McFarlin v. State ex rel. Barnard, 3217

• Decision Date: 28 October 1954
• Docket Number: No. 3217,3217
• Citation: 272 S.W.2d 630
• Parties: Johnnie McFARLIN, Appellant, v. STATE of Texas ex rel. Doc BARNARD, Appellee.
• Court: Texas Court of Appeals

Page 630

272 S.W.2d 630

Johnnie McFARLIN, Appellant, v. STATE of Texas ex rel. Doc BARNARD, Appellee.

No. 3217.

Court of Civil Appeals of Texas, Waco.

Oct. 28, 1954.

Rehearing Denied Nov. 24, 1954.

Tom R. Mears, Gatesville, for appellant.

Harry W. Flentge, Gatesville, W. V. Dunnam, Waco, Howell E. Cobb, Dist. Atty., Bosque County, Comanche, J. Albert Dickie, County Atty., Coryell County, Gatesville, for appellee.

HALE, Justice.

This appeal grows out of a proceeding in quo warranto. The suit was properly instituted under the provisions of Art. 6253, Vernon's Tex.Civ.Stats., in the name of the State of Texas, acting by its District Attorney, on the relation of Doc Barnard. The purpose of the proceeding was to have the respondent, Johnnie McFarlin, adjudged guilty of having unlawfully intruded himself into the office of trustee of the Flat Common Consolidated School District No. 93 in Coryell County (hereinafter referred to as the school district) and to have him ousted from his claimed position. The case was tried before the court without a jury and resulted in judgment against the respondent, from which he has appealed.

Under the first point in his brief, appellant says in effect that the trial court erred in taking jurisdiction of the case over his objection because, as alleged in his jurisdictional plea, the pleadings of appellee failed to show that relator had exhausted the remedies available to him by appealing to the proper school authorities before resorting to the courts. We are aware of the well established rule that when the trustees of a local school district make an unsatisfactory ruling based on disputed fact issues relating to any administrative problem, before an aggrieved party may properly resort to the courts for relief with respect thereto, he must first exhaust the remedies available to him through the Department of Public Education. However, we do not think this rule is applicable to the case here under consideration, for several reasons. In our opinion, the question as to whether a school trustee has or has not been legally elected does not pose an administrative problem. But, be that as it may, there was no material issue of fact raised by the evidence in this case and there was no pleading or evidence that relator was dissatisfied with any ruling made by the trustees of the Flat School District. Furthermore, even though relator had been aggrieved over any ruling of the trustees as to whether appellant was or was not a duly elected member of their body, no agency within the Department of Public Education could have lawfully decided the ultimate issue involved in this case because a proceeding in quo warranto is the exclusive legal remedy afforded to the public by which it may protect itself against the unurpation or unlawful occupancy of a public office by an illegal occupant. Williams v. Castleman, 112 Tex. 193, 247 S.W. 263; Willborn v. Deans, Tex.Civ.App., 240 S.W.2d 791 (er.ref.). Consequently, we think the trial court had jurisdiction over the subject matter and parties here involved.

Under other points in his brief, appellant says the court below erred (1) in refusing to dismiss the suit for lack of prosecution because the District Attorney did not appear at the time of trial; (2) in requesting the County Attorney to appear and in permitting the case to proceed with the County Attorney present, but with private counsel for relator taking the lead in the prosecution of the case; (3) in holding that George B. Adams was not a necessary party to the suit; (4) in holding that relator was a legally elected trustee; and (5) in holding that appellant was not a legally elected trustee. After due consideration of the record before...