Dobkins v. State Ex Rel. Reece , 1929 Tex. App. LEXIS 850 ( 1929 )

CONNER, C. J.

This is an appeal from a judgment of the district court of Cooke county in favor of appellee, Ate Reece, for the office of sheriff of that county. The uncon-troverted facts, like the annals of the poor, are few and simple. It appears that at the November election of 1926, Jake Wright of Cooke county was elected as its sheriff for the term beginning January 1, 1927, and he duly qualified and entered upon his duties as such sheriff. He became a candidate for re-election for the succeeding term, which began on January 1,1929, and was duly elected at the election held for such office in November, 1928. Wright died on December 12, 1928, without having qualified as sheriff for the succeeding term to which he had been elected. On December 14, 1928, the county commissioners’ court of Cooke county appointed Jonathan Dobkins, one of its members, as sheriff, and he duly qualified under such appointment and entered upon the duties of his office. The appointment, which was in Dobkins’ absence and without participation on his part, was, as recited in the order of the commissioners’ court, “to fill the unexpired term of said Jake Wright, and until his successor has been duly elected and qualified a,s provided in the Revised Statutes of the State of Texas.”

On January 1, 1929, two of the members of the commissioners’ court which appointed Dobkins retired and two new members were duly qualified. Thereafter, on to wit, January 2, 1929, the commissioners’ court as then constituted duly entered upon its minutes an order reciting the death of Jake Wright and that thereby a vacancy in the office of sheriff had been created and appointing Ate Reece as sheriff. Reece duly qualified by giving the bond fixed by the commissioners’ court, and entered, or attempted to enter, upon the duties pertaining to his appointment. On the same day, to wit, January 2, 1929, appellant instituted this suit, alleging the facts, and prayed for a writ of injunction restraining Reece from performing any and -all acts which would interfere with appellant in performing the duties of the office of sheriff of Cooke county. The district judge on the same day issued a restraining order, which Reece moved to dissolve, and which on a hearing the district judge did, in fact, dissolve.

An appeal to this court was duly prosecuted from the order so dissolving the injunction sued out by appellant. And this court in due course and after full argument sustained the order of the trial judge dismissing the injunction, as will be seen by the opinion of Associate Justice Buck, filed on February 23,1929. 17 S.W.(2d) 81. After the appeal, a contest for the office based on the same facts was regularly tried upon its merits and resulted in a judgment in favor of Reece, from which judgment the present appeal has been prosecuted.

Appellant’s principal contention is based upon section 23 of article 5 of our State Constitution, which reads: “There shall be elected by the qualified voters of each county a sheriff, who shall hold his office for the term of two years, whose duties, and per- ' quisites and fees of office, shall be prescribed by the legislature, and vacancies in whose' office shall be filled by the commissioners’ court until the next general election for county or State officers.”

It is insisted that a vacancy in the office of sheriff was brought about by the death of Wright, and that appellant’s appointment to fill that vacancy was as prescribed by the Constitution and under the terms of the article quoted to continue “until the next general election for county or state officers,” and that hence no vacancy existed at the time the commissioners’ court attempted to appoint appellee, Reece, citing the following eases which declare, in effect, that, where the Constitution prescribed a method or means by which a power is to be exercised, it excludes all others. Parks v. West, 102 Tex. 11, 111 S. W. 726; Crabb v. Independent School District, 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146; Aldridge v. Hamlin (Tex. Civ. App.) 184 S. W. 602.

While the language of the quoted section of the Constitution and the reasoning in the case of the State v. Corcoran, 206 Mo. 1, 103 S. W. 1044, by the Supreme Court of Missouri, and other cases mentioned in a note to that case published in 12 Ann. Cas. p. 572, seem to give color to appellant’s contention that there was no vacancy in the office of the sheriff of Cooke county at the time the commissioners’ court of that county appointed the appellee, Reece, we have nevertheless concluded that the contention must be overruled, in view of our own statutes, and decisions.

Judge Buck in his opinion, above referred to, cites the various statutes, constitutional provisions, and authorities pertinent to the subject, and so fully discusses and refutes appellant’s contention, as above stated, that we feel it wholly unnecessary to now attempt a further discussion. The opinion expressed the conclusion, which we yet retain, that the vacancy existed in the office of sheriff for the term beginning January 1, 1929, which the commissioners’ court was authorised to fill, and that the appointment of appellant ceased to exist upon the appointment and qualifications of appellee, Reece. Such conclusion has been strengthened by a reconsideration of the cases of State v. Cocke, 54 Tex. 482; and Maddox v. York, 21 Tex. Civ. App. 622, 54 S. W. 24, and by the language of the Supreme Court' in disposing of the certificate of dissent presented in the latter case. See Maddox v. York, 93 Tex. 275, 55 S. W. 1133.

We think it sufficient, so far as applicable, to' merely refer to and adopt Judge Buck’s opinion as representing the conclusion of this court on the present appeal.

We overrule the further contention in behalf of appellant that the court erred in excluding the testimony of members of the commissioners’ court which appointed Dobkins, to the effect that it was the purpose and intent of that court and its members that the appointment of Dobkins should continue and operate throughout the in-coming term which began on January 1,1929. We think it manifest that the purpose and intent of the members of the commissioners’ court cannot add to or vary the legal effect of the circumstances stated and of the orders made.

Judgment affirmed.