*1 Suрreme Yol. 108. Court law— in section 34. the general primary reference The of provision of for the of expenses, public Act 1905—is such out of payment State, funds, district, county, assessment and against precinct candidates. true of said Act meaning 1913, par-
Our concdusion of efféct thereof, of section 34 ticularly to is strengthened thereof, unambiguous provisions confirmed of section preceding n as follows: 3, “Sec. or law manner elections Every regulating any governing or of in this each shall be primaries State held to apply election or nomination every of a for a States candidate United Senator so are not in with long they the Constitution or law United States statute enacted tiie Congress the United States regulating the election of Senators United States or the of this Act.” provisions
Undoubtedly adoption reference includes all . pro- applicable visions of Act of 1905 relating payment expenses primary elections. Therefore, we answer said first certified question from negatively; follows that further answers to second third questions
are unnecessary.
Because
law,”
the fourth certified
is one of “substantive
question
merely,
is not-
embraced
first five
by any
subdivisions
1521,
article
Revised
1913,
Statutes, 1911,
amended
Acts
107, it
55,
is not a
chapter
page
proper
certification,
question
this
is not
inasmuch as
cause
before us
for writ
upon
application
article,
error under subdivision 6 of
utterly
said amended
this court is
.law;
destitute of
jurisdiction
authority
over that
issue of
Art,
wherefore, we
answer
decline to
said fourth
1522,
S.
question.
R.
Upon
duty
such
appeal
passing
questions rests, primarily,
the Court of Civil
This
Appeals.
point was
so
precise
expressly
Power,
decided
First
Bank of
State
Archer
v.
City
James of San Antonio. No. Decided 2743. October 1915—June Question—Conflict 1.—Mandamus1—Certified of Decisions. will from Supreme issue Court to require Mandamus a Court -certify questions arising remanded, a case reversed and ground that conflicts decision of other Appeals, those Courts of Civil only where the clear conflict is сertify duty correspondingly plain. 3.—Same—What Constitutes Conflict. require The conflict in decisions would the Court of Civil Stats., certify the under article Rev'. determined, must actually, of law involved Coultkess 1916-1 by the same that court. would the other if one decision overrule both rendered were defined; inconsistency apparent conflict must be well not suffi- principles application recognized principles is announced or in that the decision same state of facts rulings cient. The must be so far 153-155.) (Pp. necessarily one ease is conclusive of the in the other. *2 3. —Same—Cases Discussed. City in District Appeals Civil for the Fourth rulings of the Court of Coultress, in W., of the Fifth District 169 S. those of San Antonio v. in City 44 of the First District Paris v. Cabiness Texas Civ. App., (as Alvers, one claim- City App., right of Houston v. Civ. to Texas after that office ing an lawfully city policeman to be to recover the emoluments of a authorities, alleged which was position by removal from attempted respective ordinances of the irregular to be unlawful under charters justify сities'), direct conflict as to analyzed not to are certify ques- first named to requiring the issuance of mandamus 155-165.) Supreme (Pp.
tions to Court. determined
ON MOTION FOB BEHBABING. —Mandamus—Practice—Rehearing. 4. for man- Supreme application Court rehearing motion for On in certify ground on the to Court of Civil require the damus of conflict decisions, be rulings alleged to not consider other in court will original applica- seeking for the writ in ground conflict but not made in 166, 167.) (Pp. tion therefor. Rulings. 5. —Conflict in require be Mandamus will issue to a reversed remanded pre- rulings with Supreme ground on the conflict of certified Court 167.) (P. vious Appeals. decisions the same Court of Civil Supreme Court—Rehearing. 6. —Practice Su- application mandamus refused the rehearing On motion for for on an preme equities arising allega- applicant Court declined from to consider of the fact, (P. 167.) tion of not theretofore made. mandamus Original for writ of Court application Supreme on the requiring ground Court of Civil Appeals certify questions of conflict decisions. McAsTcill,
D.
relator.
A.
Theodore E.
for
Simmdng,
Joseph Ryan,
Ewris,
Geo.
and Robert
respondents.
R. Gillette
G.
for
of the court.
opinions
Justice HAWKINS delivered
Me.
W.,
Coultress, 169 S.
