Spencer v. Galveston County

Stayton, Associate Justice. If the appellant was by virtue of his office as district attorney of the district composed of the counties of Galveston and Harris, entitled' to perform the duties pertaining to a county attorney, he being a resident of the county of Galveston, and ready and willing to prosecute the suits against Rinker and his sureties, under the facts of the case, the county could not avoid the payment of the sum which he claims. The county commissioners’ court in such case would not have the power to practically remove from office a person duly elected thereto in the manner prescribed by law, whose duties are defined and whose rights are fixed by the law — 390 — of the land; nor would it have the power to deprive him of the emoluments which pertain to the office. The right of the appellant, however, depends upon whether or not it pertained to the duties of his office to prosecute against Rinker and his sureties the suits upon which the claim in this cause is based; and this inquiry it devolves upon us, lying as it does at the very foundation of the claim, to make. The fact that the court below recognized his right pending those suits to prosecute the suits as district attorney, cannot be held as an adjudication of that question; for there was no suit then pending in which that was one of the questions in issue between the parties to this suit. The right and duty, of the appellant to perform the duties which would have devolved upon a county attorney of Galveston county, could there have been one, will be briefly examined. The constitution of this state continued the criminal district .courts of the counties of Galveston and Harris with the district, jurisdiction and organization such as existed prior to the adoption of the present constitution. Constitution, art. V, sec. 1. Sec. 21, art. V of the constitution provides that “a county attorney for counties in which there is not a resident criminal district attorney shall be elected by the qualified voters of each county, who shall be commissioned by the governor,'and hold his office for the term of two years. In case of vacancy, the commissioners’ court of the county shall have power to appoint a county attorney until the next general election. The county attorney shall represent the state in all cases in the district and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a district attorney, the respective duties of district attorneys and county attorneys shall, in such counties, be regulated by the legislature,” etc. — 391 — This provision of the constitution does not prescribe the duties of a district attorney, nor does it provide that the county attorneys shall perform any duties other than such as are required to be performed for the state. The act of August 7, 1876, p. 85, defined more fully than the constitution had done the duties and powers of county attorneys, and amongst other things made it their duty “to prosécute and defend all other actions in which the state or county is interested,” and it also fixed their compensation. On the 21st August, 1876, an act was passed to regulate the respective duties of district and county attorneys; and it provided “ that the powers and duties of district attorneys, including the attorneys for the criminal district court of the counties of Galveston and Harris, shall be the same as is now or may hereafter be prescribed by law, subject, however, to the following restrictions.” The next section of the act above referred to defines the duties of the county attorneys in the inferior courts of the counties, and makes it their duty to represent the state in the district courts in the absence of the district attorney, and also to assist the district attorney in said court when requested by him to do so, and provides for his compensation in such cases. General Laws 1876, p. 283. This is substantially a statement of the legislation pertinent to the present inquiry, after the adoption of the present constitution until the adoption of the Revised Statutes; and as all of. the services under which the appellant claims- were performed prior to their adoption, it will not be necessary to state such provisions thereof as might bear upon that question, further than the matters before referred to have been incorporated into the Revised Statutes. From the foregoing statement it will be seen that while the county attorneys were required to perform certain — 392 — duties which might be performed by district attorneys, there was no law expressly requiring district attorneys to perform the duties imposed upon county attorneys. The powers of district attorneys, then, in so far as the present inquiry is concerned, must be determined by the act of August 21, 1876, and the laws in force before that time. The general duties of district attorneys prior to the act above referred to are defined as follows: “That it shall be the duty of each district attorney to attend all terms of the district court in the district in which he may have been elected; to conduct, all prosecutions for crimes and offenses cognizable in such courts; to prosecute and defend all other actions in which the state is interested, and to perform such other duties as may be prescribed by the constitution and laws of the state.” Pasch. Dig., 182. There are other provisions making it the duty of district attorneys to advise certain county officers (Pasch. Dig., 186, 187) touching matters affecting the public