Dorenfield v. State, 6734; Motion No. 11414.

• Decision Date: 30 May 1934
• Docket Number: No. 6734; Motion No. 11414.,6734; Motion No. 11414.
• Citation: 73 S.W.2d 83
• Parties: DORENFIELD v. STATE ex rel. ALLRED.
• Court: Texas Supreme Court

73 S.W.2d 83

DORENFIELD v. STATE ex rel. ALLRED.

No. 6734; Motion No. 11414.

Supreme Court of Texas.

May 30, 1934.

On Motion, June 8, 1934.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Quo warranto proceeding by the State, on the relation of James V. Allred, against Julius Dorenfield, Jr., in which R. L. Holliday was a party. From an adverse order, Julius Dorenfield, Jr., appealed to the Court of Civil Appeals. On certified questions.

Questions answered.

White, Taylor & Gardner and Ocie Speer, all of Austin, for appellant.

R. L. Batts and Dan Moody, both of Austin, and James V. Allred, Atty. Gen., and Elbert Hooper and Scott Gaines, Asst. Attys. Gen., for appellee.

GREENWOOD, Justice.

For the purposes of this opinion, the statement of the nature and result of this suit is adopted from the brief for appellant, Dorenfield, in the following words:

"This is a quo warranto proceeding instituted by the Attorney General of the State of Texas to oust Appellant Julius Dorenfield, Jr., from the office of member of the Texas Relief Commission, to which suit Appellee R. L. Holliday is a party. Upon a trial before the District Court, judgment was rendered in favor of the State of Texas, Appellee, ousting Appellant Julius Dorenfield, Jr., from said office and finding that Respondent Holliday who had been previously appointed to such office, had not been removed by any lawful means, and confirming the title of said Appellee Holliday to said office.

"From said order, Appellant Dorenfield duly gave notice of appeal, perfected his appeal by filing the proper supersedeas bond, and taking said cause to the Honorable Court of Civil Appeals for the Third Supreme Judicial District of Texas for review and correction.

"Upon motion of the Appellant Dorenfield, said cause was advanced by the Court of Civil Appeals and the questions involved in this cause were certified to this Honorable Court.

"The questions certified for decision, are:

"`1. Was the Honorable Coke R. Stevenson, in his capacity as Speaker of the House of Representatives, legally vested with the power and authority to remove the Respondent Robert L. Holliday, from his office as a member of the Texas Relief Commission?

"`Should this question be answered in the affirmative, then we certify the following additional question.

"`Was the action of the Honorable Coke R. Stevenson, as in this certificate detailed, legally effectual in removing Respondent Holliday from said office?'"

The material facts, controlling a proper determination of the questions certified, are recited in the certificate of the Court of Civil Appeals as follows:

"On November 3, 1933, Mr. Holliday was appointed by the Hon. Coke R. Stevenson, Speaker of the House of Representatives, as one of the three members of the Texas Relief Commission authorized to be appointed by the Speaker of the House of Representatives under Sec. 3 of Sec. 11 of Senate Bill 46, Chap. 37, page 118, of the General Laws of the First Called Session of the 43rd Legislature creating such Commission. He thereupon promptly qualified by taking the requisite oath of office, and commission was duly issued to him, he having paid the requisite fee therefor. He at once entered upon the duties of his office as such commissioner, and continued so to serve, attending all of the meetings of the Commission, up to April 5, 1934, when Mr. Stevenson, in his capacity as Speaker of the House of Representatives, addressed a communication to the Secretary of State, reading (formal parts omitted):

"`By virtue of the authority vested in me under section 3 of section 11 of Senate Bill No. 46, Acts of the First Called Session of the 43rd Legislature, authorizing me to remove any member of the Texas Relief Commission heretofore appointed by me, for cause, I have removed Hon. R. L. Holliday of El Paso county, Texas, as a member of said commission.

"`The removal of Mr. Holliday has been requested of me by numerous citizens and by officials of organizations in El Paso county who claim to represent more than 4,000 members, and upon investigation of the complaints made, I have become convinced that adequate cause exists for the removal of Mr. Holliday. In order to fill the vacancy on the Texas Relief Commission, created by the removal of Mr. Holliday, I have appointed Hon. Julius Dorenfield, Jr., of Amarillo, Texas, as a member of the Texas Relief Commission and request that you issue to him his commission as such member at once.'