This action
out of
of San Antonio v.
grows
City
Court
rendered judgment
918. Therein
Cases
County
Civil
Coultress,
for the
Fourth
favor
the Court of
reversed that
and rendered
judgment
judg-
Judicial District
Supreme
city.
ment
favor
error,
a writ
therein an
filed
application
Coultress
Thereupon,
pursuant
for want
jurisdiction,
dismissed
application
this court as enunciated
Cole v. State
the views
a majority
Vol. [June?
ex rel. Cobolini,
sought have that court court certain of law certify questions said motion had been urged, differently decided Courts by other of Civil this State; but Appeal overruled, said motion was and those have not questions been certified. said refusal to relator instituted here this
Following certify Statutes, 1911, under article Revised proceeding praying for writ of mandamus directed to said and the Court of Civil Appeals, thereof, justiсes them for our those- requiring determination, to certify, which", for questions follows: divided, as convenience,'may (1) “Whether the this case is demurrer.” good general “And, (2) if under the of said appellee, allegations petition, an officer law, under the State charter and . Antonio, regularly appointed qualified.” ' “And the further (3) Whether, under the question: allegations of *3 marshal, said the removal of petition, appellee the (Coultress) by is in with section 17 the compliance of city’s charter—providing the only mayor remove, so if it material therefore, is legally whether an the officer an servant appellee of only employee in a suit for city, of so as he was removed recovery salary, long n in accordance mayor with said section 17.” As for mandamus grounds relator decision of said alleges said Court of Civil in the is in conflict Coultress case with Appeals decision City of the Court of Civil for the Fifth District in Appeals 587, v. Cabiness, W., of Paris 44 Texas Civ. with 925, 98 S. App., the decision of the Court of for District in Civil the First Apрeals W., of 1085. City Albers, 70, Houston v. 32 Texas Civ. 73 S. App., answered, of has not City San Antonio Chief Justice Justices, the Associate answered, respondents, jointly, general de- murrer and special exceptions, by general special denial existence of such of conflict law. upon any question settled,
It is decisions, well under our unless the and generally, is mandamus will not lie. Glasscock 3 duty Commissioner, v. plain Texas, Texas, and eases cited: 55 Am. Beavers, 457, v. 6 51, Arberry Commissioner, Dec., 791; Texas, 688; Durrett 28 Tabor v. v. Crosby, W., Texas, 29 Texas, 508; Ry. Jarvis, 456, Mex. Co. v. 80 15 S. v. 1089; Texas, 478, 302; v. 85 McGaughey, W., DePoyster Teat 22 S. 180, Texas, Baker, 155, W., 106; Robison, Erp S. 1913, Texas, decided April yet officially reported 143], [106 relator, of man- sufficiency in favor of his for Assuming, petition damus, whether, issue we come vital as to within directly really 1623, Statutes, of article Revised such “conflict” meaning any exists. If such conflict exist mandamus be awarded; dues other- wise the be denied. writ should
Article 1623 is as follows: Coultbess
1916.] the Courts any time in “Wherever, in cause at any any pending districts of State the several supreme judicial of Civil Appeals of in the de- at an opinion arrive Texas, one of courts any may hereto- the opinion with conflict may cision such' cause Civil Court of some other rendered, rendered, by fore or hereafter and such Court of law, in this State Appeals any question other rendered such so with opinion refuses concur con- failing be the of such court duty it shall Court of Civil Appeals, at so arrived in conflict with opinion cur with the opinion law, certified duly transmit clerk, court, through arisen, has to, in the said conflict involved cause wherein of. cause, Supreme- in such with the record or together transcript Court.” of Texas for adjudication by the State instance, applying in a difficulties arise, Whatever particular effect statute, we its meaning this article of the regard a Court The sole which it duty imposes and well settled. plain decision ques- arises when a of that court only of Civil Appeals is in direct it, a cause before law, tion involved actually very Civil Appeals upon with the decision another. Court. an issue involved a cause law, actually arising upon overrule it,—the whether “one would operate before test being court.” other in case were both rendered the same they error, As writ of con- long ago application afterward Statutes, 1895, article Revised article struing 107, this Revised amended Acts Statutes, page court said:
"In of the District Court was this case the reversed judgment instructions, remanded. is sent catise back Although cause not settle the nor case; Court of Civil does decision But is it of error. order averred writ the- jurisdiction alleged show *4 court Court is this of Civil in conflict with certain decisions on two in the We have examined announced propositions opinion. there
cases in we that cited while find support averment, in be some between the inconsistency stated apparent propositions in the those in the re- opinion case and announced cases present in that the is distinguish- ferred to we think case petition, present that well defined cited, able from either of those thеre is not court which to this jurisdiction conflict between them is necessary give a Therefore, the is dismissed want remanded application cause. Sherrod, Texas, 32, Bassett v. 90 36 400. W., S. jurisdiction.” afterward, in A few months for writ passing upon application this court error, said: this court of the under to sought give jurisdiction application “It Statutes, which reads follows: article Revised “‘All Court Supreme causes shall carried writs of up Supreme ¡Reports,
