
    No. IX.
    R. H. Bkadlet v. John McCrabb.
    (See .)
    
      Appeal from Victoria County.
    
    
      
      .—Bradley v. McCrabb, p. 504.
      1 Person elected to fill a vacancy in an office is entitled to hold it for the statutory period, and not the unexpired term. Bradley v. McCrabb, Dal., 504; Roman v. Moody, Dal., 512; Shelby v. Johnson, Dal., 597; Bánton v. Wilson, 4 T., 400. Distinguished in Royston v. Griffin, 42 T., 566.
      
        2 Quo warranto is a legal proceeding by the State to determine the right of an office or franchise, and to oust or forfeit. As a general rule, it can only be sued out in the name of the State by its prosecuting officer. It is also used to ascertain whether an individual has authority to exercise official functions. Ex parte Colin De Bland, Dal., 406; Bradley v. McCrabb, Dal., 504; Wright v. Allen, 2 T., 158; State v. S. P. Ry. Co., 24 T., 80; Grant v. Chambers, 34 T., 573; Brennan v. Weatherford, 53 T., 330; State v. De Gress, 53 T., 387; Farmer v. State, 69 T., 561; Wallace v. Anderson, 5 Wheat., 291; Territory v. Lockwood, 3 Wall., 236. An individual may make the relation on which the State’s officer flies the information. In such cases the proceedings are in the exclusive control of the State’s officer, and can not be dismissed by the relator. Banton v. Wilson, 4 T., 400; Mathews v. State, 82 T., 577; McClesky v. State, 4 T. C. A., 322. If relator has no interest, court may refuse to allow the information to be filed, or dismiss it. Deaver v. State, 27 T. C. A., 453. Can not be used as a remedy by a stockholder of a corporation. State v. R. G. Tty. Co., 41 T., 217. Quo warranto is a proper proceeding to try title to an office, but it has always been regarded by our courts as only a cumulative remedy. Bradley v. McCrabb, Dal., 504; Wright v. Allen, 2 T., 158; State v. Cocke, 54 T., 482; Flatan v. State, 56 T., 93; Watts v. State, 61 T., 184; State v. Jennett, 63 T., 261; McAllen v. Rhodes, 65 T., 348; Fowler v. State, 68 T., 30; Williams v. State, 69 T., 368; Livingston v. State, 70 T., 393; State v. De Gress, 72 T., 242; Hunnicutt v. State, 75 T., 233. The term “franchise” used in Act of July 9, 1879 (Gammel’s Laws of Texas, vol. 9, p. 75), Rev. Stats. 1895, art. 4347, regulating qua warranto proceedings, applies only to franchises of corporations. State v. Smith, 55 T„ 447; I. & G. N. Ry. Co. v. State, 75 T., 356. County and district attorneys can not institute quo warranto proceedings to forfeit charter of corporation. Rev. Stats. 1895, art. 4343, in so far as it attempts to confer such power, is unconstitutional. Such proceedings must be brought by the Attorney-General. Constitution, art. 4, sec. 22; State v. Paris Ry. Co., 55 T., 76; State v. Moore, 57 T., 307; State v. I. & G. N. Ry. Co., 89 T,, 562; also see State v. S. P. Ry. Co., 24 T., 80; State v. R. G. Ry. Co., 41 T., 217. A contrary rule seems to be held in Morris v. State, 62 T., 728, but is distinguishable from the other cases, in that the suit was to oust from use of a franchise not authorized by law—may be filed by district attorney pro tem. Fowler v. State, 68 T., 30; Davis v. State, 76 T., 420; Little v. State, 75 T., 616; Bell v. Faulkner, 84 T., 187, 189; Dean v. State, 88 T., 290; State v. Thompson, 10 T. C. A., 272; Hanscom v. State, 10 T. C. A., 638; Hussey v. Heim, 17 T. C. A., 163; Gray v. State, 19 T. C. A., 521; Quintanilla v. State, 23 T. C. A., 479. Though the State may appeal without bond, the costs should be taxed against the relator, not the State. Hussey v. Heim, 17 T. C. A., 153; State v. Broach (T. C. A.), U. R. C., 1896. It does not lie when there Is no question as to the right to the office, to question right of officer to do an act or restrain him from exercising a privilege incident to his office. State v. Smith, 55 T., 447. Nor to oust an officer for bribery until conviction. State v. Humphries, 74 T., 466. Nor to revise decision of city council as to eligibility of candidate for municipal office. Seay v. Hunt, 55 T., 545; Krakauer v. Kaples, 5 T. C. A., 264. Nor by public weigher against a private weigher. Watts v. State, 61 T., 184. It does not lie to forfeit fronchise, except for causes declared by statute. State v. R. G. Ry. Co., 41 T., 217; Morris & Cummings v. State, 65 T., 53. It lies against the enjoyment of a franchise granted either by State or municipal legislation, when the power to grant did not exist; and the legality of the corporation may be called in question by quo warranto in an action involving the right of an officer to do an act under the charter. Morris & Cummings v. State, 62 T., 728; State v. Goowin, 69 T„ 55; Furrh v. State, 6 T. C. A., 221. It lies to test validity of a municipal or quasi municipal incorporation. State v. Dunson, 71 T., 65; East Dallas v. State, 73 T„ 370; State v. Eidson, 76 T., 302; Ewing v. State, 81 T., 172; Mathews v. State, 82 T., 577; State v. Wofford, 90 T., 514. In such cases laches can not be imputed to the State. State v. Wofford, 90 T., 514; Troutman v. MeClesky, 7 T. C. A., 561. It is not a means to compel a person or corporation to carry out contracts. It is used to forfeit, not to suspend a franchise; to reclaim a privilege, not to punish for breach of contract. Morris & Cummings y. Schooner Leona, 67 T., 303. Though quo warranto is in form analogous to a criminal prosecution, the remedy is civil in nature. State v. Degress, 53 T., 387; Davis v. State, 75 T., 420; Buckler v. Turberville, 17 T. C. A., 120; Ames v. Kansas, 111 U. S., 449; Foster v. Kansas, 112 U. S., 201.
    
