The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1880-06-03
quo wARRANTO.

1OOO.
The nature Of this case will suffi-
ciently appear from the following
statement, extracted from the briet Of
counsel for appellant:
This was an information in the ns-
ture of a quo tcdrrdRt0. instituted In
the district court Of Travis county,
Texas, on the 14th day of February,
1880, by E. T. Moore, county attorney
of Travis county, Texas, under the act
of July o, 1879, (R. s. Tex. App, p.
~ acting of his own accord and also
Gu the sworn relation of Rsdchf
Pistt, citizen, voter, property holder
and taxpayer of the city of Ausin in
said county and state, against J. c.
DeGress, who was elected mayor of
said city on the Sd day of November,
1879, and installed as such by the city
council of said city on the 18th of the
same month. The information was
filed on behalf of the State of Texas,
and after recitIng that provision of the
charter of the city of Austin, which
prescribes that no person shall be
mayor (of the city of Austin) who, at
the time of his election, is not possessed
of the qualifications re quired for an al
dermap, or who holds any lucrative Office
under authority of the United States
or any state, alleges that said ]. G.
DeGress was not and is not eligible or
qualified to take and exercise SAID
Office of mayor by reason of the fact
that be was at the time of his election,
and still is, an officer of the army of
the United States, holding lucrative
offics under authority of the United
States, to-wit: the Office of captain of
cavalry on the retired list of the army
of the United States, subject to duty
and drawing pay as such officer. And
| it is further alleged in the pleadings of
appellant, filed below, that by virtue
of sppellee's holding said lucrative
Office under authority of the United
States, he was not a citizen or legal
voter of the State of Texas, and was
therefore not qualified to act as mayor of
said city of Austin. To the informs-
ton filed in this cause, the defendant
interposed bis demurrer, contendIng
that by reason of the fact of his hav-
ing been counted IN and installed as
mayor of said city of Austin by the
city council of said city, said council
being by the provisions of their city
charter made, as he alleges, the sole
| Judges of the election returns and
qualifications of its own members, and
the mayor being a member OF said
council, the whole matter was res judi
cata, and finally and forever settled by
the judgment of court of coml etent
Jurisdiction.
He further contended that this con-
troversy was one beyond the jurisdic-
ton of the distric. court, conferred by
the constitution of Texas.
The district court sustained the de-
murrer and dismissed the cause, order
ing costs to be taxed against the rela-
tor.
From this judgment the state now
appeals"
A motion to dismiss was made by
appellee on the ground that this is a
criminal case of which this court had
no jurisdiction, and on the further
ground that if not criminal case it
was one of which the district court
had no jurisdiction.
As heretofore orally announced IN
overruling the motion to dismiss, oul
opinion is, this is a civil case of which
the district court has original jurlsdic-
ton under the constitution, and ,is
therefore case within the appellate
jurisdiction of this court.
The proceeding authorized by cur
statute is substantially the same as that
in the statute of 9th Anne, and al
though in form criminal method oi
prosecution, has long been held by
the standard text writers and the courts
to be "in it's nature civil remedy,
"applied to the. mere purposes of try
ing the civil right, seiziDg the franchise,
or oustIng the wrongful possessor; the
fine being nominal only" e Kent, p.
313; 8 Blackstone, p. 263; High. or
Ex. Rem. sec. 808- 510 and cases cited
Angel & Ames on Corp, sec. 733
State v. Hardie, l IredelI, AZ; State
Bank Y. State, Blackf., 272; State v
Kupferle, A No., 1856; Com. Bank v
State, 4 Smedes & Marshall, p. 504
Commonwealth v. Com'rs of Co. o
Phila., 1 s. g. R., 1856; People v. Utics
Ius. Co., Is Johns, 1856; Tomlins' Lav
Dict, Title Quo Wdrranto; Cole on Grim
Informations Claw Lib, vol. 40p. 1875
6-7]; Banton Y. Wilson, 4 Tex, 407
says Castor. j. in in State v. Hardie,
supra:
"Originslly this was criminal pro-
ceeding. In it the usurpation was
charged as an offense, and the offend
J er upon conviction was liable to bt
punished by fine and imprisonment
Such, however, were the convenience
attending the information as q mode
of trying the mere question of right tt
the Office or franchise, that though i
never entirely lost Its form as Grim
inal proceeding, 1t was sc modelled
as to become substantially civil &C
ton. A fine indeed was imposed upoI
conviction; but it was nominal only
no real punishment was inflicted, ant
The general civil remedy for arrestinl
and trying the right In order to seiz'
the Office or franchise, or to oust the
wrongful possessor." Il Iredel, A..
Again he says: "The proceeding be-
fore US is carried on divisio intuitu,
and to hold it prohibited by the bill
of rights, would be to sacrifice sub.
stance to mere form. If, indeed, il
should ever be attempted in informa
tions of this character, to impose {
real fine, or to inflict any other pun
ishment, 80 as to make them in eff
feet criminal prosecutions, such at
tempts would fall before the explicit
prohibitions of the bill of nights nov
needlessly invoked" p. 40. The pro
vision of our statute that the courI
''nay fine such person or corporation
for usurping, intrudIng into OF
unlswfully holding and executing suct
Office or franchise" is literally copied
from the Statute of Anne, snd wal
doubtless designed to receive the prac'
teal construction given it under thai
statute, and to be imperative save a.
to q nominal fine. If, however, il
should be construed as q criminal stat
ute authorizing the court to impose ar
indefinite fine, it would, in our opin.
ion, fail TO conform to the requirements
Of our criminal law in afiixiDg the pen
atty, and to the extent Of the finC
would be imperative. (R- S. Pen.
Code. art. 81
The statute, however, itself directs
the clerk to 81 issue citation in like
form 20 in civil suIts"; thst the per.
son or corporation ''shsll be entitled
to all the rights in trial and investlga.
ton OF the matters alleged against hin
as in the case of trials Of civil causes
in this state" and expressly entities
either party to an appeal to this court
As the constitution denies the State