154 Vol. 108. Texas Court remanding error final not on reversing and judgment, judgments cases, . . . in the towit: causes, except following “ de c5. in overrules its own Cases which a Court of Civil Appeals or of the cisions 'or the decision Court Civil Appeals of another Court/ in the court this statute the between decision of “Under it is to be in conflict must be of that with which claimed question they in to such a. nature that one would overrule other operate In the decisions words, the same other were rendered court. both based, of facts announce the same state must be practically upоn jurisdiction conclusions. It is not antagonistic give sufficient of law an- a have a misapplied Court of Civil Appeals may principle of this decision another Court of Civil a nounced in conflict with the court. In the two cases cited being waiver arose upon exceptions plead- present question laid proposition a opinion general the course ing, be considered case presented might down upon of the case are so different we but the facts application, us be such as the statute gives the conflict to do not consider v. Mutual error.” Sun Insurance a writ of Co. jurisdiction grant W., 37 S. 311. Roberts, Texas, 90 should the same rule of construction be applied think
We the two decisions years some five after article 1623. And the same rule con- did statute cited, last this court apply men- been two cases applied struction had previously, .the tioned, saying: this court re- have held that in order to of a give jurisdiction “We decisions, on conflict of and remanded case of a ground versed must Sherrod, well defined conflict v. (Bassett Texas, 32); abe the construction think same rule apply a Court of Civil Appeals to-certify statute which requires another with that of Court of conflicts 664. Conner, W., S. Texas, Appeals.” McCurdy for mandamus same term this denied petition during And decision of the Court of Civil Appeals ground the effect Truett, Attorney, District, the Fifth Kidd County of the sale of could intoxicating liquors election prohibition .an school district lying partly justice precinct held in a not be such “con- been did already adopted had which prohibition of another Court of Civil Appeals decisions previous flict” certain certification, saying: as to require Texas are State v. the relator Harvey “The cases relied [11 885, and Adams W., v. Kelley 33 S. 691], Civ. App., [17 were Both decisions Civ. 479], App., *5 In the former Judicial District. the Second Supreme for Civil Appeals county, in the entire had been held election held, that where an was had been another election adopted, thereof prohibition as a result 155 v. Coultress Saw 1916.] in force in the still was in a while precinct county, prohibition inwas principle In the latter the ruling was invalid. county, entire the local an election under it was There held after the same. in favor of prohibition, law a had resulted held for county option an election not be to order compelled could Commissioners Court not election had in the result of although county a city county, two'cases, the de in these the decisions been declared. Clearly Fifth were District, of the Court of for the cision can not be local election different Because a option questions. very already a a territory subdivision large prohibition an election exists, such argument against validity is conclusive intoxicating of' certain in a of which the sale only a district part neces is the decision in case is Where liquors already prohibited. another, conclusive the decision in there can be no conflict.” sarily W., Texas, 556, Kidd v. 507. Rainey, 95 68 S. this court
Again, said: one decides a one another <rWhen court question way, makes the same there is a сontrary ruling upon conflict. question, Hence, same, unless But be the be no conflict. counsel have labored to show that argument strenuously prin announced in cases lead ciples cited to a conclusion ad necessarily verse that arrived at of Civil in the ease. But we do think that the fact. Besides we are of the conflict must be very decided and not in the by which reasoning the conclusion is reached.” v. McKay Texas, 313, W., 101 Conner, 45. See, also, Co. v. Railway Willson, Texas, 101 106 325; S. W., & P. Conner, Co. Ry. Texas, W., v. 100 407, 100 367; S. Welch Weiss, Texas, 99 90 160; S. Elder W., & Dempster Co. v. St. Louis S. Ry. Co., Texas, W. 977; S. W., Booker-Jones Co., Oil Co. 815. Refining S. Applying established foregoing so principles, and so long often have been court, laid what, down if any, precise question of law which was decided the Coultress case differently was decided in the Cabiness case ease, Albers supra? Said suit of salary ánd allowance for of time period to his subsequent attempted discharge, which amounts
he claimed be entitled jure as a officer. His contention through- out that such was his stаtuts to be based appears what treat,ed as two counts: That force, police embracing office of patrolman, policeman, established duly council, by' ordinance, n compliance with the requirements special duly appointed office, took the oath, gave bond, entered discharge of the duties thereof. 2. That after his discharge, and after his name was dropped from council payroll, continued make, for support of the *6 Vol. or person, office force not for any
police generally, although particular ap- amounts, which sums, of various lump monthly appropriations, month that, about one and payrolls, were based propriations the payroll, from after he his name discharged dropped and newa sum, to pay made an a lump council city appropriation, appropriation department, for each member of the uniform police therein. on the basis of each for patrolmen, policemen, $22.50 being discharge, from after tender of his serviсes and alleged His the force. not thereafter serve upon he did although actually the Court opinion extracts the gist The following give in that case: Civil Appeals necessary recovered, it is bemay the emoluments of an “Before office has been that the office First, show: that the claimant therefor should He thereto. right and, second, his existence; and is in created . . . an jure. that he is officer must show duties of the powers charter deals with and “Article II council, says, part: section thereunder first and city “ ordi- . . . shall have power, by The council ‘See. 51. city / nance “ / same. . . regulate To establish a force and ‘See. 65. police “ necessary 'deemed agent office or ‘Sec. 56. To create any / . . the city. and interest of government good 20, it reads: then, to section “Turn, back all resolution in by or a thereof act may “‘The council city majority . . / this Act required. is