Honey v. Graham

• Decision Date: 01 January 1873
• Citation: 39 Tex. 1
• Parties: GEORGE W. HONEY v. B. GRAHAM.
• Court: Texas Supreme Court

39 Tex. 1

GEORGE W. HONEY

v.B. GRAHAM.

Supreme Court of Texas.

1873.

1. A proclamation by the governor that the state treasurer elect had absented himself from the limits of the state--not on public business and without leave of absence--leaving no bonded or responsible clerk, but leaving a man acting as such who, when called on to give the bond required by law, was unable to do so; held, not sufficient to authorize the courts to infer an abandonment of the office.

2. The right to hold and exercise the functions of an office to which one is elected by the people, is regarded both as property and privilege, and the incumbent can only be deprived of his office in the manner pointed out in the 16th section of the 1st article of the constitution.

3. Though the governor may assume the existence of a vacancy in such an office, no case can occur wherein he will be authorized to adjudge the office forfeited.

4. The right of trial by jury exists in every case where it is charged that an office has been forfeited, and no emergency can arise which will deprive the claimant of this right, or which will authorize the governor in assuming judicial functions which do not constitutionally belong to him.

5. The power of the governor to create a vacancy in an office exists only where the office is filled by the governor's appointment, without concurrence by the senate or election by the people, and the term of office is undefined by law.

6. The right to an elective office may be lost by nonuser or misuser, though a party continue to assert it, but the determination of the question whether it be lost or not is for the judiciary and not the executive.

APPEAL from Travis. Tried below before the Hon. J. W. Oliver.

On the 13th day of April, A. D. 1870, George W. Honey gave his bond and was duly qualified and commissioned as treasurer of the state of Texas. He continued to discharge in person the duties of the office until the twenty-third of April, 1872, when with his family he left the state, saying to several persons that he would be gone six weeks. He left his chief clerk, Burns, in possession of the office. Soon after Honey's departure the governor notified Burns that he must execute a bond for the faithful administration of the office. The bond was not executed to the satisfaction of the governor, and on the twenty-seventh day of May, 1872, the treasurer's office was seized by military force and occupied by James Davidson, chief of police and adjutant general of the state. Davidson acted in obedience to orders issued to him by Governor Davis, who on the same day issued a proclamation declaring the office of treasurer vacant, for the following reasons, viz:

“That George W. Honey, late treasurer of the state of Texas, has absented himself from Austin, without the limits of the state of Texas, not on public business, and without having first obtained leave of absence from the legislature while the same was in session, or from the executive during its recess, and has not left a bonded and responsible clerk, or a clerk who when by me required has been able to give a sufficient bond, in charge of the treasury of the state, whereby he has abandoned his said office and the same has become vacant.”

He at the same time appointed B. Graham treasurer; General Davidson put him in possession of the office, and ousted therefrom the employees of Honey.

On the same day Honey filed this suit against B. Graham, John D. Elliott, General Davidson, and others, for damages and a mandamus.

Subsequently the action for damages was abandoned as to all the parties, including Graham, and was dismissed as to all the parties except Graham. The case then proceeded to trial with no other parties than Honey and Graham, and on no other question than the right of the respective parties to the office. Graham was commissioned by the governor as treasurer of the state on the day when the office was seized by General Davidson. Three days before the day on which the office was seized the chief clerk, Burns, tendered a bond as required by the governor, which was rejected, as the governor stated in his evidence, because “all the securities were not perfectly responsible.” After the seizure of the office by Davidson, a committee was appointed during the trial by the district judge to investigate the condition of the treasury. The report made by that committee illustrates no issue involved in the final decision of the case.

A. J. Hamilton, Hancock & West, and Chandler, Carleton & Robertson, for the appellant.

1. As to the creation and tenure of the office of treasurer, see constitution of the state of Texas, art. 4, sec. 7; art. 4, sec. 21; art. 4, sec. 20; art. 8, secs. 2, 4 and 6; art. 12, sec. 41; and art. 1, sec. 16; Pas. Dig. second edition, tit. “Treasurer,” p. 890, arts. 5282 to 5291 inclusive, as to the office and duties of treasurer; see also Pas. Dig. p. 925, title “Comptroller,” arts. 5413 to 5432 inclusive.

2. As to the duties of the chief clerk of the treasury, and as to his bond, see the following: Pas. Dig. art. 5291; Gen. Laws Seventh Leg. chap. 153, page 247 (1858); Gen. Laws Tenth Leg. second extra section, page 18, ch. 27, act November 15, 1864.

