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

Statutory Construction, Sec. 800, says:
eff a new right is created by statute,
and it is silent as to the mode
of its enforcement, or as to the
then the proprietor of that right may
resort to the common law or the exist
ing general statutory procedure for
remedial process. In the absence OF
statutory regulation of procedure,
courts will exercise their powers &C
cording to the general practice" L
think the same rule should apply where
a new power, and new right IS Great.
ed by the constitution, but no mode OF
procedure is prescribed. 1t is contend
ed by the plaintiffs that the city coun-
ell has no jurisdiction because the
district court alone has Jurisdiction of
the amount in controversy. 1t appears
from the admitted facts il this case,
that MIR. O'Keeffe exhibited to the
city council a regular petition IN
which he alleges the facts which con-
stitute his right to the Office of mayor:
and claiming that he, and not Mr..
Magoffin, is entitled to the office, and
alleging that the office is of the value
of $1,000 90. Prays for citation to Mag
offin and for final adjudication
of their respective claims to the office.
1t seems TO me, that this can be moth
ing but an ordinary civil suit to try tae
right of these parties to the office, the
value of which is admitted to be $1,000
aud such being the case, the district
court alone, has Jurisdiction OF the
amount in controversy between the
parties. | think the following quota
ton from the opinion of our supreme
court in the case of the State OF Texas
VS.. De Gress 80 S. 100 is all that need
be said on this point. st having been
determined in passing upon the motion
to dismiss that the proceeding of the
right of the statute is a civil suit or
com plaiut of which the amount of con-
troversy being sufficient, the cOnstItu-
ton gives the district court jurisdic-
ton, it follows, that the charter could
not confer the same jurisdiction on the
city council. The question is control
led by the provision OF our constitution
prescribing the jurisdiction of the diff
ferent courts. " For the foregoing rea-
ry injunction heretofore issued re-
straining the city council of
FL Paso from opening the ballot boxes
containing the ballots cast at the last
city election will be made perpetual.
For convenience, I have confined my
remarks to the controversy respecting
the Office of mayor. The same opinion
is entertained as ID the aidermanic dis
putants, and the same orders will be
made respecting them
(Signed.) G. n. BUCkLER.
Judge. 81 judicial District.
Judge Buckler added to mis- order
the following: It is further the order
and Judgment of the court that in the
event that an appeal is taken from this
Judgment and q supersedeas bond is
filed, that the execution of slid judg-
ment and issuance of said writ be sus-
pended during tendency Of appeal.
An aDDeal from the opinion OF Judge
Buckler was taken which will have the
effect of keeping the present mayor
AMI city council in office until deci-
sion is rendered by the appellate court.
If prompt action is taken by the Judges
in the upper court a decision can be
reached in from four to six weeks.
Thus the matter stands for the present.