Howth v. Greer

• Decision Date: 13 November 1905
• Citation: 90 S.W. 211
• Parties: HOWTH v. GREER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 211

90 S.W. 211

HOWTH v. GREER et al.^*

Court of Civil Appeals of Texas.

November 13, 1905.

Error from District Court, Jefferson County; W. H. Pope, Judge.

Application for a writ of mandamus by C. W. Howth against F. W. Greer and others. There was a judgment for defendants, and the relator brings error. Affirmed in part, and reversed in part.

A. T. Watts and Blain, Howth & Adams, for plaintiff in error. Jas. A. Harrison and Teagle & Conley, for defendants in error.

REESE, J.

Plaintiff in error, county attorney of Jefferson county, sued defendants in error, F. W. Greer, recorder of the city of Beaumont, James Stewart, city marshal, C. A. Teagle, city attorney, J. G. Sutton, city secretary and clerk of the corporation court, and also the city of Beaumont, praying for a writ of mandamus requiring Greer, as recorder and judge of the corporation court, to permit him, as county attorney, to appear before said court in all causes wherein any party is being prosecuted for a violation of any of the criminal laws of the state, notwithstanding said offenses may also be embraced in the city ordinances, and further requiring the recorder to tax, for his benefit, in all such cases the fees and costs due him under the Constitution and laws of the state. Relator further prays that the court order that C. A. Teagle, city attorney, be not permitted by the said recorder to appear in said court and prosecute said cases wherein relator or any of his assistants appear and offer to discharge such duty, and that James Stewart, city marshal, and J. G. Sutton, clerk of the corporation court, be required to collect for and turn over to relator the fees allowed the county attorney by law in all such cases, and to turn over all such fees collected as such officers subsequent to January 3, 1905, in all such cases wherein relator or his assistant appeared and offered to prosecute, and further ordering that they do not deliver such fees to the city attorney or the city treasurer, but that all such fees be delivered to relator when collected. Relator further prays for judgment against the defendants, and each of them, for the fees so unlawfully paid to Teagle, city attorney, since January 3, 1905. Defendants answered by general demurrer and various special exceptions, general denial, and special pleas, including a plea of res adjudicata. A more detailed and specific reference to the matters contained in the answer is not here necessary. The case was tried by the court without a jury, and defendants had judgment. The case is here on writ of error by relator.

There are no disputed facts in the record. It appears that C. W. Howth, who is county attorney of Jefferson county, claimed the right as such officer to appear and prosecute in the corporation court of the city of Beaumont, of which F. W. Greer is judge as recorder of said city, in all cases in that court wherein parties are charged with a violation of the criminal laws of the state, whether such charges are based upon the criminal laws of the state or upon ordinances of the city covering the same ground. It appears from the statement of facts that this right was denied the county attorney by the recorder. It is true that defendants in their answer deny that they or either of them object to the appearance of said county attorney or any of his assistants in any cause in which the state of Texas is a party; but they do deny his right to exclude the city attorney from participation in said causes, which right is embraced in the demand of the county attorney, who claims that he has the exclusive right to represent the state in such cases.

The corporation court of the city of Beaumont is organized under the provisions of the act of the twenty-sixth Legislature entitled "An act to establish and create in each of the cities, towns and villages of this state, a state court to be known as the corporation court in said city, town or village, and to prescribe the jurisdiction and organization thereof, and to abolish municipal courts." Gen. Laws 1899, p. 40, c. 33. Section 2 of the act defining the jurisdiction of said courts provides "that said court shall have jurisdiction within the territorial limits of said city, town or village within which it is established in all criminal cases arising under the ordinances of the said city, town or village now in force, or hereafter to be passed, and shall also have jurisdiction concurrently with any justice of the peace in any precinct in which said city, town or village is situated in all criminal cases arising under the criminal laws of this state in which the punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars and arising within the territorial limits of such city, town or village." Section 8 is as follows: "That all prosecutions in said court, whether under an ordinance or under the provisions of the Penal Code, shall be commenced in the name of the state of Texas, and shall conclude, `against the peace and dignity of the state,' and where the offense is covered by an ordinance the complaint may also conclude, `as contrary to the said ordinance,' and all prosecutions in such court shall be conducted by the city attorney of such city, town or village, or by his deputy; but the county attorney of the county in which said city, town or village is situated, may, if he so desires, also represent the state of Texas in such prosecutions, but in all such cases the said county attorney shall not be entitled to receive any fees or other compensation whatever, for said services, and in no case shall the said county attorney have the power to dismiss any prosecution pending in said court, unless for reasons filed and approved by the recorder of said court."

It will be seen that the county attorney is expressly given the right, if he desires, to represent the state of Texas in prosecutions in the corporation court, but the language of the act is probably susceptible of the construction that the right thus given is to be exercised in conjunction with the city attorney, and not exclusively. This seems to be the view taken by defendants in their answer. Section 21, art. 5, of the Constitution of this state, provides that "the county attorneys shall represent the state in all cases in the district and inferior courts in their respective counties," and "shall receive as compensation only such fees, commissions and perquisites as may be prescribed by law." These provisions of the Constitution in regard to the right therein conferred, and the duty imposed upon county attorneys, were considered by the Supreme Court in the case of State of Texas v. Moore, County Attorney, 57 Tex. 307. The question involved was, substantially, the right of Moore, county attorney, to appear for the state, and to prosecute and control, to the exclusion of all other officers or attorneys, certain suits which had been instituted in the district court of Travis county by the Attorney General, to recover money due the state upon the bonds of defaulting tax collectors. It was held that under the foregoing provisions of the Constitution it was the right and duty of the county attorney to represent the state in the several suits referred to, of which the Legislature could not deprive him by conferring the power upon another officer. The court says: "The powers granted to county attorneys in reference to representing the state in all cases in the district and inferior courts in their respective counties is broad, and comprehends alike cases civil and criminal, except so far as the Constitution itself confers power upon the Attorney General to represent the state in those cases." With reference to the nature of this power given by the Constitution as being an exclusive power, the court further says: "It must be presumed that the Constitution, in selecting the depositaries of a given power, unless it be otherwise expressed, intended that the depositary shall exercise an exclusive power, with which the Legislature could not interfere by appointing some other officer to the exercise of the power." In the case of Moore v. Bell, Attorney General, 95 Tex. 151, 66 S. W. 45, it was held that the provisions of a statute authorizing the Attorney General to prosecute certain suits to recover penalties against railroad companies, under the direction of the railroad commission (article 4577, Rev. St. 1895), was not unconstitutional, but the decision of the court was made to rest solely upon the provisions of the amendment to section 2, art. 10, of the Constitution. It was held that the Attorney General, in bringing such suits, was one of the agencies which the Legislature was expressly authorized by that amendment to create for the purpose of carrying out its provisions.

The corporation court of the city of Beaumont being one of the inferior courts of the state referred to in the Constitution, the right of the county attorney to appear in said court, either by himself or his lawfully appointed deputy, and represent the state in all cases pending therein to which the stat...