TAYLOR GLASS ET AL V. STEEN SMITH ET AL.
No. A-3171
Supreme Court of Texas
November 28, 1951
Rehearing overruled January 16, 1952.
(244 S. W., 2d Series, 645.)
Costs of appeal are taxed against respondents (plaintiffs below).
Opinion delivered October 31, 1951.
Rehearing overruled January 16, 1952.
Cofer & Cofer, of Austin, for respondents.
MR. JUSTICE CALVERT delivered the opinion of the Court.
This case involves the right of respondents (six members of the Fire Department of the City of Austin who are also signers of an initiative petition) to a writ of mandamus to compel petitioners (the City Council, City Manager and City Clerk of the City of Austin) to perform certain duties prescribed by the charter of the City of Austin in the calling and holding of an election for approval or rejection by the qualified voters of the City of Austin of a proposed ordinance classifying policemen and firemen, fixing their pay, designating certain holidays, etc. The full text of the proposed ordinance is set out in the opinion of the Court of Civil Appeals and need not be repeated here.
The trial court granted the writ of mandamus as prayed for by respondents and that judgment was affirmed by the Court of Civil Appeals. 238 S.W. 2d 243.
The proposed ordinance was initiated by a requisite number of citizens of the City of Austin under the provisions of Article IX of the Charter of the City of Austin. Section 1 of Article IX provides that “The citizens of the City of Austin may propose and submit to the City Council ordinances * * *” by petition with “a request that the same be enacted into law by the Council.” The section then directs that “the Council shall either (a) pass the ordinance set out in said petition without alteration within ten days * * * or (b) submit the same to a vote of the qualified voters of the City at a special election to be called for that purpose within forty days * * *.” Section 2 provides for publication of the proposed ordinance by the City Clerk.
Petitioners assign several reasons for their view that the proposed ordinance would be invalid. They may fairly be summarized as follows: (1) Because the proposed ordinance is in conflict with
With these questions before it the Court of Civil Appeals concluded that the subject matter of the proposed ordinance was legislative in character, and, having so held, then refused, on authority of City of Austin v. Thompson, 147 Texas 639, 219 S.W. 2d 57 and City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Texas 337, 148 S.W. 292, to consider or pass upon any of the other questions touching the validity of the ordinance. The City of Austin and City of Dallas cases were cases in which this Court held that writs of injunction would not issue to restrain the holding of void elections duly called by those charged with the duty and responsibility of calling and holding elections. A like holding was made by the Commission of Appeals in the case of Winder v. King, Tex. Com. App., 1 S.W. 2d 587.
After referring to the City of Austin and the City of Dallas cases, the Court of Civil Appeals in the instant case said that “as a corollary to the rule of non-judicial interference with elections the courts are duty bound to prevent all interference with the political power of the people.” It was in keeping with this pronouncement that the Court of Civil Appeals held that the writ of mandamus would issue irrespective of the possible invalidity of the proposed ordinance. Petitioners vigorously attack this holding of the Court of Civil Appeals.
While we do not agree with the full import of the rule announced by the Court of Civil Appeals, we do agree with its conclusion that respondents being otherwise entitled to have the initiative election called and held, cannot be defeated in that right by the refusal of petitioners to perform purely ministerial duties on the ground that in their opinion the ordinance would be invalid if adopted. We believe also that to determine whether respondents are otherwise entitled to have the election called and held the courts inquiry should be on a broader basis than that established by the opinion of the Court of Civil Appeals. As heretofore indicated, the inquiry of the Court of Civil Appeals extended only to a determination of whether the subject matter of the ordinance was legislative in character. But to entitle respondents to a writ of mandamus on the ground that they have a legal right to have the election called and held and that petitioners are under a legal duty to order and to hold it, it is not enough that the subject matter of the proposed ordinance be legislative in character but it must also appear that the subject matter of the ordinance has not been withdrawn from the field in which the initiatory process is operative.
