Bonner v. Belsterling

• Decision Date: 27 May 1911
• Citation: 137 S.W. 1154
• Parties: BONNER v. BELSTERLING et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

137 S.W. 1154

BONNER v. BELSTERLING et al.^†

Court of Civil Appeals of Texas. Dallas.

May 27, 1911.

Rehearing Denied May 30, 1911.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Shearon Bonner against E. A. Belsterling and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Meador, Davis & Senter and A. B. Flanary, for appellant. J. J. Collins, Lee Richardson, and H. P. Lawther, for appellees.

BOOKOUT, J.

This was a suit by appellant, Shearon Bonner, against E. A. Belsterling, J. D. Carter, J. B. McCraw, M. A. Turner, W. A. Goode, and Frank Gilbert, citizens of Dallas; the petition alleging, in substance: That on the 5th day of April, 1910, an election was held in the city of Dallas for members of the board of education, and that C. C. Lane, as president, H. D. Ardrey, Robert N. Watkin, John W. George, L. K. Wright, and John C. Mann, and petitioner, were elected and duly qualified as members of said board. That on the 11th day of August, 1910, another election was held, and John W. George and J. C. Mann were removed from said board, and that J. D. Carter and J. B. McCraw were elected and qualified as their successors. That thereafter on the 4th day of April, 1911, another recall election was held under the provisions of article 9 of the city charter of the city of Dallas (Sp. Laws 1907, c. 71), and in compliance with the provisions thereof, and in said election E. A. Belsterling, as president, and J. D. Carter, John B. McCraw, M. A. Turner, W. A. Goode, and Frank Gilbert were chosen as members of said board of education, to succeed C. C. Lane, as president, H. D. Ardrey, L. K. Wright, J. D. Carter, John B. McCraw, and this plaintiff, Shearon Bonner, provided said article is valid and enforceable. That in said last election John W. George and J. C. Mann were not candidates. That the right and title of E. A. Belsterling, as president, and M. A. Turner, W. A. Goode, and Frank Gilbert as members of the board of education, depends entirely upon the recall election held upon the 4th day of April, 1911, and upon the validity of the said recall provisions of the said city charter of the city of Dallas.

Plaintiff charges that the said defendants, Belsterling, Carter, Gilbert, Goode, McCraw, and Turner, are utterly without right or authority to exercise the functions of the board of education of the city of Dallas, unless said recall provisions of the city charter of the city of Dallas are valid, and unless said election held thereunder is a lawful election, and unless the lawful members of said board of education, namely, those elected at the election held on the first Tuesday of April, in the year 1910, could be removed from their offices prior to the expiration of the term of two years to which they were elected, by means of the exercise of the said recall provision of the city charter of the city of Dallas. He alleges that having been lawfully elected as a member of the board of education of said city of Dallas, for the term of two years, he is now entitled to hold his position as a member of said board of education and to exercise all the functions and privileges as a member of said board, but that he is unlawfully and wrongfully deprived of his office, and the same is wrongfully withheld from him by the defendants herein, and that defendants wrongfully refuse to permit this plaintiff to exercise the right appertaining to his office.

The prayer is that plaintiff be restored to the possession of his office, and that a writ of mandatory injunction be issued, directed to each of the defendants, commanding and requiring them, and each of them, to desist from further acting and from pretending to act as a board of education of the city of Dallas, and as members thereof, and from depriving this plaintiff of his privilege of so acting, and from exercising and pretending to exercise control over the public schools of the city of Dallas, and from interfering with, or molesting in any way, the plaintiff in his exercise of his rightful authority as a member of said board of education, and to desist from receiving and disbursing the funds belonging to the public schools of said city, and from discharging or attempting and pretending to discharge any of the teachers or other employés of said public schools, and from exercising or attempting to exercise any right, privilege, authority, or power in any way appertaining to the office of said board of education or a member thereof, and that, upon final hearing, said injunction shall be made perpetual.

The defendants demurred generally to the petition, which demurrer was sustained, and the injunction prayed for refused. To this action the plaintiff excepted and perfected an appeal.

If, as alleged, the appellant was elected a member of the board of education of Dallas at an election held in April, 1910, for the term of two years, and he afterwards qualified as such member and entered upon the duties of the office, his term not having expired, he was entitled to a writ of injunction preventing defendants from ousting him from office, unless the election held in April, 1911, removing him from office and electing his successor, was a valid election and held under a valid law. It is conceded the election was held under the recall provisions of the charter, and in compliance with their requirements; but it is asserted in the petition, and here contended, that these provisions of the charter are invalid. This appeal brings before us the validity of the recall provisions of the charter. The question is: Did the Legislature have the power by special charter to authorize the people of Dallas to remove a member of the board of education from office at a special election called upon a petition as provided for in article 9 of the charter? In other words, is the recall feature of the charter constitutional? Article 9 of the special charter of the city of Dallas, providing for the recall of elective officers, contains the following provision: "A petition signed by the qualified voters of said city, equal in number to at least 35 per cent. of the entire votes cast for the office of mayor on the final ballot at the last preceding general municipal election, demanding the election of a successor of the person sought to be removed, shall be filed with the city secretary; provided, that the petition sent to the board of commissioners shall contain a general statement of the grounds upon which removal is sought. The signatures to the petition need not be all appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before a notary competent to administer oaths that the statements made herein are true, and that each signature to the paper appended is the genuine signature of the person whose name purports to be thereunto subscribed."

It is insisted by appellant in argument that the signing and presentation of a petition as required by this article of the statute operated as a removal of the officer named in the petition. This argument is not sound. After the presentation of the petition, the charter requires the board of commissioners to determine whether the petition is sufficient, and, if sufficient, to fix a date for the holding of the election and cause publication and arrangements to be made for its holding not less than 30, nor more than 40, days from the time the petition is found to be sufficient. The election is to be conducted and the result declared in all respects as other city elections, and a majority of all the votes is made necessary to elect. In the event no candidate shall receive a majority at the first election, a second election shall be held. The successor of any officer so removed is to hold office during the unexpired term of his predecessor. Any person sought to be removed may be a candidate to succeed himself, and, unless he requests otherwise in writing, the city secretary shall place his name on the official ballot without nomination. In any such removal election the candidate receiving the highest number of votes shall be declared elected. At such election, if some other person than the incumbent receives the highest number of votes, the incumbent shall thereupon be deemed removed from the office upon the qualification of his successor. A compliance with all these prerequisites is necessary to operate as a recall and removal of an incumbent from office.

It is contended by appellant that this article of the charter operates to deprive a citizen of property and privileges without due process and in a manner other than by due course of the law of the land. In other words, that a public office is "property" within the meaning of the federal and state Constitutions that "no person shall be deprived of life, liberty or property without due process of law." This contention is not tenable. The office of member of the board of education of the city of Dallas is not "property" within the meaning of that word as used in the state and federal Constitutions. Offices are created for the public good, at the will of the legislative power, with such privileges and emoluments attached as are believed to be necessary to make them accomplish the purposes designed. Except as restrained by the Constitution, the Legislature may reduce the compensation of an office, and, except as to incumbents of a constitutional office, it may remove officers not only by abolishing the office, but by an act declaring it vacant. Whoever accepts a public office must accept it with this principle in view. Atty. Gen. v. Jochim, 99 Mich. 358, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606; Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009.

The office of member of the board of education of Dallas is property only in the sense that the incumbent is entitled to receive the emoluments of the office so long as he holds the same and until he has...