   HEMPHILL, Chief Justice.

John McCrabb, the plaintiff in the court below, presented his petition to the District Court for the County of Victoria at its spring term, 1841, stating that in the month of January, in the year 1838, he was duly elected to the office of clerk of the district court for the said county; that he was duly qualified; exercised the duties and enjoyed the immunities of the said office until the 1st of February last; when Bobert H. Bradley, the appellant in this court, by virtue of a pretended election claimed to be the lawful incumbent of said office, and that in accordance with the advice of the chief justice of said county, and the desire of his honor the district judge, and in order to the due administration of justice, and that the courts might be held without interruption, he had handed over the books, papers and records of said court and said office to the said Bradley, but denied that he had by that act transferred the rights, the perquisites, immunities, and right to said office; but retained and reserved the same to himself, until the full end and term of four years should elapse from the period of his election. He prayed for a writ of mandamus requiring the said Bradley to deliver to the said petitioner the said office with all its immunities, records, books, papers, etc., or show cause to the contrary. The petition was sworn to on the 21st of April, and on the same day there was. entered of record in the said court an order commanding- the said Bradley to deliver up to the said McCrabb the said office, with the immunities, books, papers, records,'etc., within one day, or otherwise to show, if he could, any sufficient cause or warrant to the contrary. On the following day the respondent returned, or showed for cause why he ought not to be required to deliver up to the said plaintiff the said office, with the books, records, immunities, etc., and why a peremptory mandamus should not issue:

1. That the said plaintiff had other remedies at law.

2. The respondent had not good, sufficient, legal and timely notice of the suit of the said McCrabb.

3. That the said McCrabb was only elected (if he ever was legally elected, which defendant denied) to fill an unexpired term terminating on the 1st day of February, 1841.

4. That at an election held in conformity with law on the 1st day of February, 1841, to fill the said office for the said county the said respondent received the largest number of votes for the said office; that he had been duly commissioned as clerk of the said court by the President of the Bepublic; and that by virtue of the authority thus vested in him he has taken possession of the records, books and papers of the said office, and has continued ever since in discharge of the duties of the same; and prays for a rescission of the order entered of record as aforesaid.

