Kimberly v. Morris

• Citation: 31 S.W. 808
• Parties: KIMBERLY et al. v. MORRIS et al.
• Decision Date: 11 April 1895
• Court: Supreme Court of Texas

31 S.W. 808

KIMBERLY et al. v. MORRIS et al.

Supreme Court of Texas.

April 11, 1895.

Certified questions from court of civil appeals, Fifth supreme judicial district.

The following questions were certified to the supreme court for decision: Under Rev. St. art. 3227, as amended by the act of the legislature approved March 29, 1893 (Acts 1893, p. 48), where the requisite number of qualified voters of a county have petitioned the county commissioners' court to order an election to determine whether or not the sale of intoxicating liquors shall be prohibited in said county, in a case where there is no contested or doubtful issues of fact, and where it is clearly the duty of the commissioners' court, under the law, to issue the order for

such election, and they refuse to do so, have such petitioners, as qualified voters of such county, such an interest as will authorize them to sue out a writ of mandamus in the district court to compel such county commissioners' court to issue the order of election? If so, is it necessary for them to bring such suit in the name of the state, by them as relators?

Frank E. Scott, for appellants. Templeton & Crosby, for appellees.

GAINES, C. J.

The statute referred to in the questions certified makes it the duty of the commissioners' court of a county to order an election, upon the petition of 250 voters of the county. It confers upon the voters so petitioning a clear legal right to have the election ordered; and if the court, upon its refusal to make the order, cannot be compelled by mandamus, it leaves them without a remedy for the enforcement of the right. It is a matter in which, from its nature, the petitioners cannot have a pecuniary interest; but, since the law expressly confers the right to demand the election, it cannot be said that it does not recognize in them an interest for its enforcement. It was not contemplated, as we think, that they should be left without a remedy, or with a remedy dependent solely upon the will of the state's official attorney. After stating that it is clear that, in England, a writ of mandamus to compel the performance of a public duty may be issued at the instance of a private relator, the supreme court of the United States say: "There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty not due to the government, as such, without the intervention of the government law officer." Strong, J., in Railway Co. v. Hall, 91 U. S. 343; citing People v. Collins, 19 Wend. 56; Pike Co. v. People, 11 Ill. 202; City of Ottawa v. People, 48 Ill. 233; Hamilton v. State, 3 Ind. 452; People v. Halsey, 37 N. Y. 344; State v. Judge of Marshall Co., 7 Iowa, 186; State v. Common Council of City of Rahway, 33 N. J. Law, 110; Watts v. Police Jury, 11 La. Ann. 141; 2 Dill. Mun. Corp. § 865; High, Extr. Rem. §§ 431, 432; Cannon v. Janvier, 3 Houst. 27. The following cases support the same doctrine: State v. Brown, 38 Ohio St. 344; State v. Francis, 95 Mo. 44, 8 S. W. 1; Attorney General v. City of Boston, 123 Mass. 460; State v. Board Co. Com'rs, 17 Fla. 707; McConihe v. State, Id. 238; Chumasero v. Potts, 2 Mont. 242; State v. Van Duyn, 24 Neb. 586, 39 N. W. 612; State v. Ware, 13 Or. 380, 10 Pac. 885; Wise v. Bigger, 79 Va. 269; People v. Board of Ed., 127 Ill. 613, 21 N. E. 187; State v. Gracey, 11 Nev. 223; Hyatt v. Allen, 54 Cal. 353; Board of Com'rs v. State, 61 Ind. 75; Moses v. Kearney, 31 Ark. 261; State v. City Council, 39 N. J. Law,...