"Thereupon Mr. Dorenfield took the requisite oath of office, and was issued a commission as a member of said Texas Relief Commission to succeed Mr. Holliday. All the legal prerequisites essential to Mr. Dorenfield's becoming a member of said Commission were performed, if the action of Mr. Stevenson was effectual to remove Mr. Holliday from said office. * * *

"Mr. Holliday has never been impeached nor removed from his aforesaid office by any character of judicial proceeding, and he has never resigned nor otherwise relinquished the office, but is still claiming it. The record is silent as to whether there was any notice given by Mr. Stevenson to Mr. Holliday, or any hearing or trial before him in connection with his action as expressed in his above quoted letter to the Secretary of State. In this connection, however, it may be stated that the record shows that Mr. Stevenson sought to file in the trial court a petition of intervention, which was denied. This petition was copied in full in the answer of the respondent Dorenfield, but was stricken out upon exception. It sets forth various complaints by representatives of organized labor and others regarding Mr. Holliday's attitude, and certain newspaper articles condemnatory of Mr. Holliday's attitude and action as a member of the Commission. It also alleges that Mr. Holliday was fully advised of these complaints, and `that he had full opportunity at all times to be heard on the merits of his side of the controversy, if any; that he made no effort to be heard or to do anything in connection with said matter, except that letters were received as aforesaid from two persons in El Paso, who claimed to be acting for him.'"

We answer to the certified questions that the Speaker of the House of Representatives was not legally vested with power and authority to remove respondent Holliday from his office as a member of the Texas relief commission; and that the action of the Speaker as detailed in the certificate was wholly ineffectual to remove respondent.

The law necessitating the above answers is clear and plain. We find no conflict in the carefully considered authorities.

The voters of Texas, having adopted a constitutional amendment, authorizing the Legislature to cause bonds to be issued to furnish relief to needy and unemployed people, the Legislature by an amended act, under which respondent Holliday was appointed, provided for the creation of "the Texas Relief Commission." Chapter 37, Acts, First Called Session, 43d Leg., 1933, page 118 (Vernon's Ann. Civ. St. arts. 842b, 5190a; Vernon's Ann. P. C. art. 107c).

Section 3 of section 11 of that act (Vernon's Ann. Civ. St. art. 5190a, § 3) among other matters, provided: "The Texas Relief Commission shall be composed of nine (9) members; the Chairman of the Industrial Accident Board and his successor in office, the President of the Texas Civil Judicial Council and his successor in office, three (3) to be appointed by the Lieutenant Governor, three (3) by the Speaker of the House of Representatives, one (1) by the Governor. The members of the present Texas Rehabilitation and Relief Commission shall perform the duties imposed upon the Texas Relief Commission herein created, until five members of the Texas Relief Commission have qualified by taking the Constitutional Oath of office, after which time, they shall have no authority or rights hereunder. The Governor and his successors in office shall be ex-officio chairman of said Commission, but shall not be entitled to a vote, except in the case of a tie vote. The remaining members of the Commission shall take the Constitutional Oath of office, provided, however, that nothing in this Act shall prevent or preclude the reappointment of any one or more of the members now constituting the membership of the present Texas Rehabilitation and Relief Commission created by the terms of House Bill No. 897, Chapter 141, Acts of the Forty-Third Legislature, Regular Session; and provided, however, that in the event of the death, resignation, or removal for cause of any member of said Commission appointed by the Lieutenant Governor or the Speaker of the House of Representatives, the vacancy created thereby shall be filled by appointed (appointment) by the person making the original appointment."

By section 1 of section 11 (Vernon's Ann. Civ. St. art. 5190a, § 1), the Legislature provided: "Said Commission shall cease to exist on August 26, 1935."

Respondent was one of the three members of the commission who was duly appointed by the Speaker of the House of Representatives; and he qualified by taking the constitutional oath of office.

Language could hardly make plainer than does section one of the act that respondent then became a state officer for a term to end on August 26, 1935. The Legislature did not stop with giving respondent a certain tenure of his office, but it expressly declared its intent for the Speaker to name a successor to respondent after his removal, only in the event of his "removal for cause."

Section 17 of article 16 of the Constitution commanded respondent, he "being one of the officers within this state," to continue to perform the duties of his office until his successor was duly qualified. Part 2, Vernon's Annotated Texas Constitution, p. 648.

The Constitution made it the mandatory duty of respondent to continue in his state office until August 26, 1935, he having meanwhile neither resigned nor died, until he was removed ...