Brady v. Brooks

• Decision Date: 04 December 1905
• Citation: 89 S.W. 1052
• Parties: BRADY, Co. Atty., v. BROOKS, Judge, et al. (two cases.) MOORE, Dist. Atty., v. SAME (two cases).
• Court: Texas Supreme Court

89 S.W. 1052

BRADY, Co. Atty., v. BROOKS, Judge, et al. (two cases.)

MOORE, Dist. Atty., v. SAME (two cases).

Supreme Court of Texas.

December 4, 1905.

Separate petitions for mandamus by John W. Brady, county attorney, and Warren W. Moore, district attorney, against V. L. Brooks, district judge, and others. Denied.

John W. Brady and Allen & Hart, for relator Brady. Warren W. Moore and Allen & Hart, for relator Moore. R. V. Davidson, Atty. Gen., and W. E. Hawkins and Claud Pollard, Asst. Attys. Gen., for respondent.

GAINES, C. J.

These cases present substantially the same question and have been argued and submitted as one. The questions are as to the rights of the county attorney of Travis county and of the district attorney of the Twenty-Sixth judicial district of the state of Texas to prosecute certain suits brought by the Attorney General to recover taxes and penalties under acts passed at the last session of the Legislature. On the 27th day of October, 1905, the Attorney General of the state of Texas brought a suit in the name of the state of Texas against the Higgins Oil & Fuel Company, a corporation, to recover a tax and penalties alleged to have accrued to the state under and by virtue of the provision of an act of our present Legislature commonly known as the "Kennedy Bill." On the 8th day of November, thereafter, the district attorney and the county attorney of Travis county appeared in court and filed a joint motion praying to be allowed to prosecute the suit and that the Attorney General be excluded from participation in such prosecution. The court (Hon. Victor L. Brooks, judge of the Twenty-Sixth Judicial District, presiding) overruled the motion. Again on the 24th day of November, 1905, the Attorney General, at the request of the Comptroller of Public Accounts, filed in the district court of Travis county a suit against the Houston & Texas Central Railroad Company to recover penalties provided for by an act passed at the last regular session of the Legislature, commonly called the "Love Tax Bill," for failure to pay the tax imposed by that act. On the 28th day of November, the district attorney and county attorney filed in that court a similar motion to that filed in the former case, which was also overruled, the same judge presiding. The district attorney and the county attorney have each filed a separate petition in each of the cases to compel by the writ of mandamus the presiding judge of the court to admit them to prosecute jointly each of the two cases and to exclude the Attorney General from participating in such prosecution.

The act which imposes a tax upon the gross receipts of railroad companies, called the "Love Bill," after fixing the tax to be imposed and providing for certain reports to the Comptroller, provided as follows: "Sec. 5. The Attorney General is authorized and required upon request by the Comptroller, to bring suit in the name of the state, in Travis county, against the proper parties defendant, to recover all taxes, penalties and forfeitures mentioned in this act, and venue and jurisdiction of such suits is hereby expressly conferred upon the courts of Travis county. Service of all process issued in such suits may be had upon any officer or agent of such person, firm, association of persons, corporation, or receiver thereof, within this state, and such service shall in all respects be held legal and valid." Laws 1905, p. 338, c. 141. The act of April 17, 1905, commonly known as the "Kennedy Bill," provides a tax upon the gross receipts of individuals and corporations, pursuing various occupations and for making reports to the Comptroller. It also prescribes penalties for the failure to make the reports and for the failure to pay the tax. The taxes and penalties in the language of the act are to be "sued for by the Attorney General in the name of the state," and the venue is given to the courts of Travis county. Laws 1905, p. 358 et seq., c. 148. It is by virtue of the authority granted by these statutes that the Attorney General has assumed to act in these cases. However, the claim of the relators is that the action of the Legislature, in so far as it attempts to confer authority upon the Attorney General to prosecute the suits, is prohibited by the Constitution. In support of their contention they rely upon section 21 of article 5 of the Constitution, which, in so far as it bears upon the question, reads as follows: "A county attorney, for counties in which there is not a resident criminal district attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of two years. In case of vacancy the commissioners' court of the county shall have power to appoint a county attorney until the next general election. The county attorneys shall represent the state in all cases in the district and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall, in such counties, be regulated by the Legislature. The Legislature may provide for the election of district attorneys in such districts as may be deemed necessary, and make provision for the compensation of district attorneys and county attorneys; provided, district attorneys shall receive an annual salary of five hundred dollars, to be paid by the state, and such fees, commissions and perquisites as may be provided by law. County attorneys shall receive as compensation only such fees, commissions and perquisites as may be prescribed by law." They further claim that in the case of State v Moore, 57 Tex. 307, the question was authoritatively decided by this court adversely to the contention of the Attorney General.

