The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899 Page: 9
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Oran Milo Roberts.
involved was completely and clearly defined, the difficulties and
errors of the whole record were examined and dissipated, and when
the case came on for ;a second trial below there was no room for
hesitation, controversy, or confusion as to what the Supreme
Court had declared to be the law of the case, and the whole case.
It may be said that these qualities were characteristic of all the
early judges of our highest court. For the first thirty-five or forty
years of its history it 'was the crowning virtue of 'that tribunal that
it decided causes, 'decided them on principle, decided them on lines
of logical consistency, and decided them completely and finally.
It was the peculiar distinction of Judge Roberts not only to have
excelled in this direction, but to have largely contributed while
on the bench 'to the bringing about of these results. When he
first came into the court, in 1857, there had never been an open
dissent of opinion by any of the judges. No doubt they had often
differed among themselves as to the correct 'decision of cases and
the disposition of certain questions, but no one 'of the court had
ever filed and published 'his dissent, supported by a discussion of
the points ,at issue. It was, therefore, not a welcome announce-
ment to his colleagues when Judge Roberts gave notice that he felt
constrained to inaugurate the practice. It seems that he had pre-
viously disagreed with his brethren upon some decision already
made, but forebore to publicly announce his opposing views, tell-
ing them, however, that in future he would reserve the right to
deliver a dissenting opinion in all cases where he .deemed the ques-
tions of sufficient importance to warrant his open protest against
the action of the majority of the court. The occasion for this
first arose in the case of Cain vs. the State, reported in Volume 20
of the Texas Reports, involving the question of the construction
of statutes passed at the same session of the legislature. Judge
Wheeler, speaking for himself and Chief Justice I-Iemphill, de-
cided according to the old English rule by which all acts of
Parliament, being part lof the same roll, should be 'construed to-
gether as one act and of the date of the first day of the session.
Judge Roberts opposed this view, as not in consonance with the
methods of American legislation, 'and not consistent 'with the later
rules of construction even in England. His dissenting opinion is
unquestionably the law as it is now recognized by the great weight
of authority. There is one singular feature about this case, which
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Texas State Historical Association. The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899, periodical, 1898/1899; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101011/m1/13/: accessed July 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.