State v. Manry

• Decision Date: 01 May 1929
• Docket Number: (No. 1250-5367.)
• Citation: 16 S.W.2d 809
• Parties: STATE ex rel. McCALL v. MANRY et al.
• Court: Texas Supreme Court

16 S.W.2d 809

STATE ex rel. McCALL v. MANRY et al.

(No. 1250-5367.)

Commission of Appeals of Texas, Section A.

May 1, 1929.

Quo warranto proceeding by the State, on the relation of S. A. McCall, against J. L. Manry and others. Proceeding dismissed without prejudice.

Claude Pollard, Atty. Gen., and H. Grady Chandler and Rice M. Tilley, Asst. Attys. Gen., for the State.

Nelson Phillips, Phillips, Townsend & Phillips and John D. McCall, all of Dallas, Foster & Williams and McCall & Crawford, all of Conroe, and Black & Graves, of Austin, for relator.

S. H. German, of Houston, O. S. Parker, of Beaumont, and E. B. Pickett, Jr., of Liberty, for respondents.

CRITZ, J.

The state of Texas acting herein by Hon. Claude Pollard, its Attorney General, at the relation of Hon. S. A. McCall, complaining of Hon. J. L. Manry, who is now acting as district judge, of the Ninth judicial district of this state, and of T. B. Coe, district judge of the Seventy-Fifth judicial district of Texas, respondents, presents to this court in the nature of a quo warranto proceeding the following information.

In 1924, respondent Judge Manry was elected to the office of judge of the Ninth judicial district of Texas for a term of four years, that being the term fixed by the Constitution; that, when Judge Manry was elected in 1924, the said Ninth judicial district was composed of the counties of Hardin, Liberty, Montgomery, San Jacinto, and Polk, and the Seventy-Fifth judicial district was then composed of the counties of Hardin, Chambers, Montgomery, Liberty, and Tyler. The Legislature of Texas, in 1925, enacted a statute reorganizing the Seventy-Fifth, Ninth, and Eightieth, judicial districts. Said act is alleged to be chapter 34 of the General Laws of the 39th Legislature, Regular Session, p. 157. In fact, it appears that chapter 34, supra, was repealed and superseded by chapter 166, p. 378, of the Acts of the Regular Session 39th Legislature. However, said acts are alike as to the territory included in the above three districts and are also alike in all other respects pertinent to the issues involved herein. We therefore address ourselves to the latter act in discussing the issues herein.

By section 1 of said act it is shown that the Ninth district was reorganized so as to be composed of the counties of Polk, San Jacinto, Montgomery, and Waller. By section 2 of said act the Seventy-Fifth district is reorganized so as to be composed of the counties of Hardin, Liberty, Tyler and Chambers. By section 3 of the act the Eightieth district is left as it already was, except that Waller county was removed from the Eightieth district. It by section 1 was placed in the Ninth district.

Thus it will be seen that by the terms of the new act the territory of the Ninth district was changed by taking two counties, Hardin and Liberty, out of it, and by adding one county thereto, Waller. The territory of the Seventy-Fifth district was changed by taking one county, Montgomery, out of it, and no counties were added. The only change made in the territory of the Eightieth district was that Waller county was removed therefrom.

Section 5 of said act reads as follows:

"The present judges of the Ninth and Seventy-fifth Judicial Districts as the same now exists, shall remain the district judges of their respective districts as reorganized under the provisions of this Act, and shall hold their offices until the next general election and until their successors are appointed or elected and duly qualified, and they shall receive the same compensation as is now, or may hereafter be provided by law for district judges, and a vacancy in either of said offices shall be filed as is now, or may hereafter be provided by law, and the present judge of the district court for the Eightieth Judicial District shall hold his office until his term expires and until his successor is elected and qualified, and a judge of said court shall hereafter be elected at the time and in the manner provided by law by the qualified voters of Harris County."

It is also shown that, notwithstanding Judge Manry had been elected in 1924 for a full four-year term as judge of the Ninth judicial district, he again announced himself a candidate for said office in 1926, on account of the provision of section 5, supra, which provides that the judge of the Ninth district shall hold his office until the next general election, etc., and caused his name to be placed on the official ballot, and received the highest number of votes at the 1926 general election for said office.

