAS SUPREME COURT, 1911-21 BY MICHAEL S. ARIENS* I. Introduction ........................................... 642 II. The Gathering Storm .................................. 645 A. A Time of Change ................................ 645 B. The State of Texas, 1910 .......................... 647 C. Prohibition, Circa 1910 ............................ 648 D. The Prohibition Referendum of 1911 ............. 651 E. The Election of 1912 .............................. 655 1. The Race for Governor ....................... 655 2. The Supreme Court Elections, 1912 ........... 657 III. Reform and Reform Again ............................ 665 A . Justice D elayed .................................... 665 B. Success and Failure ................................ 670 C. Work and Workload ............................... 671 D . Breakdown ........................................ 677 * Professor of Law, St. Mary's University School of Law, San Antonio, Texas. Thanks to Wayne Scott for his comments on an earlier draft. Thanks also to Christine Hortick, Joe Hoffer, and Matt Willis for their excellent research assistance. 642 ST. MARY'S LAW JOURNAL [Vol. 38:641 E. The Committee of Judges and the Commission of A ppeals ............................................ 690 1. Creating the Committee of Judges ............ 690 2. Creating the Commission of Appeals ......... 696 F. End of an Era ..................................... 703 IV . Conclusion ............................................. 726 I. INTRODUCTION On January 5, 1911, less than two weeks before leaving office, Governor Thomas Campbell made two appointments to the three- member Supreme Court of Texas.1 T. J. (Thomas Jefferson) Brown replaced the resigning Reuben R. Gaines as Chief Justice, and William F. Ramsey, a long-time friend of Campbell's, took Brown's seat as an associate justice of the court.2 These two ap- pointments were the first changes to the court in over eleven years.3 Two months later, Frank Williams, the third member of the court, resigned.4 The new governor, Oscar Colquitt, appointed Jo- seph B. Dibrell to replace Williams.5 1. See Gaines-Colquitt Controversy Denied, DALLAS MORNING NEWS, Jan. 7, 1911, at 1 (observing that the appointments came "just at the expiration of the Campbell administration"). 2. Texas Supreme Court Changes are Made, DALLAS MORNING NEWS, Jan. 6, 1911, at 1; see also J. H. DAVENPORT, THE HISTORY OF THE SUPREME COURT OF THE STATE OF TEXAS 239, 268 (1917) (noting Brown's elevation to chief justice and Ramsey's appoint- ment by Governor Campbell in 1911). The appointments were controversial because Gov- ernor-elect Oscar Colquitt was less than two weeks from inauguration, and Gaines's resignation was expected to be given after the inauguration. See Gaines-ColquittContro- versy Denied, DALLAS MORNING NEWS, Jan. 7, 1911, at 1 (reporting a statement of the wife of Justice Gaines denying reports of a rift with Colquitt); Texas Supreme Court Changes are Made, DALLAS MORNING NEWS, Jan. 6, 1911, at 1 (including subheadings stating "Much Political Gossip" followed by "This Because of Belief Colquitt, as Next Governor, Would Get to Make Appointments"). 3. See J. H. DAVENPORT, THE HISTORY OF THE SUPREME COURT OF THE STATE OF TEXAS 238-39 (1917) (noting that Justice Frank A. Williams served with Chief Justice Gaines and Associate Justice T. J. Brown from Williams's appointment in May 1899 to January 1911, when Gaines resigned); Texas Supreme Court Changes are Made, DALLAS MORNING NEWS, Jan. 6, 1911, at 1 (noting that "[t]he resignation gives the State of Texas the first change upon its Supreme Court bench since May 1899"). In 1905, in City of Austin v. Cahill, 99 Tex. 172, 88 S.W. 542 (1905), a wholly different three-member court sat in judgment in place of Gaines, Brown, and Williams, who recused themselves because, as residents of Austin, they had an interest in the case. 4. DAVENPORT, supra note 3, at 268. 5. Id. 2007] THE STORM BETWEEN THE QUIET In the decade following Gaines's resignation, nine men 6 filled the three seats on the Texas Supreme Court, one of whom, Nelson Phillips, served both as associate and chief justice.7 After the ap- pointment of C. M. Cureton as chief justice in December 1921, the triumvirate of Cureton, Thomas Benton Greenwood, and William Pierson remained the sole members of the court until Greenwood's resignation on December 31, 1934, a period of over thirteen years.8 The Cureton and Gaines court eras are the longest in Texas his- tory in which the composition of the court remained unchanged. 