Howard v. Parker

49 Tex. 236

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Gould, Associate Justice.

If the statute had imposed on each person appointed by the County Court a member of the board of medical examiners, and accepting such appointment, the duty of notifying the others of the time and place of organization before participating therein; and if the petition had charged, and the evidence established, a willful omission to perform that duty, we would still hesitate to enjoin the appointees from proceeding to perform the public duties of the board, under and because of an organization had without such notice. Ho authority has been produced for such an injunction on such grounds; and it would seem that the legal remedies for the injury to those thus excluded from sharing in the organization are too nearly adequate and complete to justify it.

But the statute imposed no such duty on the appointees; and whilst it was certainly proper that the organization should have been under such circumstances as to give all appointees an opportunity to participate, we cannot hold that any member of the board subjected himself to an action by merely taking part in such organization, without having first assured himself that there was no appointee who did not have such opportunity.

The petition fails to allege, and the evidence to establish, any legal injury or cause of action entitling plaintiffs to either an injunction or to damages. It is not alleged or proved that plaintiff's ever applied to the hoard, or any officer or member, to be admitted as members thereof, or to have the organization set aside, for the purpose of affording them an opportunity to participate therein. On the contrary, they themselves testify that they made no such demand, and the evidence shows no action of defendants amounting to a refusal. We think that such demand should have been made before appealing to the courts.

The statute has been changed so as to leave it no longer a practical question as to plaintiffs’ right to membership in the board; and as it is evident, from the testimony of the plaintiffs, that they have no cause of action, the judgment is reversed and the cause dismissed.

Reversed and dismissed.