In the case of Taxpayers Ass‘n. of Harris County et al v. City of Houston et al, 129 Texas 627, 105 S.W. 2d 655, this Court said that “the power of initiative and referendum * * * is the exercise by the people of a power reserved to them, and not the exercise of a right granted,” and that “in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.” Even so, the field in which the initiatory process is operative is not unlimited. It is
From what has been said it follows that we must first determine whether the initiative election sought by respondents is within the field in which the initiatory process is operative and therefore one which they have a legal right to have held. That the scope of our inquiry should be thus extended is indicative by the opinion of this Court in the case of Dallas Ry Co. v. Geller, 114 Texas 484, 271 S.W. 1106, and that the Court is justified in extending it this far and no further is indicated by the opinion of the Supreme Court of Massachusetts in the case of Bowe et al v. Secretary of the Commonwealth of Massachusetts, 320 Mass 230, 69 N.E. 2d 115, 167 A.L.R. 1447. In the Geller case this Court held that the referendum provisions of the charter of the City of Dallas did not apply to an ordinance authorizing a change of street railway rates. Referring to the provisions of the charter providing for a fair hearing, inspec-
We agree with the conclusion of the Court of Civil Appeals that the subject matter of the proposed ordinance is legislative in character. This seems to us to be settled by the opinion of this Court in the case of Taxpayers Ass‘n. of Harris County et al v. City of Houston, 129 Texas 627, 105 S.W. 2d 655. The fact that the proposed ordinance involved in that case fixed only minimum salaries whereas the proposed ordinance here sets up a fixed scale of salaries renders the proposal here nonetheless legislative in character. See McQuillen on Municipal Corporation, 3rd Edition, Vol. 5, sec. 16.57, pp. 262 and 263, and the cases there cited. The other matters included in the proposed ordinance—classification of firemen and policemen, providing for overtime, setting holidays, etc.—certainly are the general type of matters defined as legislative by the court in the case of Denman v. Quinn, Tex. Civ. App., 116 S.W. 2d 783 (writ ref.).
As the basis of their contention that authority to deal with the matter here involved is conferred by general law upon the Civil Service Commission and the City Council exclusively, petitioners refer us to Sections 8 and 12 of
In reality petitioners’ contention suggests two inquiries, viz: (1) Did the legislature, by providing that classification should “be provided by ordinance of the City Council, or legislative body“, intend to imply that the power to pass such an ordinance was reserved or withdrawn from the initiative process and was vested exclusively in the City Council?; and (2) Did the legislature, by providing that the Civil Service Commission should “provide for the classification of all firemen
The legislative direction that classification “shall be provided by ordinance of the City Council“, does not negate the right and power of the people to pass the classification ordinance. The legislature‘s use of the words “City Council or legislative body” is simple of explanation. All legislative powers conferred by statute on municipalities in this state are conferred on the “City Council” or “City Commission“. It is to be doubted that there exists anywhere in our statutes a provision that a given legislative power of a municipality may be exercised “by the people” or “through the initiative“. If it were held that legislative powers could not be exercised by the people through the initiative in all cases in which the statutes provide that they shall be exercised by the “City Council“, the people would be shorn of all right to exercise any of the statutory powers conferred on municipal governments and the initiative would become an empty symbol. There can be no right or power existing in the people of Austin to adopt an ordinance through the initiative process if the power to adopt it is not lodged in the City Council in the first instance. Before the right to an initiative election under the Austin City Charter exists, an opportunity to pass the proposed ordinance must have been afforded the City Council and the City Council must have declined to pass it. The charter contemplates that the people‘s right to initiate an ordinance exists only where the council has been given the power to pass the ordinance. Moreover,
Adverting now to the claim that the Act confers the power
It is not to be doubted that in the absence of constitutional inhibition (and we know of none here) the legislature could have conferred classification power upon the Civil Service Commission exclusively. Since, however, the legislature itself declared that classifications should be provided by ordinance of the City Council, we cannot look with favor on the view that the legislature intended at the same time to strip the Council of all discretion in the creation of classifications. The legislature could have provided for the creation of classifications by the Commission by rule or resolution, obviating any necessity for action by the Council. It could have provided simply that the power to create classifications should be exercised “only” or “exclusively” by the Commission. That it did not do so is significant. The City Council in the aldermanic form of municipal government and the City Commission in the Commission form of government has always been the primary repository of municipal legislative powers in this state. If the legislature had intended that the Civil Service Commission should supplant the City Council in the exercise of any legislative power it could and should have made that intent known in clear and unmistakable language. Civil Service Commissions are usually regarded as administrative agencies exercising only
What has been said disposes of the contention that
The charter provisions to which we are referred as conferring exclusively on the city council authority to deal with the subject matter of this ordinance are those which vest in the city council power to control departmental organization, to manage the fiscal affairs of the city and to fix wages and salaries of officers and employees. The particular provisions are no different in their wording from the many other charter provisions which confer certain powers or impose certain duties on the city council. There are dozens of such provisions in the charter. In addition to the many separate provisions, Section 1 of Article XI of the Charter reads as follows: “The City Council shall be vested with the power and charged with the duty of adopting all laws and ordinances not inconsistent with the Constitution and laws of the State of Texas, touching every object, matter and subject within the purview of the local self-government conferred by this act upon the citizens of the
In all the Texas cases called to our attention in which it has been held that the people of a municipality could not validly exercise a delegated legislative power through initiative proceedings, it will be found that authority to act was expressly conferred upon the municipal governing body exclusively, or there was some preliminary duty such as the holding of hearings, etc., impossible of performance by the people in an initiatory proceeding, by statute or charter made a prerequisite to the exercise of the legislative power. Into this class fall the cases of McCutcheon v. Wozencraft, 116 Texas 440, 294 S.W. 1105; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Texas 114, 134 S.W. 321; Lindsley v. Dallas Consolidated St. Ry. Co., Tex. Civ. App., 200 S.W. 207; Dallas Ry. Co. v. Geller, 114 Texas 484, 271 S.W. 1106; Denman v. Quin, Texas Civ. App., 116 S.W. 2d 783 (writ ref.). There is no such impediment presented by the statute or charter in the passage by the people of the proposed ordinance involved in this case.
