Jones v. Alexander

• Decision Date: 03 May 1933
• Docket Number: No. 1627-6234.,1627-6234.
• Citation: Jones v. Alexander, 59 S.W.2d 1080, 122 Tex. 328 (Tex. 1933)
• Parties: JONES et al. v. ALEXANDER et al.
• Court: Texas Supreme Court

Page 1080

59 S.W.2d 1080

JONES et al. v. ALEXANDER et al.

No. 1627-6234.

Commission of Appeals of Texas, Section A.

May 3, 1933.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by D. M. Jones and others against F. H. Alexander and others. Judgment was entered dismissing the cause, and plaintiffs bring error to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

E. G. Senter and Claud C. Westerfeld, both of Dallas, for plaintiffs in error.

William McCraw, Tom C. Clark, and Guy Mann, all of Dallas, for defendants in error.

C. W. Starling, of Dallas, amicus curiæ.

SHARP, Judge.

This cause is before the Supreme Court on certified questions from the Honorable Court of Civil Appeals for the Fifth Supreme Judicial District. The certificate reads as follows:

"D. M. Jones (plaintiff in error) as citizen taxpayer for himself and others similarly situated, and in his capacity as an officer and director of the Tax-Payers Protective League of Texas, an unincorporated association of taxpayers of the State, brought this suit against F. H. Alexander, county judge, and other members of the County Commissioners Court of Dallas County, to enjoin them from ordering payment, from the general funds of said county, of $1,500 per annum additional salaries to each of the district judges of said county as members of the Juvenile Board; Dallas County having a population in excess of 100,000 according to the preceding Federal census, has a Juvenile Board and is acting under the provisions of title 82 R. S. 1925.

"Plaintiff alleged in substance: That since about the year 1917, the district judges of Dallas County have been paid, on orders of the Commissioners Court, out of the general funds of the county, an annual salary of $1,500 in addition to the regular salary of district judges; that such payments are now being made monthly by order of said Court and that payments will continue to be made unless defendants are restrained from authorizing same. It is alleged that defendants justify their action in ordering payment of said additional salaries, under articles 5139, 5140 and 5141 et seq., title 82 R. S. 1925, the constitutional validity of which is attacked by plaintiff as basis for his contentions; wherefore, he sought injunctive relief to prohibit defendants, and each of them, from ordering further payments of said additional salaries, etc. Defendants, answering the suit, urged general demurrers to plaintiff's petition, which were sustained by the court and the cause dismissed, from which plaintiff appealed.

"As the case is now under submission, we deem it advisable to present to the Honorable Supreme Court for adjudication the issues of law necessary to a decision of the cause, as follows:

"(1) Is membership on the Juvenile Board a public office in the sense that the exercise of the duties of such position by a district judge violates the provision of article 16, § 40 of the Constitution, that prohibits (with exceptions) the same person to hold or exercise at the same time more than one civil office of emolument, etc.?

"(2) Was the Legislature constitutionally authorized to provide for the payment, annually, to certain district judges, members of county Juvenile Board, $1,500 in addition to the salary authorized by law to be paid other district judges of the State?

"(3) Would the payment, on orders of the Commissioners Court, of such additional salaries violate section 51 of article 3 of the Constitution, as being unauthorized grants of public money?

"(4) Do these statutes (articles 5139, 5140 and 5141 et seq.) require the performance, by said district judges, as members of the Juvenile Board, of non-judicial functions in violation of article 2, § 1 of the Constitution that divides the powers of the State government into three distinct departments, Legislative, Executive and Judicial?"

Since questions 1 and 4 are closely related, we will consider them together. These questions involve the construction of articles 5139 to 5143, inclusive, R. S. 1925, commonly known as the County Juvenile Board Act; section 40 of article 16; section 1 of article 2, and section 8 of article 5, of the Constitution.