9 6. T. J. Brown, Frank A. Williams, William F. Ramsey, Joseph Dibrell, Nelson Phil- lips, William E. Hawkins, James E. Yantis, Thomas Greenwood, and William Pierson. See The Supreme Court of Texas, Court History - From 1836-1945, http://www.supreme.courts .state.tx.us/court/1876.asp (last visited Mar. 18, 2007) (listing all of the chief and associate justices of the Texas Supreme Court along with their terms of service from 1876 to 1945) (on file with the St. Mary's Law Journal). 7. See Justice Phillips was Picturesque Figure, 2 TEX. B.J. 133, 133 (1939) (noting Phil- lips's service as an associate justice from 1912 to 1915). In November 1921, Nelson Phillips resigned as chief justice, and C. M. Cureton was appointed in his place, taking office on December 2, 1921. Judge Cureton Served Longest, 3 TEX. B.J. 190, 194 (1940). 8. See The Supreme Court of Texas, Court History - From 1836-1945, http://www.su- preme.courts.state.tx.us/court/1876.asp (last visited Mar. 18, 2007) (recording that Chief Justice C. M. Cureton served with Associate Justices Thomas B. Greenwood and William Pierson from December 1921 to December 1934) (on file with the St. Mary's Law Journal). In the nearly two decades between the 1891 reorganization of the judiciary in Texas and 1911, membership in the Supreme Court of Texas was remarkably stable. From the death of Chief Justice John W. Stayton on July 5, 1894, to Chief Justice Reuben Gaines's resigna- tion on January 5, 1911, only four persons sat on the Texas Supreme Court: Gaines (1886- 1911), Thomas Jefferson Brown (1893-1915), Leroy G. Denman (1894-1899), and Frank A. Williams (1899-1911). See id. (listing all of the chief and associate justices of the Texas Supreme Court from 1876 to 1945 and their terms of service) (on file with the St. Mary's Law Journal). See generally DAVENPORT, supra note 3, at 237-39 (stating that Justice Den- man joined Justices Gaines and Brown in 1894 and was replaced by Justice Williams fol- lowing Denman's resignation in 1899). 9. See The Supreme Court of Texas, Court History - From 1836-1945, http://www.su- preme.courts.state.tx.us/court/1876.asp (last visited Mar. 18, 2007) (indicating, from the dates given, the average term of service on the Court outside of these periods of stability was roughly four years) (on file with the St. Mary's Law Journal). In comparison, the longest period of time in which the membership in the Supreme Court of the United States remained constant was eleven years, seven months, from February 1812 to September 1823. See Supreme Court of the United States, Members of the Supreme Court of the United States, http://www.supremecourtus.gov/about/members.pdf (last visited Mar. 18, 2007) (listing no appointments to the Court between the swearing-in of Justice Story on February 3, 1812 and Justice Smith Thompson's judicial oath on September 1, 1823) (on file with the St. Mary's Law Journal). This comparison is slightly inapt, however, for the Supreme Court of the United States has, for most of its history, consisted of nine members (and consisted of seven members between 1812-1823) rather than the three that consti- tuted the Texas Supreme Court during this time. Id. ST MARY'S LAW JOURNAL [Vol. 38:641 Those eras brace a period in which instability in personnel was the norm. The contrast is striking and may offer some insight into the court's failures from 1911-1921. One apparent consequence of this difference between the Cureton and Gaines courts and the court of 1911-1921 is the extent of the published disagreements by the lat- ter. The Gaines and Cureton courts rarely publicly disagreed, while the members of the 1911-1921 courts seemed to take plea- sure in published concurring and dissenting opinions. A second consequence of the instability in personnel is that the Texas Su- preme Court from 1911-1921 is best known not for the law it made or for the opinions it wrote, but for its failure to decide cases. Al- though the supreme court's difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. The eventual result was the legislature's creation of the Committee of Judges in 1917 and the Commission of Appeals in 1918 in an attempt to reduce the multi-year backlog of cases.1" That Commission, designed to exist for just two years, remained in existence until the expansion of the membership of the supreme court to nine in 1945.11 This Article assesses the place of the 1911-1921 court in Texas history.