where ordinance by cases except “ ordinance shall have by that the council power ‘It is stated clearly mean, that the and can means, only That establish its force. police manner exercised has that prescribed, council when power act reso- the council 20, power ordinance. giving is Section done must ordinance, be otherwise required lution in all cases not be insuffi- a resolution would mean that is required where an prdinance 1903, wherein 2, date March The ordinance of the council of cient. shall Antonio ordained “the force of San police City marshals, police one assistant marshal and two consist of one chief unmounted mounted and matron, patrolmen and such detectives and not create necessary,” deem did may as the council mayor . . . limitation The only or policeman. office patrolman only deem proper.” council “may as the mayor number appoint, this is the mayor or inference from may result logical confirm, the same, ratifying may resolution council, simple desired; this in face of the many patrolmen ” ordinance/ bе done that it shall charter provision rehearing motion for Coultress’ overruling In the. the' mentioned the contention above considered that “the 1903, police an earlier ordinance which provided March of the following grades: Antonio will consist San City force of the assistant marshal or marshals chief police), marshal (ex-officio City Coultkess 1916-1 in force both were continued patrolmen,” ordinances it, charter of were not founded but upon special charter of said:
city’s point in conflict with the “But these ordinances would be charter almost, if not as much as with the charter or entirely, 1903,” because it the charter of 1870 likewise charter found that the council “to establish, regulate required power *7 thereof,” watch define the duties should night support police, exercised ordinance” <rby only. be “So, the court added: the
And whether we look at from proposition the of 1870 charter the one, the or there is standpoint prac- The whole matter summed that de- difference. the tically up is, must ordinance, be еstablished the office partment police- man not be resolution.” can created by what we treat the second count in passing upon In plaintiff’s peti- tion, the court, in its relating said: appropriations, original opinion,
“But the charter of was for the city granted public good and of the council are in and powers defined docu- circumscribed that ment. The can act as only to act in that city permitted legislative That instrument that grant. the council shall says act ordinance matters of kind and this it has not done. The doctrine and ratification not that estoppel aid which never had a legal existence.” stated, Briefly the material that holdings court were: That neither the (1) police force nor the office of or patrolman, had been policeman, created council, ordinance,” “by with the
compliance mandatory requirements of city’s charter, special and, Coultress’ consequently, appointment as patrolman, or policeman, made even when mayor, confirmed, according custom in that was, as it city, council, in the absence of a valid defining number limiting of patrolmen, or policemen, was invalid; wherefore, de jure, Coultress was never, a patrolman, or police- man, of city, therefore, said and, was-not entitled recover compensa- tion and allowance for covering salary period of time during not was engaged actually performance of the duties of such or patrolman, policeman. The fact that, after
(2) Coultress was discharged and his name from the payroll, dropped council continued to make monthly, in sums, amounts, lump varying the usual appropriations the support n but without police department, making any specific appropriation or for office him, any particular or would not person, control Coul- tress’ status or establish his claim for compensation.
Beallv, the of law there principal question decided was this: Was that the ordinance which relates to portion or patrolmen, policemen, of the city compliance requirements therefore, office, that and effectual create although valid failed fix the left but number patrolmen, policemen, number to be deter- Yol. ? the decision mined otherwise than ordinance” part And “by sufficiency no further than the determination effect goes of the as a holding, consequence ordinance for purpose, therefor, decision that it was not sufficient legally a de not recover. jure officer, and, therefore, could foregoing It is true the last incidentally, as indicated by from its original Court of seems excerpt opinion, Coultress’ cause have as insufficient to support considered and treated rela- action, count, allegations under what we treat as his second his the case it tive to phase appropriations; court, that his the trial remembered, noted and (a) name not even that his us, allege from record before did appears which such werе appropriations appeared upon any payrolls upon out in the on made, but, rehearing, contrary, pointed opinion from the at did that his date of dropped payrolls name allege second count said discharge, (b) set out in the fact evidently finding based name was when said payrolls appropriations Coultress’ made, and after said of fact was corrected on rehear- finding were that court have plaintiff’s considered ing phase *8 no reference case as of further to it consequence, making motion these it seems rehearing. on for Under circumstances, is for further the little, necessity that there if any, considering conflict, it treated on count as a basis even if said second possible by as fairly question embraced
An essential difference between the decision in the Coultress case each of other two decisions a by the mentioned relator as basis lies that the issues “conflict” in the fact neither of above mentioned case,—one in the at validity, the Coultress holdings relating least the of a of a the sufficiency, portion particular affecting creation of the office when the of a tested by peculiar provisions par- ticular and the other special charter, to the effect of relating ap- made the under certain circum- city council propriations peculiar stances,—was in involved either of decisions. said other It clear, therefore, between the Coul- statutory tress decision the other decisions. and either of it here seems we consideration the might properly suspend