Our Constitution, statutes, and decisions of the courts clearly demonstrate that the district court is a popular tribunal in which jurisdiction of many matters is lodged. As early as 1857, in the case of Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309, the Supreme Court, in discussing the jurisdiction of the district courts, held: "* * * Our Courts, possessing the powers of Courts of Chancery, may proceed to administer relief upon the principles of equity, as fully and completely as a Court of Chancery in England could do, without the aid of the Statute."

In section 8 of article 5 of the Constitution is described the original and appellate jurisdiction of the district court. This section, among other things provides for "original jurisdiction and general control over * * * minors under such regulations as may be prescribed by law." That the framers of the Constitution intended to confer broad jurisdictional powers upon the district court is clearly shown in the following language: "and [the district court] shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law." Section 40 of article 16 of the Constitution, in part, reads as follows: "No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of peace, county commissioner, notary public and postmaster, officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States, and enlisted men of the National Guard, the National Guard Reserve, and the organized Reserves of the United States, unless otherwise specially provided herein." This is followed with a proviso containing certain exceptions which are not pertinent to the questions under consideration.

The welfare of minors has always been a matter of deep concern to the state. In England it was one of the most important branches of equity jurisdiction and frequently exercised by the courts of chancery. Pomeroy's Equity Jurisprudence, vol. 3 (4th Ed.) § 1303 et seq., pp. 3139, 3140, etc.

In addition to the constitutional provisions above cited, the statutes confer, among many other duties, jurisdiction over the affairs of minors in the district courts of certain counties to be exercised in connection with other persons. For this purpose the Legislature enacted article 5139 et seq.

Article 5139 provides that in any county having a population of one hundred thousand or over, the judges of the several district and criminal district courts of such county, together with the county judge of such county, are constituted a juvenile board, and fixes the annual salary of each of such district judges as members of said board at $1,500 in addition to that paid the other district judges of the state, said additional salary to be paid monthly out of the general funds of such county, upon the order of the commissioners' court. Article 5140 provides that "such Board shall neither have nor exercise judicial power or function." It further provides what steps may be taken when "any child should be adjudged either dependent, neglected or delinquent." The other articles of this act describe in detail the methods of carrying into effect the provisions of this statute.

The foregoing act assigned to the district judges the following duties to be exercised by them, either together or separately: (1) To exercise a supervision over minors residing or found in the county who may be either dependent, neglected, or delinquent; (2) to obtain information concerning the welfare of such minors; and (3) to direct such action by probation officers to be appointed by the judges and such action by courts and persons having custody of such minors as may be deemed proper.

Many instances can be cited where the Legislature has imposed upon district judges additional duties not strictly judicial. To illustrate: They shall appoint county auditors (article 1647, R. S. 1925); at the instance of the grand jury may appoint a committee of accountants to examine the finances of the county (article 1638); are required to fill vacancies in the office of the district clerk (article 1895); appoint official court reporters (article 2321); shall remove disabilities of minors (articles 5921 to 5923) shall appoint jury commissioners (article 2104); and to perform certain duties imposed by the Administrative Judicial Districts Act (article 200a, Vernon's Ann. Civ. St.).

Likewise, the Governor is prohibited by the Constitution from holding any other office (section 6 of article 4). Yet he is a member of several boards as provided for by the statutes, viz.: Board appointing commissioner of markets and warehouses (article 5562); board of equalization in unorganized counties (article 7231); board of trustees for school of blind (article 3206); state board of canvassers (article 3068); state board of education (article 2664); state bureau of child and animal protection (article 4597); state naval board (article 5891); tax board (article 7041); text-book commission (article 2839).

Many decisions could be cited on this question, but we will refer only to a few of them. In the case of Arnold v. State, 71 Tex. 239, 9 S. W. 120, our Supreme Court held that such appointments of the Governor were not prohibited by the Constitution, because he was the chief executive officer of the state. In the case of Legate v. Legate, 87 Tex. 248, 28 S. W. 281, it was held that under the present Constitution the district courts have jurisdiction to issue the writ of habeas corpus and decide to whom the custody of a child rightfully...