Carpenter v. Sheppard,

• Decision Date: 24 October 1940
• Docket Number: No. 7798; Motion No. 14742.,7798; Motion No. 14742.
• Citation: 145 S.W.2d 562
• Parties: CARPENTER v. SHEPPARD, Comptroller of Public Accounts, et al.
• Court: Texas Supreme Court

Page 562

145 S.W.2d 562

CARPENTER v. SHEPPARD, Comptroller of Public Accounts, et al.

No. 7798; Motion No. 14742.

Supreme Court of Texas.

October 24, 1940.

On Rehearing November 22, 1940.

Original mandamus proceeding by Orville S. Carpenter against George H. Sheppard, Comptroller of Public Accounts, and another, to procure issuance and payment of a warrant for salary to which relator was allegedly entitled for the month of September, 1940.

Writ granted.

Charles L. Black, Looney & Clark, Everett L. Looney, and Dan Moody, all of Austin, Blalock, Blalock, Lohman & Blalock, of Marshall, and R. L. Bobbitt and Claude V. Birkhead, both of San Antonio, for relator Carpenter.

Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, R. W. Fairchild, and Ocie Speer, Asst. Attys. Gen., for respondents Sheppard et al.

Carl L. Phinney, of Dallas, F. G. Swanson, of Tyler, Johnson & Rogers, Wm. N. Hensley, and John K. Weber, all of San Antonio, Cantey, Hanger, McMahon, McKnight & Johnson, Ira Butler, Frank P. Culver, Jr., Chester B. Collins, Gillis A. Johnson, Warren Scarborough, and Frank Taylor, all of Fort Worth, and Clark C. Wren, of Houston, amici curiae.

SHARP, Justice.

Orville S. Carpenter by original mandamus proceedings seeks to compel the Honorable George H. Sheppard, Comptroller of Public Accounts of the State of Texas, to issue and deliver to him a warrant against the State Treasurer of the State of Texas for the salary to which he is entitled for the full month of September, 1940, and to compel the Honorable Charley Lockhart, State Treasurer of the State of Texas, to pay such warrant when presented to him.

Orville S. Carpenter will hereinafter be called Relator, and George H. Sheppard and Charley Lockhart will hereinafter be called Respondents.

The following alleged facts constitute the basis for such mandamus proceedings: That Relator is a resident citizen of the State of Texas, and on February 15, 1937, was appointed a member and made Chairman and Executive Director of the Texas Unemployment Compensation Commission for the term ending November 21, 1940. That on September 27, 1937, his appointment was duly confirmed by the State Senate of the State of Texas; that he took the oath of office, and has been since then and is now a duly qualified and acting member and the Chairman and Executive Director of said Commission, and has been and is now performing, and throughout the month of September, 1940, did perform, all the duties pertaining to such office. That Respondent George H. Sheppard is the duly elected and qualified and acting Comptroller of Public Accounts of the State of Texas, and that Respondent Charley Lockhart is the duly elected and qualified and acting Treasurer of the State of Texas.

That Relator is a member of the National Guard of the United States and of the State of Texas, and that on the 28th day of December, 1938, he was duly commissioned by the Governor of Texas with the rank of Major in said National Guard and assigned to the State Staff Corps; that he has been given Federal recognition with the rank of Major in the National Guard of the United States and of the State of Texas, and that on the 30th day of January, 1939, he was commissioned with the rank of Major in the National Guard of the United States in the Army of the United States, and that he now holds said rank in said service.

That pursuant to the proclamation of the President, under authority of Public Resolution No. 96, S.J.Res. 286, Chapter 689, Acts of the 76th Congress, 3rd Session, approved August 27, 1940, 50 U.S.C. A.Appendix, § 401 et seq., Relator was by command of Major General Brees ordered to active duty, effective September 19, 1940, for a period of twelve months, unless sooner relieved, and assigned to the Eighth Corps Area Service Command and detailed to duty with the Military Department of the State of Texas at Austin, Texas, for duty in connection with selective service planning of the State of Texas under Public Law No. 783, S. 4164, Chapter 720, Acts of the 76th Congress, 3rd Session, known as the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq., being an Act to provide for the common defense by increasing the personnel of the armed forces of the United States and providing for their training; that in obedience to said order Relator reported for the performance of the duties assigned to him thereunder, and has been discharging such duties since September 19, 1940, and has not been relieved therefrom.

