This case was advanced to a hearing, on motion of the plaintiffs in error, under rule 59, being a case relating to a matter of general public interest. It has been presented and argued by counsel, on both sides, in a most satisfactory manner, with a production of authorities that has enabled us to comprehend the case readily, and to come to a conclusion upon it at once, without delay.
This suit, which was held by the District Court to be not maintainable, is an application for the writ of mandamus, brought by the plaintiffs in error, as citizens and inhabitants, against the defendants in error, as members of the Commissioners’ Court of Eannin county, to compel them to proceed to organize the county of Webster, by virtue of and in pursuance to “ a declaration creating the county of Webster,” made by the Constitutional Convention, and passed on the 26th of August, 1868. (See Ordinances in Pamphlet, p. 48.)
The questions raised are: Did the Convention have the right to pass such a legislative act? Has the District Court
Unless this last question can be answered in the affirmative, it is unnecessary to consider or to express any opinion upon the preceding questions; for it must be made to appear to be plainly a subsisting duty, to justify the use of the remedy of mandamus to compel its performance. (High on Ex. Rem., sec. 32, and see numerous mandamus cases in the Texas Reports.) It is not contended that this declaration was a provision of the Constitution that could not be changed by subsequent legislation. Its object was, obviously, to confer upon the persons who occupied a particular territory within certain organized counties a beneficial privilege of constituting a county, as a public convenience.
It declared that “ a new county, to be called Webster, is hereby established out of portions of the counties of Fannin and Lamar.” It made it the duty of the people of said county of Webster to proceed to organize said county in accordance with the statute of 1848 for the organization of new counties; and it made it the duty of the County Court of Fannin county, as soon as is convenient after the passage of the declaration, “ to organize the said county of Webster, by holding elections for the purpose of electing all county officers, or recommending suitable persons to the commander of the fifth military district to fill said offices.” At that time offices were generally filled by such appointments, and that mode of organizing the county being in harmony with the policy then prevailing in the military government of the State, the County Court adopted the alternative allowed them to perform the duty required of it, by sending up to the commanding general the names of persons to be appointed to the several county offices, as it is stated was done in the petition. When this
Humerous acts of said convention show that the command-' ing general Avas relied on to carry out their acts of this character. His rule, however absolute for the time, was designed to be temporary, provisional, and to a great extent discretionary, and not to be dependent upon the action of the Constitution, or any other power within the State; and the force of any such legislative act requiring his concurrent action to carry it out, may be regarded as not being a continuing and permanent provision, when he failed to carry it out.
Ho further action seems to have been taken by the people for whose benefit said declaration was made; nor by the convention, that was in session long afterwards; nor by any subsequent Legislature, to secure the privilege of organizing said county; from which it may be concluded that it was regarded as an abandoned project.
The burden of taxation imposed by said declaration, and the fixing of the county-seat at Honey Grove, may have been reasons why the persons interested did not further, at that time or subsequently, seek to consummate to completion the privilege sought to be conferred upon them by it.
The fact that it was declared that “ a new county,” with certain boundaries, “ is hereby established,” did not have the
That the convention of 1875 regarded and treated this privilege as abandoned, and the declaration as obsolete, from its not having been carried out, is manifest, from its being omitted in the enumeration of the counties by names, both organized and unorganized, in the judicial districts; and that is a very cogent reason why the said declaration should be regarded as being obsolete and inoperative, because it was not carried out as contemplated by it, being authoritative action of the highest power of the State ignoring its subsisting force as a law.
Under all these circumstances, we are of opinion that it is not plainly the imperative duty of the Commissioners’ Court of Fannin county, at this late day, to proceed to order an election for the organization of Webster county, and that a mandamus should not be issued to require it.
Affirmed,