The right of trial by jury was waived, and the cause being submitted to the court, a peremptory mandamus was ordered to be awarded, commanding respondent to yield up to the plaintiff the office and franchise of clerk of the said court with all the immunities, books, papers, archives of said office, to be used, held and kept by the said McCrabb until the full end and expiration of his office, viz., for four years from and after the 10th day of Januarjq 1838.

From this decision the respondent has appealed. As no argument has been made in this cause, nor brief offered by counsel, we will proceed to consider the objections to the judgment of the court below in the order of their arrangement in the return of the respondent.

And first that the plaintiff was not entitled to this writ, he having other remedies at law. As this application was subsequent to the passage of the statute of this Republic requiring judges, in issuing writs of mandamus, to observe the rules which govern such writs at common law as modified by the statutes of this Bepublic, we will proceed to consider whether at common law mandamus would be the appropriate remedy of the wrong complained of in this controversy. The writ of mandamus, according to the theory of the British Constitution and of the common law, is deemed a prerogative writ of an extensively remedial nature, and has been figuratively styled “one of the principal flowers of the jurisdiction of the king’s bench,” in which the king once sat in person, and is by legal fiction still presumed to be present. See 1 Chitty’s General Practice, p. 79; Kendall v. United States, 12 Pet., 620.

Among an infinite number of other purposes to which this writ may be applied, it lies to compel the restoration or admission of anyone entitled to any office or franchise of a public nature, whether the same be spiritual or temporal, and also for the production, inspection and delivery of public books and papers. See Black. Com., p. 110; Bac. Ab. Mand.; 2 Tomlin’s L. Die., p. 512. In 3 H. and M., 1, 47, it was decided to be a proper remedy to restore to his office a clerk of a court who has been ousted therefrom by the illegal appointment of another person. See 2 Tucker’s Com., p. 202. It will not only issue in cases where the party having a specific legal right has no other legal operative remedy, but where the other modes of redress are inadequate or tedious, the writ will be awarded. 3 Black. Com., p. 110; 1 S. C. (Tread. Ed.), p. 175; 4 Burr, 2044; 3 Burr, 1266. One of the reasons for the abundant caution in the exercise of this jurisdiction under the common law, ánd the restriction of its application to cases where there was no other legal, specific and operative remedy, was the final character of the judgment awarding the writ of mandamus; as no writ of error lay by which it could be subjected to the revision of a superior tribunal. But under our Constitution and laws the defeated party is entitled to an appeal from any final judgment rendered in the district courts; and the jealous caution which might arise from the influence of apprehensions that remediless wrongs might be committed, can have no foundation or support in the structure of our judicial system. It is true that at common law the writ of quo warranto will lie in the name of the king or the Bepublic against any person or corporation, as well for the usurpation as for the nonuser or abuse of any franchise or liberty, to show by what warrant or title they claim such right or franchise. And had an information in the nature of a quo -warranto been filed in this cause, we will not say that the same could not have been sustained; but where the object is not only to restore to office him who has been illegally ousted, but also to cause the books, papers and archives thereof to be delivered to his possession, we are of opinion that the writ of mandamus operates a more complete and effectual remedy.

