Griner v. Thomas

• Citation: 104 S.W. 1058
• Parties: GRINER v. THOMAS, District Judge.
• Decision Date: 23 October 1907
• Court: Supreme Court of Texas

104 S.W. 1058

GRINER v. THOMAS, District Judge.

Supreme Court of Texas.

October 23, 1907.

Original petition by J. G. Griner for mandamus to B. C. Thomas, district judge. Writ refused.

Newton & Ward, for relator. Geo. M. Thurmond and Walter Gillis, for respondent.

WILLIAMS, J.

Relator has applied to this court for a writ of mandamus to compel the respondent, who is judge of the Sixty-Third judicial district, to vacate an order made by him temporarily suspending relator from his office of county judge of Val Verde county, pending the hearing of a petition for the removal of relator from his office; and relator also asks that, if he be not entitled to such relief, respondent be ordered to give him a speedy trial upon such petition. The petition for the removal of relator, as to the sufficiency of which no question is made, was presented to the respondent on the 15th day of June, 1907, whereupon he made his order for the issuance of citation to the relator to appear on the first day of the next term of the court, November 25, 1907; and also made a further order suspending relator from his office until final trial should be had, and appointing Henry I. Moore, Esq., to discharge, in the meantime, the duties of county judge. No notice was given to respondent before the order of suspension was made. This statement is sufficient to raise the questions discussed, since the proceedings for removal conform to the provisions of the statute regulating the removal of county officers. Chapter 2 of title 74 of the Revised Statutes of 1895. The application for mandamus was presented to some of the justices of this court in vacation, and they were asked then to issue the mandamus under the authority of article 946, Rev. St. 1895, but were of the opinion that the Legislature was empowered by section 3 of article 5 of the Constitution to confer such original jurisdiction upon the court only, and not upon the judges thereof. The cause was therefore set down for a hearing in term time, and was submitted on the first day of this term.

The chief contention of counsel for relator is that article 3550 of the Revised Statutes of 1895, which attempts to empower the district judge to suspend temporarily an officer for whose removal a petition has been presented to him, is unconstitutional and void. The argument, in the main, is based upon sections 15, 24, and 28 of article 5 of the Constitution, which fix the term of the office of county judge at two years, and provide for the removal of such officer by the district judge for given causes established by the verdict of a jury, and for the filling of vacancies therein by the commissioners' court. It is contended that right to the office is thus secured by the Constitution, and that it can only be taken away, either temporarily or permanently, by removal of the incumbent by the district judge, for causes set forth in writing and found by a jury to be true as prescribed by section 24.

It is well established by the authorities that under a Constitution like this there is no power in the Legislature to authorize a removal so provided for otherwise than in the prescribed mode, and if a temporary suspension of the officer, during the pendency of valid proceedings to remove, and as an incident of such proceedings, were equivalent to a removal, the argument would be complete. We thus state the character of the suspension as temporary and incidental to the trial of a legal and valid proceeding to remove, because that is all that exists in this case, as well as for the reason that we do not doubt that there might be attempts at suspensions, as well as at removals, that would violate the Constitution. Lowe v. Commonwealth, 3 Metc. (Ky.) 237; Gregory v. Mayor, etc., 113 N. Y. 416, 21 N. E. 119, 3 L. R. A. 854. Regarding a suspension of the character in question, we find a number of decisions in point, all holding that it is within the power of the Legislature to authorize it, although the Constitution has in express terms given power only to remove for cause and upon a hearing. Among them is Poe v. State, 72 Tex. 625, 10 S. W. 737, in which the opinion discusses the very question now raised, as follows: "It is unquestionably true that the Constitution does not allow the Legislature to confer upon the district judges authority to appoint a sheriff to fill a vacancy. It is equally true that it does not allow the Legislature to give him the power to remove one, and thus create a vacancy, without the verdict of a jury. The suspension of an officer may be inconvenient, and may even prove to be a great wrong to him. While the suspension is by the terms of the law only a temporary deprivation of the office, it in every case may be what it in effect was in this—a permanent deprivation of the office. Still a suspension is in no proper sense the same thing as a removal. We are not at liberty by construction or otherwise to hold that the provisions of the Constitution with regard to removals apply equally to suspensions from office. The Legislature, finding the power to suspend undefined by the Constitution, has regulated its exercise with due regard to the rights of the office holder. The act, while allowing an appeal, authorizes it to be returned to the next term of the Supreme Court, wherever it may be in session, and to have there precedence of the ordinary business, and requires it to be decided...