Callaghan v. McGown

• Decision Date: 01 November 1905
• Citation: 90 S.W. 319
• Parties: CALLAGHAN, Mayor, et al. v. McGOWN et al., Police Com'rs.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 319

CALLAGHAN, Mayor, et al. v. McGOWN et al., Police Com'rs.^*

Court of Civil Appeals of Texas,

November 1, 1905.

On Rehearing, December 6, 1905.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Suit by Floyd McGown and others, as commissioners of the police and fire department of the city of San Antonio, against Bryan Callaghan and others, as mayor and members of the council, to restrain defendants from interfering with complainants in the discharge of their duties. From a decree in favor of complainants, defendants appeal. Affirmed.

Jos. Ryan, Houston Bros., and R. J. Boyle, for appellants. Jno. H. Clark, Wm. Aubrey, Ogden & Brooks, H. C. Carter, and Leroy G. Denman, for appellees.

NEILL, J.

This is an appeal from a judgment in favor of appellees, Floyd McGown, F. Lange, and Charles M. Stone, as commissioners of the police and fire department of the city of San Antonio, against the appellants, Bryan Callaghan, as mayor of said city, William L. Richter, B. J. Mauermann, John Bauer, J. T. Hambleton, J. R. Lambert, Eli Arnaud, Erich Menger, Sr., M. W. Davis, A. I. Lockwood, C. S. Robinson, Ed. Braden, Emil Kuehn, as aldermen, and James Van Riper and Phil T. Wright, enjoining and restraining them "(1) from in any manner interfering with appellees in the discharge of their duties as police and fire commissioners of the city of San Antonio, and from in any manner interfering with them in the exercise of any power or authority incident to said position and imposed upon them by section 34a of the charter of said city, adopted June 22, 1903; (2) from appointing, or attempting to appoint, or to confirm the appointment of, any person to service, place, or position in either the police or fire department of the city of San Antonio, but the judgment specially provides that this injunction shall not be construed to restrain defendant Bryan Callaghan, as mayor of said city, from exercising the power imposed upon him by section 25 of the charter `to appoint any number of special policemen that he may deem necessary to preserve the peace of the City and dismiss the same at pleasure';" (3) from in any manner interfering with said police and fire commissioners, plaintiffs, in the possession, management, and control of the properties belonging to said police and fire departments and the control and management of persons now serving in said departments, and from in any manner interfering with the persons now serving in said departments of said city under appointment of the former administration in the discharge of their duties and their possession and control of the property belonging to said departments now in their possession."

As most of the assignments of error are directed against the sufficiency of appellees' pleadings to authorize the relief granted, we will, except as to matters where the sufficiency of the evidence is questioned by assignments of error, presume, if a cause of action for the relief granted is stated, that the evidence is, either by itself or taken in connection with the admissions in appellants' pleadings, sufficient to support the decree. Hence such conclusions of fact as we may announce will be confined to such matters as are necessary to the disposition of the assignments which raise issues of fact.

The first assignment is that the court erred in overruling defendants' general demurrer to plaintiffs' petition. The proposition asserted under it is: "Where a claim of office is asserted, injunction is not the proper remedy to secure or retain possession of the office and the custody and control of the property incident thereto." This proposition, while correct as an abstract principle of law, has no application to this case. Appellees are not asserting claim to an office for the purpose of having their right to it adjudicated so they may "retain possession of the office and custody and control of the property incident thereto," but are asserting their actual holding and possession of an office, and asking that appellants be restrained from interfering with them in the discharge of the duties imposed upon them by law, by virtue of such office, while in actual possession of the office. That a public officer, either de jure or de facto, in possession of an office, is entitled to an injunction to restrain one who disputes his right to it or any one else from interfering with him in the discharge of his official duties, is too well settled to require discussion. Spelling on Inj. § 621; Beach on Inj. § 138; High on Inj. § 1315; Guillotte v. Poincy (La.) 6 South. 507, 5 L. R. A. 403; Wheeler v. Commissioners (La.) 15 South. 179; Poyntz v. Shackelford (Ky.) 54 S. W. 855. This, also, disposes of the seventh assignment of error.

