Mitchell v. McCharen

MURRAY, Justice. Appellant, Charlie Mitchell, instituted this application for writ of mandamus in the District Court of Willacy County, seeking to require the Commissioners’ Court of that County to order an election 'upon the following issue, to-wit; “For (against) legalizing the sale of beer that does not contain alcohol in excess of four per cent (4%) by weight.” Appellant described himself as a resident of Willacy County, Texas, and a qualified voter therein. The first question presented is whether or not appellant, Charlie Mitchell, has legal capacity to maintain this suit for mandamus. We conclude that he does not have that capacity. He is not shown to have 'such justiciable interest in the subject matter of this lawsuit to authorize him to maintain the same. His interest in having this election called is no different from any other resident qualified voter in the county. In Yett v. Cook, 115 Tex. 205, 281 S.W. 837, the Supreme Court said [page 841]: “It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject-matter in — 677 — litigation, either in his own right or in a representative capacity. * * * Whatever may be the rule in other jurisdictions, there can be no doubt that in Texas an action relating to elections or other matters of law enforcement, not involving questions of taxation or unlawful expenditure of public funds, cannot be maintained by a relator or plaintiff whose interest is only that of the public generally, in the absence of a valid statute authorizing the suit.” See, also, Dunsmore v. Menefee, Tex.Civ.App., 74 S.W.2d 174; 18 R.C.L. p. 327; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Staples v. State, 112 Tex. 61, 245 S.W. 639; Mickle v. Garrett, Tex.Civ.App., 110 S.W.2d 1235; City Council of Wichita Falls v. Coker, Tex.Civ.App., 93 S.W.2d 459; McCarty v. Jarvis, Tex.Civ.App., 96 S.W.2d 564. We know of no statute which would authorize appellant, Charlie Mitchell, in his capacity as a resident and qualified voter of Willacy County, to maintain this suit for mandamus, and certainly under the general law he does not have that capacity. Such a suit can be maintained only by the State of Texas, acting through its proper officer. Accordingly the trial judge did not err in refusing to grant the mandamus, and the judgment will be affirmed.