Cramer v. Sheppard
| Decision Date | 26 December 1942 |
| Docket Number | No. 8047.,8047. |
| Citation | 167 S.W.2d 147 |
| Parties | CRAMER v. SHEPPARD, Comptroller of Public Accounts, et al. |
| Court | Texas Supreme Court |
Wm. M. Cramer, pro se, John Davis, R. J. Thorne, Currie McCutcheon, Adair Rembert, John C. Saper, Will R. Saunders, Alonzo C. Scurlock, J. L. Shook, Wright K. Smith, C. M. Smithdeal, F. E. Spafford, Hatton W. Sumners, John N. Touchstone, T. W. Wassell, Jeff W. Hassell, M. N. Chrestman, J. L. Lipscomb, John White, Guy Carter, F. M. Ryburn, Neal DeShazo, Paul Carrington, W. B. Hamilton, Lewis Lefkowitz, S. P. Sadler, J. Cleo Thompson, Carlton Winn, H. W. Strasburger, W. O. Reed, Henry Tirey, and George P. Gardere, all of Dallas, for relator Cramer.
W. F. Bane and Olin E. Nesmith, both of Dallas, for intervener Dick Dixon.
Gerald C. Mann, Atty. Gen., and Geo W. Barcus, R. W. Fairchild, and Ocie Speer, Asst. Attys. Gen., for respondent Sheppard.
Beauford H. Jester and Dan Moody, both of Austin, and Ernest May, of Fort Worth, Amici Curiae.
Relator filed an original petition for writ of mandamus to compel the respondent to issue him a warrant for compensation alleged to be due him as Special Judge of the 95th Judicial District Court for Dallas County, to which position he had been duly elected by the practicing lawyers of Dallas County, in the absence of the regular judge, who had failed to hold court, as authorized by Article 1887, R.C.S. 1925. Judge Dick Dixon, the regular judge, accepted a temporary appointment as Major in the Army of the United States, took the oath of office on August 13, 1942, and wrote a letter to the respondent, advising him of the appointment, and requested him to discontinue his pay as judge of the 95th District Court, until he terminated his duties in the Army of the United States and resumed his duties as judge of said district court.
The question to be decided is whether Judge Dixon, the duly elected and qualified judge of the 95th District Court of Dallas County, vacated the office of district judge by accepting appointment and qualifying as a Major in the Army of the United States. This question is to be determined from a construction of Sections 33 and 40 of Article 16 of the Constitution of Texas, Vernon's Ann.St Judge Dixon intervened and filed a brief, in which he states that his appointment was made "under the terms and provisions of Chapter 414, First Session of the 77th Congress", 10 U.S.C.A. § 484 note; and that upon taking the oath of office as Major he became an officer of the Officers' Reserve Corps within the meaning of Sections 33 and 40, Article 16, of the Texas Constitution, and entitled to hold the office as judge of the 95th Judicial District Court while serving as an officer in the Army of the United States.
It is contended by respondent that Judge Dixon vacated his office as a district judge by qualifying as a Major in the Army of the United States, because of Section 12 of Article 16 of the Constitution, which reads as follows: "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."
Before discussing Sections 33 and 40 of Article 16 of the Constitution, and in order to better understand the language used therein, and the purposes for which they were submitted to the people for approval or disapproval, we call attention to the federal statutes in effect at that time relating to the federal armed forces, and under which Judge Dixon received his appointment as Major in the Army of the United States.
Section 1, Title 10, U.S.C.A., defines the National Forces as follows: "All able-bodied male citizens of the United States, and persons of foreign birth who shall have declared their intention to become citizens of the United States under and in pursuance of the laws thereof, between the ages of eighteen and forty-five years, are hereby declared to constitute the national forces, and, with such exceptions and under such conditions as may be prescribed by law, shall be liable to perform military duty in the service of the United States." (Apr. 22, 1898, c. 187, § 1, 30 Stat. 361.)
The law defines the military armies of the United States as follows:
The Army of the United States is defined in Section 2, Title 10, U.S.C.A., which reads: (June 4, 1920, c. 227, subchapter I, § 1, 41 Stat. 759.)
In 1941 this section was amended to read as follows: (As amended Dec. 13, 1941, c. 571, § 3, 55 Stat. 800.)
The Regular Army is defined as follows: (Apr. 22, 1898, c. 187, § 3, 30 Stat. 361.)
Section 4, Title 10, U.S.C.A., describes the composition of the Regular Army. The length of service and benefits derived under the law for those serving in that branch of the Army are defined in Sections 943, 943a, 945, 971b, and other sections of Title 10, U.S.C.A.
Section 351, Title 10, U.S.C.A., provides for the organization of the Officers' Reserve Corps, and reads: (As amended June 15, 1933, c. 87, § 3, 48 Stat. 154.)
Sections 355 and 355a, Title 10, U.S. C.A., provide that all persons appointed officers in the National Guard of the United States and in the Officers' Reserve Corps are "reserve officers and shall be commissioned in the Army of the United States."
Section 358, Title 10, U.S.C.A., provides: "Any officer of the Officers' Reserve Corps may be discharged at any time in the discretion of the President." His commission further provides that it is for the duration of the present emergency and six months thereafter, unless sooner terminated.
Section 361, Title 10, U.S.C.A., reads:
Section 513, Title 10, as it existed upon the dates of the adoption of the present amendments of Sections 33 and 40 of Article 16 of our Constitution, was as follows: "In time of war any officer of the Regular Army may be appointed to higher temporary rank without vacating his permanent commission, such appointments in grades below that of brigadier general being made by the President alone, but all other appointments of officers in time of war shall be in the Officers Reserve Corps." (This section has been amended since the adoption of the amendments to our Constitution hereinafter quoted.)
Chapter 414, First Session, 77th Congress, Public Law 252, 55 Stat. 728, H.J. Res. 199, adopted by Congress on September 22, 1941, 10 U.S.C.A. § 484 note which authorized Judge Dixon's appointment, omitting the heading, is as follows:
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