And it three decisions and the sought. However, writ we consider deny advisable to treat somewhat further, in the consider detail, relator, contentions of and certain of each of said other decisions. phases case, From it of the Cabiness the report appears general court, demurrer the trial but the Albers was overruled report what, action case does not state if was taken the triаl on any, court however, demurrer; we herein that in will assume each general relator, it was On instance, claimed appeal overruled. it held that the Cabiness case was trial court not in distinctly did err in it, but if was decided on the Albers point appeal overruling 1916-1
case that tact is not if It disclosed report. plain hy at not, on least there was between the decision point no conflict in the Coultress case; case and that in Albers will we again case, assume that the of relator is that in claim correct, Albers oyer- also, it held, not err in trial did appeal, demurrer. ruling general
The three will be considered seriatim: questions First. The in conflict involved alleged above, relates question (1), solely when tested sufficiency petitions by general demurrer. in decision, the Coultress Applied decision with the comparing Cabiness relates to petitions variant charter widely provisions case, each wherefore, controlled decision; pre- cases sented hy petitions different, being essеntially holdings the opposite as to the sufficiency of respective on the issue petitions whether, a de consequence, plaintiff jure was or was not a officer, fairly a considered “conflict.” statutory The charter the Coultress case was one which its terms the courts are to take notice required judicial and was pleaded plaintiff’s petition. case, charter the Cabiness it seems, was one of which the courts are not to take required judicial notice, but the does report state was not specially pleaded plaintiff’s petition, does show defendant pleaded certain sections of that and that both the trial and the appellate court said petition good against demurrer. general Under these circumstances, we jus- feel tified in herein, as assuming do, that, along plaintiff’s petition, the Paris charter was considered both properly courts the Cabi- ness case, San Antonio charter was in undoubtedly the Coultress case. The nature of the the Coultress case we sufficiently have indicated. In the Cabiness inas case, was, Coultress case, the suit indeed, one hy to be claiming jure, policeman compensation of time period to his subsequent attempted there; discharge, and as in the Coultress principal law involved was *9 to whether de had ever become jure; a plaintiff policeman but there that not, issue as in the hung, Coultress case, or upon sufficiency of an ordinance under the terms insufficiency of a re- special charter that of quiring establishment force police should ordinance,” “by be but the construction to be given to a pro- vision of a different which might be justly and construed office treated of creating policeman and which con- expressly ferred council and “to power authority appoint watchmen and and their duties prescribe policemen, powers compensa- tion,” without such expressly providing powers be exercised ordinance,-—which was held provision to be quoted self-executing, no resolution ordinance of requiring city council to it make it effective; analysis from which clearly appears the common ques- de jure whether ever became an officer tion as to plaintiff depended, in Yol. facts; cases, consequence different respective upon essentially although difference the decisions those eases upon point, the sufficiency conclusions diametrically opposite announcing a “conflict” do not petitions, otherwise similar substantially of said article 1623. within contemplation case, find: under to the Albers Turning, as to holding in that embodies mo specific opinion creating attempting or effectiveness of any sufficiency Nothing Houston. create the of policeman office that" ordi- it therein any indicates that was contended the case report therein The decision charter requirements. nance failed to with comply office, that, existence of legal said to have assumed be justly assump- of that it as a and, logical consequence merely was evidently, tenure allegations, under the his it was plaintiff’s tion term, de full officer to his valid, jure him as entitling of office was provisions of the charter applicable a construction service efficient was held be Constitution, “during of our State been to have longer; no behavior, years,” two good that “there the fact that latter with holding, coupled consequence such that he was ever reappointed nor neither allegation proof was with, term of-that-original the expiration it was held office” that lia- de jure, thereupon be a Albers ceased to policeman de terminated. jure officer as such for his salary bility Albers opinion, disclosed the facts of And, case, said two years all services rendered during in full for been having paid immaterial, discharge, really to date of his afterwards down de been officer jure had Albers, during period, (cid:127)on whether appeal, he not been reappointed inasmuch as had facto; officer de or an immaterial term, it was likewise original after the expiration after since, event, existence that office had any whether de was, an officer therefore, jure, of that term expiration actually for services not to recover not entitled consequent^, rendered. case with that in the Albers From comparison case, instance the number of in each police- and although the Coultress and in each instance ordinance, charter or fixed by men not been had de jure for salary to be a claiming policeman one the suit being Albers suit discharge (the to his time subsequent a period days fifteen suspension embracing covering period salary also for two of his to expiration subsequent discharge prior them that between for argument clear it seems too office), term of years’ the Court upon any statutory demurrer. the general .Appeals both treated counts Question including 2 may Second. n plaintiff’s n theory -the first as presenting in the Coultrеss with allegations compliance resting upon status jure aof ordinances, coupled *10 and charter law, including all requirements City oe 1916.] office, and with service