What we have said disposes of all the reasons assigned by petitioners for contending that the proposed ordinance if
Since the subject matter of the proposed ordinance is legislative in character and neither the general law nor the City Charter of the City of Austin has withdrawn from the people the right to deal with the subject matter thereof under the initiative provisions of the Charter, it follows that the respondents are undertaking to exercise only such rights as are legally theirs. When the people exercise their rights and powers under the initiative provisions of a city charter and thereby become the legislative branch of the city government, the members of the City Council, like other city officials and employees, become ministerial officers in the legislative process, burdened with the mandatory obligations of performing the duties imposed upon them incidental to carrying out the initiative procedure. There is nothing in the charter that qualifies the mandatory duty of petitioners in the calling and holding of initiative elections so that they may decline to hold those which in their opinion might result in the adoption of void ordinances. Furthermore, the duty to call and hold the election is one imposed by the charter in order that the legislative machinery of the city may function to the full extent of its intendment. It was this phase of the factual background that appears to have been chiefly responsible for the refusal of this Court to issue a writ of injunction in the case of City of Dallas v. Dallas Consolidated Electric Street Railway Co., supra, to prevent the canvas of the votes cast in an initiative election. The opinion of the Court in that case, much of which is quoted in the opinion of the Court of Civil Appeals in this case, clearly points out that there should be no judicial interference with the legislative process. If the courts into whose province the duty is committed by the Constitution to adjudge the validity or invalidity of municipal legislation will not themselves interfere with the legislative process how could they justify their inaction while ministerial officers, usually without judicial training, interrupted that process? The same cogent and persuasive reasons which prompt judicial non-interference with the legislative process should compel the
There may be those whose political philosophy cannot accept the initiative and referendum as a sound investment of political power. But the wisdom of the initiative and referendum is not the question here; the question of their wisdom was foreclosed when they became a part of the Austin Charter. They are as much a part of the Charter as is the provision for a City Council. Once the people have properly invoked their right to act legislatively under valid initiative provisions of a city charter and the subject matter of the proposed ordinance is legislative in character and has not been withdrawn or excluded by general law or the charter, either expressly or by necessary implication, from the operative field of initiative, members of the City Council and other municipal officers should be compelled by the courts to perform their ministerial duties so as to permit the legislative branch of the municipal government to function to the full fruition of its product, though that product may later prove to be unwise or even invalid. The Charter of the City of Austin requires the publication of penal ordinances by the City Clerk before they may become effective. If the City Council should pass a penal ordinance, can it be thought that the courts would stand idly by and permit the City Clerk to interrupt the legislative process by refusing to publish the ordinance because he thought it invalid? We think not. If the courts will compel ministerial officers to act to complete the legislative process when the City Council acts as the legislative body of the City they ought also to act to compel ministerial officers to complete that process when the people act as the legislative branch of the municipal government.
The Texas cases relied upon by petitioners for their contention that all questions touching the validity of the proposed ordinance ought to be adjudicated in this proceeding and the writ of mandamus refused if the ordinance be found to be invalid are McCutcheon v. Wozencraft, 116 Texas 440, 294 S.W. 1105; Holman v. Pabst, Tex. Civ. App., 27 S.W. 2d 340 (writ ref.) and McCarty v. Jarvis, Tex. Civ. App., 96 S.W. 2d 564 (writ dism.).
