*1 I must also note that the annotations Doyle WILLIS, Relator, from outside our State decisions of'courts opinion majority do involve cited pro- containing state constitutions related al., Respondents. William S. et POTTS comparable visions to Section 19 of No. A-10034. 12 of Article XVI of our III and Section Supreme Court of Texas. Constitution. April 1, 1964. Eligibility person to hold an officewhich a Opinion Dissenting April 1964. be, is, pre-
seeks election should requisite person to the aof to have placed upon
his name at ballot 1.05,
election. Article Vernon’s Annotated Code;
Texas Lindsey, Election Purcell v.
158 Tex.
public interest that there be no doubt at the
time election that a candidate on the eligible
ballot will be to assume the office. voting public should know that he will
be so if he is their polls choice at the
the other candidates for the same office are protection
entitled to against votes
drawn from them a candidate who could Prospec- to assume the office. resignations,
tive therefore should not ineligibility
suffice remove declared provisions the constitutional under re-
view. A tendering resig- candidate a future change can
nation his mind and withdraw resignation irrevocably if it has not been
accepted; body resignation to whom a may change submitted its mind about ac-
cepting it. Accordingly, I do not believe resignation the future considered Gordon, the recent case Kirk v. Texas
Supreme Journal, Court Vol. p. ineligibility.
sufficient to remove But respondent resigned at bar the
from his office as Commissioner
prior application place to his for a on the
official ballot Legis- candidate for the
lature; resignation was forthwith ac-
cepted by the Commissioners and his Court immediately qualified
successor and assumed
the duties of the office. I would hold that
respondent thereby eligible became
Legislature deny petition and would
writ of mandamus.
CULVER, J., joins in this dissent.
623 Ann. Constitution Vernon’s of the State 19 of ineligible for the relator the St. makes 1.05 and Articles Senator fice of State Vernon’s Election Code 1.06 of the Texas from Ann.St., prevent name relator’s May placed on ballot for the certified or the argument is primary. His 2 Democratic of relator, having elected that been Fort of fice Councilman of expiring in Worth, a term of office for when beyond time April of be of Senator will of office the term officeis a lucrative which said gin, and office office for the under this said Senator under constitutional of State provision and under our. Spell, Fannin, Fort Fannin & Kenneth al., S. Tex. 376 et of Kirk Gordon Worth, for relator. added.) (Emphasis W.2d 560. Ar- hold that under In that case we did Law, Worth, for re- Thomas H. III, ticle Section of Constitution spondents. attorney term office over- district whose Representa- lapped the office GRIFFIN, Justice. candi- sought which he to become a tive for relator, Doyle Willis, This a suit of State ineligible to the office date was against William Potts as mandamus S. no Representative. In that case there was Executive Chairman Democratic attor- question district but that officeof County, the Demo- of Tarrant Committee under the State.” ney is “lucrative office cratic Executive Committee of Tarrant III, Article provision, The constitutional Gladden, County, Don Don Woodward 19, is Section as follows: Kennard, the officeof Don as candidates for Texas, asking Senator the State of .'State court, Secretary judge any “No Ex- Chairman the Democratic General, State, Attorney clerk required certify re- ecutive Committee be record, person any or any court of as lator a candidate for the office holding a lucrative office placed and that his name be on the Senator State, States, or United 2, 1964, May pri- ballot for the Democratic during government shall foreign mary election as a candidate for such office. appoint- he elected or term for which Potts, respondent William S. Chair- ed, Legislature.” eligible be man of the Tarrant Democratic Ex- added.) (Emphasis Committee, ecutive has advised relator 6, 1964, statutory pro Any dated March that relator will letter constitutional or candidate, his hold not be nor will certified which restricts vision placed May strictly 2 public name be on the ballot for the construed office should be primary against ineligibility. Democratic election. Willis, relief grounds for the Relator Respondent and in his Potts letter his Ill, seeks, that Art. Sec. which he contends original petition for
answer to relator’s situation, be- application his has no relator position mandamus takes n cannot City Councilman of cause his office of for the certified a candidate “un- (1) is not an of Fort Worth name be nor can his State Senator office, (2) der nor a “lucrative” May 2 Demo- the State” placed on the ballot for prohibition. III, the Constitutional primary within Section because cratic prescribing qualifications, cites the case of Bonner v. duties, their Relator com- Belsterling (1911), pensation Tex. S.W. and tenure of office.” supporting as one of his authorities *3 This article also authorizes such cities city contention councilman does not for, provide and many govern- conduct hold an office In that “under the State.” activities, highways mental and control of question case the decided was that a mem- thereon; promote traffic public health Education, ber of the Board of created un- keeping and the peace many, of the provisions der the of the Dallas Charter many governmental other belong- functions County was not an officer of Dallas but was ing