Jones v. Swisher
| Decision Date | 01 January 1855 |
| Parties | ANSON JONES v. SHAW & SWISHER, AUDITORIAL BOARD. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
The right by which an officer exercises the functions of his office and receives the emoluments thereof in this country is subordinate to the right of the people to change their form of government; and therefore where an officer is deprived of his office by such change, he has no claim against the new government for the salary which he would have become entitled to if no change had been made, and he continued to exercise the functions of the office; nor for indemnity for the loss of the office.
Error from Travis. This was an application for mandamus to compel the auditor and comptroller to audit and adjust the claim of Anson Jones for about $10,000; the same being his salary for that portion of his term of office, as president of the late republic of Texas, which had not expired at the date of the inauguration of the first governor of the now state of Texas.
The auditor and comptroller demurred generally to the plaintiff's petition, which demurrer was sustained, and the plaintiff thereupon prosecuted this writ of error.
Paschal and Duval, for plaintiff in error.
Attorney General, for defendant in error.
The doctrine which the argument for the appellant seeks to maintain is, that upon a change of government, by the abolition of its organic law, and the establishment in its stead of a new constitution, abolishing the old and establishing new offices, the incumbents in office under the former government, whose official terms had not expired, have a right to demand of the new government the compensation for the unexpired term of their offices, to which they would have been entitled if there had been no change of government, and they had served out their full term of office under the then government. An office is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it. In England it is a species of incorporeal hereditament; but in this country no public office can properly be termed a hereditament. Nor if it were would it make any difference as respects the present case. The people have the same inherent right to abolish offices, together with all the rights appertaining to them, when they see proper to alter, reform or abolish their form of government, which they have to abolish the old and establish a new constitution in its stead.
While an office subsists, the lawful incumbent has a vested right to it; that is, to exercise its functions and enjoy its emoluments. But when the office ceases to exist, the right necessarily ceases with it. To maintain a contrary doctrine would be in effect to deny the right of revolution; or the right of a people to abolish the old and establish a new form and system of government. For if the incumbents of office cannot be deprived of the emoluments of office, neither can they be deprived of the right to exercise the functions of office. They have precisely the same right to the one as the other. While the office exists they can no more be deprived of the one than the other. And it would result that there could be no change of government, at least, until the terms of office of all incumbents had expired. Suppose they were for life, or during good behavior, as some of the offices of the federal government are; or, as in England or other monarchical governments,...
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