The McCutcheon case has already been mentioned in this opinion. In that case this Court refused the issuance of a writ of mandamus to compel officials of the City of Dallas to call and hold an initiatory election so that the electorate of the City of Dallas might vote on a proposed ordinance granting to a bus company a franchise to use the city streets. The proposed fran-
The case of Holman v. Pabst is also in harmony with and not contrary to the rule we have announced. That case did not involve the legislative powers of the people under the initiative provisions of a city charter but it did involve their legislative powers in a local option election. In that case the commissioners Court refused to call and hold a local option stock election on the ground that the law providing for the election was invalid. The Galveston Court of Civil Appeals, in an opinion approved by this Court through the refusal of a writ of error, held void the act imposing the duty to call and hold the election and refused to require the holding thereof. In other words, there was no valid law imposing any ministerial duty on the officials.
In the case of McCarty v. Jarvis three distinct questions were decided by the Ft. Worth Court of Civil Appeals, one of which was identical with the question here. By dismissing an application for writ of error this Court declined to place its full approval on all the holdings there made. The case therefore has no precedential value on the question involved here, and in so far as the holding in the McCarty case is in conflict with our holding in this case, the McCarty case is overruled.
In addition to the Texas cases here reviewed both parties cite a number of cases from other states. We see no need to review these cases.
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered November 28, 1951.
Justice Griffin, joined by Justices Smedley, Garwood and Wilson, dissenting.
The caption to Acts, 50th Leg., Reg. Ses., (1947) p. 550, states that it is “creating a Firemen‘s and Policemen‘s Civil Service in cities having a population of ten thousand (10,000) inhabitants or more,” and “providing for the civil service classification of Firemen and Policemen“. The caption to S. B. 71, Acts, 51st Leg. Reg. Ses., (1949) p. 1114, amending the original Civil Service Act for Firemen and Policemen, among other things, provides: “* * * requiring and regulating competitive examinations and classification of applicants for classification and employment as firemen or policemen; * * *” Section 1 of the Act establishes, in certain cities named therein, “a Firemen‘s and Policemen‘s Civil Service.” The wording of the last two paragraphs of Section 3 of the Act clearly shows that the Legislature intended this Act to be exclusive as to civil service benefits for firemen and policemen. The next to the last paragraph of Section 3 states that in those cities having in existence at the time of the passage of the Act, a civil service commission, such commission shall serve for this Act and that the “said Commissioner shall administer the Civil Service of Firemen and Policemen in accordance with this law.” The last paragraph provides for the appointment of successors to a Civil Service Commission existing at the date of the passage of the Act in such manner “as will cause a staggered or rotating system of terms to conform with the provisions of this Act.” This language, to my mind, can have no other meaning than that the Legislature, by the passage of the Act, intended to vest exclusive control of the Firemen‘s and Policemen‘s Civil Service in agencies set out in the Act, to the exclusion of all others.
To the same effect is the language of the last sentence of Section 6, wherein it is stated that any existing Director of Civil Service “shall be the Director of the Firemen‘s and Police-
The last sentence of the first paragraph of Section 12 of the Act is as follows: “all positions in the Fire Department, except that of Chief or head of the Department, and in the Police Department, except that of Chief or head of that Department, shall be classified by the Commission and the positions filled from the eligibility lists as provided herein.” The last sentence of the first paragraph, Section 14, Subdv. D, states: “No person shall be eligible for promotion unless he has served in such Department for at least two (2) years immediately preceding the date of such promotional examination in the next lower position or other positions specified by the Commission * * *”
Section 14 deals generally with the powers and duties of the Commission over promotions, and examinations of candidates for positions, or promotion, and eligibility lists for filling vacancies by appointment and promotion. All these powers and duties are given to the Commission in such language that it seems to me no logical contention could be made that such powers and duties could be exercised by the people through an initiative and referendum election; but all such powers and duties are vested exclusively in the Commission. Respondents admit that exclusive powers over the administrative actions in connection with the establishment of a civil service system are vested in the agencies created and described by the Legislature in the Act. I cannot read the Act and find any difference in the language used by the Legislature with regard to the legislative duties in connection with establishing a civil service system, and in regard to the administrative duties. When the Act says it “shall supersede all other civil service pertaining to Firemen and Policemen in the cities covered hereby“, it does not exclude
The last subdivision of such Section 14 is as follows: “G. In the event any new classification is established either by name or by increase of salary, the same shall be filled by competitive examination in accordance with this law.” To my mind, this can mean only that the classification can be established wholly, solely and only by the Commission.
