This suit was instituted against the applicant for the writ of error to remove him from the office of sheriff of Hartley County, to which he was elected at the general election, held in the year 1892. The alleged ground for his removal was, that he had failed to qualify by giving the bonds required by the statute. Upon the trial in the District Court there was a judgment removing him from office, which was affirmed in the Court of Civil Appeals. This application is for a writ of error to the latter court for the purpose of reversing their judgment and that of the trial court.
The term of office to which the applicant was elected has long since expired. The subject matter of the controversy has ceased to exist. Under such circumstances, an appeal will not be entertained merely to determine a question of costs. La Coste v. Duffey, 49 Tex. 767; Gordon v. The State, 47 Tex. 208
[47 Tex. 208]. The application is therefore dismissed.
Application dismissed.
Delivered February 7, 1895.
ON MOTION FOR REHEARING. Moore Mack filed a motion for rehearing, urging: That if it be true, as contended by him, that he was illegally and improperly removed from his office as sheriff of Hartley County, Texas, that he has a right to recover from the appointee the fees and perquisites of such office, but if this judgment be suffered to stand unreversed, then it can be offered in evidence as a complete bar to any suit that he might file as against the appointee to said office; because, although it might be erroneous, it would be a judgment final, and settles conclusively, as far as he is concerned the legality of his removal, the Court of Civil Appeals holding that the District Court had jurisdiction to remove your petitioner, and their judgment being unreversed. But even if, in view of the fact, he prosecuted a writ of error up to the Supreme Court, he could therefore contend that the judgment did not preclude his right to recover, this would involve necessarily coming up to the Supreme Court in order to get around the judgment, because the District Court and Court of Appeals have already settled that he was properly removed. Besides, in a suit for recovery of his fees, it might well transpire that there was no jurisdiction on the part of the Supreme Court by writ of error. Again, while we appreciate that the authorities cited by the honorable Chief Justice support the conclusion that an appeal will not be entertained to determine a question
of costs, we submit for the decision of the court, whether or not said authorities are improvident, and should therefore be overruled by this court. Certainly the question of costs does not come within the maxim, "de minimis non curat lex," since the costs of court are the subject of minute legal regulation.
In Gordon v. The State, 47 Tex. 309, cited by Chief Justice Gaines, the court assigns the following reason for its conclusion: "The District Court would have no power to carry into effect the judgment of this court, if it was affirmed here, and sent back there. In addition to this, the term of office of the sheriff has long since expired, and a decision would be useless and inoperative." But however true this may be, in so far as reinstating plaintiff in error is concerned, the reversal of the judgment or its affirmance would settle the question of the right to recover the fees of office, and this court, if we are correct in our main contention, will simply reverse and dismiss the cause, because the District Court had no jurisdiction in the first instance. A judgment of this kind certainly would not be inoperative. And as to the question of costs, we submit that it is more consonant with public policy and the current of the law that they be fairly adjudicated, rather than that the appeal be dismissed.
In support of a motion for a rehearing of this application it is urged, that the court ought to assume jurisdiction and determine the case, for the reason, that although the term of office to which the applicant was elected has expired, if the judgment removing him remain unreversed it may be pleaded in bar to a suit for the recovery of the fees of the office. There is force in the contention as applied to a proper case. Since the cases cited in our former opinion were decided, this court has held that an officer de jure, who has been illegally ousted, may maintain an action for the recovery of the fees of the office. Beard v. Decatur, 64 Tex. 7. For that reason, it may be that the court should entertain an appeal from a judgment determining the right to an office after term has expired — provided that the judgment can be interposed as a bar to an action for the salary or fees appertaining to the place. We leave that an open question. Here the sole ground for the application for the writ of error is, that article 3401 of the Revised Statutes does not confer jurisdiction upon the District Court to declare the office of sheriff vacant when the sheriff elect has failed to give bond, as required by law. If that be so, the judgment of the District Court in this case is void, and the judgment of affirmance a nullity; and should be so declared in any tribunal in which they may be pleaded.
The motion for a rehearing is overruled.
Motion overruled.
Delivered February 28, 1895.