That Relator has prepared and presented to Respondent George H. Sheppard, in the manner and form required by law, an affidavit and certificate showing that he has performed the services required of him by law as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, and all other facts required by the laws of Texas to entitle him to receive payment of his salary as such member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, and that he has, in the manner and form required by law, demanded of the said George H. Sheppard the issuance of a warrant in payment of his salary as such officer for the full month of September, 1940.

That the Legislature of Texas appropriated money to pay the yearly salaries of the members of the Texas Unemployment Compensation Commission, including the Chairman and Executive Director, in twelve equal monthly installments, and such funds are available for the payment of the salary due him for September, 1940.

That Relator during the month of September, 1940, including the period from September 19, 1940, to September 30, 1940, discharged all duties imposed upon him by law as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, and by virtue of that fact and his being a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission he is entitled to draw the salary of said office for the full month of September 1940, which is now due him and has not been paid.

That Respondent George H. Sheppard has refused to issue to Relator a warrant for his salary as a member and Executive Director of the Texas Unemployment Compensation Commission, as above described, for the full month of September, 1940, and that in response to Relator's demand therefor said Respondent has replied: "I have been informed that you were mustered into the Federal Service September 19, 1940, and in accordance with the Attorney General's opinion No. O—2769 I am issuing a warrant for services rendered from September 1st through September 18, 1940."

Relator further contends that he is entitled to a warrant for his salary for the entire month of September, 1940, and that the only reason for Respondent George H. Sheppard's refusal to issue same is because of Relator's having been ordered to military duty as herein alleged.

The Attorney General takes issue with the Relator and contends that he vacated his office as a member of the Texas Unemployment Compensation Commission on September 19, 1940, when on such date he entered the active military service of the United States, and in such service holds and exercises the office of Major, an office of profit and trust under the United States, and that to permit him to hold the two offices would violate Section 12 of Article 16 of the State Constitution, Vernon's Ann.St., which reads: "No member of Congress, nor person holding or exercising any office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State."

The sole question for decision here is: When an officer in the National Guard of Texas responds to the call of the President of the United States for one year's military training under the Joint Resolution of Congress approved by the President on August 27, 1940, does this act on his part constitute him an officer of the United States Army and make him no longer an officer of the State National Guard, thereby vacating the State office held by him?

That this State retains a right, concurrent with that of the United States Government, to organize and train its militia, is clearly recognized in Section 8 of Article 1 of the Constitution of the United States and Section 46 of Article 16 of the Constitution of Texas. For a discussion of this right, see Houston v. Moore, 5 Wheat. 1, 16, 5 L.Ed. 19. By virtue of such concurrent authority, the Legislature of this State has made detailed provisions for the organization, equipment, and functioning of the State militia. See Title 94, Chapters 1, 2, 3, and 4, Article 5765 et seq., R.C.S.1925, Vernon's Ann. Civ.St. art. 5765 et seq. The active militia is by statute now called the Texas National Guard. Article 5765, R.C.S.1925. This Act, now Article 5890b, Vernon's Ann.Civ. St., was enacted at the Regular Session of the 45th Legislature, 1937, Chapter 366.

That the National Guard plays an important part in the military program of this country can hardly be questioned. It is not only a potential part of the United States Army in time of peace, but is subject to be called into service by both the State and National Governments. Article 5830 et seq., R.C.S.1925, Vernon's Ann.Civ. St. art. 5830 et seq.

The applicable Federal legislation provides: "* * * All persons so ordered into the active military service of the United States shall from the date of such order stand relieved from duty in the National Guard of their respective States. Territories, and the District of Columbia so long as they shall remain in the active military service of the United States, and during such time shall be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Army whose permanent retention in active military service is not contemplated by law. The...