Royston v. Griffin
| Decision Date | 01 January 1874 |
| Citation | 42 Tex. 566 |
| Parties | MARTIN H. ROYSTON v. WM. H. GRIFFIN. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.
November 23, 1874, Wm. H. Griffin brought suit in the District Court of Galveston county against Martin H. Royston to determine who was the lawful clerk of the Criminal District Court of Galveston county.
The facts submitted to the court (there being no issue raised as to the pleadings) are as follows:
The Act of 23d July, 1870, to organize the Criminal District Court for Galveston and Harris counties (Paschal's Digest, 6143), provides that “There shall be appointed by the Governor a clerk of said court for each of said counties, who shall be removable by the judge at any time, for misconduct, misfeasance or malfeasance in office; and in case of death, resignation, or otherwise, by which said office shall become vacant, the Governor shall appoint a clerk to fill the vacancy,” etc.
George Douglas was appointed Clerk of the Criminal District Court for Galveston county on 17th August, 1870, qualified as such 26th of same month, and died the succeeding December. Douglas was the first clerk of said court under the law of 1870 constituting the office. February 20th, 1871, George Lawrence was appointed and commissioned as successor of Douglas, but declined the appointment by returning his commission, March 4, 1871.
On January 1st, 1872, plaintiff was appointed and commissioned as such clerk, and qualified on 9th of same month, continuing thenceforward in the possession of the office and in the exercise of its functions until 23d September, 1874, when defendant, Royston, took possession of the office and its records, under protest of said Griffin, and with the reservation of all plaintiff's rights thereto, and with notification to defendant that plaintiff would assert his rights in the courts of the country.
On the 10th September, 1874, Royston was appointed and commissioned clerk of the said court by Governor Richard Coke, and qualified as such, by filing oath of office and official bond duly approved. On 23d September, 1874, Royston took possession of said office and its records, and since has been uninterruptedly in possession of the office and in the discharge of its functions.
Judgment was rendered for Griffin for the office against Royston, from which he appealed.
The errors assigned are:
1. Upon the issues as made in said cause, the court erred in rendering judgment for the plaintiff.
2. That the judgment of the court should have been for the defendant, Royston, and not for Griffin.F. Charles Hume, for appellant, cited Paschal's Digest, Articles 6140, 6141, 6142, 6143; Cons., Article 11, Section 38; 6 English (Ark.), 152, Dodd ex parte;2 N. H. Rep., 202, Johnson v. Wilson; 3 Cal., 487, People v. Brenham; Dallam, 504, Bradley v. McCabb; Dallam, 597, Shelby v. Johnson; 24 Texas, 253, Keenan v. Perry; 2 Story on Cons., Section 1537; 13 Peters, 259,ex parte Hennan; 3 Serg. & Rawle, 145, Lehman v. Southerland; 7 Cal., 97, Attorney-General v. Hill.
W. H. Stewart, for appellee.
It seems to be a generally admitted proposition, when the duration of an office is not fixed by law, and no provision is made for the removal of the incumbent, the power of appointment necessarily carries with it the incidental power of removal. We are not prepared to admit, however, that this rule can be made applicable to this case, or that the authority conferred upon the governor, by the Act of 23d July, 1870, to organize the Criminal District Court for the counties of Galveston and Harris, of appointing a clerk of said court for each of said counties, vests in him, also, the power of removal. The very formula of the proposition, under which the power of removal is claimed, shows that it is implied by reason of the absence of any constitutional or statutory provision in respect to its exercise, or by which it is provided for and regulated. If provision has been made for this, it is to such provision reference must be had, to ascertain by whom and under what circumstances the incumbent may be removed, and not to mere inference from the grant of power to appoint.
In respect to the office here in question, in the very section of the law authorizing the governor to appoint, it is also enacted that the clerk so appointed may be removed by the judge of said court, at any time, for misconduct, misfeasance, or malfeasance. (Paschal's Digest, Article 6143.)