The second assignment is: "The trial court erred in overruling defendants' general demurrer to plaintiffs' original petition, because it appears from said petition that section 34a of the city charter of the city of San Antonio, under and by virtue of which they claim to hold and exercise the offices of police and fire commissioners of the city of San Antonio, seeks to confer upon said commissioners the power to appoint persons in said police and fire departments with a life tenure of office, and does not authorize or empower said police and fire commissioners to appoint such persons for any other term of office, and therefore is in direct conflict with the Constitution of the state of Texas, is unconstitutional and void, and the plaintiffs herein cannot claim or exercise any rights or powers by virtue thereof." The propositions asserted are: "(1) The courts will not read the Constitution into the statute and change its terms and give it a constitutional scope, where no apparent necessity exists for such course. Where conforming such statute to constitutional limits would be a distortion of the legislative intent and would also produce a hopeless conflict and confusion in the statute, it will be allowed to fall by its own vice. (2) Where the manifest legislative intent is to defeat the constitutional prohibition against a life tenure of office, and where it is equally plain that, if the constitutional limitation for two years for a term of office cannot be evaded, the only purpose of the statute will fail, no indulgence will be exercised to favor the statute and give it force along modified lines. (3) The framers of our Constitution had uppermost in mind the doctrine of rotation in office, and the adoption of civil service regulations providing for holders continuing in their tenure for life is not consonant with the spirit of our laws. (4) Where the Legislature, by the charter of a city, undertakes to confer life tenure of office on certain city officers, that provision of the charter is wholly void and of no effect. No effort will be made to read the Constitution into the charter and hold the term of office good for a constitutional period, where the legislative intent will be defeated by such holding."

Section 34a, referred to in the assignment, is as follows: "The police and fire departments of the city shall be placed under civil service regulations and be controlled by a board of three civil service commissioners, to be known as the police and fire commissioners, and such board shall have the care, management and control of the police and fire departments of said city, and the selection, management and control and discharge of all persons serving in the police and fire departments of said city. Said board shall have the right to make rules and regulations for its management, and for the selection and discharge of all persons serving in the police and fire departments of said city, and all persons selected by said board to serve as policemen or firemen shall hold their positions during good behavior, and shall not be discharged for political reasons and in no event except for good cause and after charges have been filed and due hearing had thereon. The power of appointment given to the mayor elsewhere in this charter and the power given to the city council shall not apply to persons serving in the police and fire departments of the city. Each of said commissioners shall be a qualified taxpaying voter in the city of San Antonio, shall hold office for two years and until their successors have been elected and qualified, and shall receive no compensation; provided, further, that the first members of the board herein created shall be appointed by the mayor at the first meeting of the city council after January 1, 1905, and be confirmed by the city council and shall qualify and enter upon the discharge of their duties on the first day of June, 1905, and shall serve until their successors shall be elected and qualified, which election for their successors shall be held on the second Tuesday in November, 1905, and an election for the members of said commission shall be held every two years after the said second Tuesday in November, 1905." It is said by an eminent writer on constitutional law: "That the court must take care, in the exercise of its judicial function, that the law in conflict with the Constitution has no effect, because it is no law at all that it does not trench upon the legislative power by repealing a law which is valid because in pursuance of the Constitution. If the court be in doubt whether a law be or be not in pursuance of the Constitution, where the repugnancy is not clear and beyond reasonable doubt, it should refrain from making a law void in effect by its judgment, lest it should be really repealing a valid law by legislative act, instead of declaring it void by judicial act. This delicate duty of the judicial department has led to the rule, now well established, that the court usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and Constitution is not established beyond reasonable doubt. Its duty to refrain from legislative functions is paramount to its duty to declare the...