The provisions of Section 8 of the Act are specific that “the Commission (meaning the Civil Service Commission) shall provide for the classification of all Firemen and Policemen. Such classification shall be provided by ordinance of the City Council, or legislative body. Said City Council, or legislative body, shall prescribe by ordinance, the number of positions of each classification.” This section clearly prevents the “City Council, or legislative body” from making classifications as an original proposition, but confines the City Council to passing ordinances to carry into effect the classifications made by the Commission. It is admitted by the majority that if the Act prevents classifications by the City Council, it would also prohibit classifications by initiative and referendum. To my mind, one has only to read the Act, keeping in mind the purpose of the Legislature when passing it, to see clearly that the City Council cannot, as an original proposition, make classifications of the jobs and positions involved.
According to Webster‘s New International Dictionary, 2nd Ed., “provide” as a transitive verb means: “2. To look out for in advance; to procure beforehand; to prepare. 3 To supply for use; afford; contribute; yield. 4. To furnish; supply; stock.” Also as an intransitive verb: “1. To take precautionary measures in view of a probable or possible need to make provision. 2. To make proviso. 3. To make ready; to prepare for the future.”
Section 23 sets out that “The Commission shall cause to be published all rules and regulations which may be promulgated by it, and shall publish classifications and seniority lists for each Department, and such rules and regulations and lists shall be made available upon demand.” Finally, and in my opinion, to
In addition to the detailed provisions of the Civil Service Act above referred to which clearly evidence the intention on the part of the Legislature to confer by the Act exclusive authority upon the Civil Service Commission and the City Council to deal with the subject matter of the proposed ordinance, namely, the classification of the Firemen and Policemen employed by the City, the purpose and scope of the Act as a whole are such that it must necessarily be given that construction.
The Act sets up an elaborate Firemen‘s and Policemen‘s Civil Service, creates a Commission with full authority to administer the civil service in accordance with the provisions of the Act, authorizes the Civil Service Commission to provide for the classification of all Firemen and Policemen, requires the City Council to provide by ordinance for the classification so set up by the Commission, provides for examination and eligibility lists on the basis of the examination for appointment and for promotion, provides for probationary periods of service as a condition to the enjoyment of full civil service protection, sets out methods of promotions which are made from eligibility lists and to those having the highest grades on the eligibility lists, which promotions necessarily are incidents to and a part of the classification, gives power of indefinite suspension but makes that subject to appeal to the Commission with hearing, and with the right of appeal to District Court, makes provision for demotion and disciplinary action, etc. The Act plainly, by reason of the above mentioned provisions, is intended to give full civil service benefits and protection to Firemen and Policemen and to assure them, after examination proving their fitness, employment and protection with consequent higher classification and compensation. In so doing the Act gives the Firemen and Policemen security and permanency of employment and opportunity for promotion in accordance with the carefully
It may be observed that denial to the voters of the City of a right by the initiative process to change the provisions of the Civil Service Act with respect to classification of Firemen and Policemen is not contradictory of government by the people. The Civil Service Act is a general law, but it became effective in Austin, as the Act provides, only when the majority of the people voting at an election determined that the provisions of the Act should be adopted. The voters were free to reject the adoption of the Act and to leave the classification of Firemen and Policemen to another means or method, but when they adopted the Act, which is an elaborate general law, effective only if given at least a degree of permanency, they made its provisions a general law applicable to the City and its provisions were not subject to change except by repeal at an election which could be called only after the Act had been in effect in the City for a period of five years. See Section 27 (b) of the Act.
Further, the proposed ordinance conflicts with
It is admitted by all parties that
Having decided that the proposed ordinance is void, and would be of no force and effect if it should be put to a vote and a majority of the electors of the City of Austin vote in favor of the ordinance, we must next decide if the writ of mandamus shall issue to force the proper city officials to proceed with the election.
Respondents in this court take the position that the cases of City of Austin v. Thompson, 147 Texas 639, 219 S.W. 2d 57, and the City of Dallas v. Dallas Consolidated Electric St. Ry. Co., 105 Texas 337, 148 S.W. 292, and other cases wherein an injunction was sought to prevent an election, are authority for their right to the writ of mandamus herein. I do not think so. Those cases are for an injunction, while this is an application for writ of mandamus.
In 34 Am. Jur. 829, Mandamus, Sec. 32, it is said:
“* * * the writ will not issue in doubtful cases, but only where the right involved and the duty sought to be enforced are clear and certain and where no other specific and adequate mode of relief is available to the complaining party. Likewise the writ will not be granted where it would serve no useful purpose, or where it would work hardship or injustice, or be detrimental to the public interest.”
