Fenet v. McCuistion
| Decision Date | 05 June 1912 |
| Citation | 147 S.W. 867 |
| Parties | FENET et al. v. McCUISTION et al. |
| Court | Texas Supreme Court |
Mandamus by F. R. Fenet and others against Ed H. McCuistion and others. Mandamus was awarded in the district court, which judgment was reversed and judgment rendered for the defendants by the Court of Civil Appeals (144 S. W. 1155), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.
H. D. McDonald, of Corpus Christi, and Burdett & Connor, of Paris, for plaintiffs in error. Wright & Patrick, of Paris, for defendants in error.
The city of Paris was incorporated by special act of the Legislature, which became a law on the 15th day of March, 1905, and was duly organized by the election and appointment of the officers named in the charter, among such officers being a city marshal and city attorney.
The following sections of the charter are pertinent to the issue before us:
At the first election a city marshal and a city attorney were elected by a vote of the electors of the city. On the 17th day of December, 1906, the city council adopted an ordinance providing that at the expiration of the term of the city attorney, then in office, the office should be abolished and at the same time the city council adopted another ordinance creating the office of general attorney for the city. At the same meeting the city council adopted an ordinance abolishing the office of city marshal and another creating the office of chief of police. At the ensuing election the offices of city marshal and city attorney were not filled, but the council appointed a general attorney and a chief of police. This suit was instituted to compel the city council of said city to order an election for city attorney and for city marshal. Upon trial before the judge of the district court the writ of mandamus was awarded, from which judgment appeal was taken to the Court of Civil Appeals of the Sixth district, which court reversed said judgment and rendered judgment for the defendants McCuistion and others.
The city council claims that it was empowered to abolish the offices of city attorney and city marshal by section 11 of the charter, copied above. The section is composed of two provisos. The first had the effect to continue as one officer three of those named in section 9, which provides that a city secretary and a city assessor and collector shall be elected by "a vote of the people." But to prevent thereby a disturbance of existing conditions section 11 was introduced as a proviso to preserve as it then existed "the office of city secretary" in which all three were combined; and, still to secure to the city...
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...will not be applied, if the language is susceptible of another application which will preserve all of the law intact. Fenet v. McCuiston, 105 Tex. 299, 147 S. W. 867; Staples v. State, 112 Tex. 61, 245 S. W. 639; Witherspoon v. Jernigan, 97 Tex. 98, 106, 76 S. W. 445; Shipley v. Floydada In......
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