Stanfield v. State

This was an information in the nature of a quo warranto to remove appellant from the office of county superintendent of public instruction of Bexar County.

It appears from the petition, that the appellant had been duly elected to the office for a term which has not yet expired, and that the only ground of complaint was that the County Commissioners Court of Bexar County had abolished the office in pursuance of an act of the Legislature of this State approved April 6, 1889, one section of which reads as follows: "That the County Commissioners Court of any county in this State shall have the power and authority, when in their judgment such court may deem it advisable, to abolish the office of county superintendent of public instruction in their county by an order entered on the minutes of their court at a regular term thereof. Whenever such office is abolished the county judge of such county shall, from the date of said order, perform the duties of such office; and the county superintendent shall immediately turn over to such county judge all the books, papers, records, and other school property in his possession."

It is contended that this law is unconstitutional, because the Legislature can not delegate its legislative functions to any other body or authority.

The office of county superintendent of public instruction was created by an Act of the Legislature approved April 2, 1887, reading: * * * "The office of county superintendent of public instruction is hereby created, and the County Commissioners Court of any county in this State may, when in their judgment it may be advisable, provide for the election at each general election of some person, * * * who shall hold his office for the term of two years," etc. The act provides, that such county superintendent of public instruction shall perform all the duties in regard to the public free schools of his county imposed by law upon the county judges of such counties as have no county superintendents of public instruction; and that he shall have and may exercise all powers and authority vested by law in such county judges in respect to matters appertaining to the public free schools; and that in addition thereto he shall take the scholastic census of his county.

It will be seen that the act for the creation of the office was made to depend in each county upon the action of its County Commissioners Court as to its taking effect there, and we are not able to see any material distinction in regard to their constitutionality between the act that authorized the County Commissioners Court to bring the office into existence and the one that authorizes it to abolish it.

It has been said by this court in a general way that laws can only be made by the votes of the representatives of the people in their legislative capacity. The State v. Swisher, 17 Tex. 448 [17 Tex. 448].

There seems to be a well recognized distinction in respect to the question under consideration between laws affecting only the municipal subdivisions of the State and such as affect the State at large; and whatever differences of opinion there may be about the application of the rule to the general laws that affect alike the whole State, it seems to be well established that the maxim that the legislative power is not to be delegated is not trenched upon when the legislation merely bestows upon the municipal organizations of the State certain powers of local regulation. Cool. Const. Lim., sec. 143; Werner v. City of Galveston, 72 Tex. 22.

Our Constitution and statutes each provide for the adoption of laws in particular localities according to and dependent upon the expressed will of the people to be affected, and such statutes have not in every instance been expressly directed by the Constitution. It would be tedious and would serve no useful purpose to undertake here to enumerate all instances of such legislation.

A city containing 1000 inhabitants or over may by a vote of its council accept or reject the general incorporation law of this State for cities and towns. The inhabitants of a town or village may by vote accept or reject the incorporation act provided for them (Rev. Stats., chap. 11, title 17), and having once incorporated, such towns and villages may by their own vote abolish the corporation, including the offices. We can see no more in the two acts in question than a delegation of authority to the County Commissioners Courts to employ an agent when his services may be useful to the public, and to discharge him when they cease to be such.

The office not being founded in the Constitution, and its creation depending originally upon the will of the County Commissioners Court, no good reason why it may not be dispensed with in the same manner is apparent to us. It is not the case of depriving the lawful incumbent of an office that continues to exist and conferring it upon another. When the extended area of this State is considered, as well as the diversity of the pursuits of its inhabitants, and the great differences in population and resources of the different counties, it would be unfortunate if the Legislature did not have the power to enable the different counties to adopt or decline some of the agencies of government according to the exigencies of their situation. And such acts must be very clearly in contravention of the fundamental law before we shall feel ourselves warranted in so declaring them.

It was the Legislature, and not the County Commissioners Court, that made the law giving to the court the power to abolish the office. The court abolished the office in pursuance of a law of the Legislature, but it can not be said that because it exercised that power under the law it made the law itself.

The objection that the county judge was interested, and therefore disqualified to act, can not be treated as good. It was not a "case" in the meaning of the Constitution, and there is nothing to indicate that his vote was necessary to the decision.

The acts in question are both general laws in the sense that each of them relate to the State at large, and the one last enacted is not subject to the objection urged against it that it is a local or special law.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered February 12, 1892.