The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-06-27
OPINIONS.

OPINIONS.
Following are the opinions delivered
by the supreme court yesterday:
Ben NJ. Terrell, county attorney, VS.
:. +. Green district judge ct al. Orlgina
petition for a writ of mandamus-grante'
and mandamus ordered to issue
On April 10, 1895, Tarrant county in
.stituted suit on the bond of Thos. Il
Collins, its county treasurer, to recover
about S1OO,0OO00 This suit was in
etjtYted in the district court for the Forty
eighth judicial district, of which court Tho
Hon. $. +. Green is the judge. Ben. NJ
Terrell was at that time, and IS now
the duly elected and qualified county at
forney of Tarrant county. On April IT,
1895. Terrell filed in said case motion
whereby he prayed the district judge to
enter an order in said cause, recognizing
the right of the said Terrell to prosecute
and control said suit, as the county at
torney of said county. general de-
murrer to this motion was sustained
This is a petition for a writ OF man
1amus to compel the judge to grant the
motion. Geo w. Armstrong and Capps
md Canty, attorneys engaged by larr mJ,
bounty to conduct the suit against Col
tns, are made respondents, as is also
1irecn, the district judge.
% Had Ben. NJ. Terrell the right to
represent the county in the suit against
Collins and his sureties on the bond!
The statute not only confers the power,
but also imposes the duty upon the county
attorney, TO institute such suit. Cart.
2G0, X. 81 The statute cited is clear,
comprehensive and unambigi0us, and re-
auires NO argument or reasoning 10 APP
ply it to the facts of this case.
The fact that the suit had been filed by
other counsel, employed by the county,
in no wise relieved the county attorney
of his duty to prosecute it, nor did it de-
prve him of his privilege TO discharge that
duty. 1t being his duty to institute such
proceedings, it was no less his duty to
prosecute n like proceeding if instituted
by another. The commissioners court
syhie il might employ counsel in the prose
cntion of the suit had not the authority
TO displace the county attorney from his
pOstiOn and rightful authority under the
law as a county officer
We therefore hold that, under the
statute Ben. NJ. Terrell, rs county at
torney of Tarrant county, should have
been permitted to participate in the man
agement, prosecution and control OF the
case in question.
(2) 1t is not correct to say that Ter
rel had the right of appeal from the
order refusing him the privilege of ap-
nearing in the case. Said order was not
an independent proceeding in which a
Judgment could have been entered, nor
was it an intelocutory Judgment nor
in fact, judgment in any sense so far
as il affected the main case.
(3) 1t is claimed that Terrell had Il
complete remedy Mt law, in the fact that
having offered his services to the county,
ne could have recovered his commissions,
although he was refused the privilege of
performing his duty.
The injury complained of in the peti'
tiOn cannot be compensated merely ny
1he payment of the fees, which might
have been derived from the discharge OF
1he duties of the office. A legal and
moral obligation rests upon any officer tC
discharge the duties of his Office, indie
pendently Of the question of cOmpensa
ton. We therefore hold that Terrell
did not have complete remedy at law
and that this court has jurisdiction tC
grant the writ. Art. 1912, II. s.; Sc Tex.
(4) 1t is claimed that the district judge
in this case exercised his judicial dis
erection in refusing the motion of Terrell
and that this court cannot review his ac
zion, upon petition for mandamus.
II the jury of the district court or Other
officer, by his construction placed upon'th'
law, deprves citizen of an un
questioned legal right under circum
stances where the citizen has no right Of
appeal, then Il court, having power con
ferred upon it by law to issue writ OF
mandamus, has the right to review the
judgment or decision of such officer upoI
such question. All of the facts are ad
mitted in this case. The question present
ed is purely one of law No discretion was
involved in its decision by the distric
Judge.
Ii is ordered by the court that the clerl
nit Of m n N "A m
directed to the Hon. $. Il. Greene, judg'
Of the Forty-eighth judicial district, com
manding him that he permit Ben. Nj
Terrell, as county attorney of Tarran
county, to have his name entered upol
the docket of said court as attorney TO
the county of Tarrant in the case of Tar
rant county vs.. Collins ct al, and tina
the Said TERRELL in his official capacit
as county attorney be by said judge pei
mitted TO discharge the duties incumbcn
upon him by law as attorney for tn
said county in the aforesaid cause. Opin
ION by Brown. j.
Frank Il. Cotton vs.. Samuel Colt: Sui
by Colt, cistui que trust to establis
his interest in and to certain lands hel
by Cotton as trustee and part owne
from FL Paso county. Fourth distric
Reversed and rendered in part and r,
versed and Temanded in part.
In April, 1880, Noyes Rand ct al, pal
ties of the first part. and Frank Il. Co
ton ct al. parties of the second par
entered into an agreement for the pu
chase and acquisition of mineral land
BY the terms of the contract, all miner;
Lands acquired by the parties were to |
held for the benefit of the parties to tn
agreement in the proportion of one-ha
interest to the parties of the first pa
and one-half interest TO the parties of II
second part.
Under this agreement the parties acqui
ed 81 sections of mineral lands in I'll Pa,
county. which, in accordance with Il
terms Of the contract were dee%ed
Cotton and Buckingham, as trustee
for all the parties. In December. lSS
the parties entered into second co
tract of a nature similar to the first.
Under this agreement the parties a
p1uired tract of land near the city
lIl Paso. afterwards known as colt,
addition" to said city.
Samuel Colt filed this suit against CO
1oR. as trustee and personally, TO recoy
<ertan moneys alleged to have been pa
Ny the plaintiff in settlement of tax