Pickle v. McCall

• Citation: 24 S.W. 265
• Parties: PICKLE v. McCALL, Comptroller.
• Decision Date: 04 December 1893
• Court: Texas Supreme Court

24 S.W. 265

PICKLE v. McCALL, Comptroller.

Supreme Court of Texas.

December 4, 1893.

Petition by Charles E. Pickle for a writ of mandamus to compel John D. McCall, as comptroller of public accounts of the state of Texas, to issue a warrant on the treasurer for salary due. Granted.

Fisher & Townes, for plaintiff. Chas. A. Culberson, Atty. Gen., for defendant.

STAYTON, C. J.

To grant the relief asked in this cause, this court must exercise a jurisdiction original in character, and the inquiry arises whether such jurisdiction has been conferred. The constitution provides that "the supreme court and the justices thereof shall have power to issue writs of habeas corpus as may be prescribed by law, and under such regulations as may be prescribed by law the said courts and the justices thereof may issue the writs of mandamus, procedendo, certiorari, and such other writs as may be necessary to enforce its jurisdiction. The legislature may confer original jurisdiction on the supreme court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the governor of the state." Const. art. 5, § 3. By the act approved April 13, 1892, it was provided that "the supreme court, or any justice thereof, shall have power to issue writs of habeas corpus as may be prescribed by law; and the said court, or the justices thereof, may issue writs of mandamus, procedendo, certiorari, and all writs necessary to enforce the jurisdiction of said court; and in term time or vacation may issue writs of quo warranto or mandamus against any district judge or officer of the state government, except the governor of the state." Rev. St. art. 1012. It is evident that the legislature intended, by the last paragraph of this statute, to confer upon this court that original jurisdiction contemplated by the constitution, for other parts of the statute have application to the issuance of all writs necessary to enforce the appellate jurisdiction conferred by the constitution. No case could arise in which a court, in the exercise of appellate jurisdiction, could grant a writ of quo warranto; but, in the exercise of such power, an appellate court may direct the issuance of process necessary to carry out its judgment rendered on appeal from the judgment of a court of original jurisdiction rendered in a cause in which a writ of quo warranto was the leading process. That the issuance of a writ of mandamus requiring a person, although an officer, if not a court, or officer of a court, to do some act, must be authorized by the exercise of original jurisdiction, is well settled. Marbury v. Madison, 1 Cranch, 168. The statute authorizes this court to issue writs of mandamus against any officer of the state government except the governor, and, as this can be done only in the exercise of original jurisdiction, it must be presumed that the legislature, aware of the rules of law applicable to the subject, intended to confer such jurisdiction as was necessary to that end. The power to do this the constitution gave, and it is evident that in the enactment of the statute in question the legislature intended to exercise that power. The constitution, however, only authorized the legislature to confer on this court original jurisdiction "to issue writs of quo warranto and mandamus in such cases as may be specified;" and the question arises whether such specification of cases has been made as will satisfy the requisites of the constitution. If the word "cases," found in the constitution, has only a technical import, and means that the legislature must declare the states of fact on which parties base the right and call for the exercise of jurisdiction, then it may be true that the cases have not been specified; but, if not so used, then any language which points out with reasonable certainty the classes of controversies, and parties thereto, over which the court may exercise original jurisdiction, must be deemed a sufficient specification. The constitution has application only to cases in which writs of quo warranto or mandamus may be the proper or necessary process, and the statute attempts to give original jurisdiction in those classes of cases only, and restricts this by designating classes of persons against whom, only, such writs may run, and such jurisdiction be exercised. The constitution has application to cases in which the named writs may run against persons, as distinguished from courts, for it excepts a person — the governor — from such jurisdiction. Thus, the statute prescribes or specifies in two methods the instances or cases in which the legislature intended this court should have and exercise original jurisdiction. The facts on which the right is based must be such that the writ of quo warranto or of mandamus is proper or necessary process for enforcement of the right asserted, and the person against whom this original jurisdiction may be exercised must be a state officer or a district judge. Can it be said, when the parties defendant and the nature of the controversies are thus designated, that the cases have not been specified with reasonable certainty? It would have been impracticable for the legislature to designate or specify every state of facts which must exist in which the use of the writs named would be proper or necessary, for the facts on which such controversies arise are seldom the same in any two cases; and, had the legislature attempted to thus state technically the cases in which the original jurisdiction might be exercised, the purpose of the constitution would have failed in reference to many controversies wherein would exist the facts on which such jurisdiction might properly be given. Laws conferring jurisdiction on courts must necessarily be in words somewhat general; and, if we look to the constitution, it will be seen that the language therein used in conferring jurisdiction on district and other courts does not, in many instances, so specifically declare under what states of fact jurisdiction may be exercised as does the statute under consideration. Some question may arise as to what officers are embraced in the words "officer of the state government;" but there can be no doubt that the comptroller of public accounts is a state officer, for he is an officer in one of the departments of the executive branch of the state government, whose duties extend to the transaction of the business of that department throughout the entire state. The statute under consideration was evidently intended to confer, and does confer, upon this court, an original jurisdiction such as it was intended the legislature should have power to confer.

By section 51 of the act to organize the courts of civil appeals, to define their jurisdiction and powers, and to prescribe the mode of procedure therein, approved April 13, 1892, it was declared that "each court of civil appeals shall appoint one stenographer, who shall discharge such duties as may be required by the court, shall be duly sworn to keep secret all matters which may come to his knowledge as said stenographer, shall receive a salary of twelve hundred dollars per annum, and shall each give bond with two or more sureties in the sum of five thousand dollars, payable to the state of Texas, conditioned for the faithful performance of the duties of said office." On October 4, 1892, the court of civil appeals for the third supreme judicial district appointed Charles E. Pickle stenographer for that court, and he qualified, and was engaged in the performance of the duties of the office when this action was brought. On June 1, 1893, the chief justice of that court gave a certificate under the seal of the court, showing the existence of the facts above stated, and further stating that salary was due him from May 10, 1893. This certificate was presented to the comptroller on June 2, 1893, with request that his account be audited, and a warrant be issued on the treasurer for the salary due, but that officer refused to issue the warrant on the ground that the legislature had made no appropriation to pay for his services. This action was brought in this court to compel the comptroller by mandamus to issue the warrant. There is no controversy about the facts, and the action of the comptroller was based upon the proposition that the governor had vetoed that part of the general appropriation bill which appropriated money to pay the salary of this stenographer. The facts on which the comptroller based his opinion and refusal were that on May 9, 1893, the general appropriation bill, which embraced an appropriation to pay the salary of the plaintiff, after having been passed by both houses of the legislature and properly authenticated, was presented to the governor for approval at 9:45 A. M. At 11:30 A. M. on the same day, the governor sent a message to the two houses, in which he objected to items on the bill, but the objections did not embrace the item of appropriation to pay the salary of the plaintiff for two years beginning on March 1, 1893; and both houses adjourned for the session soon after the message was received, without taking action upon it. The first part of that message was: "Executive...