The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1880-06-03
Actions to try the r,gh, TO an OFFICE.

of the district court. ,(Bantou V. Will.
son, Texas. 400; Bradley v. McCrab,
Dallsm, 506.)
Though the sction be in the name of
the state, the matter in controversy"
is still the right 20 the Office, 'and if
that amounts in value TO five hundred
dollars, the case comes within the con-
stitutionsl jurisdiction gwen the DIS
trict court"
Were 1t necessary to do so, in order
to uphold the Jurisdiction in such g
case OF the district court, the court
which in this state has always been the
main tribunal for the trial of cases
both civil and criminal, this might
perhaps be held to be a suit In behalf
of the stste to recover a forfeiture.
The clauses of the constitution de.
finIng the jurisdiction of the district
court should be literally construed
with due regard TO the fact that on this
court, as the "grest reservoir" of ju-
risdicton, has heretofore devolved the
body of litigation In this stste. Es-
pecially msy narrow and literal con-
struction be rejected when the result is
to leave no tribunsl competent to take
jurisdiction of important cases arising
under legislative ensctments.
Tunstall V. State was decided under
statute enacted previous to the pres
ent constitution, and is otherwise uu-
like the present case. (51 Tex Trigg
v. State, on the contrary, was a case
under our present constitution, and in
so far as it is analogous to the present
~ r Al
district court and OF this court.
The motion to dismiss has, in ac-
cordanae with the views now ex-
pressed, Eeen overruled.
The district court sustained excep-
tions to the information, and in cup
port of ite action, counsel for appellee
submits the following proposition: !:
''The city council, under the charter,
ls made special tribunal for the trial
of questions affecting the matter of the
election returns end qualifications of
Its own members, and as the informa-
ton shows that the city council had
adjudicated and determined the eligi-
bilIty of defendant, the court did not
err in sustaining defendants demurrer
to the information. The charter of
the city contains the following: "The
city council shall judge of the election
returns and qualifications of its own
members, ana shall determine con-
tested elections of all city officers,
made elective under this act or any
ordinance of the city," SIT was stated
in the amended original information
that the votes cast in the election for
| MI NJ hn ri Of ~
vember 3, 1879, were counted, and ap-
pellee officially declared elected mayor
by the city council of the city of Aus
tin, November 10, 1879; aud, further.
that appellee Was installed into said
Office by said city council" (See state
ment in appellants brief
In passing upon the election returns,
and in determining contested election
for mayor, the city council trespasses
on the jurisdiction of no constitutional
court. The legislature may authorize
special tribunals, such as the city coun-
Gil, TO decide such questions and try
such cases, because they are not cases
of which the constitution gives juris-
diction 10 any of the courts created by
that instrument. Williamson v. Love,
Tyler term, 1879, and cases there
cited.) To what extent the charter in
tends TO make the city council trIbu-
nal to finally adjudicste the question
of the qualification or disqualification
of It's members, including the mayor,
1t is not necessary to inquire. The
questions OF disqualification and for
teiture are so far from being identical,
that it by no means appears that the
intention of the legislature In the char.
ter, and in the act under which this
proceeding was instituted, may not be
fully carried out without giving rise to
any conflict of Jurisdiction. (See
Commonwealth Y. Alien, 20, P. A. s..
472 However this may be, it is very
clear that if the council may refuse the
seat because of disqualification, OF
even after the mayor has been sd-
mltted into office, may remove him
by reason of continuing disqualified.
tions," their action in declaring him
elected and installing him into Office,
cannot oust the district court of itt
constitutional jurisdiction to inquire
into the forfeiture of the office.
1t having been determined, in pass.
ing on the motion to dismiss, that the
proceeding authorized by the statute
is civil suit or complaint, of which
the amount In controversy being suffi.
cient, the constitution gives the dis.
trict court jurisdiction, 1t follows tha'
the charter. could not confer the same
Jurisdiction on the city council. The
question is controlled by the provis-
ions of our constitution prescribing
the Jurisdiction of the different courts,
and 1t is net deemed necessary to en-.
ter into an examination of the decis
ions of courts of other states.
In our opinion the information showes
nothing in the nature ola judgment o.
court of competent jurisdiction barr
ing the procedure in the district court
The only other proposition submit
ted by appellee in support of the &C
,ion OF the court in sustaining the de
murrer is: "That an officer of thu
army of the United States on the re
tired list does not hold such an offic,
as disqualifes him under the charter O
the city of Austin, and the constitution
and laws of the state, to hold civi
Office under said laws" BY express
enactment officers of the army on th,
retired list constitute part of the ar.
my of the United States, retain the &C
tual rank held by them at the date o.
retirement, receive IS per centumo of th,
pay of that rank, are subject to trial b,
courtmartial for any breach of the rule
and articles of war, and may be assigned
to duty at the soldiers home. Rev
Stat of IT cara f0Q1 10RA I0TA
1855 and 1859; zee Wood v. U. g..
Court of Claims. 1880, 10 the Reporte
of May IL, 1880. and 18th Opinions o.
Atty. Gen., p. 382
That such an officer holds lucrativl
office under authority of the Uni
ted States, or in the language oi
our state constitution, ian office o
profit or trust under the Uni
ted States" is TOO plain to admit o.
being made more 80.
The Office OF mayor of the city o
Austin can not legally be held by on,
who at the same time continues 81
officer of the army Of the United
States, though on the retired list.
We deem it unnecessary to pass upoE
other questions presented.
4 Bscsuse the court erred In sustain.
ing the demurrer TO the information,
the judgment il reversed and the cause
remanded. ROBERT 8. GOULD,
Associate Judge.
TEE New Orleans Democrat says:
An influential Republican, writsne
from Texas, warns the naoere a1stnsl