The nest objection, that the respondent did not receive sufficient legal and timely notice, will be found untenable. Were the seventh section of the act establishing district courts alone consulted, we might hastily conclude that all process issued in the course of judicial proceedings must be served at least five days before the next term succeeding the issuing of said process. But when construed with other portions of the same statute, such a conclusion will be found incompatible therewith, and the provisions of the said section must necessarily be restricted to the ordinary process obtained from the ministerial officer of the court, without the intervention of judicial power. Any other construction would in a great measure paralyze judicial authority and render it too imbecile for the effectual administration of justice or the redress of wrongs. By the fourth section of said act, Congress in conformity with the provisions of the Constitution has communicated to the district courts the most high and transcendent authority in both civil and criminal matters, limited and confined only by appeal to this tribunal. The judges are in express terms empowered either in vacation or term time to grant writs of habeas corpus, mandamus, injunctions, supersedeas and all other remedial writs known to the law, not repugnant to the Constitution, returnable according to law into the Supreme Court, or either of the said district courts, as the case may be. Under other circumstances it might be profitable to inquire whether the legislators by the -use of the terms injunction, mandamus, supersedeas, etc., introduced or intended to introduce all the principles and rules by which these writs are governed at common law. In Aques v. Indice, 3 Martin, 171, it was decided that the use of common law names in judicial proceedings were naturally adopted in a practice carried on in the English language, but that they should rather be considered the translation of names formerly used, than as emanations from English jurisprudence. That the words mandamus, procedendo, certiorari, prohibition, etc., sometimes employed in practice, may be considered good equivalents for incitation, evocation, inhibition; but that their adoption as words could by no rule of law or common sense be considered as having introduced the English practice itself. But however interesting might be the examination of this subject when a proper case is presented, the present controversy could not be affected by the practice in relation to remedies of a similar nature in courts deriving their jurisdiction from the civil law. By subsequent legislation, the judges were required in the issuance of the writs of mandamus to be directed by the rules which govern such writs under the common law, as modified by the statutes of this Republic. To the common law and to our statutes, then, must we apply for the decision of the question, whether the order or alternative writ of the mandamus issued in this case should have been served five days before the commencement of the term of the court, or whether the same was properly issued in term time and returned at the same term. In deciding on the proper practice to be pursued under our laws and the organization of our courts, we derive but little assistance from an examination of the practice of the common law courts in England; nor has that practice by the introduction of the common law become of force in this country, and the decisions thereon are no further binding here than as they are applicable to the structure of our courts of justice. There the terms of the courts are frequent and long continued; and the difference between the time of the test and the return of the writ varies according to the distance of the respondent from the place where the sessions of the courts are held. Here our courts are held but twice in the year. The term of many of them does not exceed six days, which is two days less than the minimum period allowed in England between the teste and return of the writ of mandamus. The dissimilarity between the organization of the English and our courts is so great that no deduction can be shown from the English practice as to the proper period of notice under our judicial establishment. The question then arises, whether on a just interpretation of our statute laws (considering the powers of the district courts and the objects to be obtained by the application of the remedy), a writ of mandamus can be returned to the same term from which it issued? This question will admit of but one answer. If we examine the usages of other courts where common law prevails, we will find that the rule to show cause, the alternative and peremptory mandamus have all been granted at the same term of the court. The same provision which authorizes judges to issue writs of mandamus gives authority also to issue writs of habeas corpus, requiring them both alike to be returned to the district court. It surely would not be contended that a writ of habeas corpus issued at one term of the court could not be returned until the succeeding term thereof. Such a construction would render nugatory this great instrument of human liberty, and a similar one would vitally impair the remedial efficacy of the writ of mandamus. It is the daily practice of courts to issue writs returnable to the same term, and the exercise of such power is essential to the due, prompt and vigorous administration of justice. Writs are issued for the apprehension of criminals, attachments for contumacious witnesses, and many other processes, returnable immediately, or at a day fixed in the said term. If the writ of conditional mandamus could not be returned at the same term at which it was issued, one of the objects of the adoption of that remedy, viz., the speedy attainment of justice, would be defeated; for no other mode of redress could be more tedious or protracted. The processes in mandamus are of an extraordinary nature and require the intervention of a judge, and as to the period of their return can not well be assimilated to the ordinary writs obtained from the ministerial officers of the courts; but in the absence of distinct statutory provisions, the day of return ought to be regulated by the objects to be accomplished and the usages of courts similarly situated. Nor can the exception be sustained because there was no rule to show cause and no conditional mandamus in fact issued. The circumstances of this case as developed by the evidence were peculiar.

The claimant, McCrabb, had delivered the papers and books of the office to the respondent at the request of the presiding judge, that there might be no failure in the administration of justice; it being understood that at the earliest opportunity, on proper proceedings being instituted, the right would be decided.