regular appointment qualification de jure resting upon of a status theory the second as presenting as policeman service allegations appointment qualification recognition subsequent down to date of with discharge, coupled though even council, policeman, its or his status city city, through in- with law and charter that a strict compliance provisions, it be held force council" police city establishment cluding was lacking. number, fixing sufficiently our views have been the first Upon branch said above in of what we expressed treating question portion there second branch thereof. applies idea rests,
The second branch of apparently, authorities status was affected action of the by. city plaintiff’s a de him officer. jure recognizing treating it we are unable to the Cabiness to find Applying plaintiff thаt even be contended, held, or that it was though or the office had not been created, decided of policeman properly invalid, his the other facts of the case were appoointment him a entitle him recover jure to constitute policeman services which he never rendered. Cabiness, did, In that court referring indeed, say: opinion, salary “He recognized made, and his appointment for three months ivitbout without paid by objection, and appellant concerning raised so question .being legality appointment, far as disclosed the record. Under these facts, clear jure an officer de hold became and entitled to the office which for two unless years he had been ousted.” lawfully appointed not, But that be wrenched from its fairly, portion place context as a basis considered of conflict in decisions. separately In re- and force of said it must considering meaning excerpt, membered the court was then with assignment the third dealing error, whiсh the trial complained sustaining action of to and exceptions striking out special portions defendant’s answer,’which defenses: set up following That council had never reso-
(a) passed any ordinance or effective the charter powers lution creation of making relating department appointment policemen, and that neither police duties of officenor the had been policemen term of prescribed, were to removal at will without subject notice. policemen That, said council had (b) pursuant adopted rules which had been disregarded for its government appoint- office. ment of plaintiff of his in consideration appointment policeman, (c) That, plaintiff that either the city marshal with defendant contracted or the at any time, or without notice might discharge plaintiff, council or cause. 108-11.
Vol. *11 ' Beports, Texas Yol. The actual viewpoint and conclusions of that court as the merits to are more pleas shown clearly fоllows: “We are of the however, that opinion, neither grounds alleged of defense mentioned constituted sufficient reason to for denying appellee recovery. Section 27 of charter appellant’s conferred upon n
its council the city power and To authority watchmen appoint policemen, their duties and prescribe powers compensation.’ This of the charter was provision self-executing, no reso- required lution or ordinance of the it city council to make effective. Nor do think mere irregularities in the was which by proceedings appellee if can be taken appointed, any, advantage urged distinct grounds which to defeat his otherwise to recover the right incident to it Besides, said office. does not that salary his appear based discharge was such upon any He entered ground. qualified ,of the discharge his He duties. was under the recognized appoint- made, made and his three months salary paid appellant for without without objection, and raised any question legality being concerning his so far as facts appointment disclosed record. Under these seems clear that he an de jure, it became officer and entitled to hold the office which he been lawfully had for two unless appointed years, ousted”; cases. citing not laid the statement that
Undue stress should be Oabiness was under his his recognized received appointment policeinan for three months without salary objection or question concerning of his it made in legality appointment. disposing Evidently city’s contention the third above, assignment, (b) jure assailed de contention, effect, Oabiness’ status as á officer upon his election irregularities urged rendered ground invalid, office of even it though should be held policeman duly recognized by officehad been created instrument and no ordinance to the existence self-executing being being necessary that office. it with that thought mind, And was as well probably de officer, term a as with reference to the duration of Oabiness’ jure of Houston Estes, court cited Civ. App., Estes was de wherein have been officer .848, jure certain irregularities bond, of a despite giving concerning made. In other it words, us seasonably complaint immediate of the court purpose that the there was merely to apply irregularities the election or concerning said plea, (b) appointment in that Oabiness, which, cited had been principle applied Estes, principle being to the where the office qualification irregularities, mere when exists, in, acquiesced will legally, officer merely reduce the status of the incumbent who, facto dea officer. jure would be for such irregularities, the effect Furthermore, considering language found in said borne in constantly first mind that it followed excerpt, above, contention city’s (a), holding upon effect Awa?o$rio. Saw oe Coultkess Citv 1916.] of policemen to the appointment the charter provision relating council the city or ordinance no resolution requiring self-executing, uncontradicted evi- hnder'the make effective—a holding dence, holdings “appellee further conclusions and resulted ... on the 27th day or elected policeman was duly appointed hold- . . . qualified,”—which council Aprif, did not did or to whether regard and without ings together, a reasonable adequate three constituted months, salary pay the court for the there announced ultimate conclusion predicate *12 jure. an de “became officer of case, clearly under the facts the Cabiness two he been for entitled to the office to which had appointed and hold officer the words “became an Certainly unless ousted.” years, lawfully status the of de jure" strangely inappropriate defining would seem legal existence, had no the incumbent an office which alleged of words, the “the office which he had been would have been appointed” connection, in that and those would expressions inappropriate palpably its havе used that been to hardly been learned had purpose by the the that, there declare the absence of existence legal and hold of thereto at least substantially office and an which was appointment irregular, effectual somewhat the recited facts that although he him the would constitute recognized paid by policeman an jure, officer de and entitle him to the of that office emoluments its term. during conclude, we the effect the above
