State ex rel. Surratt v. Morgan

Whitfield, C. J., delivered the opinion of the court. In 17 Enc. of Pleading and Practice, page 430, it is said: “Under these acts” — acts relating to quo warranto in the United States — -“a distinction is made between usurpation which affects public rights alone, without touching individual rights, and those which primarily affect some private right, though at the same time they involve the usurpation of a public franchise, in the latter case an information being allowed on the relation of the person whose rights are affected.” And this statement of the law is borne out by Hussey v. Herim, 17 Texas Civil Appeals’ Reports, pp. 153, 154; State, ex rel., Jennet v. Owens, 63 Texas, 270; and People v. Luther S. Ry. Co., 117 Cal., at page 612. See, also, 17 Enc. Pleading and Practice, p. 433. This very clear distinction was obviously in the mind of the learned compiler of the code of 1880, § 2585, and § 2587 of that code show this clearly, the latter expressly declaring that in a contest for office, by quo warranto, “the person claiming to be entitled to the office shall be named as the relator.” The code of 1892 makes no change in this, though some indistinctness results from consolidating the two sections of the code of 1880 into § 3521 of the code of 1892. Section 3520 makes quo warranto the appropriate remedy, by the last clause of the first subdivision thereof; and § 3521 first provides for cases wherein public franchises, etc., are involved, as § 2585 [375] of the code of 1880 had done, requiring the proceeding to be by the attorney-general, or district attorney, etc., and then proceeds : “And in a case to try the right t© an office, on the relation of the claimant thereof.” We understand the statute to provide that in a case where the right to office is to be tried, neither the district attorney nor the attorney-general is a necessary party. It is wholly unlike the cases where public franchises are involved, the state being the moving party. And this has been decided in Harrison v. Greaves, 59 Miss., at page 455. The court held that appellant there had no interest in the matter, and hence must fail, but added: “The state, by its proper officer, might institute a proceeding to oust the appellee” (meaning as a usurper), “but a private person may not, except to assert a right in himself to the office.” That is to say, one who has an interest to assert as the claimant of an office may so proceed. This is made perfectly plain when reference is had to the original files in the case, No. 3922 on the dockets of this court, which we have been at the pains to examine. In that case the quo warranto was brought in the name of Harrison alone, neither the district attorney nor the attorney-general being a party. ' And the second and third grounds of demurrer are that the effort was not to try his right to the office, but simply to oust Greaves as incapacitated to hold it, and concede distinctly Harrison’s right to have proceeded as he did, had he been trying his right to the office. We think it is clear on principle, and settled by authority, and in this state by the statute and the above case, that in this character of quo warranto neither the attorney-general nor the district attorney is a necessary party. Reversed and remanded.