State v. De Gress

Gould, Associate Justice. The nature of this case will sufficiently appear from the following statement, extracted from the brief of counsel for appellant: “ This was an information in the nature of a quo warranto, instituted in the district court of Travis county, Texas, on the 14th day of February, 1880, by E. T. Moore, county attorney of Travis county, Texas, under the act of July 9, 1879 (R. S. Tex., appendix, p. 44), acting of his own accord, and also on the sworn relation of Radcliff Platt, a citizen, voter, property holder and tax payer of the city of Austin, in said county and — 395 — state, against J. C. De Gress, who was elected mayor of said city on the 3d day of November, 1879, and installed as such by the city council of said city on the 13th of the same month. The information was filed on behalf of the state of Texas, and after reciting that provision of the charter of the city of Austin which prescribes that ‘ no person shall be mayor (of the city of Austin) who at the time of his election is not possessed of the qualifications required for an alderman, or who holds any lucrative office under authority of the United States or any state,’ alleges that said J. C. De Gress was not and is not eligible or qualified to take and exercise said office of mayor, by reason of the fact that he was, at the time of his election, and still is, an officer of the army of the United States, holding a lucrative office under authority of the United States, to wit: the office of captain of cavalry, on the retired list, of the army of the United States, subject to duty, and drawing pay as such officer. And it is further alleged, in the pleadings of appellant, filed below, that, by virtue of appellee’s holding said lucrative office under authority of the United States, he was not a citizen or legal voter of the state of Texas, and was therefore not qualified to act as mayor of said city of Austin. To the information filed in this cause the defendant interposed his demurrer, contending that by reason of the fact of his having been counted in and installed as mayor of said city of Austin by the city council of said city, said council being by the provisions of their city charter made, as he alleges, the sole judges of the election returns and qualifications of its own members, and the mayor being a member of said council, the whole matter was res judicata, and finally and forever settled by the judgment of a court of competent jurisdiction. “He further contended that this controversy was one beyond the jurisdiction of the district court conferred by the constitution of Texas. “The district court sustained the demurrer and dismissed the cause, ordering costs to be taxed against the relator. “ From this judgment the state now appeals.” — 396 — A motion to dismiss was made by appellee on the ground that this was a criminal case of which this court had no jurisdiction, and on the further ground that if not a criminal case, it was one of which the district court had no jurisdiction. As heretofore orally announced in overruling the motion to dismiss, our opinion is that this is a civil case of which the district court has original jurisdiction under the constitution, and is therefore a case within the appellate jurisdiction of this court. The proceeding authorized by our statute is substantially the same as that in the statute of 9th Anne, and. although in form a criminal method of prosecution, has long been held by the standard text writers and the courts to be “ in its nature a civil remedy,” “applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only.” 2 Kent, p. 313; 3 Blackst., p. 263; High on Ex. Rem., secs. 603-710, and cases cited; Angell & Ames on Corp., sec. 733; State v. Hardie, 1 Ired., 42; State Bank v. State, 1 Blackf., 272; State v. Kupferle, 44 Mo., 155; Com. Bank v. State, 4 Smedes & Marshall, 504; Commonwealth v. Commis. of County of Phila., 1 S. & R., 385; People v. Utica Ins. Co., 15 Johns., 386; Tomlin’s Law Dict., title “ Quo Warranto; ” Cole on Crim. Informations, (Law Lib., vol. 49), pp. 125-7; Banton v. Wilson, 4 Tex., 407. Says Gaston, J., in State v. Hardie, supra: “Originally this was a criminal proceeding. In it the usurpation was charged as an offense, and the offender, upon conviction, was liable to be punished by fine and imprisonment. Such, however, were the conveniences attending the information as a mode of trying the mere question of right to the office or franchise, that though it never entirely lost its form as a criminal proceeding, it was so modeled as to become substantially a civil action. A fine, indeed, was imposed upon conviction; but it was nominal only—no real punishment was inflicted,—and it became before our revolution the general civil remedy for asserting and trying the right, in order to seize the — 397 — office or franchise, or to oust the wrongful possessor.” 1 Ired., 48. Again he says: “ The proceeding before us is carried on diverso intuitu, and to hold it prohibited by the bill of rights would be to sacrifice substance to mere form. If, indeed, it should ever be attempted, in proceedings of this character, to impose a real fine, or to inflict any other punishment, so as to make them in effect criminal prosecutions, such attempts would fall before the explicit prohibitions of the bill of rights now so needlessly invoked.” 1 Ired., 49. The provision of our statute that the court “may fine such person or corporation for usurping, intruding into, or unlawfully holding and executing such office or franchise,” is literally copied from the statute of Anne, and was doubtless designed to receive the practical construction given it under that statute, and to be inoperative save as to a nominal fine. If, however, it should be construed as a criminal statute authorizing the court to impose an indefinite fine, it would in our opinion fail to conform to the requirements of our criminal law in affixing the penalty; and to the extent of the fine would be inoperative. R. S., Penal Code, art. 3. The statute, however, itself directs the clerk to “issue citation in like form as in civil suits;” that the person or corporation “shall be entitled to all the rights in trial and investigation of the matters alleged against him, as in the case of trials of civil causes in this state,” and expressly entitles either party to an appeal to this court. As the constitution denies the state the right of appeal in criminal cases, it is plain that the legislature intended it to be classed as, and practically to be, a civil case. Our opinion is, that the statute in effect but provides for a civil suit in the name of the state to oust one who holds an office in violation of law, or a corporation exercising franchises which it has forfeited. Regarded as a