McAllen v. Rhodes

65 Tex. 348, 1886 Tex. LEXIS 665

• Court: Texas Supreme Court
• Decided: January 26, 1886
• Docket: Case No. 2087
• Status: Published

Opinion

Willie, Chief Justice.

The principal question raised by the record in this cause is: Can an office be recovered from a usurper by the party entitled to it in an ordinary suit and without proceeding by an information in the nature of a quo warranto, as prescribed by act of July 2, 1879. It has been heretofore settled by this court that the district court has jurisdiction of a suit for the recovery of an office, if its value is over five hundred dollars. State v. Owens, 63 Tex. 261; Williamson v. Lane, 52 Tex. 335.

It has also been held that an information in the nature of a quo warranto, filed by the proper officer, at the instance of a private relator, as prescribed in the above act, is an appropriate proceeding, and may be used, not only to oust the intruder, but to adjudge to the relator the possession of the office. State v. Owens, supra.

But it has not been held that this is the only remedy that may be pursued, nor does the statute contemplate that it should be. The sixth section declares, that the remedy and mode of procedure therein prescribed shall be cumulative of any then existing. If, therefore, there was, previous to the passage of the act, any method of recovering an office withheld from the true owner by an intruder, that method may be still pursued, notwithstanding the act provides the remedy by quo warranto.

We find several cases in our reports in which this court has held, that the writ of mandamus might be used to accomplish the purposes above stated. Bradley v. McCrabb, Dallam, 504; Banton v. Wilson, 4 Tex. 400; Lindsey v. Luckett, 20 Tex. 516.

We find also that, in other cases, an ordinary suit, brought by the party entitled to an office, against the person who has deprived him of it, has been treated by this court as an appropriate proceeding. Boyton v. Griffin, 4 Tex. 566; Keenan w. Perry, 24 Tex. 253.

It is true that the state is interested in having its offices filled by persons duly appointed or elected thereto, but the candidate chosen has also a direct pecuniary interest in obtaining the office with its franchises and emoluments, and this interest must be respected equally with the other. Indeed, the relator in a quo warranto proceeding is the real plaintiff, and the position of the state is that of a nominal party. Practically, the state’s attorneys take no part in the proceeding, and the plaintiff’s side of the case is represented by the relator’s counsel alone. In sustaining his suit, the relator accomplishes all that the state has any interest in having done, viz., ousting an intruder, and filling the office with the person properly entitled to it. Should the relator fail, the respondent is shown to be the legal incumbent, and the wish of the state is in that event fulfilled.

In fact, the state, in these contests between private parties over the title to an office, is, in reality, more like an impartial observer than a partisan of either claimant. Still, as the statute prescribes that the information in the nature of a quo warranto must be sued out at the instance of its attorney, when resort is had to that method of procedure, the statute should be followed, and the state be made party plaintiff. But the important interest in the office is that which is held by the person who has been legally chosen to it. It is his property; its franchises, perquisites, salary and emoluments are his, of right, and he is entitled to the process of law to obtain them. hfeither the state nor its attorneys can deprive him of them by a refusal to allow him to sue for their recovery. This would be to place it within the power of these officers to defeat the will of the people, and keep in office persons not entitled thereto under the constitution and laws of the state.

The information can be filed, only upon petition of the attorney-general, or state or county attorney. If each of these officers refuse to move in the matter, there is no authority given the courts to compel them to proceed. In such case the party entitled to the office is powerless, and the owner of property has no remedy to recover it, and must stand by and see it enjoyed by another, because the state’s attorneys are not willing to join him in its recovery. We do not think that the laws of our state intend to permit any such injustice. If the right to sue for the office had been given, together with the remedy by quo warranto, there might possibly be some reason for holding that this was the only remedy which could be used. Had there been no provision, saving the remedies already in use, there might also be some ground for such a construction. But when former remedies are expressly preserved, it is equivalent to an express declaration by the legislature that the injured party might resort to them, if he. so chose, instead of an information in the nature of a quo warranto.

That the state is not a necessary party to a proceeding to recover an office for a private individual, in the view of our courts, is plain, from the fact that the remedies in úse for that purpose, previous to the passage of the above act, were such as did not require the presence of the state to enforce them. Even to a mandamus suit, as conducted in Texas, the state need not be a party, though, in some states, the cause is docketed in its name as plaintiff. Even in these states, however, it is not a party to the pleadings in the cause.

Then, as we have seen, the right to an office has frequently been determined by our courts in an ordinary civil suit between private parties. This seems quite in accord with our system of jurisprudence, which seeks, as far as possible, to confine litigation to the very parties interested in the controversy.

We think, therefore, that, for the recovery of an office, a suit may be brought directly by the claimant against the person in possession, without resort to an information in the nature of a quo warranto.

We are of opinion, however, that the plaintiff had no right to an injunction, either to restrain the defendant from exercising the rights and discharging the duties of county judge, or of enjoying its emoluments during the pendency of the suit for the office. It is to the interest of the public that the office should be filled, but it would be rendered vacant, if, by means of an injunction, the officer de facto were absolutely prohibited from discharging its duties, or were robbed of every inducement to do so, by having all compensation for his services absolutely withdrawn from him. High onlnj., sec. 1312, et seq.

The plaintiff has his remedy at law by suit for the money received by his antagonist whilst acting as de facto judge, and cannot resort to the extraordinary process of injunction, which, whilst it is not necessary for his protection, works a hardship and an injury to the public.

We do not think there is anything in the special exceptions sustained to the amended petition. The plaintiff showed the best of reasons why he did not qualify as county judge. He showed that he was prevented from so doing by the wrongful acts of the defendant himself, who was in a position where he possessed the power to prevent the plaintiff from qualifying. He could hardly qualify when his certificate of election was withheld from him by the-county commissioners, influenced, as he alleged, by the defendant; when no officer would administer the oath to him or receive his bond. He offered, in his amended petition, to file the proper oath and bond, and this was all that could be required of him.

We think that the petition was good against all the objections taken to it upon demurrer and exceptions, as relied upon in this court, and the judgment of the court below is accordingly reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered January 26, 1886.]