Weidemeyer v. State ex rel. Jowers

• Decision Date: 19 February 1884
• Docket Number: Case No. 1567.
• Citation: 61 Tex. 184
• Court: Texas Supreme Court
• Parties: WATTS & WEIDEMEYER v. STATE EX REL. JOWERS.

61 Tex. 184

WATTS & WEIDEMEYER

v.STATE EX REL. JOWERS.

Case No. 1567.

Supreme Court of Texas.

Feb. 19, 1884.

APPEAL from Anderson. Tried below before the Hon. Peyton F. Edwards.

The opinion states the case.

Frank Reeves, for appellants.

Thos. B. Greenwood, for relator.

WILLIE, CHIEF JUSTICE.

This was an information in the nature of a quo warranto, brought by the state of Texas upon the relation of W. G. W. Jowers, for the purpose of ousting the appellants from the office of public weigher of the city of Palestine, which, it is alleged, they were using and enjoying without authority of law. The relator had been duly elected to the office and was discharging its duties and receiving its emoluments; and he avers that the appellants were at the same time exercising all the rights of a public weigher, and had intruded into an office which he alone had the right to hold and enjoy.

Watts & Weidemeyer, among other things, pleaded that they laid no claim to the office, but weighed such cotton and other produce as they were requested by the owners to weigh, and did so in a private and not in a public capacity.

The facts proven upon the trial showed that appellant Watts had held the office of public weigher down to the date at which Jowers qualified, and during that time had used certain blanks, which, when properly filled, contained a request to him to weigh certain specified articles of produce. That these blanks were addressed to him as public weigher, and the certificate at the foot of these blanks showed the manner in which he had complied with the request, and were signed by him officially. Jowers, since his induction into office, had used the same kind of blanks, which were directed to him and signed by him in his official capacity. Watts had never since Jowers came into office laid any claim to it, but had formed a partnership with Weidemeyer, and the firm had placed a pair of scales upon the railroad platform at Palestine, and weighed cotton for such persons as requested his services in that respect. He had changed his blanks, and ever since his term of office expired they had been directed to Watts & Weidemeyer, and signed by them, but not in any official character whatever.

The cause was submitted to the judge below, who rendered a judgment of ouster against the appellants, entered up a fine of one cent against them, and directed their scales to be removed from the platform. From this judgment the present appeal is taken.

The first section of the act of April 19, 1879, as amended by the act of April 12, 1883, after providing for the appointment and election of public weighers, further provides that nothing contained in the act “shall be construed so as to prevent any other person from weighing cotton, wool or hides when requested so to do by the owner or owners thereof.” Acts of 1883, pp. 83, 84.

This act does not purport to alter or amend the seventh or eighth sections of the act of 1879, but leaves them as originally enacted. The seventh section prohibits, under penalties, any person other than a public weigher or his deputy from weighing any cotton, wool, etc., required to be weighed, sold or offered for sale in any city having a public weigher duly qualified. The eighth section renders it unlawful “for any factor, commission merchant, or any other person or persons, to employ any other than a regularly appointed and qualified public weigher or his deputy to weigh” cotton, wool, etc., required to be weighed, sold or offered for sale in any city having a public weigher duly qualified, etc. A violation of this section subjects the guilty party to damages at the suit of the public weigher in any court having jurisdiction of the subject matter.

This section also contains a proviso as follows: “ Provided, any owner shipping any produce named in this act to any town or city having a public weigher may, by written instructions, authorize his factor, commission merchant or agent to have such produce weighed by private weighers if he prefers so to do, and in...