Banton v. Wilson

• Decision Date: 31 December 1849
• Citation: 4 Tex. 400
• Parties: BANTON v. WILSON.
• Court: Texas Supreme Court

4 Tex. 400

BANTON

v.WILSON.

Supreme Court of Texas.

December Term, 1849.

If the court can act upon any one subject of the petition, any matter on which the plaintiff asks its interposition, it must be retained.

The right to an office is one which may be litigated between parties who claim adversely. The proceeding in such a case is a “suit, complaint, or plea,” within the meaning of the Constitution, over which the District Courts have original jurisdiction. (Note 85.)

A mandamus is the proper writ to restore a party to an office from which he has been illegally ousted, or to put a party in possession of an office which is illegally detained from him, and to cause the books, papers, and archives thereof to be delivered into his possession. (Note 86.)

The only information by quo warranto that could be filed in this State, on application by a private person, would be where a public injury is done by the usurpation of a franchise; and the court would possibly have discretionary power to order, in proper cases, an information to be filed by the District Attorney.

The eleventh section of the fourth article of the Constitution authorizes the district judge to appoint a clerk, in case of a vacancy, “until a regular election can be held.” The term “regular election” does not mean a general election, but any election by the people which is provided for by law f. g. to fill that vacancy.

Where the term of an office is fixed by the Constitution at say four years, each succeeding incumbent, although elected to fill a vacancy, is entitled, unless it be otherwise provided in the Constitution itself, to hold the office for the full period.

Appeal from Walker. Petition by Banton for a mandamus to Wilson to deliver up to him the office of clerk of the District Court of Walker county, together with the records, &c.

In September, 1846, the clerk of said court, who had been elected the August previous, died. In October the district judge appointed Banton, the appellant, clerk, until a regular election could be held. The Chief Justice of Walker county issued and published an order, in due time, for an election on the 1st day of November, 1847, to fill the vacancy in the office, the duties of which were then being discharged by Banton under his appointment of October previous. The election was on the same day with that of Governor, Lieutenant Goverror, and members of the Legislature. Wilson received the highest number of votes, and, being commissioned, entered upon the discharge of the duties of the office. Banton claimed the office by virtue of his previous appointment, and brought this suit to be restored to it.

Oakum and Taylor, for appellant, argued that the terms “regular election,” in the eleventh section of the fourth article of the Constitution, meant the regular periodical election provided by law for the election of clerks of the District Courts. this construction would give the office to the plaintiff until after the regular election of District Court clerks in 1850, four years from the last regular election. But as there was some doubt about the proper construction of the terms “regular election,” the Legislature of 1846 undertook to construe them, and enacted (p. 204, sec. 19,) “that in case of vacancy the District Court shall appoint a clerk, who shall hold the office until the next regular election for county officers,” &c. Under this provision the appellant was entitled to hold the office until after the first Monday in August, A. D. 1848. The Legislature having thus construed the Constitution, this court will not declare their construction unconstitutional unless it be clearly so. (Sutherland v. De Leon, 1 Tex. R., 304.)

P. W. Gray, for appellee, argued that the terms “regular election” meant any election by the people in the mode and at the time and place prescribed by law. The term “regular” refers to the constituent of the election. Regularly, under the Constitution, clerks are to be elected by the people. But to prevent mischief, in case of a vacancy the district judge is authorized to appoint a clerk until a regular election can be held. Regularly the people elect the clerk; irregularly the judge appoints one. Any election, therefore, by the people, at such time and place as may be provided by statute, is a regular election. The statutes provide that in cases of vacancy the Chief Justice shall order an election to fill it. That was done in this case.

II. But if Wilson was not duly elected, what right has the appellant to question his claim? Unless he have a specific legal right to the office, and has been illegally ousted therefrom, he has no cause of complaint, and has no right to the writ of mandamus. (3 Black. Com., 110; 2 Tom. Law Dict., 513; 8 East. R., 219; Dew v. Judges, 3 H. & M. R., 1; People v. Judges, 1 Doug. R., 319; Ex parte Daughtry, 6 Ired. R., 155; Cowp. R., 523; Rex v. Mayor, &c., of Oxford, 2 T. R., 177; 3 Id., 578.) The answer of Wilson, which is not controverted, shows that Banton surrendered the office to him upon written agreement.

The only mode by which appellee's right to the office can be questioned by the public is by quo warranto. (Bradley v. McCrabb, Dallam, 509; Commonwealth v. Dearborn, 15 Mass. R., 125; Same v. Fowler, 10 Id., 295; People v. Tibbetts, 4 Cow. R., 358; People v. Van Slyck, Id., 297; People v. Forquer, Breese R., 68; Ex parteBellows, 1 Mo. R., 115.)

HEMPHILL, CH. J.

This was an application by the appellant for a mandamus to compel the appellee to deliver to him the office of clerk of the District Court of the county of Walker, with all the immunities, records, books, and papers belonging to the said office.

Before proceeding to the examination of the issues raised and tried in the court below, we will dispose of the objections made here to the jurisdiction of the court and the appropriateness of the remedy.

It is contended in this and also in other cases before the court that the District Courts have no authority, under the Constitution and laws of the State, to issue writs of mandamus, except when they may be necessary to enforce their own jurisdiction, and to give them a general superintendence and control over inferior jurisdictions. The counsel of the appellant appears by brief, and not being aware that an objection of this character would be raised, we have not the advantage of the able argument which doubtless would have been presented by him in support of the jurisdiction of the court to award or refuse the writ in this case. Questions of jurisdiction may, however, always be raised; and when presented, they must be examined and decided, whether they be fully and elaborately or but imperfectly discussed, and whether by both or but one of the parties.

In the lucid views of the counsel for the appellant it is urged very forcibly that the jurisdiction and powers of the District Court are specified, defined, and limited by the Constitution, and that it is equally beyond the power of the Legislature to abridge or extend its powers; and that the authority to issue a writ of mandamus to enforce its own or to control an inferior jurisdiction does not embrace every possible case in which the writ may be appropriately issued.

The only point which will be examined is the extent of power conferred on the courts by the authority to issue all writs necessary to enforce their own jurisdiction. And that this may be the better understood, reference will be had to the chart of their powers, to be found in the 10th section of the 4th article of the Constitution, and which is expressed in the following terms, viz: “The District Courts shall have original jurisdiction of all criminal cases, of all suits in behalf of the State to recover penalties, forfeitures, and escheats, and of all cases of divorce, and of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to one hundred dollars; and the said courts or the judge thereof shall have power to issue all writs necessary to enforce their own jurisdiction and to give them a general superintendence and control over inferior jurisdictions.” The point to be decided is, was the writ necessary to enforce the jurisdiction of the court?

On the solution of this question will depend the power of the court to take jurisdiction over the case presented for adjudication. What is jurisdiction? It has been defined to be the power to hear and determine a cause. It is coram judice,whenever a case is presented, which brings this power into action. If the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction. Whether, on an answer denying and putting in issue the allegations of the petition, the petitioner makes out his case, is the exercise of jurisdiction conferred by the filing of a petition containing all the requisites, and in the manner prescribed by law. (6 Pet. R., 709.) It is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is whether, on a case before a court, their action is judicial or extrajudicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction. (12 Pet. R., 718.)

If the court can act on any one subject of the petition, any matter on which the plaintiff asks its interposition, it must be retained; so that the true inquiry is not as to the extent but the existence of any jurisdiction. (12 Pet. R., 732.)

These principles, deduced from the authorities, show very clearly what is to be understood by the jurisdiction of a court.

Did the matters contained in the pleadings in this case present a proper case for the exercise of the judicial power of the...