Monk v. Crooker

• Citation: 207 S.W. 194
• Decision Date: 14 November 1918
• Docket Number: (No. 7605.)
• Parties: MONK, Judge, et al. v. CROOKER.
• Court: Court of Appeals of Texas

Page 194

207 S.W. 194

MONK, Judge, et al. v. CROOKER.

(No. 7605.)

Court of Civil Appeals of Texas. Galveston.

November 14, 1918.

Error from District Court, Harris County; William Masterson, Judge.

Mandamus by John H. Crooker, Criminal District Attorney for Harris County, to compel W. E. Monk, Judge, and O. M. Smith, Clerk, of the Corporation Court of Magnolia Park, to permit plaintiff to prosecute all cases in such court, and to tax fees in his favor. From a judgment in favor of plaintiff, defendants bring error. Reformed and affirmed.

A. C. Van Velzer and John B. York, both of Houston, for plaintiffs in error.

John H. Crooker, H. H. Cooper, T. J. Harris, Ewing Boyd, L. M. Williamson, and Frank Williford, Jr., all of Houston, for defendant in error.

PLEASANTS, C. J.

This is a suit for mandamus brought by John H. Crooker, criminal district attorney for Harris county, against W. E. Monk, judge, and O. M. Smith, clerk, of the corporation court of Magnolia Park, an incorporated town in Harris county.

Plaintiff's petition alleges, in substance, that by the acts of the Legislature creating the office of criminal district attorney it was provided that the district attorney and his assistants should have the exclusive right to prosecute criminal cases in all the courts of Harris county, and to receive the fees provided by law therefor; that the said corporation court of Magnolia Park was a court authorized by law to try criminal cases and has been for more than two years; that the fee prescribed by law for criminal cases in said court was $5 for all pleas of guilty, and $10 for all convictions on pleas of not guilty, and that defendants refused to permit plaintiff to appear in said court and prosecute said cases therein, and have refused, and now refuse, to tax fees provided by law for convictions therein in favor of plaintiff. It is further alleged that plaintiff was at all times ready to perform the duties of such prosecutor in said court, by himself and through his assistants. The prayer of the petition is for a writ of mandamus compelling the said Monk to permit plaintiff to prosecute all cases in said court, and requiring the said Smith to tax the fees provided by law. This petition was verified by the oath of the plaintiff.

To this petition the defendants filed a plea in abatement on the ground that the corporation of Magnolia Park was a necessary party to the suit. They also presented several exceptions to the petition, one of which was to "so much of said petition as alleges the right in plaintiff to collect fees from the defendants, or by or through defendants, or from said municipality, because same are mere conclusions of the pleader, and are vague and indefinite, and do not set up any charter, ordinance, or statute or other fact upon which said conclusions depend."

The plea in abatement and all exceptions to the petition were overruled by the trial court.

The answer of the defendants, which was sworn to, specifically denied that the law gave none other than the district attorney the right to prosecute criminal cases in said court, or gave him the right to prosecute all criminal cases in said court. It further denied the allegations of the petition that the district attorney had the right to receive the fees for prosecutions in said court, and that the defendant Monk had refused to permit the district attorney or his assistants to prosecute in said court, and that defendant Smith has refused to tax fees allowed by law to plaintiff. It is further alleged that the ordinance of such city covers many designated subjects enumerated therein, and provided for fines for infractions thereof, not covered by the state law, and that there is no provision of law for the taxation of a fee for the district attorney, and that the plaintiff had never begun a prosecution before such court, and that plaintiff was so inaccessible to such court as to practically deny the aid of counsel thereto. Further allegation, that the ordinances of the city prevent and prohibit the taxing or collecting of a fee for plaintiff, was made; that the defendant Smith taxes fees as provided by ordinances, and under the direction of the defendant Monk, and if said Monk directed him to do so, and said ordinances permitted him to do so, he would tax fees for plaintiff.

Plaintiff filed a supplemental petition on the 19th day of May, 1917, in which he alleged that the ordinances pleaded by defendants had all been passed since the filing of his petition, and alleged that the defendants purposely set the cases in said court without any opportunity for plaintiff or his assistants to be present, and that defendants knew plaintiff was always ready and willing to appear and prosecute said causes, and that such conduct and acts were purposely done to prevent plaintiff and his assistants from being present and conducting the trial of cases in said court, and that such conduct amounted to a practical denial of plaintiff's rights. This supplemental petition was sworn to, and was not in any manner denied by defendants. This cause had been passed from April 5th, from time to time, at the request of the defendants, until the 19th day of May, when their pleading was first filed, and was tried on that date on said pleading, together with exhibits attached to defendants' answer, and the admission in court by the plaintiff that he did not claim the right to prosecute matters covered by ordinances of the city of Magnolia Park which did not involve an infraction of the penal laws of the state of Texas, and defendants' admission that they did not deny the right of plaintiff and his assistants to appear and control the prosecution of offenses against the state laws or of local ordinances which were covered by or in violation of the state law; and thereupon the court entered its judgment in favor of plaintiff, awarding him a writ of mandamus requiring the defendant Monk, as judge of the municipal court of Magnolia Park to permit the plaintiff, as criminal district attorney of Harris county, Tex., and his assistants in office, to exclusively control, manage, and conduct the prosecutions as prosecuting attorney in all cases of prosecutions for violations of the state laws of Texas, and for violation of the ordinances of said municipality in all cases where said ordinances cover or involve offenses which are penal under the state law, and requiring the defendant Smith to tax as costs in each case of such prosecutions such fee for the said criminal district attorney as he is entitled to according to law, as prayed for in plaintiff's petition herein.

Appellants' first assignment predicates error upon the refusal of the court to sustain the plea in abatement.

We cannot agree with appellants' contention that the corporation of Magnolia Park was a necessary party to this suit. It is true that the ordinance pleaded by defendants, which was passed by the city council of Magnolia Park, attempted to prevent the district attorney from prosecuting cases in the corporation court by providing that in cases not prosecuted by the city attorney the fees provided by the ordinances for the prosecuting attorney should not be taxed against the defendants, and that the interpretation and validity of this ordinance are the main issues in this suit; but no judgment is sought against the city, and it certainly is not the law that in every suit against an officer of a city or town in his official capacity, in which the construction or validity of an ordinance of the city or town is involved, that such corporation is a necessary party to the suit, and we are cited to no case which so holds. In the case of Howth v. Greer, 40 Tex. Civ. App. 552, 90 S. W. 211, which was a suit by the county attorney of Jefferson county against the recorder, city attorney, city marshal, and city secretary of the city of Beaumont for mandamus to compel said officers to permit the count attorney to prosecute state cases in the recorder's court of the city, and to collect and pay over to plaintiff the fees provided by ordinance for the prosecuting attorney in such cases, the city of Beaumont was made a party defendant. The question of whether the city was a necessary, or even a...