government, by to the state but which officer of the Dallas. No one delegated this article are to Home Rule contended that the school board member Cities. was either “an officer of the State” or “un- , This Court in said Texas National Guard case, therefore, der this State.” This is not Armory Board (1939), v. McCraw 132Tex. point. Neither is the case of Town of 627(23, 24) 126 S.W.2d : Sunnyvale v. Dallas Board “The State has vital interest in its School (Tex.Civ.App., Trustees et al. governmental cities. In its capacity a 1955), point 296 in S.W.2d this case. city political is a subdivision of the Worth, Texas, of Fort is a State, many and in instances is consid- City, Home Rule created virtue of Art. agent ered as an State; of the and the XI, Constitution, Sec. 5 of the State agent use such in the dis- Art. Vernon’s Texas Civil Statutes. charge Citing of its duties.” numerous Both provisions of the pow- above limit the authorities. er of Home Rule Cities follows: (1926), In Yett v. Cook 115 Tex. “ * * * providing that no 837(13), S.W. we said: passed charter or ordinance “That justiciable the state has a ‘in- said any provision charter shall contain terest’ in sovereign capacity in the inconsistent with the Constitution of the operation maintenance and of its mu- State, or of the laws enacted nicipal corporations in accordance with * Legislature of this *.” law does not admit of serious doubt. The charter of the of Fort Worth Municipal corporations are created recognizes it must —that —as the exercise of certain functions under, created the Constitution and laws of government. They have a two-fold they of Texas as existed in character, governmental one and the adopted, when Home Rule Charter was private, and, in so far as their and also laws “hereinafter to be enacted governmental, character are Legislature of the State of Texas.” state, agencies subject of the Citing au- control.” numerous Council, A member of the before en- thorities. tering upon the duties of his office must take and subscribe an oath or affirmation This case further holds the “ * * * support (cid:127)that he will and de- magistrate, corporation is a and that fend the Constitution and laws of the Unit- judicial court power exercises state ed States and of the State of Texas name of the state. Further we said: “ * * * Í175, officers, Art.' upon Vernon’s Texas Civil Statutes whom n isthe many duty administering source of exer- rests the very cised Home Rule Cities. The first franchises of confided to ' power city, acting agents set out com- creation of a as the state’s “[t]he mission, gov- custody public property aldermanic or other form of and in the n ernment; - offices, performance the creation of the man- of' duties as the state’s parens patriae, trustee, ner guardian, and method selecting -of officers and e., people, municipalities, i. representative of all the should with like effect Home regularly selected and installed Rule Cities. office in lawful manner.” beginnings of our cities only legislative could action be created ex rel. In the case of Orndorff v. State Legislature prescribed the and the act ref.), 108 (Tex.Civ.App., writ McGill duties, city, officers of the and their question to the court stated the S.W.2d gov- conferred and its officers county be decided as “Is a commissioner performed by ernmental duties theretofore 'under the Government *4 the state. “it pointed that State?’” The court out must be in mind there is borne that proper legis- Under constitutional and meaning of marked difference between the cities, sanction, provided it that lative was phrases the ‘under the State Government’ villages might towns and be created under and ‘of the or ‘of the Govern- State’ general passed by Legislature. laws ” says are ment.’ The court that counties 1913 the Home Rule amendment to our purposes created for the passed Constitution and it was government. political Their functions are implemented by Legislature by Art. administrative, and the con- Statutes, 1165, Vernon’s Texas Civil imposed ferred them are rather duties provisions Chapter what is now privileges granted; than are that counties 28, Cities, Villages. 13 of Title Towns and to, of, subordinate and creatures Legislature The from time to time has govern- therefore are “under the state passed controlling laws such Rule Home performing imposed ment” duties solely Cities. Such Home Rule Cities exist therefore, necessarily, state. It holds that leg- virtue of the State Constitution and court, of the members commissioners’ islative enactments. These cities are there- body charged performance with the of the political governmental fore subdivisions imposed above, duties from officers un- are under this state. superior der government. that City Members of the Council of The states that this discharge Home Rule Cities of their authority, harmony weight with the engage governmental duties as such ac many jurisdictions sets out cases from portion tivities and exercise a of the sov Among holding. which sustain the court’s instance, ereign powers of the State. For these do following having cases are the regulations affecting in the matter of Public city government. with offices of a Attor Health, regulations, many traffic others. ney General ex rel. Moreland v. Common These are duties which the State owes Detroit, 145, City Council of 112 Mich. It follows therefore that Mem citizens. 