El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-04-26

and counted for no one. Can it be pos
sible, that the power and jurisdiction
of the council is so ample that it can
hear mans cause and give him re-
dress before he has sustained any in
jury? In what way has Magot1in in
jured O'Keeffe? Why should he COM
plain of Magoffin any more than any
other private citizen? Magotfin has
not the Office which he claims. Can
he ask the city council to take that
from Magoffin which he never possess
ed, and give it over to him? Magoffin
is not a member of the council. Until
the returns are opened and canvasSed
and Mr.. Magoffin has been declared to
be elected, Mr.. O'Keeffe has no
grounds of complaint before the coun-
Gil or any other court or tribunal
Until the returns are opened and can
vassed it is utterly impossible for Mr.
O'Keeffe or any one else to know
whether he is entitled to relief or not
or whether he is even entitled to be
heard to complain or not. The open
ing and canvassing the returns and
declaring the result is, and must nee
essarily be prerequisite to the RICH :
of the city council to entertain con-
test for the Office OF mayor or any other
Office. 1t is, and Of necessity must be,
the foundation upon which the right of
contest must rest, if the right exist at
all. Until that is done, Mr.. Magoffin
can never become member of the city
council, and until he does become a
member of the council, it
is powerless to acquire juris-
diction over him, and without
jurisdiction over him, the council is
equally pOwerlesS to adjudicate any
thing for, or against him. The city
council shall be the judges
of the election and the qualification of
its own members" In what way is the
city council interested in the qualifica-
tions of person who is not member?
That the city council must meet as
board of ca1vassers and open and can
vass the returns and declare the result
before it has any jurisdiction TO hear
contest, I do not think will admit of
serious doubt. The very case in hand
will illustrate this. Mr.. O'Keeffe APP
pears before the council and filed his
petition and asks the council to cause
Mr.. Magoffiu to be cited to appear and
answer, who is going to issue the cita-
ton? Is it the mayor, the clerk, or
the entire council? Where is the au
thority for anyone to issue it: to whom
shall it be directed, and where is the
authority for any officer to execute
Sucn process. 'ouppCSe He 10 Cilcu W
appear, and he refuses to obey the
citation? Is the council to render
Judgment by default against him
or will it proceed TO pun
ish him for disobeying its process?
Hardly the latter [ think, as
it can punish its own members, and no
one else: and as to the former, no such
power is found to abide in that body. If
not these, then what, will it proceed TO
| ha.
to do so: it has no way OF obtaining
jurisdiction over Mr.. Magof1in. He
denies its right, and refuses to submit
to its Jurisdiction, and a proceeding
without jurisdiction is void. BY al
lowing him to become member OF the
council. the council can acquire juris-
dictiou over him, and in no other way.
[ therefore, conclude the action OF the
city council in refusing to open and
canvass the returns and to declare the
result was and is, without authority of
law, inexcusable upon any reasonable
hypothesis consistent with proper
adm inistratio of the law and absolute
ly void, and that its action in deiermin-
ing to entertain the contests, Is pre-
mature, if it has the right at all to
hear such confess. It will therefore be
ordered that peremptory and final
writ of mandamus be issued requiring
to open and canvass the returns OF said
election, and to determine and declare
the result OF the same.
Has the city council Jurisdiction to
hear and determine The respective
claims of Magoffin and O'Keeffe TO the
office of mayor of this city? 1t is my
deliberate Judgment that the amend
ment Of the constitution adopted in
1891, by which original Jurisdiction of
contested elections is conferred upon
the district courts must be held, to
have invested these courts with en-
elusive juris iiction of contested cleo
ton cases for any and all Offices, state,
county and municipal. | believe that
whenever, by the constitution the fun
damcntal powers OF the state are di-
vided, as is the case with US, into sep
arate departments the grant to each
is exclusive of the others, and where
the judicial power of the sta is dis
tributed by the constitution to certain
pamed courts, the grant is exclusive
as to the courts mentioned, and as to
the powers apportioned to each,
has granted jurisdiction to a
court it is beyond the power of the
Legislature to abridge or infringe that
jurisdiction territory, or as the subject
matter. That where the jurisdiction
OF court Is Qenneu IN Tue uStllutlOuI
the legislature has 70 power to confer
a similar jurisdiction upon any other
court or tribunal. The amendment OF
the constitution provides that the dis
rictcourts shall have original Juris-
diction of contested elections. There
is nothing in the way OF contested
election that is excepted from its oper-
alton. 1t is, however, contended that
this amendment is imperative so far as
municipal officers and elections are
concerned, because the Legislature has
provide d no mode for the exercise of
the power granted and in support of
this position the Odell case is cited.
That case holds and properly 50, that
legislative action was necessary in case
of local-OptiOn contest. 1t cannot be
said that any person, any particular in
dividual has any such right or interest in
the result of a lCcal-option election as
will entitle him to contest the same in
the courts. Hence, no right was con-
ferred upon anyone by the amendment
to the constitution, in so far as contests
other than for an Office was concerned,