Knox v. Johnson, 9030.
| Decision Date | 05 June 1940 |
| Docket Number | No. 9030.,9030. |
| Citation | 141 S.W.2d 698 |
| Parties | KNOX et al. v. JOHNSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; J. D. Moore, Judge.
Action by Dr. W. J. Johnson against Harry Knox and others to restrain the members of the State Board of Control from passing an order or resolution removing plaintiff from the office of superintendent of the San Antonio State Hospital, or in any way interfering with his lawful discharge of duties, from placing any one else in the office, and from discharging any of the employees of the hospital except upon the recommendation of plaintiff. From an order granting a temporary injunction, defendants appeal.
Affirmed.
Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, R. O. Fairchild, and Geo. W. Barcus, Asst. Attys. Gen., for appellants State Board of Control and another.
Claude A. Williams and John Vickers, both of Austin, for appellants Claude A. Williams and W. J. Lawson.
Dan Moody, of Austin, and Carl Wright Johnson and Wm. N. Hensley, both of San Antonio, for appellee.
Appeal is from an order of the District Court of Travis County, granting a temporary injunction against the Texas State Board of Control restraining the members thereof from passing an order or resolution removing Dr. W. J. Johnson from the office of Superintendent of the San Antonio State Hospital, or in any manner interfering with his lawful discharge of his duties as such superintendent; from placing anyone else in said office; and from discharging any of the employees of said hospital except upon the recommendation of Dr. Johnson.
The agreed statement of the issue presented to the trial court herein was as follows: "The issue which the court has to try on this hearing is: If the Board of Control does not have the power, after notice to the regularly elected, qualified and acting Superintendent of the San Antonio State Hospital and after a hearing and determination by the Board of Control that good cause exists for the removal of such Superintendent, to remove him, then in this hearing plaintiff is entitled to a temporary injunction; on the contrary, if the Board of Control has such power, then the plaintiff is not entitled to a temporary injunction."
The questions presented on this appeal are: First, whether Dr. Johnson, as superintendent of the San Antonio State Hospital, is an "officer of this State" within the meaning of Sec. 7 of Art. XV of the Constitution of Texas, Vernon's Ann.St.; and, secondly, whether under Arts. 691 and 3184, Vernon's Ann.Civ.Tex.Stats., the Board of Control has the power to remove him from office, upon its own determination of what constitutes "good cause" for such removal.
We think there can be little, if any, doubt that the superintendent of the San Antonio State Hospital is an officer of the State of Texas. Much has been written on whether the occupant of a public position is a public officer as contradistinguished from a public employee. The best and most comprehensive discussion of this subject that we have found is contained in State of Montana ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583-595, wherein decisions from many states are cited and reviewed. See, also, 34 Tex.Jur. § 2, p. 322; 46 C.J. § 2, p. 922; 22 R.C.L. § 2, p. 372. The rule deduced by the annotator in 53 A.L.R. 595, from numerous cases reviewed in determining the status of such a public position, is as follows: "It may be stated, as a general rule deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position which lacks one or more of the foregoing elements."
An examination of the constitution and the statutes, in the light of the authorities, leads to the inescapable conclusion that Dr. Johnson, as such superintendent, is an officer of the State. Sec. 24 of Art. IV of the Constitution requires him to keep account of all moneys received and disbursed by him and make semi-annual reports thereof under oath to the Governor. Art. 691, R.C.S., provides for the election of such superintendents, prescribes their qualifications, and fixes the "term of office" at two years. Art. 692 requires him to take the constitutional oath of office, and to make a bond to be approved by the Governor, "conditioned for the faithful performance of all the duties of said office," both to be filed with the Comptroller. Art. 695 denies to the Board of Control any power to fix, or to regulate such superintendent's salary; and the Board cannot authorize payment of accounts by voucher, until they have been certified by the superintendent as correct. Arts. 3175 to 3180 specifically set forth the powers and duties of such superintendent, wherein he is expressly and specifically treated and referred to as an officer of the State. Thus we have his position designated as an office. He is required to take the constitutional oath of office, and execute an official bond as is required of other state officers. He is made a custodian of and responsible for state property and state funds. His "term of office" and the salary therefor are fixed by law. Definite and specific governmental duties and powers are imposed upon him in which the State as a whole is interested. Manifestly, he discharges strictly a governmental function affecting the public as a whole, and clearly is an officer of the State.
Since the rights, duties and status of Dr. Johnson are determined by, and dependent upon, the Constitution and statutes of this State, decisions from other states predicated upon their own Constitutions and upon statutes different from ours are of little value on the questions here presented. Appellants, for example, cite Willis v. Scott, 146 Ky. 547, 142 S.W. 1012, wherein the Court of Appeals of Kentucky held that the superintendent of the Kentucky Asylum for the Insane was not an officer within the contemplation of the Constitution of that state. The opinion, however, does not indicate what provisions of the Constitution were involved, nor what were the provisions of the Kentucky Statutes then in force (1911) relating to the powers and...
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...Both these statutes were operative when all the above cases were decided. Respondent further relies upon the cases of Knox v. Johnson, Tex.Civ.App.1940, 141 S.W.2d 698, wr. ref., and Dorenfield v. State ex rel. Allred, 123 Tex. 467, 73 S.W.2d 83. In the case of Knox v. Johnson (141 S.W.2d 7......
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...of emolument. Dupuy v. State, 132 Tex.Cr.R. 539, 106 S.W.2d 287; Dupuy v. State, 135 Tex.Cr.App. 595, 121 S.W.2d 1003; Knox v. Johnson, Tex.Civ.App., 141 S.W.2d 698, (er. ref.); Pruitt v. Glen Rose Ind. Sch. Dist., 126 Tex. 45, 84 S.W.2d 1004, 100 A.L.R. 1158; Odem v. Sinton Ind. Sch. Dist.......
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...and is required to perform the duties of a public office; one who has some duty to perform concerning the public.' Knox et al. v. Johnson, Tex.Civ.App., 141 S.W.2d 698, writ refused (1940), in discussing the definition of a public officer cites with approval the rule laid down in 53 A.L.R. ......
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