Plainly, quoted portion said first opinion, treating assignment .said embracing third is to the three men- excerpt, hold, merely defenses therein (a) had not been abandoned failure to them tioned were replead review, made and up city having seasonably duly properly action sustaining of the brought trial court up exceptions to said but that none of the three exceptions defenses, special pleas (b) was meritorious. The citation such, think, of cases was as to sup- our conclusion. port discovered, so fаr as we have the decision in the Cabi-
Consequently, ness case involves whatever embraced holding no point it 2; wherefore, seems “con- impossible second branch fliet” to exist between decision and of the portion opinion treated the Coultress which we involving point. have does second branch of 2 seem to have been involved Eor this in connection with the action of the city Albers case except from the whereby council Albers’ order appeal discharging him, “determined, a vote 10 to had been plaintiff body from the service was recom- discharged city, and wrongfully reinstated in his former and be in full that he be position paid mended him.” it must remembered time lost In connection for the confirmation, appointment his allegations relating that Albers’ referred, thereof, office, approval bond giving the oath talcing was held to office, term of be two years, his original primarily, Yol. 108. and that upon that, the view under the ordinances, charter and no succession in the officе of pursuant policeman might continue in finding office until his successor coupled with qualified, of fact that he never it was held that reappointed, after expira- tion of his term office he de was no an officer jure. longer
Upon effect, if any, above mentioned the0 city action of council Albers’ to have concerning discharge, specific seems made; been purport that such plain to be council, action by the whether conjunction considered or in separately with the antecedent facts and case, circumstances his including valid for two declaredly qualification years, service appointment, term, was insufficient make his status, after the of that expiration that of officer. jure Under the in the case there Albers actiop no room to contend therein was certainly held that authorities, even when considered connection the other de jure, constituted him an officer expiration facts after hence, the two that feature, there is years; no conflict between decision in that decision the Coultress case. On contrary, and even that Coultress’ assumption petition alleged relator’s that the date city council, facts showed making after discharge, of for his di specific appropriations salary, assumption findings fact, face of final the effect of the decision rectly not, in con nevertheless, Coultress case he was nor thereby, *13 nection other facts with the of his including attempted ap case, de and jurej constituted an service, officer pointment qualification and that the effect facts and holding legal of circumstances time Coultress’ status of his during covered claim period by' not in was but was in strict compensation conflict, harmony, with feature of the Albers corresponding decision case. n 3, Third. in we find Coming, finally, to Coultress question ap- no holding any question involving of peal legality plaintiff’s to mentioned discharge common either of the other two cases Question relator; conflict there thereon. consequent^, no framed, involves, assumes, or a construction in case the Coultress effect charter. legal of section 17 of the San Antonio special city Manifestly, of construction was not involved in Cabi- case, charter, case, ness which arose under the Paris nor the Albers arose under the Houston neither of which to is shown have contained an identical or even a similar it seems provision. And in the Coultress does not even case to con- attempt and, indeed, strue section said under view which 17; prevailed decision, made, under there holding as we have seen, jure, was to the effect Coultress never became an officer of whether his discharge was or not attempted cause, became immaterial in that wholly just the corre- to be immaterial sponding question case, Albers held, as was held in the having Coultress that plaintiff City ot 1916.] of time hy covered de jure during period an officer received instance having in each the plaintiff claim for comрensation, those in each Indeed, rendered. actually full for all services pay therein, any made or
cases, holdings respectively, discharge plaintiff’s legality as to the illegality holding therein dicium, under said article conflict would have been of immaterial- In the Albers said -not could he predicated. discharge. one only was the relating ity three, issues three, case involved only Cabiness appeal said to his discharge: discharge pursuant relating plaintiff’s (a) therefor, against held void as public with the which was city contract the court found marshal, which discharge city (b) policy; without held to have been trial, without a have been hearing had as to whether the law; an incidental question authority (c) marshal, upon discharged notice that been had plaintiff sufficient notice and adopted had which was held none those three ratified discharge. Evidently questions said act case; the Coultress consequently, was involved in discharge relating thereon. there was event of the suggest filing
