State v. Valentine

• Decision Date: 20 October 1917
• Docket Number: (No. 8894.)
• Citation: 198 S.W. 1006
• Parties: STATE ex rel. PEDEN v. VALENTINE.
• Court: Texas Court of Appeals

Page 1006

198 S.W. 1006

STATE ex rel. PEDEN v. VALENTINE.

(No. 8894.)

Court of Civil Appeals of Texas. Ft. Worth.

October 20, 1917.

Rehearing Denied October 27, 1917.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Quo warranto by the State of Texas, on relation of R. F. Peden, against I. T. Valentine. Judgment for respondent, and the relator appeals. Judgment reversed, and judgment rendered that defendant unlawfully intrudes in the office of county judge for Tarrant county for civil cases, and that he be ousted therefrom, and the prayer of the relator to be installed in such office denied.

Marshall Spoonts, Miller & Miller, and J. A. Templeton, all of Ft. Worth, for appellant. McLean, Scott & McLean and L. M. Levy, all of Ft. Worth, for appellee.

CONNER, C. J.

This is a quo warranto proceeding by the state to test the validity of I. T. Valentine's claims to the office of judge of the county court of Tarrant county for civil cases. The information was filed by the county attorney upon the relation of Robert F. Peden, who also claims the office. Both Peden and Valentine claim under appointments of the Governor made to fill a vacancy as provided by the law creating the court. Valentine's appointment was by Hon. Jas. E. Ferguson, then the regularly elected and acting Governor, during a recess of the Legislature, but this appointment, when reported to the senate thereafter convened, was rejected by the senate. Thereafter and thereupon the relator, Robt. F. Peden, was appointed to said office by Hon. W. P. Hobby, who in the meantime had been installed as the duly qualified and acting Governor of the state. This latter appointment, upon its immediate report to the senate then in session, was ratified and confirmed by the senate. Peden soon qualified by taking the oath and giving the bond required by law, and forthwith demanded of Valentine possession of the office. But the respondent, Valentine, having theretofore also qualified after his prior appointment, and having theretofore taken possession of the office and entered upon a discharge of its duties, refused to surrender the office to Peden, claiming that Peden's appointment was unauthorized. Whereupon the state, acting by its duly authorized county attorney, instituted this proceeding by filing in a district court of Tarrant county an information upon the relation of Peden seeking the writ of quo warranto to oust said Valentine from said office and to install Peden therein.

As tried below the validity of I. T. Valentine's claims to office was made to depend: First, on whether I. T. Valentine was ineligible by reason of the fact shown in evidence that at the time of his appointment he was a duly elected, qualified, and acting member of our Legislature; and, second, on whether the office of judge of the county court of Tarrant county for civil cases is a county office, as contradistinguished from a state or district office. Both of these questions were decided by the trial court in favor of the respondent, Valentine, and judgment was accordingly rendered against the state, and the state has appealed, and assigns error to these rulings.

While perhaps not material to the final conclusion reached by us upon consideration of the whole case, it may not be improper to say in reference to the question first presented that we agree with the trial judge in the conclusion that the appellee, Valentine, was not ineligible at the time of his appointment as judge. It is true, as urged, that our Constitution (section 17, art. 16) provides that all officers in the state shall continue to perform the duties of their office until a successor has been qualified, and that respondent at no time tendered his resignation as a representative in the Legislature, nor was his successor elected or qualified. There is also a line of cases holding that, under laws such as section 17, art. 16, of our Constitution, the resignation of an officer will not be fully effective until the appointment and qualification of a successor; the policy of the law being to prevent vacancies and preserve continuity of term. Of this class of cases appellant has cited the following: Jones v. City of Jefferson, 66 Tex. 576, 1 S. W. 903; McGhee v. Dickey, 4 Tex. Civ. App. 104, 23 S. W. 405; Keen v. Featherston, 29 Tex. Civ. App. 563, 69 S. W. 983; El Paso & S. W. R. Co. v. Ankenbauer, 175 S. W. 1090.

By reference thereto it may be seen that none of them are cases where the officer whose resignation was under consideration had been tendered and accepted another office with duties incompatible with those of the first. They are all cases where some private right was involved, and the prevention of a vacancy in office was necessary to the ends of justice or of public policy. In the case before us, however, Valentine, while representative, was tendered and accepted another office incompatible with that first held by him. In such cases it is very generally held that the acceptance of, and qualification for, the second office creates a vacancy in the first. The legal effect is thus stated by Mr. Justice Moore of our own Supreme Court in the case of Biencourt v. Parker, 27 Tex. 562, 563:

"The Constitution declares, that `no person shall hold or exercise at the same time, more than one civil office of emolument, except that of justice of the peace.' Article 7, § 26. On the acceptance and qualification of a person to a second office incompatible with one he is then holding, the first office is ipso facto vacated. * * * A resignation by implication will take place by being appointed to and accepting a new office incompatible with the former one. It is said to be an absolute determination of the original office, and leaves no shadow of title to the possessor; so that neither quo warranto nor a motion is necessary before another may be elected."

Of like effect are the following cases: State of Texas v. J. T. Brinkerhoff, 66 Tex. 45, 17 S. W. 109; Ex parte Call, 2 Tex. App. 497; Webb et al. v. Reynolds, 160 S. W. 152; Meachem on Public Officers, §§ 420, 421; cases cited in 37 Cent. Dig. p. 1886, § 79.

In one class of cases the officer has acted in his own or another's interest in violation of public policy, or to the detriment of some private third party. In the other class the officer has been called upon and qualified to perform public duties by the duly authorized representative of the sovereign power over all offices. In such case and when the Constitution forbids the holding of both offices, it must be held that section 17, art. 16, requiring continued performance of official duty, is without application. We conclude, therefore, that the respondent, Valentine, was and is not ineligible for appointment by the properly constituted authority merely because he has not resigned his legislative office, and no successor thereto has qualified.

This brings us to the consideration of the second question herein presented, viz.: Is the office of judge of the county court of Tarrant county for civil cases a state or district office, or is it a county office? If the latter, then in no event was confirmation of Valentine's appointment as judge by the senate necessary to the validity of the appointment; the law nowhere so providing. If of either of the former classes, then, as insisted by appellant, confirmation by the senate was necessary, under section 12, art. 4, of the Constitution, which reads:

"All vacancies in state or district offices, except members of the Legislature, shall be filled, unless otherwise provided by law, by appointment of the Governor, which appointment, if made during its session, shall be with the advice and consent of two-thirds of the senate present. If made during the recess of the senate, the said appointee or some other person to fill such vacancy, shall be nominated to the senate during the first ten days of its session. If rejected, said office shall immediately become vacant, and the Governor shall, without delay, make further nominations until a confirmation takes place. * * *"

An examination of the Constitution as a whole plainly shows that in organizing the judicial power of the state courts of distinct grades and classes were provided, which were given carefully prescribed spheres of action within which the judicial functions of each could be exercised. In thus apportioning the judicial power the several classes of courts were distinctly named. Thus we have a Supreme Court, a Court of Criminal Appeals, Courts of Civil Appeals, district courts, county courts and justices' courts. Each court named not only has its powers carefully defined so as to prevent conflicts with other courts, but to the same end is given carefully prescribed territorial limits. Thus section 15, art. 5, of the Constitution provides that "there shall be...