Caruthers v. State
| Decision Date | 10 December 1886 |
| Citation | 2 S.W. 91 |
| Court | Texas Supreme Court |
| Parties | CARUTHERS <I>v.</I> STATE <I>ex rel.</I> |
This is a proceeding by the state of Texas, upon the relation of M. F. Browne, to remove the appellant from the office of county treasurer of Presidio county. It appears that from some time in the year 1875 until the twenty-fifth July, 1885, the town of Fort Davis was recognized as the county-seat of Presidio county; and, while no record evidence seems to exist showing that an election for county-seat was had in the year 1875, there is evidence tending to show that such an election was then held, and that Fort Davis was thus selected as the county-seat. The courts were held and the county offices were kept at that place during that time. On May 15, 1885, a petition was presented to the county judge of the county, signed by the requisite number of freeholders, requesting that an election be ordered to ascertain the wishes of the voters of the county as to the removal of the county-seat from the town of Fort Davis to the town of Marfa. The election was ordered, and held on the fourteenth of July, 1885, and on the twenty-fifth day of the same month the county judge canvassed the returns of the election, and entered of record the result, which showed that there had been 391 votes cast in favor of the removal of the county-seat to "Marfa," and 302 cast in favor of the county-seat remaining at "Fort Davis." The entry then proceeded as follows: "And it appearing that no election had ever been held in Presidio county for the location of a county-seat, in pursuance of law, it is therefore declared that the county-seat of Presidio county is by the vote of the people established and located at the town of Marfa, in the said county of Presidio." After this entry was made, the county offices, other than that of the county treasurer, were removed to Marfa, the courts were held there, and the business of the county generally there transacted. The county treasurer, believing the removal illegal, refused to remove his office to that place, and continued it at Fort Davis. Three of the county commissioners protested against the removal. Application was made to the district judge to remove two of the protesting commissioners; and, after citation on those applications were ordered, the district judge suspended those two commissioners from office, and James Ellison and G. W. Browne were appointed to act as commissioners during the suspension of the two whose removal was sought. It does not appear whether they were ever removed.
Application was also made to the district judge for the removal of the county judge, and an order was made suspending his functions, and T. T. Harnett was appointed to act as county judge during the suspension of the judge elect. One of the commissioners died, and another was appointed in his place. Before the county judge was suspended the commissioners' court— consisting of himself, one of the elected commissioners, and one acting in the place of one of the suspended commissioners—caused advertisements to be made for bids and plans for a court-house and jail, to be erected at the town of Marfa. At a subsequent meeting of the commissioners' court, there being present T. T. Harnett, acting as county judge during the suspension of the county judge elect, two of the regular commissioners, and James Ellison, Sr., who was acting under appointment from the district judge during the suspension of one of the commissioners elect, bids to erect the buildings were considered. At the following regular term of the commissioners' court, with the same persons present as at the term at which bids were considered, contracts were made for the building of a court-house and jail at Marfa; the former to cost $60,000, and the latter $26,000, which sums were to be paid in bonds of Presidio county. Some of the bonds were made out, signed by the acting county judge, and by the county clerk, whose seal of office was attached thereto, and they were delivered to a contractor, after which they were presented to the county treasurer for registration. He refused to register them on several grounds. The main grounds of his refusal, however, were that the persons who assumed to make the contracts, and to issue the bonds, had no lawful authority to do so; and because the town of Marfa had not been legally selected as the county-seat of Presidio county; and that, therefore, there was no authority to incur expense in erecting a court-house and jail at that place. One of the grounds on which he claimed that the county-seat had not been legally removed to Marfa was that that place was not within five miles of the geographical center of Presidio county, and had received in the election held to remove the county-seat less than two-thirds of the votes cast. The town of Marfa is shown to be about 22½ miles from the geographical center of the county.
This proceeding to remove the county treasurer from office is based upon a charge of "official misconduct," alleged to consist in two matters specified First, in his failure to remove his office to the town of Marfa, and there to keep it; second, in his refusal to register the bonds issued to contractors for erecting the court-house and jail, after he had been directed to do so by an order of the commissioners' court.
The appellant, in his answer, alleged the above stated facts, and many others, in justification of his refusal to remove his office to Marfa, and to register the bonds. There was a trial and verdict against him on the two specifications above given, and a judgment was entered removing him from office. There can be no question as to the jurisdiction of the district court in this case, nor as to the jurisdiction of this court to revise the proceedings had in the district court. This proceeding is one to take from the appellant an office, a thing of value, to which he was elected by the people, and to perform the duties of which he qualified. If he was guilty of "official misconduct," as defined by law, the state has the right to have him removed, and the district court the power to ascertain whether cause for removal exists, and, if so, to remove him. In such case the appellant has the right to show that the acts which are charged to constitute "official misconduct" were legal acts; or, if not legal, that they were done under such circumstances as show that the acts were not willful in their character. If he can sustain the proposition that his acts were legal, any further inquiry as to his motive, or the circumstances under which the acts were committed, become unimportant. It is made the duty of a county treasurer to keep his office at the county-seat. Const. art. 16, § 14; Rev. St. 706. It is also his duty to register any bonds which may...
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...was had, in such proceeding decided that Fort Davis and not Marfa was the county-site de jure of Presidio county. Caruthers v. State, 67 Tex. 132, 2 S.W. 91. But, as before stated, Marfa, at the time the trial and conviction in this case were had, was the county-site de facto, and, being so......
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