McClelland v. Shelby Cnty.

• Decision Date: 01 January 1869
• Citation: 32 Tex. 17
• Parties: S. K. MCCLELLAND AND OTHERS v. SHELBY COUNTY.
• Court: Texas Supreme Court

32 Tex. 17

S. K. MCCLELLAND AND OTHERS

v.SHELBY COUNTY.

Supreme Court of Texas.

1869.

1. The powers conferred on the chief justices of counties by articles 1067 and 1068 of Pas. Dig., relating to the removal of county seats, are political in their character, and not judicial; and hence, any complaints arising out of the action of those officials, in the exercise of such powers, were cognizable by the political authority of the state, and not by the courts.

2. The case of Walker v. Tarrant County, 20 Tex. 16, to the same effect, cited and approved.

3. See the opinion with reference to the transmutations of political authority in Texas, in consequence of the act of secession and the ensuing hostilities.

4. During the incumbency of Provisional Governor Hamilton, from July 25th, 1865, to August 20th, 1866, he represented the executive department and the war power of the United States, and was vested with the powers of a conquerer over the conquered in Texas. Therefore, what he, during that period, declared to be law was law, being “prescribed by the supreme power of the state.”

5. The proclamation of Governor Hamilton of July 25th, 1865, had more of a legislative than of an executive or judicial character.

6. By section 6 of that proclamation it was declared that the general laws and statutes in force immediately preceding the 1st of February, 1861, were to be respected and enforced. Among those general laws was the statute of May 9th, 1838, comprising articles 1067 and 1068, above referred to.

7. The legislative power was not in abeyance in Texas during the provisional government. It resided in the military authorities of the United States.

8. Held, that this court has no jurisdiction of the subject matter of this suit.

APPEAL from Sheldon. Tried below before the Hon. J. B. Williamson.

On exceptions of the defendant for want of jurisdiction, the suit was dismissed by the court below. The character of the proceeding and the facts are sufficiently indicated in the opinion of the court.

R. S. Walker and T. W. Jones, for the appellants.

Parsons & Jones, and M. W. Wheeler, for the appellee.

MORRILL, C. J.

This is a suit to nullify the removal of the county seat of the county of Shelby from Shelbyville to Center, in January, 1866.

The plaintiffs base their cause of action on the allegations, that the chief justice, being the appointee of Provisional Governor Hamilton, had no power to order the election as provided by the statutes. Pas. arts. 1067, 1068.

They insist that his powers were judicial, and not political. That, as all the political powers of Texas were, at the time specified, and are now, in abeyance, and that the chief justice in ordering the election acted politically and not judicially, his acts were null. It is assumed by plaintiffs and admitted by them, that the judiciary have no other jurisdiction than to declare the actings and doings of the chief justice null and void--not because there was irregularity or illegality in the election, but because he had no power to order the election.

The chief justice excepts to the sufficiency of the petition.

The questions really proposed for our adjudication are, first: Was the act of the chief justice in ordering the election in January, 1866, a political act? and if so, second: Did he possess the political power so to act?

As before stated, it is conceded that the decisions of this court in Walker v. Tarrant County, 20 Tex. 20, and the cases there cited, do not leave this an open question, and it hence follows that all appeals from the said acts of the chief justice are returnable before the political and not before the judicial power. The second proposition, relative to existence or non-existence of the political power in the chief justice to do and perform the act referred to, next demands our attention.

It is admitted that from and after the passage of the act of secession, till the close of the war in Texas, that there was an actual or constructive hostility existing between Texas and the United States; and that the insurrection...