May v. Finley

• Decision Date: 23 December 1897
• Citation: 43 S.W. 257
• Parties: MAY, County Attorney, v. FINLEY, Comptroller.
• Court: Texas Supreme Court

Page 257

43 S.W. 257

MAY, County Attorney, v. FINLEY, Comptroller.

Supreme Court of Texas.

December 23, 1897.

Petition for mandamus by Edward D. May, county attorney, against R. W. Finley, comptroller. Granted.

Spencer & Kincaid, for petitioner. M. M. Crane, Atty. Gen., and T. A. Fuller, Asst. Atty. Gen., for respondent.

GAINES, C. J.

This is a petition for a writ of mandamus to compel the comptroller of the state to issue his warrant upon the state treasurer in favor of the petitioner for the sum of $50. After alleging that the petitioner is the county attorney of Galveston county, and that the respondent is the comptroller of the state, and some other formal matters, the petition proceeds as follows: "Your petitioner further represents that on the following dates the following named defendants were charged by complaint in the recorder's court of the city of Galveston, sitting as an examining court in and for said county, with the respective offenses specified after the name of each defendant, and were on said dates each severally tried for the respective offenses with which they were charged, and that in each of said trials the state of Texas was represented by your petitioner as county attorney of Galveston county, viz. [Here follow the names of the defendants and of the offenses with which they were respectively charged.] And that thereafter, at the March term of the criminal district court of Galveston county, the grand jury of said county returned indictments against each of said defendants for the respective offenses charged against them, and for which they were tried and examined in the recorder's court; and that thereafter, on the 23d day of March, 1897, your petitioner made out under oath an itemized account, wherein is shown and set forth the number of each case in the recorder's court, and the number of each case in the criminal district court of Galveston county, the name of each defendant, the date of the examining trial of each defendant, and the fees due your petitioner, being the sum of five ($5) dollars in each case, and amounting in the aggregate to the sum of fifty ($50) dollars, which account was, on the 27th day of March, 1897, presented to and approved by the Honorable E. D. Cavin, judge of the criminal district court of Galveston county, for the sum of fifty ($50) dollars. Said account, together with the approval of the judge of the criminal district court indorsed thereon, is hereunto annexed, marked `Exhibit A,' and made a part hereof." The account, duly verified by the oath of the petitioner, and approved by the judge of the criminal district court of Galveston county, is attached to the petition as an exhibit. It was also alleged that the respondent, upon demand being made upon him, had refused to draw his warrant for the sum claimed by the petition. The comptroller has answered by a general demurrer and a general denial.

In a mandamus proceeding a general denial goes for naught, so that the facts stated in the petition are to be taken as true. Sanson v. Mercer, 68 Tex. 494, 5 S. W. 62. We understand that, if there were no question as to the validity of that provision of the charter of the city of Galveston which attempts to confer power upon the recorder of the city to exercise within the city limits the authority of a justice of the peace, or of the provisions of the Code of Criminal Procedure, which purport to confer the same jurisdiction (Code Cr. Proc. art. 98), the comptroller would not have hesitated to issue his warrant for the account in controversy. There is a regrettable conflict between the decisions of the court of criminal appeals and those of this court upon the question of the validity of the legislation which undertakes to invest the mayors or recorders of incorporated cities in this state with the authority of justices of the peace within the city. The court of criminal...