450, 211, holding 70 N.W. 37 L.R.A. that the bers of the Council are Officers under mayor of Detroit was an officer “under Ill, meaning this Art. state within the Michigan; Young state” of State ex rel. Sec. 19 of our Constitution. Robinson, 269, 101 Minn. N.W. ‘ within L.R.A.,N.S., 1127, Relator therefore comes “[ojfficers Willis that * * Ill, are, prohibition our of Art. Sec. 19 of municipal corporations State Constitution. respect having force to all laws municipality, and operating within their' Constitution, Ill, re- Art. Sec. Miller, state”; agents Wood v. relator Willis quires that in addition to n 573, holding a mu Ark. 242 S.W. such state” that holding an office “under the icipal judge the' was an officer “under one, ren- before he is be a “lucrative” state.” Legisla- elected to the dered to be he is elect- “during ture the term which reasoning The court’s in the Orndorff' case, appointed.” ed or applies supra, regard to counties No constitu- construction. the- Charter of visions
Chapter 3 of the Sec. provision was involved. mem- tional provides: “Each Worth receive as com- Council shall ber of the Kirk Platt v. ex rel. The case of State Ten the sum of pensation for his services director of holds (1873), 44 Ind. regular per for each diem ($10.00) Dollars may also be a Prison the Indiana State him, compensa- such meeting attended language a con- within the councilman Five the sum of event to exceed tion in no of Indi- prohibition of the State stitutional per Twenty Dollars ($520.00) Hundred and says there is no doubt ana. The court above, neces- all annum. In addition councilman is the office of but that sary expenses incurred Council quotes from au- lucrative office. court performance of their official as follows: thorities city.” paid by shall be is attached there “An office which compensation such Relator contends that rendered is compensation for services compensation” for “adequate is not defines office. Webster lucrative *5 spent performance his duties time in the of ; ‘yielding lucre to mean word lucrative Councilman, therefore he does as a profitable; making increase gainful; within the hold “lucrative office” not a a lucrative money goods; or of . prohibition. He cites the constitutional trade; office.’ business or lucrative Com Wyoming of Baker v. Board of Huffer], Dailey rel. v. The State [ex County (1900) Wyo. missioners of Crook 329, Perkins, speaking J., in 8 Blackf. State ex rel. and the case of 59 P. county recorder and of the offices of Kirk, holding. Ind. as so Platt v. think, also, commissioner, said: ‘We Pay, sup offices. are lucrative v. Board of Com-' The case of Baker compensation, posed adequate to be an County, supra, defines Crook missioners of performance of their is affixed to the officeas follows: a lucrative test for know of no other duties. We determining a “lucrative office” within to lucrative office seems is a “What meaning of the constitution. upon very reason and settled be well office;; net lucrativeness of an says: ‘An authority. of- Mr. Mechem —its profits depend salary, compensation, or fice to which —does compensation to it. amount of affixed office, is a lucrative fees are attached expenses office with incident to an called, or, “office frequently as it is salary may high render it less lticra- salary profit.” The amount sense, tive, than other of in this latter ma- compensation attached is not or having fices rate of com a much lower sup- attached is The amount terial. ” pensation.’ compensation, adequate posed be an to office as the character of the and fixes holding that The basis for the court’s one, profit.’ or lucrative prison may be a coun- director also Mechem, (Emphasis Pub.Off. 13.” § cilman is is not an that a councilman added.) because, accord- “under the state” authorities, ing to Indiana law that the office of coroner The court holds separate government and distinct from Wyoming stat- is a lucrative one under of the state. This is con- utes. trary city gov- the Texas However, even the court holds that under the ernment is a subdivision lucrative though office of coroner is a government. state n one, county physician is not an the office of Ed., Dictionary, defines Black’s 4th Law county, therefore the coun- prof- profit, “yielding gain “lucrative” or county ty appointed physician bearing yielding itable or sal- revenue statutory pro- violating without coroner office, public office” ination or election a “lucrative ary.” Black also defines Councilman, imme- he shall the form than that yields (in a revenue which “one Council; diately place in the salary forfeit his fixed otherwise) or a fees or ” ** incumbent; author- according to some sup- ities, compensation yields a one which be stated I hold for reasons to would ren- posed adequate to the services to be opinion above dissenting mentioned inci- expenses and in excess of the dered forfeiture of the office that the immediate pay of which dental to the office. One the Doyle by the Councilman act of- performance of duties of is affixed to for the of- becoming Willis in a candidate fice.” ineligi- removed his fice of State Senator bility Legislature. for the As I view the re Under the above authorities problem, disqualifying of- office. lator holds a lucrative consistent recognized fice should be as the undisputed that relator’s terms It ineligibility criteria of in both Section elected, Councilman, to which he was of Article III and Section expire April, until will not XVI; otherwise, there will exist an ir- elected should he be successful con- reconcilable conflict between these two begin before his term would State Senator provisions pertaining eligibil- stitutional April 1965. ity Legislature. Therefore, since he holds a