Dean v. State Ex Rel. Bailey , 88 Tex. 290 ( 1895 )

1. We are of the opinion, that the District Court had jurisdiction to hear and determine this case, without reference to the value of the office in controversy. Should we hold, that the provision of the Constitution which confers exclusive jurisdiction upon the County Court "in all civil cases where the matter in controversy shall exceed $200 and not exceed $500, exclusive of interest," gives such courts the power to issue extraordinary writs to try the title to an office, when the value thereof was within the limits named, we should be compelled to hold, also, that justices of the peace have a like power, when the value of the office is less than $200. The language of the Constitution which defines the jurisdiction of the Justice Courts as to civil cases, except as to the amount in controversy, is substantially the same as that employed in defining the jurisdiction of the County Court in such cases. See sections 16 and 19 of article 5 of the Constitution. The County Court may issue extraordinary writs, but only when necessary to enforce their jurisdiction. That is to say, they have no jurisdiction over a suit originally brought to enforce a right, as by injunction or mandamus; but can issue such writs as auxiliary to a pending suit, when necessary to enforce their jurisdiction over the suit or its subject matter. Therefore, if the County Court can try the title to an office, we see no satisfactory reason why a Justice Court may not do the same, provided its value be less than $200. That it was never intended to confer this power upon the Justice Courts is obvious; and we therefore conclude that the County Court would not have had jurisdiction of this case, although the value of the office be less than $500 and more than $200. Amended section 8 of article 5 of the Constitution provides, that the District Courts shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution." No other court having jurisdiction over the cause, the District Court has the power to determine the right of the case, and to apply the remedy. An information in the nature of a writ of quo warranto is an appropriate remedy in such cases.

2. The answer to the first question renders an answer to the second unnecessary.

3 and 4. The third and fourth questions are substantially the same. The title to an elective office depends upon the vote cast at the election, and not upon the action of the canvassing board. Ewing v. Duncan, 81 Tex. 235. The certificate of election given by the Commissioners Court is prima facie evidence of the right; but it is nothing more. Notwithstanding such certificate, any candidate who may consider himself aggrieved by it may, in a proper proceeding in a court of competent jurisdiction, maintain his title to the office, by showing that at the election he received a plurality of the legal votes which were lawfully cast. That he can not bring an action for the office until the Commissioners Court have acted, or until, after the arrival of the proper time for action, they have failed to act, is clear. But that the court should not be permitted to abridge his right by refusing to do their duty, is equally clear. The action of the canvassing board is a part of the election machinery, and is practically necessary in most cases, in order that the result may be made known. But it is not a part of the election itself. The election is complete without it, though the result may not be definitely known.

It is evident, that it is the duty of the Commissioners Court under the law to canvass the vote and declare the result, and that it is convenient that they should do so is equally apparent; but we are unable to reach the conclusion that their action is a prerequisite to the right of a successful candidate to sue for his office. It is to be remembered, that the term of office in this State is, as a general rule, limited to two years; and also, that when a contest for an office arises, the public interests demand that it should be brought to a speedy determination. It is the plain and imperative duty of the Commissioners Court to canvass the vote and declare the result; and should they refuse, they may be compelled to perform that duty. But to require a successful candidate first to proceed by mandamus against the court, and then to bring a second suit for the office, is practically to deprive him of the fruits of his election, and to set at naught the will of the people. The records of this court are not wanting in instances in which the term of office had expired before the appeal could be determined, although the vote had been canvassed and the result declared, and action had been promptly brought to try the title to the place. If the Commissioners Court can refuse to perform their duty, and thus bring about the necessity for two suits on part of one who has been elected to an office, the practical result is, that they have the power to defeat the will of the people. It is not to be believed that the Legislature intended such a result.

We conclude, that the relator had the right to bring his action immediately upon the refusal of the Commissioners Court to canvass the vote and declare the result.

Delivered May 6, 1895.

ON MOTION FOR REHEARING.