interest or the revenue of the state; also provision making it the duty of district attorneys to collect money due from defaulting officers of the state. Pasch. Dig., 197. Other laws existed affecting the duties and powers of district attorneys in reference to the prosecution of criminal causes, and regulating their duties in relation to the collection of bail bonds and other like obligations payable to the state, the proceeds of which when collected go into the treasury of the proper county; but we find no law which made it the duty of a district attorney to institute or prosecute any suit upon a claim or claims which a county may have, upon bonds or other obligations payable to a county; such as were the basis of the suits by the county of Galveston against Pinker and his sureties. The condition of the bond required by law of district attorneys, at the time the “Rinker bond” suits were pending and terminated, illustrates the question. Such — 393 — bonds were required to be “conditioned that he will faithfully pay over, in the manner prescribed by this act, all moneys which he may collect for the use of the state.” Pasch. Dig., 181, 6141. It would be difficult to believe, in the absence of a plain provision of the law to the contrary, that any public officer had the power and that it was his duty to collect money for the public, when no security was required to be given by such officer that he would faithfully pay over the moneys which he might collect. The Revised Statutes provide for a bond “conditioned that such district attorney will faithfully pay over, in the manner prescribed by law, all money which he may collect, or which may come to his hands for the state or for any county.” To what money the condition of the bond refers to, when collected for a county, under the Revised Statutes, it is unnecessary under the facts of this case to consider. State v. Norrell, 53 Tex., 421. It is claimed that in the absence of a law making it the duty of district attorneys, in the counties of their residence, to perform such duties as the law imposes upon county attorneys, the same must be implied from the necessity of the case. Such we do not understand to be the law. One who claims the right to exercise the powers of a public office and to receive the emoluments thereof, ought to be able to point to the law which authorizes him to do so, and in the absence of such a law such powers and rights cannot be implied. If the power was given, everything necessary to enable him to perform the duties could be implied. The fact that it would seem highly proper that every county should have an attorney who is a public and bonded officer to represent its interests in the courts, might and perhaps ought to have great weight with the legislative department of the government in influencing it to provide such an officer; but until it does so provide the courts have no power by construction to enlarge the powers of any officer, or to — 394 — impose upon him duties which the legislature has not imposed. In reference to the administration of the criminal laws, the several district attorneys of the state have as full power as have county attorneys, and, by conferring upon them such powers, it is to be presumed that the legislature believed it was doing all that was necessary for the public good, and that in counties where there was a resident district attorney, such counties could manage such litigation as might arise, in reference to such matters as had not been confided to district attorneys, without the aid of a public officer to represent them as attorney, by the employment of attorneys as occasion might arise. With the policy of such a course the courts have no concern. Although the constitution provides that, the legislature may pass laws requiring the election of district attorneys in such districts as it might deem proper, and although by force of its own terms it may have continued the office of district attorney in the district composed of the counties of Galveston and Harris as the same aforetime had been, yet it does not define their powers nor duties; and the law as it then stood, or as it has been enacted since the adoption of the constitution, must be looked to for the purpose of determining their powers and duties. Finding no law which made it the duty of the appellant to prosecute the suits upon the “ Rinker bonds,” we are not authorized to hold that he had the power and that it was his duty to prosecute them, simply because that officer and a county attorney were empowered each to perform certain other duties like in character or even the same; nor because the legislature had failed to provide a public officer whose duty it was to prosecute them. Such had been the status of the question at all times since the formation of the state government, unless in those cases in which county attorneys were empowered to prosecute such suits. It not being the duty of the appellant to prosecute the — 395 — suits on account of which the compensation in this cause is claimed, he could not, in the absence of a contract with the county, be entitled to compensation therefor. [Opinion delivered March 24, 1882.] There being no error in the judgment of the court below for which the judgment rendered should be reversed, and the matters herein considered resting solely upon the legal question involved, which goes to the very foundation of the claim of the appellant, the judgment of the court below is affirmed. Affirmed,