lucra HAMILTON, (dissenting). *6 Justice state, tive office under this he is to at the session serve State Senator agree I with the court’s that the Being in he to be elected. which seeks City City of office of Councilman of the serve, eligible to he cannot have his name office, but I can- Worth is a lucrative appear primary coming on ballot at the the with, City agree not the court that the Coun- 2, 1964, May election as a candidate for this state cilman is an under within officer Senator. Arts. 1.05 and 1.06 Elec of III, meaning the the of Aritcle Section 19 of Code, tion State of Texas. Constitution. Application for Man- Relator’s ofWrit city possesses powers A home rule not damus is refused. by long as denied statute or Constitution so city incorporated powers in the has these rehearing No motion for will be enter- many powers its charter. There are which tained. City the of Fort could exercise under Worth statutes, the Constitution it cannot and but STEAKLEY, JJ., and dis- HAMILTON in do so because are not contained its senting. City Taylor, charter. 123 See v. Davis of 1033; Zachry City Tex. of S.W.2d STEAKLEY, (dissenting). Justice Antonio, (Tex.Civ. San S.W.2d preparing dissenting opinion App.1957), I am a in affirmed 157 Tex. 305 S.W. Daniels, Tex., people in 2d City Lee v. 377 S.W.2d 558. It is the the of of Fort support my accomplished of view that the through given Worth its charter who have County resignation pow of Com- the Sam Council of Fort Worth all the Jorrie February possesses, Bexar on ers it missioner of herein lies the distinc Legis- city ineligibility his tion between a removed councilman as an officer city lature under of Article III and the an Section 19 under officerunder the state. imposes upon Section of Article XVI of the Constitu- There is no statute which Chapter tion of 16 of councilman duty Texas. Section and be above - yond placed upon by XXIV of the of of Fort Charter duties him provides that member of charter of the of Fort Worth “If a Worth. His of state, by powers nom- Council shall become a candidate for fice is not created his any acts, pow- yond in addition state, nei- by defined duties are not ers, by performed officers placed any par- and duties by has statute ther the state provided govern- the state for under upon him virtue his duty ticular at 406-407. ment.” 44 Ind. these circum- Under Councilman. hold- say I relator is not would stances Missouri, Supreme in hold- Court state. ing an office under this mayor not officer- ing a is an a under the stated: used this state” as The term “office under III, regard the 19 of the Constitu- not in Article “We do Section tion, with- the courts an under the State has been construed officer never office, municipal meaning the constitutional applied to a state as provision. recognized dis- by many other is it been construed There but has so officers, exception every jurisdic- whose tinction between State states. Without large, at or municipal office to be concern the State has tion declared a although exercised general public, unless it is one cre- the state an tmder limits, statutes, or defined territorial ated the Constitution within statute, officers, powers municipal re- whose functions and duties defined authority particular exclusively munic- such office created some other late * ** municipality, ipality. A but which there some of the mu- imposed by statute certain state duties. connected functions, nicipal must derive but he Michigan Supreme has Court of statute and powers from a State opinion on sub written exhaustive obedience execute his analyzed many ject has cases before us and ** true, it Whilst State law. opinion jurisdictions, and grants the charter that the State has conclusion he the writer has verified acts, organized which rel. Attorney General ex reached above. to that yet elected in obedience those City De v. Common Council Moreland *7 strictly municipal func- perform charter 450, troit, 145, 112 70 37 L.R.A. Mich. N.W. tions, to do act in obedience not and and therein. (1897) 211 cases cited enjoined in the manner State laws Steber, 62 Kirk, Britton v. 44 401 State officers.” In State ex rel. Platt v. Ind. 370, City (1876). (1874) that the office of Mo. 374 it was held ** * un- was not an “office Councilman applied holding also The above was holding, making der this In such State.” Inf. of in at office of alderman Supreme stated fol- the Indiana Court as 268 Mattingly, S.W. ex rel. Tucker v. Dalton : lows (Mo.Sup.Ct. 1954) 2d 868 councilman is an of- “The 448, Bacharach, In Klair v. 10 N.J.Misc. municipal purely in its wholly fice and City that a (1932), A. it was held 159 538 perform He has no character. Mayor, although acting as Commissioner or under the laws of this State. court, judge not an officer police of a was applicable The State has enacted a law government “under of this State.” may organize under all cities which Attorney Supreme in The Florida Court particular it. The inhabitants of the Connors, 27 Fla. ex General rel. Wilkins v. locality, after taken the other having municipal of- (1891) So. 7 held 9 necessary steps organization, for an fices “under the are not offices designated elect the number of coun- of this State.” cilmen, power who have the to enact People by-laws, Capuzi, 170 and acts v. 20 Ill.2d do such other and perform (1960), 625 it pertain such N.E.2d was held other duties as Village is an “office un municipality. President of not their office These * * * * der this be- and duties of councilmen are
629
Miller,
Robinson, supra,
Young
154
ex rel.