“It is apparent from the drastic and extraordinary character of the writ of mandamus that courts act with caution in respect to it and award it only in cases where it clearly appears that under the law it ought to issue. The right and the duty must be clear; for the writ will not be granted in a doubtful case, and especially not where, if granted, it would not be effectual.” Id., Sec. 36, p. 831.
“* * * The writ will not issue if for any reason it would be useless or unavailing, nor for the mere purpose of determining an empty and barren technical right on the part of relator, nor where it is apparent to the Court that the object sought is impossible of attainment. * * *” 28 Tex. Jur. 524.
As stated in the note found in 30 ALR 378, et seq.:
“* * * Despite, however, the conflicting points of view which have been taken, which have resulted in apparently conflicting decisions on the question under annotation, the courts seem in general to have followed a line of thought which, though not expressly or definitely brought out, or always adhered to, furnishes a general rule commonly applied; and that is that a merely ministerial officer, whose duties are of a subordinate character, imposing on him no personal obligation or liability, is not allowed to question the validity of a statute in a mandamus proceeding to compel his obedience thereto. Practically, however, when the constitutional objection is probably well taken and the consequences of enforced obedience to the statute, if in truth unconstitutional, would be serious, the courts not infrequently avoid the effect of the rule by making an exception where public interest is involved, or where in the circumstances the obedience to the requirements of the statute would violate the oath of office, or by ignoring the rule altogether and proceeding to consider the constitutional question without discussing the right to do so.”
Also in 129 ALR 944, we find stated the rule in Texas as follows:
“The view which is opposed to the general rule first above stated has also been more recently expressed. Thus, in Holman v. Pabst (1930), Tex. Civ. App., 27 SW (2d) 340, on an application for mandamus for freeholding taxpaying citizens against a county judge and members of a county commissioners’ court to compel them, in their official capacities, to order an election to determine whether certain stock should be permitted to run at large in the county, pursuant to a statute providing for such determination, the court, in holding that the respondents could question the validity of the procedure set up by the act, said: ‘That appellants, constituting as they did the governing body in all Galveston County‘s varied public business, although having no personal pecuniary interest to be affected, and despite the fact that calling the election may have constituted only a ministerial act or duty, were not beyond the pale of proper privilege in challenging the constitutional
validity of two alleged acts of the legislature, in virtue of which alone it was sought to control their official action by so drastic a proceeding as the writ of mandamus, is not, we think, to be doubted, notwithstanding the existence of such cases as State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers (1922) 84 Fla 592, 94 So. 681, 30 ALR 362; State ex rel. New Orleans Canal & Bkg. Co. v. Heard (1895) 47 La Ann 1679, 18 So 746, 47 LRA 512; and Threadgill v. Cross (1910) 26 Okla 403, 109 P 558, 138 Am St Rep. 964, seemingly holding otherwise; the contrary view, upon what we regard as much the better reason, has been applied in these decisions: Huntington v. Worthen (1887) 120 US 97, 30 L ed 588, 7 S Ct 469; Van Horn v. State (1895) 46 Neb 62, 64 NW 365; Hindman v. Boyd (1906) 42 Wash 17, 84 P 609; State ex rel. University of Utah v. Candland (1909) 36 Utah 406, 104 P 285, 24 LRA (NS) 1260, 140 Am St Rep 834. The rationale of these lastcited holdings is that, as an unconstitutional act of the legislature is no law at all, the courts have no power to compel any one—much less a public body or officer—to obey it; by all the authorities, a writ of mandamus to compel a public officer or body to perform some act or duty will not issue unless and until it is shown that the performance thereof is clearly imposed by law upon him or it, and that a correlative legal right’ to have it performed is vested in the applicant for the writ.’
Writ of error in the Pabst case was refused by this court. To the same effect is the holding of this court in McCutcheon v. Wozencraft, 116 Texas 440, 294 S.W. 1105; City of Galveston v. Mann, 135 Texas 319, 143 S.W. 2d 1028; and of the Court of Civil Appeals at Fort Worth, writ dismissed, in the case of McCarty, et al v. Jarvis, et al, 96 S.W. 2d 564. I fail to find where this holding in the above cases has been questioned by any Texas court. Therefore, I would reverse the judgment of both courts below and render judgment that the respondents take nothing.
Opinion delivered November 28, 1951.
Rehearing overruled January 16, 1952.