Houston Tap & Brazoria Ry. Co. v. Randolph

• Citation: 24 Tex. 317
• Parties: HOUSTON TAP AND BRAZORIA RAILWAY COMPANY v. C. H. RANDOLPH, TREASURER, ETC.
• Decision Date: 01 January 1859
• Court: Texas Supreme Court

24 Tex. 317

HOUSTON TAP AND BRAZORIA RAILWAY COMPANY

v.C. H. RANDOLPH, TREASURER, ETC.

Supreme Court of Texas.

1859.

A petition for a mandamus must show that the plaintiff has a clear right to, and that it is plainly the duty of the officer proceeded against to perform, the thing demanded.

It is a principle at the foundation of our system, that all boards, tribunals, departments, and even the government itself, are creatures of delegated and limited authority, and when the authority delegated is exceeded, their acts are null and void.

The acts of courts of general jurisdiction, are presumed to be within their authority until the contrary is made to appear; but those of tribunals of limited powers, do not carry with them the same force of presumption. 15 Tex. 500;20 Tex. 516.

Warrants issued by the board of school commissioners, to a railroad company, applying for a loan, are conclusive, that it has done the work required by law, and is free from any adverse lien.

But they are not conclusive, that the road is one of those authorized by law to apply for the loan.

A petition by a railroad company, against the treasurer (if maintainable), to compel him to discharge warrants issued to it by the board of school commissioners for a loan, out of the school fund, should show that the company was one of those entitled by law to apply for the loan.

In England, the affidavit in support of the rule for a mandamus, should anticipate, and answer every objection which may be urged against it, and this, it seems, should be done here, in the petition. 4 Tex. 331;5 Tex. 480;6 Tex. 473.

The cases in relation to the grant of certificates by the boards of land commissioners, are not precisely analogous to this. The main duty of such boards was, to designate the persons entitled to land, and to give them certificates.

But the inquiry by the board of school commissioners, as to the particular company entitled to apply for the loan, is merely incidental, in ascertaining the proper objects for the exercise of their authority.

The treasurer of the state cannot, in his official capacity, be compelled by a mandamus, to pay out money, or other effects, in the treasury.

The five per cent. bonds set apart as a school fund, were placed under the control of the treasurer, as an officer of the state, and not as an individual.

The board of school commissioners are authorized, in order to invest this fund, as prescribed by law, to draw upon the treasurer. He acts upon such drafts, not as the servant, or banker of the board, but in his official capacity, and must exercise his official judgment, in determining upon the validity of the warrant, whether the road be one of those entitled to the loan, etc.

If the judicial could supervise or control the executive department in the discharge of its duties, it would not be as provided by the constitution, a co-ordinate, but a superior department of the government.

In England, where there is not that well-defined limit of power in the different departments of the government that exists in this country, the courts cannot intermeddle with the fiscal affairs of the executive department.

The statute of 1846, which provides that writs of mandamus against the heads of departments and bureaux of government, shall be returnable before the district court of the county, in which the seat of government may be, does not confer on the courts the power to grant the writ.

A statute authorizing the courts to interfere with the executive officers in managing the fiscal affairs of the state, in their executive capacity, would be a plain infraction of the constitution. 15 Tex. 75.

This statute was, doubtless, intended to obviate difficulties, growing out of writs of mandamus being issued against the commissioner of the general land office, in suits for lands and land locations, instituted in other counties; upon this custom, as recognized and regulated by the statute, this remedy has been sanctioned against that officer, as to ministerial duties. 5 Tex. 478.

That the governor cannot (as may have been contemplated) give direction as to the management of affairs, in all the branches of the executive department, because inferior officers of it decline to comply with his wishes or follow his judgment, will not authorize the interference of the judiciary.

APPEAL from Travis. Tried below before the Hon. Alexander W. Terrell.

This was a petition for a mandamus by the appellant against the appellee, C. H. Randolph, treasurer of the state, and C. B. Johns, the comptroller, to compel the said Randolph to pay over and deliver to the authorized agent or officer of the appellant, the amount of $150,000, in the United States five per cent. indemnity bonds, belonging to the special school fund, in the treasury of the state, upon the warrant of the board of special school commissioners, appointed to invest the fund in the bonds of railroad companies; which warrant, it was alleged, had been presented to the defendant, Randolph, as treasurer of the state, in whose possession the said five per cent. bonds were, and whose duty it was to pay the said warrant, but that he refused to honor or discharge the same.