We will first dispose of the question of the authority of that decision. The statute in force at the time the question arose made it the duty of the Attorney General to institute or to cause to be instituted, proceedings against all officers charged with the collection of money belonging to the state for the recovery of all arrears which might appear to have accrued. Rev. St. 1879, art. 2802a. Proceeding under the supposed authority attempted to be conferred by this statute, the Attorney General then in office brought suit in the district court of Travis county to recover of a defaulting tax collector and the sureties upon his official bond money which had been collected by him, but which he had not paid into the treasury. E. T. Moore, then the county attorney of Travis county, filed a motion in the court praying that he be allowed to prosecute the suit as attorney for the state. The motion was granted. He prosecuted the suit to a successful termination, and collected the sum adjudged to the state. Believing that he was entitled to commissions under the law, he paid the money collected into the treasury, less the supposed commissions, which he retained. The Attorney General thereupon filed a motion against him in the same court for the recovery of the sum so withheld. The court overruled the motion, and gave judgment for the defendant therein, whereupon the Attorney General appealed the case to the Supreme Court. Upon the appeal, the court reversed the judgment of the trial court, and rendered judgment in favor of the state against Moore.

In reaching this conclusion, the court in its opinion undertook to determine two questions: holding first, that the county attorney was entitled to prosecute the suit to the exclusion of the Attorney General; and second, that there was no law then in force which allowed the county attorney commissions in a case of that character. Now, if the court had held that the county attorney was not entitled to prosecute the suit (which it did not hold), and also that in no event was he entitled to commissions in such a case (which it did hold), then the opinion would have been authoritative upon both questions, because, if it could be said that the decision of the first was not authority, for the reason that the decision of the second rendered a determination of the first unnecessary, then the same should also be said of the decision of the second question, so that the decision would be authority upon neither question. But on the contrary, in such a case, the decision of each of the two questions supports the judgment of the court, and should therefore be deemed an authoritative determination of each of the points. But in the Moore Case, after deciding that there was no provision of law allowing compensation to the county attorney in such a case, a holding that he was entitled to prosecute the suit could not possibly lead to any result, so far as the judgment in that case was concerned, and therefore was not necessary to the decision of the case. The judgment was not based upon the decision of that point and could not have been. We therefore conclude, that the propositions announced in the opinion of the court upon that question are in the nature of obiter dicta, and cannot be deemed conclusive authority. But, should we be mistaken in this conclusion, we are of opinion, that for reasons hereinafter to be stated, we should decline to follow the decision on the point in question announced in the Moore Case. In no event would we be understood as holding that an opinion by an able court upon a point carefully considered, and especially one by the able and lamented jurist, who spoke for the court in that case, should be lightly disregarded.

But it seems to us that in the later case of Day Land & Cattle Company v. State, 68 Tex. 526, 4 S. W. 865, the ruling upon the point in question in the Moore Case was practically overruled. There the question was as to the right of the Attorney General to prosecute a suit, on behalf of the state, to cancel patents to certain lands in Greer county, issued by the officers of the state. In passing upon the question, the...