Callaghan v. Tobin

• Decision Date: 01 November 1905
• Citation: 90 S.W. 328
• Parties: CALLAGHAN et al. v. TOBIN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 328

CALLAGHAN et al. v. TOBIN.^*

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 W. G. Tobin against Bryan Callaghan and others, as mayor and members of the council of the city of San Antonio, to restrain defendants from interfering with complainant in his office as chief of the fire department. From a decree in favor of complainant, defendants appeal. Affirmed.

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

FLY, J.

On May 31, 1905, appellee filed a petition in the district court of Bexar county, in which it was alleged, in substance, that he was the chief of the fire department of the city of San Antonio, through and by virtue of an appointment made by the mayor on March 11, 1903, and an election on same date by the city council of said city; that his salary had been fixed at $150 a month; that he had been commissioned on March 13, 1903, and duly qualified as fire chief, and had ever since been acting in such capacity and had in possession the records, books, papers, and property of the fire department, and had control of the subordinates therein; that under the provisions of the present charter, which became effective on July 29, 1903, the chief of the fire department, and other officers, and all persons serving in said department, shall hold their offices until their successors shall be appointed and qualify; that the existing city charter provides that the police and fire departments of said city shall be placed under civil service rules and be controlled by a board of three civil service commissioners, to be known as the "Police and Fire Commission," and that such board should have the management and control of the police and fire departments and the power of selection, management, control, and discharge of all persons in said departments, and that in accordance with the provisions of section 34a of the city charter (Sp. Laws 1903, p. 328, c. 44) the mayor had appointed three members of said board and their appointment had been confirmed by the city council and commissions issued to them; that the commissioners would on June 1, 1905, qualify and enter upon the discharge of their duties as police and fire commissioners, and would have the sole and absolute right and authority to appoint the fire chief and all members of the fire department and have the care, management, and control of said department; that on May 9, 1905, Bryan Callaghan was elected mayor of the city of San Antonio, and William L. Richter, B. J. Mauermann, John Bauer, and J. T. Hambleton were elected aldermen at large, and J. R. Lambert, Eli Arnaud, Erich Menger, Sr., M. W. Davis, A. I. Lockwood, C. S. Robinson, Ed Braden, and Emil Kuehn were elected aldermen of their respective wards, and that said mayor and aldermen would qualify and enter upon the discharge of their duties on June 1, 1905; that they were contending and claiming that the provisions of section 34a, providing for the police and fire commission, are invalid, and that the power to appoint a fire chief and members of that department was vested in the mayor and city council, and that they were threatening to qualify immediately after midnight on June 1, 1905, and appoint and confirm appellant Phil T. Wright, or some other person, as chief of the fire department and other persons to other positions in the fire department, and to seize and take from appellee the property belonging to said department and to oust appellee from the office of chief of the fire department and deprive him of the control and management of the persons serving in said department and repeal the ordinances establishing the fire department and providing for the maintenance thereof. An injunction was prayed for to restrain the mayor and city council from the action threatened by them. A temporary writ of injunction was granted and the case set down for a hearing.

Appellants filed a general demurrer and the following special exceptions: "For special exception, these defendants say that said petition is insufficient, for this: that it shows that plaintiff has an adequate remedy at law for any injuries that he may suffer or that are now threatening. For further special exception, these defendants say that said petition is insufficient to entitle plaintiff to prosecute his suit thereunder, because it shows that the plaintiff has no right or property interest in the matter in controversy, that he is now illegally holding office, and is attempting to illegally continue therein. For further special exception, these defendants say that said petition is insufficient, in this: if it be true, as alleged, that these defendants are without legal right to disturb the plaintiff in the possession of the office in controversy, then their attempted exercise of power will cause the plaintiff no loss, and he will sustain no injury thereby. For further special exception, these defendants say that said petition is insufficient, in this: because all the matters and things set up and involved in this litigation are purely political, and not such as are subject to the direction of a court of equity, and the matters which are sought to be restrained are the exercise of legislative and political powers, over which a court of equity is without jurisdiction." The answer consisted of a general denial, and admitted the incorporation of the city of San Antonio and the passage of the amendment to the charter by the Legislature on March 31, 1903, and that appellee was appointed chief of the fire department by the mayor of San Antonio on March 11, 1903, and was confirmed by the council and has continued to act in said office under said appointment and was then holding the office by virtue thereof; that the said appointment was not effective for more than two years from March 11, 1903, and that the Legislature had no power to extend the holding of the office for a longer period; that the police and fire departments had not, by any competent authority of law, been placed under the control and regulation of commissioners, and that said commissioners had not been duly and legally commissioned, and had no authority to take charge of the police and fire departments. It was admitted that appellants had been elected to the offices, as stated in the petition, and that they intended to qualify and enter upon the discharge of their duties, and that appellants did claim that section 34a, aforesaid, of the charter, was nugatory and void, and that Bryan Callaghan did intend to qualify after midnight on June 1, 1905, as mayor, with the purpose of preventing and hindering the alleged police and fire commission, or anybody else, from procuring illegal acts to be done on June 1, 1905, or at any time thereafter. It was denied that a meeting of the city council at "midnight, or at any other unusual or improper time, or at any period or at any time for the doing any illegal or improper thing," was ever contemplated. It was denied that appellants intended at any time to disturb or interfere with the efficiency of the police and fire departments, but proposed "to perform their legal duty in a lawful and proper way, as directed by the charter and law of this city, and that they do not propose to determine or to bind themselves by a determination or declaration to this court or elsewhere for the political obligations due by them to the people of this city." A supplemental petition was filed by appellee, which was excepted to and answered by appellants. On a final hearing of the cause on June 9, 1905, the exceptions were overruled and the injunction was made perpetual.

Through the medium of the first assignment of error, the appellants submit that the court erred in overruling their general demurrer to appellee's original petition; the first proposition of law thereunder being that, "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." The same contention is made in the second and fifth assignments of error, and the three will be considered together. In this suit the petition alleges the case of an officer duly appointed, and in lawful possession of the office, and property appertaining thereto, to which he was appointed by lawful authority, and the threatened interference with him in such possession and his removal therefrom by persons alleged to have no legal authority therefor and having no title to the office. The suit does not purport to be one between claimants for the office, each claiming to have the legal title thereto, but is a proceeding to enjoin persons making no claim to the office, but who are contemplating and intending to dispossess the party seeking the injunction. This distinction must be kept in view in the consideration of the questions submitted. The title to an office cannot be tried through the medium of an injunction, but the remedy by an injunction can be invoked to protect the possession even of officers de facto against the acts of intruders on such possession. Breach on Inj. § 1380; 2 High on Inj. § 1315. The foregoing principle is laid down, not only in text books, but is clearly set forth in numerous decisions of courts of last resort. In the case of Guillotte v. Poincy (La.) 6 South. 507, 5 L. R. A. 403, the plaintiff was a member of the board of flour inspectors of the city of New Orleans, and alleged that he was entitled to hold the office until his successor was duly appointed and qualified, that the board was about to admit the defendant, who was claiming the office under the pretended authority of an invalid appointment made by the Governor of the state, as a member, and that the board was about to grant him a place on the board, and plaintiff prayed that he be protected in his...