civil suit in behalf of the state, the “matter in controversy” being the right to an office of the value of — 398 — $500, the district court under the constitution had jurisdiction to try it; and that part of the act which directs the proceeding to be in the district court is not in conflict with the constitution. Const., art. V, sec. 8. Actions to try the right to an office, as distinguished from contested election cases, have before the present constitution pertained to the jurisdiction of the district court. Banton v. Wilson, 4 Tex., 400; Bradley v. McCrabb, Dallam, 506. Though the action be in the name of the state, the “ matter in controversy ” is still the right to the office, and if that amounts in value to $500, the case comes within the constitutional jurisdiction given the district court. Were it necessary to do so, in order to uphold the jurisdiction in such a case of the district court, the court which in this state has always been the main tribunal for the trial of cases both civil and criminal, this might, perhaps, be held to be a suit in behalf of the state to recover a forfeiture. The clauses of the constitution defining the jurisdiction of the district court should be liberally construed, with due regard to the fact that on this court, as the “great reservoir” of jurisdiction, has heretofore devolved the body of litigation in this state. Especially may a narrow and literal construction be rejected, when the result is to leave no tribunal competent to take jurisdiction of important cases arising under legislative enactments. Tunstall v. State was decided under a statute enacted previous to the present constitution, and is otherwise unlike the present case. Trigg v. State, on the contrary, was a case under our present constitution, and, in so far as it is analogous to the present case, supports the jurisdiction of the district court and of this court. ■ The motion to dismiss has, in accordance with the views now expressed, been overruled. The district court sustained exceptions to the information, and in support of its action counsel for appellee submit the following proposition: “The city council, under the charter, is — 399 — made a special tribunal for the trial of questions affecting the matter of the election returns and qualifications of its own members, and as the information shows that the city council had adjudicated and determined the eligibility of defendant, the court did not err in sustaining defendant’s demurrer to the information.” The charter of the city contains the following: “The city council shall judge of the election returns and qualifications of its own members, and shall determine contested elections of all city officers, made elective under this act or any ordinance of the city.” “It was stated in the amended original information that the votes cast in the election for mayor of the city of Austin, of November 3, 1879, were counted; and appellee officially declared elected mayor by the city council of the city of Austin, November 12, 1879; and further, that appellee was installed into said office by said city council.” In passing upon the election returns, and in determining a contested election for mayor, the city council trespasses on the jurisdiction of no constitutional court. The legislature may authorize special tribunals, such as the city council, to decide such questions and try such cases, because they are not cases of which the constitution gives jurisdiction to any of the courts created by that instrument. Williamson v. Lane, Tyler term, 1879, and cases there cited. To what extent the charter intends to make the city council a tribunal to finally adjudicate the question of the qualification or disqualification of its members, including the mayor, it is not necessary to inquire. The questions of disqualification and forfeiture are so far from being identical, that it by no means appears that the intention of the legislature in the charter, and in the act under which this proceeding was instituted, may not be fully carried out without giving rise to any conflict of jurisdiction. See Commonwealth v. Allen, 70 Pa. St., 472. However this may be, it is very clear that if the council may “refuse the seat” because of disqualification, or even after the mayor has been admitted into office, “ may remove him by reason of continuing — 400 — disqualification,” their action in declaring him elected and installing him into office cannot oust the district court of its constitutional jurisdiction to inquire into the forfeiture of the office. It having been determined, in passing on the motion to dismiss, that the proceeding authorized by the statute is a civil suit or complaint, of which, the amount in controversy being sufficient, the constitution gives the district court jurisdiction, it follows that the charter could not confer the same jurisdiction on the city council. The question is controlled by the provisions of our constitution prescribing the jurisdiction of the different courts, and it is not deemed necessary to enter into an examination of the decisions of courts of other states. In our opinion the information showed nothing in the nature of a judgment of a court of competent jurisdiction barring the procedure in the district court. The only other proposition submitted by appellee in support of the action of the court in sustaining the demurrer is, “that an officer of the army of the United States on the retired list does not hold such an office as disqualifies him under the charter of the city of Austin, and the constitution and laws of the state, to hold a civil office under said laws.” By express enactment, officers of the army on the retired list constitute a part of the army of the United States; retain the actual rank held by them at the date of retirement; receive seventy-five per centum of the pay of that rank; are subject to trial by courts martial for any breach of the rules and articles of war, and may be assigned to duty at the soldiers’ home. Rev. Stat. of U. S., secs. 1094, 1254, 1256, 1259, 1274. See Wood v. U. S. Court of Claims, 1880, in The Reporter of May 12, 1880, and 12 Opinions of Attorney General, p. 382. That such an officer holds a lucrative office under authority of the United States, or, in the language of our state constitution, “an office of profit or trust under the United States,” is too plain to admit of being made more so. — 401 — The office of mayor of the city of Austin cannot legally be held by one who at the same time continues an officer of the army of the United States, though on the retired list. We deem it unnecessary to pass upon other questions presented. Because the court erred in sustaining the demurrer to the information, the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered May 28, 1880.]