v.
Respondent relies on Wood v.
support
proposition. That case
is based on a
(1922)
Ark.
S.W. 573
similar
Attorney
is an
General
involved the
of the
position
Councilman
bring
it
to remove
under the
In that case was
of Minnesota to
suit
officer
State.
mayor
munici-
judge
person
munici-
the office of
of a
held that the office of
of the
from
pality.
him
such
pal
a “civil
The court held
to have
court of a
right,
fact
made the
such
based on the
this State.”
Arkansas court
mayor
required
following statement:
that Minnesota the
by
report
state law to
all
of the
violations
state,’ as
words ‘under this
used
“The
liquor
by
neglect
duty
state
laws
Constitution, mean under the
mayor
was made cause for removal.
state,
or in
laws of this
virtue of
Cook,
conformity
authority
supra,
with the
conferred
In Yett v.
it was stated
court,
respondent
sovereign.
It embraces
this
relies thereon:
state
all offices created
the laws of
justiciable
“That the state has a
‘in-
contradistinguished
state
from other
sovereign capacity
terest’ in
authority. Municipal offices are cre-
operation
maintenance
of its mu-
state,
by the
are
ated
statutes of the
nicipal corporations in accordance with
therefore
‘under
civil offices
law does
admit
not
doubt.
serious
”
state.’
Municipal corporations are created for
the exercise of certain functions of
distinguished
That case
the case
from
government. They have a two-fold
municipal
before us in that in Arkansas
of-
character,
governmental
one
and the
fices
are created
statutes
and,
private,
other
in so
far
their
“contradistinguished
from
author-
governmental,
character
are
ity”.
authority
The other
in the instant case
agencies
subject
Worth,
is the charter of the
of Fort
(citing authorities.)
state control.”
which created the officeof
Councilman.
magistrate,
“The
is a
Respondent
Attorney
relies on
General
police
and its
officers are state officers.”
ex rel.
v. Common Council of
Moreland
(citing authorities.)
Detroit, supra,
Young
State ex rel.
of the court was that indi-
Robinson,
Minn.
N.W.
private capacity
viduals in
their
did
L.R.A.,N.S.,
(1907), along
lan-
*8
justiciable
have a
interest other than as
guage by
Cook,
this court in
Yett v.
public,
general
member of the
hence could
(1926).
Tex.
writ in which the S.W.2d county
court held that a commissioner officer under the state. contrary
That the test that case is not
has been set out The office of coun- above.
ty created the state. commissioner was
Its are set statute counties themselves are created regard
state without to the wishes
people residing. therein agree
I with the statement this court’s
opinion in “Any this case that constitution- provision
al or statutory which restricts the public strictly to hold should against ineligibility.” keep-
construed
ing premise, with that I would hold that a councilman of the Worth
is not an officer under this and I would
grant application relator’s for writ man-
damus. BROWN, Relator, Hulon Adams, Beaumont, Gilbert T. for rela- tor. al., Respondents.
Howard WALKER et Walker, Lufkin, Fairchild,. David R. W. No. A-10074. Nacogdoches, respondents. Supreme Court of Texas. April 8, 1964. SMITH, Justice. Brown,
Relator, The Honorable Hulon elected, currently-acting District Attor- *9 ney up of the combined district made Forty Second and One Hundred and Fifth Texas, petitions Districts of Judicial court for the issuance of a writ of manda- mus commanding compelling the Hon- Walker, Chairman, orable Howard all members of the Democratic Execu- Texas, County, Angelina tive Committee of comprising one said counties Judicial District, place ballot his name