We deem proper more in the future the time of this court he conserved actions conflict. alleging definite and statements specific relators, merit, in our relator’s claim of conflict is without Because, opinion, the writ mandamus is denied. delivered October
Opinion ON EEHEABING. MOTION TOE action, decide, In this for mandamus are not only, we called determine, and have not undertaken whether decide, do of the several decisions Courts City Houston v. Albers, 1085; 32 Texas W., Civ. 73 S. App., 70, City Paris Cabiness, 44 Texas Civ. W., 925, App., Coultress, San Antonio v. was correct. S. is,
The real issue us Coul- before does the decision said only tress case conflict, with either of other law, upon any question *14 our in the decisions? And that defines the full extent of jurisdiction premises. like
Whether the in the last mentioned case petition substantially not the both or either of the two other cases is the controll- petition must the In the issue consider ing involved inquiry. determining issue, whole, cases as a the the ordinances in charters, including city if any, facts, only. and the and not the petitions simply consideration, motion and
Upon supplemental of relator’s accordingly, motion in the for a we find conflict decisions rehearing statutory our mentioned, we adhere to former views the writ. denying insists that of the Paris charter to Belator the provisions relating the establishment of the force Laws of (Special police p. Texas Yol. Court Gammel, were to the effect corresponding same- as the 1347) legal p. charter, of the Antonio
provisions San and calls our attention section 24 of the Paris which section not to have been charter, quoted Civil or mentioned Court of the Cabiness case, Appeals in this us our case. the same legal
Whether said two charters are to provisions said effect, and charter the establishment whether Paris required ordinance,” are’ force should police “by questions per- action; view that are in this but we incline to the immaterial haps, any event, the Paris did not we decline to require, charter so Dallas, qf- herein that the decision the Cоurt at hold Appeals effect, case, Cabiness was erroneous. Whatever be the provisions construction of proper applicable of the Paris charter and of San Antonio charter, respectively, fact remains that the them dif- two Courts of Civil construed Appeals did, Antonio and the other ferently, one charter not, charter establishment Paris did require city; should be ordinance of the from which is. force police evi- fundamental difference between those dent that the decisions charters, rather than as to mere respectively, effect of sufficiency petitions. allege not conflict specifically
Relator’s for mandamus does suf- charters, in constructions similar placed upon similar but charters, does, similar ficiency of ordinances under city effect, alleges what he be sub- allege conflict sufficiency are which we stantially similar asked petitions; questions have certified were framed accordingly. to have
Moreover, ap- in the San Antonio sought which the of Civil virtue of an ordinance pointment upheld n with requirements; charter compliance held to be case, the Paris did charter, involve, appeal, the Cabiness under ordinance, city issue concerning sufficiency any or decision any force, or. office of been policemen, having none creating police the Albers council, shown, and, likewise, enacted far as so appeal, not present, upon under the Houston did ordinance. of any issue or the sufficiency express the Court of Civil avers whereas motion supplemental in- held the in said Coultress case relied the number definitely policemen, sufficient in that it did not fix court, sapie several considered carefully opinions “in lengthy to recover their the policemen the same ordinance valid and permitted those of Coultress. identical circumstances money See_ Serna, Antonio Civ. cases, towit: of San v. following City 263; Beck, W., Antonio v. 101 S. W., 875; of San City 99 S. App., W., 269; of San Antonio Tobin, City 101 S. San Antonio Bodеman, 1043.” averment cor- found
Even be assumed or though *15 Waples v. et al. Gilmore 1916-1 we which reflects the effect of said four decisions (a point reetlv neither, still, for of them can express reasons, two now opinion), in this of “conflict”: considered, action, grounds were not relator’s for mandamus. (1) They presented petition for in a suit mandamus cer- require motion Upon rehearing Statutes, 1623, article a. Court of Civil tification, under Revised decisions, this court will not of conflict Appeals, ground not conflict, as a basis consider, any mentioned for mandamus. petition decisions the same Court Civil
(2) Appeals Said four are “some which rendered said decision in the Coultress ether Smith 1623, Stats.; Court Civil Art. Rev. Appeals.” 434, 815. Texas, Connor, relator’s counsel concede reversal Court Very candidly of one or more of its own former decisions Appeals ques- tion of law does not constitute “conflict” under statute; our but, connection, for the sake we are asked to resolve equity, entertain favor of relator doubt any may the exist- ence of We for mandamus. statutory charged by petition have no such in our doubt; stated the writ opinion, of mandamus matters, in such where the conflict clear issues, only of Civil duty Court certify law involved is correspondingly plain.
Said avers, also, motion relator’s supplemental plea part equity, that when filed in trial and, in addition court, case was held insufficient, there existed certain ordinances dates December 4, 1905; August 5, 1907, a definite num- September fixing ber relator now policemen, which indicates have would pleaded had his case been remanded of Civil trial court. new and extraneous matter be consid- Manifestly ered us herein for "by Whatever if purpose. difficulties, or equities, any, inhere in we can not them situation, deal in this action. The motions are overruled.
Opinion delivered June 1916.
NOVEMBER,
C. E. Waples et Gilmore Paul al.
No. 2895. Decided November
1.—Primary Election—Party Executive ^Committee—Nordinations—In- junction. party action executive committee of a in placing on the official party ballot as nominee name aof candidate where no nomination for such