The respondent acted as clerk of the court, and recorded the order directing him to yield up the office, with its papers and books, etc., or show cause on the next day to the contrary. His answer shows notice of the existence of the order. Where the probable cause is manifest the court is authorized as the primary measure to issue the alternative mandamus; and as the making out of the writ in form by the respondent and having it served on himself would have been idle and troublesome ceremony without any conceivable advantage, we can not think that on these grounds the exception for want of notice is supported. The order of procedure in suing out writs of mandamus is very clearly prescribed in 3 Black. Com., p. Ill, and ordinarily it should be pursued; but the circumstances of this case and the official situation of the respondent rendered other steps than the order of the court and his notification thereof unimportant and superfluous. It has been decided that where a mandamus is sought to restore to office a clerk who has been ousted therefrom, that the person occupying the office ought to be made a party to the conditional rule or mandamus, and it ought to be served upon him that he may be warned to appear and defend his right. But if it appear from the record that he was apprised of the proceedings it will be sufficient. 3 H. and M., 1, 47; 2 Tuck. Com., p. 202. The defendant was warned of the proceeding, and can not properly allege want of notice. The next and most important question is, whether the said claimant MeCrabb was entitled to hold his office for the full end and term of four years, from and after the period of his election. The depopulated counties, from causes over which they had no control, were not organized nor county officers elected on the first Monday in February, 1837, as was prescribed by law; and they were specially empowered by a supplemental act passed June 13, 1837, to hold elections for county officers at such time as they might deem proper. Under the provisions of this supplemental act, an election was held on the 10th of January, 1838, in Victoria County, but the evidence whether the writs and notices of election purported that the same was to be had for a full term of office or an unexpired portion thereof was conflicting and variant. It will not be material to weigh and endeavor to reconcile the variant testimony on this point, as the important principles which are decisive of this controversy can not be affected or modified, even if it were incontrovertibly established that the election was had for an unexpired portion of the term of the office in dispute; nor can the act of the claimant in voting or being a candidate for a re-election in February, 1841, affect his rights—for if he were entitled under the laws of the land to hold his office for four years, the election to fill an office which was not vacant was a nullity, and without force and effect. Section 6, article 4, of the Constitution provides “that the clerks of the district courts shall be elected by the qualified voters for members of Congress in the counties where the courts are established, and shall hold their offices for four years, subject to be removed by presentment of a grand jury and conviction of a petit jury.” The terms of this provision are so plain that by no admitted rules of interpretation could the tenure by which this office is held be abridged or curtailed to a shorter period than four years. There is no analogy between term of the office of the district clerk and the fixed and definite periods for the commencement and termination of senatorial offices. The senators are ordered to be classified; the seats of the first class to be vacated at the end of the first year, the second at the end of the second year, etc., in such manner that one-third shall be chosen each year. Should a vacancy occur in the seat of any one member of a class, provision is made for filling the same, but the terms of office of the entire class continue until, and can only expire at stated periods. The time at which the senatorial term commences is fixed, and whether there be one or twenty incumbents it is also fixed, that it must expire at the end of three years. But can it be inferred by any legitimate rules of deduction that the tenure by which a clerk of the district court holds his office has any dependence on or connection with the period at which a former incumbent may have been elected to the said office, or the length of time for which he may have held the same? There is nothing in the terms of the Constitution which can militate against the plain and just conclusion that the person appointed by the elective power to the office of district clerk is entitled, whensoever he may be elected, to hold the same for four years. It can not therefore be material in point of fact to ascertain whether McCrabb was elected for a less or even a greater period than the term of four years. The Constitution prescribes the tenure of his office, and under its high guarantees he could not be disturbed even by a solemn act of legislative authority, without subverting the fundamental principles of our social compact; and if his com-stitutional rights could not be impaired by legislative action, they surely could not be subverted by mistakes of ministerial officers ordering the election, or the misapprehension of electors as to the period of duration of the office. This is an office created and its tenure and mode of appointment prescribed by the Constitution; and when the clerk is once elected, he is in office under that instrument, and entitled to all the rights and immunities conferred thereby. State v. Syles, 1 McCord, p. 238; State v. Hutson, Id., 240.

The question whether the legislative authority can constitutionally authorize the election of a clerk for a less period than a term of four years, does not perhaps properly arise from the construction of section 47 of the act establishing the district court. That authorizes an appointment by the district judge, when the office is vacant of a clerk pro tern., until a regular election shall be held. But there is nothing in that section to justify the conclusion that the Legislature intended that a clerk, when elected, shall hold his office for a less term than the constitutional tenure. We express no opinion as to the proper power from which the district clerk should receive his appointment or authority, as that question was not presented in this controversy. Should any embarrassment arise from the present legislation on this subject, it will be in the power of Congress at any time to afford the remedy. We are of opinion that the judgment below should be affirmed, and it is hereby ordered, adjudged and decreed accordingly.

Affirmed.  