McCuistion v. Fenet

• Decision Date: 19 February 1912
• Citation: 144 S.W. 1155
• Court: Texas Court of Appeals
• Parties: McCUISTION et al. v. FENET et al.<SMALL><SUP>†</SUP></SMALL>

144 S.W. 1155

McCUISTION et al. v. FENET et al.^†

Court of Civil Appeals of Texas. Texarkana.

February 19, 1912.

Rehearing Denied February 29, 1912.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Mandamus by F. R. Fenet and others against Ed H. McCuistion and others. From a judgment awarding the writ, defendants appeal. Reversed, and application dismissed.

Wright & Patrick, for appellants. H. D. McDonald and Burdett & Connor, for appellees.

HODGES, J.

This is an action by F. R. Fenet and four others, who sue as resident citizens, voters, and property taxpayers of the city of Paris in Lamar county, Tex., against Ed H. McCuistion, as mayor, and the other appellants, as aldermen and members of the city council, of the city of Paris, in which the plaintiffs seek a writ of mandamus, compelling the mayor and aldermen, in their official capacity, to order an election for the purpose of filling vacancies in the offices of city attorney and city marshal of that city. Omitting formal parts, the petition, in substance, alleges the incorporation of the city of Paris under a special act of the Twenty-Ninth Legislature, and shows, by reference to different sections of the charter, that the municipal government was made to consist of the city council, to be composed of the mayor and five aldermen; that the other officers provided for were recorder, city marshal, city attorney, city secretary, assessor and collector, city treasurer, and such other officers and employés as the council might determine; that the city recorder, city marshal, city treasurer, city attorney, city secretary, and city assessor and collector were all to be elected by a vote of the people, and should hold their offices for the term of two years and until their successors should be elected and qualified; that the annual city elections were to be held on the first Tuesday in April in each year, and that in case of a vacancy in the office of alderman, or any other elective office, by refusal to accept or failure to qualify, or by death, resignation, or otherwise, the city council was required to order another election to fill such vacancy. The petition further shows that on the 17th day of December, 1906, the appellants, defendants below, composing the city council, passed an ordinance (No. 211) abolishing the office of city marshal, and followed it with another (No. 212) creating the office of chief of police, and at the same time passed an ordinance (No. 213) abolishing the office of city attorney, and followed this with another (No. 214) creating the office of general attorney. It is further alleged that, pursuant to the above ordinances, the mayor appointed certain persons to the respective offices so created, has annually renewed those appointments, and still continues to do so; and that, notwithstanding the vacancies thereby created in those offices, which have existed since 1907, caused by the acts of the council and by the abandonment of the offices by their former incumbents in failing and refusing to perform the duties thereof, the council has continuously since that time failed and refused to provide for the election of said officers. The petition also claims that the ordinances Nos. 211 and 213, which attempted to abolish the elective offices of city marshal and city attorney, were unauthorized, null and void, under the charter, and hence the offices themselves remain in existence; that the vacancies therein caused made it the plain duty of the city council to order an election to fill them. The petition concludes with a prayer asking for a peremptory writ of mandamus, compelling the mayor and aldermen composing the city council to order an election to fill the vacancies referred to.

The appellants replied by special exceptions, a general demurrer, and a special answer, in which the material facts alleged in the original petition of the appellees were admitted; but some of the legal conclusions therein stated, such as the nullity of the ordinances and the existence of the vacancies referred to, were denied. The court overruled the special exceptions and the general demurrer of the appellants to the petition of the appellees, sustained a general demurrer of the latter to the answer of the appellants, and rendered a judgment granting the writ of mandamus, requiring the appellants to order an election for the purpose of filling the vacancies in the offices of city attorney and city marshal, to be held on the 15th day of June, 1911. From that judgment the appellants prosecute this appeal.

The city of Paris was incorporated, as alleged by the appellees, by a special act of the Twenty-Ninth Legislature. See Special Laws of 1905, p. 31 et seq. The act contains a section making it the duty of the courts to take judicial notice of its provisions as if it were a public statute; therefore, in passing upon the legal sufficiency of the pleadings, they must be considered with reference to all the relevant provisions of the charter, whether these are specifically set out or not. The following are those sections which most directly relate to the questions involved in this appeal:

"Sec. 7. The municipal government of the city of Paris shall consist of the city council, which shall be composed of five aldermen and the mayor.

"Sec. 8. The other officers of said city shall be a recorder, city marshal, city attorney, city secretary, an assessor and collector, city treasurer, and such other officers and employés as city council may determine.

"Sec. 9. The recorder, city marshal, city attorney, city secretary, city assessor and collector, shall be elected by vote of the people, and shall hold their offices for a term of two years and until their successors are elected and qualified except as herein provided. The compensation of said officers shall be fixed by the city council.

"Sec. 10. All other officers and employés of the city, except treasurer, which is otherwise herein provided for, shall be appointed by the mayor and confirmed by the council, and shall perform such duties, and receive such compensation as may be decided upon by the council, and shall not be appointed at any one time for a longer term than one year, and such officers and employés may be removed either by the mayor or by the council at any time, upon the payment of salary or salaries to the time of discharge.

"Sec. 11. Provided, that the offices of assessor and collector and city secretary, as heretofore combined by the city council under the name of city secretary, may so continue at the option of the council, and said city secretary shall perform all the duties of said offices, and shall devote his whole time to the same: Provided, further, that the city council may combine or abolish any of the offices above named."

By section 88, it is provided that the annual elections for the city shall be held on the first Tuesday in April of each year. Section 90 provides that if there is a vacancy in the office of alderman, or in any other elective office, by refusal to accept or failure to qualify, or by death, resignation, or otherwise, the city council shall order another election to fill such vacancy, and all such elections shall be conducted as provided for in annual elections.

The only question presented in this appeal involves the construction of the foregoing provisions of the charter as to the powers conferred upon the city council to abolish the offices of city attorney and city marshal. The provision specially relied on by the appellants as justifying the exercise of the authority assumed by the city council in abolishing the offices of city attorney and city marshal is the concluding sentence in section 11, which reads as follows, "provided, further, that the city council may combine or abolish any of the offices above named." It is contended by the appellants that the phrase "any of the offices above named" refers to those mentioned in section 9, and empowers the city council to combine any of those there enumerated, or to abolish any of them. Counsel for appellees insist that this last proviso applies only to the two offices of assessor and collector and city secretary, mentioned in the first portion of section 11. It will be noticed that assessor and collector are treated in section 9 as constituting but one office. The rule for construing a proviso is thus stated by Judge Gould, in Roberts v. Yarboro, 41 Tex. 449: "When the enacting clause is general in its language and objects, and a proviso is afterward introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fully within its terms." The above is also an extract from an opinion delivered by Justice Storey of the United States Supreme Court, in United States v. Dickson, 15 Pet. 165, 10 L. Ed. 689, and is in harmony with the rule now generally recognized and laid down by the text-book writers. 2 Sutherland on Stat. Const. § 352. In the section last referred to, the author uses this language regarding the office of a proviso and its application: "The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it, unless it clearly appears to have been intended to apply to some other matter. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. If it be a proviso to a particular section, it does not apply to others, unless plainly intended. It should be construed with reference to the immediately preceding parts of the clause to which it is attached. In other words, the proviso will be so restricted, in the absence of anything in its terms, or the subject it deals with, evincing an intention to give it a broader effect. It is not an arbitrary rule to be enforced at all events, but is based on the presumption that the meaning of the lawmaker is thereby reached."

Keeping in view the rules announced above, the...