It is also shown that in 1928 Judge Manry and Judge McCall were both candidates for the Democratic nomination for said office at the general primary election of the Democratic Party in 1928, and Judge McCall received the highest number of votes and was declared the Democratic nominee. No contest of this election was had, and Judge McCall's name was printed on the official ballot of the November, 1928, general election as the Democratic candidate, and he received the highest number of votes cast at said general election for said office. It is further shown that the results of said 1928 general election have been declared as required by law.

It is further shown that on November 6, 1928, Judge Manry filed a suit in the district court of Montgomery county, Tex., against Judge McCall, in which it is in substance alleged: That plaintiff, Judge Manry, is the duly elected, qualified, and acting judge of the Ninth judicial district; that he was elected to said office at the November, 1926, general election for a full four-year term, and had received his commission and taken the oath of office as such officer, as required by law; that S. A. McCall is actively engaged in an attempt to usurp and take from plaintiff said office, and the rights, privileges, and emoluments thereof, as well as the exercise of its powers and privileges; that in pursuance of said attempt said McCall had done the things with reference to becoming a candidate at the 1928 primary and general elections hereinbefore set out, etc.; that said McCall is now claiming to have received the highest number of votes at said 1928 general election for said office; that said McCall is now claiming to be the duly elected judge of said Ninth judicial district, and is claiming that he is entitled to qualify and accept a commission therefor, and to take over and assume the duties and powers thereof; that, if said McCall is not restrained, he will at once attempt to obtain a certificate of election; that he will take the oath of office and will attempt to obtain from the Governor of Texas a commission authorizing him to take over and hold said office; that he will thereupon assume or attempt to assume the duties and powers of said office, and will thereby materially and seriously interfere with the plaintiff's enjoyment thereof, and the exercise of the rights, privileges, and powers incident thereto, and will greatly embarrass plaintiff in the discharge of his official duties, and the administration of justice, and the conduct of the business of said court.

It is also alleged in the petition in said case filed in the district court of Montgomery county that said Manry was duly and constitutionally elected for a full four-year term to said office at the November, 1926, election, and that he had duly and seasonably qualified as such and had received his commission from the Governor. It is further alleged in said petition that the purported election in 1928 is wholly null and void and of no force or effect, and that because of said facts the defendant is not entitled to ask for or receive a commission to said office. Plaintiff further says that, if said McCall is permitted to ask for and receive said commission, it will greatly embarrass plaintiff, and cause confusion in the affairs of said court, etc.

The prayer for relief as contained in said petition filed in the district court of Montgomery county is as follows:

"Plaintiff therefore prays that Your Honor will issue a temporary injunction directed to defendant, enjoining and restraining him from hereafter in any manner asking for or accepting any certificate of election to the office of Judge of the District Court of the 9th Judicial District by reason of said election of the 6th day of November, 1928, and from in any manner attempting to qualify as Judge of said Court by taking the oath of office or otherwise, and from in any manner asking for or receiving any commission as Judge of said court, and from doing anything whatever by way of qualifying or attempting to qualify and obtaining possession of or taking over said office, or in any manner interfering with plaintiff's right to the possession or enjoyment of same, or doing anything that will in any manner interfere with or embarrass plaintiff in the exercise of the powers of said office or the administration of the business of said court, or cast any doubt or cloud upon his right to hold and enjoy said office, and to exercise the duties and powers thereof; and that such order shall continue and remain (in) force until such time as this application may be heard in the District Court of Montgomery County, to determine whether or not said injunction shall be made final; that your fiat be endorsed hereon directing the District Clerk of Montgomery County to issue such temporary injunction, and to issue notice of hearing, and that this application be returned to the District Court of Montgomery County with the direction that it be heard at the earliest date possible, for the purpose of determining whether or not said temporary writ of injunction shall be made perpetual.

                                "E. B. Pickett
                                "Osward S. Parker
                                "S. H. German
                                "Attorneys for Plaintiff."
                

The petition is duly sworn to. It is shown that this petition was presented to respondent, Thos. B. Coe, judge of the Seventy-Fifth district, in chambers, on November 6, 1928...