It is insisted, however, on behalf of the appellant, as the power of removal as herein provided, does not expressly negative the implied authority of the governor to remove, and is not as broad and comprehensive as the power given him of appointment, it should not be presumed that it was the intention of the Legislature to take from him the incidental power of removal, otherwise to be inferred from that of appointment. The power of removal, as herein provided, is certainly broad enough to apply to and embrace all matters and things growing out of, or connected with the incumbent's official conduct, o?? the discharge of any of his official duties. And this seems to accord with and fully meet the policy of the law in respect to the removal of all officers of the State of like grade. (Crim. Code, Article 75, 350; Article of November 10, 1866; General Laws, Eleventh Legislature, p. 167.)
If a clerk of this court may be removed in any other manner than that provided in the law under which he is appointed, it must, we think, be by an address of two-thirds of the Legislature, as in case of other civil officers (Const., Article 5, Section 24, and Article 12, Section 41), or on trial by indictment or otherwise, as may be provided for by the Legislature, under the authority conferred by Article 8, Section 6, of the Constitution.
We presume it will not be denied that it is the general policy of the State, plainly manifest in the organic law, to limit rather than enlarge executive power and patronage. It certainly neither accords with former precedents, nor with this general policy, that the tenure of ministerial officers not connected with the executive department, should be at the mere will and pleasure of the governor.
Appellant further insists, although the governor may not possess the power of removal, still his appointment is valid, and entitles him to the office, because, by reason of the expiration of the time for which appellee was entitled to hold, said office was vacant at the time of his appointment. The determination of this question depends upon the import to be given to the words “vacant” and “vacancy,” in the connection in which they occur in the Act organizing the Criminal Court, for which both the parties to this suit claim to be entitled to the office of clerk. If the term of this office was for a fixed and definite time, and was to be filled at regular and periodical intervals from some definitely stated time, it cannot be doubted that an appointment to fill a vacancy occurring during such term would be for its unexpired portion. But as there is no prescribed term affixed to this office by law, the length of its tenure being only limited by Article 12, Section 38, of the Constitution, which provides that the “duration of all offices not fixed by the Constitution, shall never exceed four years,” in the opinion of some members of the court the rule usually applicable in case of vacancies to be filled at regularly recurring periods, is inapplicable to it. I am, however, instructed to say on behalf of the majority of my brethren, that, in their opinion, the peculiar phraseology of the statute under which the parties to this suit claim the office in controversy, it was the intention of the Legislature, that said office should be filled by appointment by the governor at intervals of four years from the date of the appointment of the first incumbent. In their opinion it is necessary that the law should receive this construction, to give full effect to all its provisions. There is, it is insisted, first a general grant of power to the governor to appoint a clerk, etc., and after providing for his removal by the court for the causes enumerated in the statute, it is then by delegation of a special power said, “in case of death, resignation, or otherwise, by which said office shall become vacant, the governor shall appoint a clerk to fill the vacancy.”
It certainly cannot be said that the language of the Act is utterly free from ambiguity or uncertainty. Where this is the case, it is believed to be the soundest rule of interpretation in a republican system of government, to abbreviate rather than prolong by construction, official tenure. In case of doubt, the preference should, it is thought, be given in favor of the speediest return of the right to fill the office to the appointing power. It may also be added, if the office is to be filled, not for the vacancy of an unexpired term, but in all cases for the time to which the duration of the office is limited by the Constitution, an unpopular executive might secure a favorite in office during almost the entire term of his successor, by resignation and reappointment of such officer on the eve of the expiration of his term, and thus prevent his successor's meeting the just expectation of popular demand for a more competent and satisfactory executive appointment.
There being, in the opinion of a majority of the court, error in the judgment of the court below, it is reversed, and it appearing that appellee is not entitled to the writ prayed for in his petition, it is ordered that it be dismissed, and that appellant recover all his costs in this behalf expended in the District Court, as well as in this court.
W. H. Stewart. Argument in support of motion for rehearing.
The decision of the court is entirely based on the construction to be given to the following phraseology: “And in case of death, resignation, or otherwise, by which said office shall become vacant, the governor...
To continue reading
Request your trial
-
Hamilton v. State
...had been made since said last general election to fill the vacancy." To support the contention of appellant, we are referred to Royston v. Griffin, 42 Tex. 566. In that case the office was directly involved, and the court merely held that Griffin held an unexpired part of a four-years term,......
- Saunders v. Wagener