The warrant upon which the plaintiff claimed, was signed by the governor and attorney general, and countersigned by the governor, as required by law; but the comptroller (the defendant, Johns), the other member of the board of school commissioners, refused to sign it.

The plaintiff prayed, in the alternative, that if the signature of the comptroller was necessary to perfect the warrant, a writ of mandamus should be awarded, commanding him to sign the said warrant.

Upon exception taken, that the two prayers could not be entertained by the court, in the same petition, the plaintiff dismissed as to Johns, and proceeded solely against the defendant, Randolph, relying upon the sufficiency of the warrant without his (Johns') signature.

The defendant, Randolph, excepted to the petition; his exceptions were sustained, and the petition dismissed.

Oldham & White and E. M. Pease, for the appellant.

R. T. Brownrigg, also for the appellant. The questions are: 1st. Is the judgment of the board of school commissioners conclusive, when rendered upon application made under the requirements of the law in question? 2d. Is the judgment of a majority of the board, when properly convened, and an adjudication is had, the judgment of the board itself? 3d. Is the treasurer of the state, as ex officio keeper of the special school fund, under the provisions of the act of August 13th, 1856, a ministerial officer, or is he invested with discretion in the premises? It is proposed to discuss each question separately, in the order in which they have been presented.

1st. Is the judgment of the board of school commissioners conclusive, when rendered upon application made under the requirements of the law in question?

The act of the legislature (see O. & W. Dig. art. 1681) constitutes the governor, comptroller, and attorney general, ex officio, a board of school commissioners, to draw from the treasury, and invest this fund, etc. This law, beyond all doubt, constitutes these commissioners a special tribunal, with limited but exclusive jurisdiction. O. & W. Dig. arts. 1683, 1684, 1685. The school fund in the treasury, is the subject matter of jurisdiction in this court, or board of commissioners; and so long as there is any portion thereof in the treasury, uninvested, and the board entertains an application for its investment, the jurisdiction of the board attaches quoad hoc. There is no other manner in which the jurisdiction of this board can attach, as its jurisdiction is entirely of a subject matter, and not of a person; “for jurisdiction can be acquired but in one of two modes: 1st. As against the person, by service of process. 2d. By proceeding against the property within the jurisdiction of the court.” Boswell v. Otis, 9 How. 336.

It is true, as a legal proposition, that “when a court of competent (and exclusive though limited) jurisdiction, has taken cognizance of a subject matter, and the jurisdiction has attached in the particular case, its judgment cannot be questioned in a collateral inquiry, and, until reversed, it is binding upon all other courts. Southerland v. De Leon, 1 Tex. 250, and authorities there cited; also, Wiley v. Kelsey, 9 Ga. 117;Ranoul v. Griffie, 3 Md. 54. And in Foster v. Wells, 4 Tex. 101, this court held, that “the judgment of a court of competent jurisdiction, is conclusive and binding upon the parties, as to all points directly involved and necessarily determined by it; and it matters not whether the tribunal rendering it be clothed with limited or general powers;” and that this is correct, see also, Wales v. Lyon, 2 Mich. 276;Mobley v. Mobley, 9 Ga. 247. The only qualification to this doctrine is, that the judgment must be upon the merits, and must not go off upon a technical defect. Again: “Where a court of special and limited powers has jurisdiction of the proceeding, and this appears on the face of the record, its acts will be presumed to be rightly done.” Raymond v. Bell, 18 Conn. 81. “When certain facts are requisite to give an inferior court jurisdiction, and the evidence in support of such facts has been adjudged by such court to be sufficient, such judgment cannot be collaterally impeached or contradicted.” Sheldon v. Wright, 1 Seld. 497. In this case, the court held, that in a collateral proceeding, it would not inquire into the matter of the proper exercise of jurisdiction, as it appeared that the court had, and had exercised, jurisdiction. In support of this proposition, is the case of Burdett v. Silsbee, 15 Tex. 604.

The jurisdiction of this board attached as soon as it was ascertained that there were funds in the treasury, remaining to be invested, pursuant to the provisions of the act; and it then became necessary to determine, whether the application came within the requirements of the law. If it...