Ehlinger v. Rankin

• Decision Date: 30 January 1895
• Citation: 29 S.W. 240
• Parties: EHLINGER et al. v. RANKIN.
• Court: Texas Court of Appeals

29 S.W. 240

EHLINGER et al. v. RANKIN.

Court of Civil Appeals of Texas.

January 30, 1895.

Appeal from district court, Bastrop county; Lafayette Kirk, Judge.

Action by John T. Rankin against John P. Ehlinger and others. From a judgment for plaintiff, defendants appeal. Reversed.

Phelps & Willrich, Fowler & Maynard, and L. W. Moore, for appellants. Jones & Garwood and Brown, Lane & Jackson, for appellee.

FISHER, C. J.

This is in effect a suit by appellee, Rankin, against appellants, Ehlinger and others, for the office of clerk of the county court of Fayette county, wherein he alleges that he is the legally elected and qualified county clerk of said county, and, by virtue of his office, is entitled to the fees and emoluments of the office, and to the control and management thereof; also, that the appellants have usurped his official functions, and have taken possession of said office, and are withholding possession thereof from the appellee, and are collecting, and about to collect, the fees and emoluments thereof, etc.; and the appellee asks for an injunction restraining the appellants in the exercise of their pretended legal functions, and from interfering with him in the right to control and manage the affairs of the office. The appellant Ehlinger, in the main, as a defense to this action, sets up the fact that appellee, Rankin, although duly elected and qualified as county clerk, did abandon and vacate said office by removing from the county of Fayette to Travis county, Tex., and that by such removal he had vacated the office, and such fact was so declared by an order of the commissioners' court, which court duly and legally appointed Ehlinger to fill said vacancy. The court below sustained demurrers to this answer, and thereupon rendered judgment in favor of Rankin, and also enjoined Ehlinger and the other defendants from interfering with the right of Rankin to the office.

There was no error in the ruling of the court in so far as it held that injunction was a proper remedy in cases of this character, and the principal question that we deal with is the action of the court in sustaining the demurrer to appellant's answer, setting up title to the office by virtue of the appointment by the commissioners' court. The appellee contends that the judgment of the trial court in sustaining the demurrer to the answer in this respect can be sustained by virtue of section 24, art. 5, of the present constitution; and that the commissioners' court had no authority to declare the office of county clerk vacant, and to appoint appellant Ehlinger, because the question is one judicial in character, and the commissioners' court is not by law vested with any authority or jurisdiction to pass upon such questions, but the exclusive jurisdiction is conferred upon the district court by virtue of the section of the constitution just mentioned. This section provides that the district courts, or the judges thereof, may remove certain officers for official misconduct, habitual drunkenness, and for other causes, etc. The power of the district court under this provision of the constitution undoubtedly exists to remove certain officers from their offices, and in their decree to declare that the vacancy exists. But the main question is: Is the power herein conferred exclusive, and...