3. Mandamus is the proper remedy. Bradley v. McCrab, Dallam, 504; Banton v. Wilson, 4 Tex. 400;Lindsay v. Locket, 20 Tex. 516;Kentucky v. Ohio, 24 How. 66, cited and followed in the Great Northern Railroad case, decided at this term of the supreme court.

4. When, as in this case, the executive has no power of removal, and, therefore, no power of creating a vacancy, he can not be judge and jury both, but the fact of vacancy must be ascertained in accordance with law. Keenan v. Perry, 24 Tex. 253; Hill v. State, 1 Ala. N. S. 559; Bowman v. Slifer, 25 Penn. St. 29; Ex parte Hennen, 13 Pet. 259; Lowe v. Commonwealth, 3 Met. (Ky.) 213, bottom page; Page v. Hardin, 8 B. Mon. 648;Brown v. Grover, 6 Bush (Ky.), 1;Cummings v. Clark, 15 Vt. 653;Johnson v. Wilson, 2 N. H. 202; People v. Fields, 2 Scam.

5. The assertion of the executive in his proclamation that the contingency authorizing him to appoint has happened, is no evidence whatever of that fact. See Page v. Hardin, 8 B. Mon. 648; Bowman v. Slifer, 25 Penn. St. 29; People v. Fitch, 1 Cal. 519;State v. Lusk, 18 Mo. 333;People v. Carrique, 2 Hill (N. Y.), 104; Callahan v. State, 2 Stew. & Port. 389; Bruce v. Fox, 1 Dana, 448.

6. In ascertaining these facts, as an office is regarded in some respects as a species of property, the course of the common law must be followed. Womack v. Holliday, 2 Ala. N. S. 31; 4 Bac. Abr. tit. “Office,” letter G, p. 29; 2 Bla. Com. 263; Ex parte King; also, Collins v. Tracy, and Ex parte Hogg, all decided at the present term of the supreme court.

7. The evidence in the cause adduced is wholly insufficient to establish, or even raise, a presumption of the existence of any one of the alleged grounds of vacancy. Mere absence, without any particular circumstance of aggravation, will never work a forfeiture of the office. See Rex v. Corporation of Wells, 4 Burr. 199.

“Whenever an officer, who holds his office by patent, commits a forfeiture, he cannot regularly be turned out without a scire facias, nor can he be completely ousted or discharged without a writ of discharge; for his right, appearing of record, must be defeated by a matter of as high a nature.” 7 Bac. Abr. letter M, p. 323.

8. We have been cited to the following authorities by counsel for appellee, viz.: State v. Allen, 21 Ind. 516; Leal v. Jones, 19 Ind. 357;Kerr v. Jones, 19 Ind. 351; and Hadley v. Board of Commissioners, 4 Blackf. 116. Upon a comparison of the facts of these cases with the facts of the case at bar, these authorities will be found not applicable to the case under consideration.

9. A review of our constitution and statutes will show that it is impossible that the framers of them ever intended to clothe the executive with power to take military possession of the civil offices of the state, declare incumbents elected by the people out of office, and put his creatures in. Const. of Texas, art. 1, secs. 7, 16 and 17; 2 Story, Const. book 3, ch. 37, tit. ““Executive;” Federalist, No. 77, p. 351; Opinions of Attorney General Stanberry, August 30, 1861, p. 4; Kendall v. United States, 12 Pet. 615;Marbury v. Madison, 1 Cranch, 137,et seq.

The abandonment must be acted on by the executive; but suppose it prove he was under a mistake, and there is no abandonment, shall the old incumbent lose his office through the mistake of the executive?

The judgment should be reversed, and this court should proceed to render such judgment as the court below ought to have rendered, restoring appellant to the office of treasurer, from which he has been illegally driven.

Wm. Alexander, Attorney General, for appellee. What are the constitutional duties of the state treasurer?

“He shall receive and take charge of all public moneys paid into the treasury, countersign all warrants drawn by the comptroller of public accounts, pay off the public creditors upon the warrant of the comptroller of public accounts, and perform all such other duties as may be prescribed by law.” Const. art. 4, sec. 21.

By the statute, he can receive public moneys on deposit warrants, and not otherwise; and can pay them out on treasury warrants, and not otherwise. O. & W. Dig. arts. 1882, 1883.

His constitutional and statutory duties are enforced by a penal sanction. Penal Code, ch. 3, secs. 235 and 237.

Which of his official duties (constitutional or statutory) can he perform when he is out of the state, and when he has left no bonded and qualified chief clerk in the treasury?

The chief clerk is required to give a $25,000 bond, and even that did not authorize him to sign for the treasurer. Act of February 16, 1858, ch. 153, p. 247. Six months' residence is also required. He must be a registered voter. Even after having given bond and qualified, he could not, until January 11, 1862, “sign the...