State v. De Gress
11 S.W. 1029
Tex.
1888
Check Treatment
Gaines, Associate Justice.

This рroceeding was commenced in the court below by an information in the nature of a quo warranto filed by the district attorney of the Twenty-sixth Judicial District upon relation of C. E. Fisher, for the purpose of determining whether or not the respondent, who is appellee here, is qualified to hold the оffice of alderman in the city of Austin.

The judge below, to whom the case was submitted without a jury, entertained jurisdiction of the cause, but held that under the faсts in evidence the respondent was not disqualified to hold the office.

It was alleged in the petition that the office of alderman in the city of Austin wаs one of trust, but it was not alleged to be one of any value. The trial judge found that there was no salary attached to the office.

Appellеe by his counsel submits that the court did not have jurisdiction ‍‌​‌‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‌‌​‌​‌‌‌​‌​‌​​‌‌​‌​​‌‌‌‌​​‍to hear and determine the case. In The State v. De Gress, 53 Texas, 387, which was a quo warranto proceeding against this same respondent to determine his qualification to hold the office of mayor of the same city, it appeared that the value of the office was more than $500 and it was held that the court had jurisdiction. The decision, however, was placed distinctly upon the ground that it cаme under that clause of section 8 of article 5 of the Constitution which conferred upon the District Courts the power to determine all suits where the value in controversy snail exceed the sum above named. This may now be considered settled law. State v. Owens, 63 Texas, 261. The learned judge who delivered thе opinion in the case first cited (State v. De Gress) very clearly saAV the difficulty that Avould have been presented if the question in that case had not bеen determined by the amount in controversy. But it is intimated in that opinion that if the question had not been so determined the court in order to maintain the jurisdiction may have felt constrained to hold that it was conferred by that clause of the section of the Constitution before cited which gives the District Court poAver to hear “ all suits on behalf of the State to recover * * * forfeitures.” * * * But it does not seem to us that the language of the Constitution warrants such а conclusion. “ Forfeiture is Avhere a person loses some property, right, privilege, or benefit ‍‌​‌‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‌‌​‌​‌‌‌​‌​‌​​‌‌​‌​​‌‌‌‌​​‍in consequence of having done or omittеd to do a certain act.” 1 Rapalje & Lawrence's Law Dic., 535. It implies that a right once existed Avhich has been lost. But when it is attempted to try the titlе to an office on the ground of the disqualification of the incumbent it is not claimed that a right to office has been lost but that it never existed. We conclude therefore that the jurisdiction of the court below *246over the subject matter of this suit can not be maintained upon the ground that it is to recover a forfeiture on behalf of the State, hi or is there any other provision in section 8 of article 5 of the Constitution which gives this jurisdiction.

But it must be conceded that the Act of July 9, 1879, confers the jurisdiction, provided the Legislature had the power under the Constitution to confer it. 2 Sayles’s An. Rev. Stats., art. 4098¿. It may be рlausibly argued that this jurisdiction not having been granted by the Constitution to any other tribunal and there being no express inhibition against conferring upon the District Court рower to hear and determine any cause, it was competent for the Legislature to give these courts-the power to try the title ‍‌​‌‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‌‌​‌​‌‌‌​‌​‌​​‌‌​‌​​‌‌‌‌​​‍to an оffice by the writ of quo warranto, although its value should not exceed $500. But we understand the former decisions of this court to announce a contrary dоctrine, and to hold that the jurisdiction of the District Courts is confined to the cases defined in the Constitution, and that the Legislature can not confer upon them additional powers.

In Ex Parte Towles, 48 Texas, 413, Chief Justice Roberts says: “It was certainly the object of the framers of the Constitution to mark out a complete judiciаl system by defining generally the province of each of the courts by reference to the objects confided to the action of each and the relation of each to the others. To that extent it must be held permanent and not subject to change by the action of the Legislaturе, except as a change may have been provided for. This is plainly though incidentally indicated by a special provision for a changе in the jurisdiction of the County Court. Const. 1876, art. 5, sec. 22.”

The language of Chief Justice Moore in Williamson v. Lane, 52 Texas, 335, is to the same effect, and is not less clear and. emphatic. It is true that these cases involvеd a different question from that before us, and that the decisions were placed upon the broader ground that the proceedings under consideration being to determine the result of election as to the removal of county seats were not suits within the meaning of the Constitution. It is also true that this is а suit, and that therefore the eases are distinguishable from this. But we understand the construction placed by the court upon the Constitution in those cases to be that the Legislature could not add to the jurisdiction conferred by it upon the District Court. The case of The State v. Owen, supra, is not in conflict with this view. Therе the relator pursued a new remedy provided by the Legislature for trying the title to an office. The value of the office being over $500, the District Court had jurisdiction of the subject matter and could hear and determine a suit brought either under the quo warranto act or any other recognized form of action for trying a title to it. The decision in the case is expressly based upon the ground that the amount in controversy conferred the jurisdiction.

It may bе urged that public policy demands ‍‌​‌‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‌‌​‌​‌‌‌​‌​‌​​‌‌​‌​​‌‌‌‌​​‍that we should uphold the' *247jurisdiction of the District Courts in this class of cases, provided the Constitution can be reasonаbly construed to admit it. The argument is legitimate. When the meaning of a written law is doubtful it should have that construction which seems best calculated to promote the public interest, upon the theory that its framers so intended.

It is not clear to us, however, that the framers of the Constitution should be deemed tо have considered that the public interests would be subserved by permitting jurisdiction over these cases to be conferred upon the District Courts. It is said by a recent text writer:

“While therefore the sovereign authority has the unquestioned right to call any person to account for exercising Avithout authority the functions of any office of a public nature however small, yet the courts are averse to allowing the information to be filed in the cаse of petty offices of little importance.” High on Ex. Legal Rem., sec. 628, citing State v. Fisher, 28 Vt., 714.

By section 1 of article 5 of the Constitution the power is givеn to the Legislature to create courts other than such as are named in that section. The findings of the court in this case show that by the charter оf the city of Austin granted by the Legislature the city council are made the judges of the qualifications and elections of its members, and have the pоAver to ‍‌​‌‌‌‌​​‌​‌‌​​‌‌‌​​​‌‌‌‌​‌​‌‌‌​‌​‌​​‌‌​‌​​‌‌‌‌​​‍determine contested elections of all city officers. We can not say but the framers of the Constitution may reasonably have concluded that as to the right to an office the value of which does not exceed $500 the public interests would be best promoted by leaving its determination to such special tribunals as the Legislature might create or designate for the purpose.

We conclude that the District Court did not have jurisdiction of this case, and therefore the judgment is reversed and the cause dismissed at appellant’s costs.

Reversed and dismissed.

Opinion December 7, 1888.