
    No. XV.
    Ex Parte Colin De Bland.
    (See .)
    
      Fort Bend County.
    
    
      
      .—Ex parte Colin De Bland, p. 406.
      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., 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. Cooke, 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; Hunnicut 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 quo warranto proceedings, applies only to franchises of corporations. State v. Smith, 55 T., 447; I. & G. N. Ry. 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., 55 T., 76; State v. Moore, 57 T., 307; State v. I. & G. N. Ry., 89 T., 562; also see State v. S. P. Ry., 24 T., 80; State v. R. G. Ry., 41 T., 217. A contrary rule seems to be held in Morris v. State, 62 T., 728, but it 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, 75 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., 153; 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 franchise, except for causes declared by statute. State v. R. G. Ry, 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. McClesky, 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 v. Schooner Leona, 67 T., 303. Though quo warranto is in form analogous to a criminal prosecution, the remedy is civil in nature. State v. De Gress, 53 T., 387; Davis v. State, 75 T., 420; Buckler v. Turbeville, 17 T. C. A., 120; Ames v. Kansas, 111 U. S., 449; Foster v. Kansas, 112 U. S., 201.
    
   TERRELL, Justice.

This was a motion made by an attorney of the District Court for the county of Port Bend to dismiss all cases on the docket of said court which had originated since the 19th day of August, 1839, and to adjourn the court until the next regular term. The grounds in support of the motion are, that the clerk of the court was not elected agreeably to the provisions of the Constitution and laws of the Republic, but that he exercised the functions of the office by virtue of an appointment from the district judge. The first question for this court to decide, and which controls the case, is whether we can take cognizance of the case in the form in which it is brought before us. We are unanimously of opinion that we can not.

The law relied upon in argument, as giving the court jurisdiction in the case, is the third section of the act of Congress organizing the Supreme Court, which says: “The said Supreme Court shall have jurisdiction over, and shall hear and determine all manner of pleas, plaints, motions, causes and controversies, civil and criminal, which may be brought before it from any court in this Republic, either by appeal or other legal process, and which shall be cognizable in the said Supreme Court, according to the Constitution and laws of this Republic.” The question here naturally arises, has this case been brought here “according to the Constitution and laws of the Republic ?” The “laws of the Republic” point out the mode by which suits shall be brought in the different courts. This court, possessing “appellate jurisdiction” only, can consequently take cognizance of such cases only as are properly brought here from some of the inferior courts. It therefore follows, as a necessary consequence, that they must be brought into those inferior courts in the manner pointed out by law; and if they are not so brought into the court below, the defect can not be cured by an appeal to this court.

There are several methods known to the law by which causes may be brought into the district court. The one generally adopted is by petition and summons, and we do not say, if objection had been made to the writ in any cause in the court, as having been issued by a clerk who had no authority, the cause could not then properly have been brought here. Our statutes also authorize motions against officers of court in certain eases; but then the party is entitled to previous notice, that he may prepare for his defense. The most usual method perhaps of ascertaining whether an individual has authority to exercise the functions of an office is by an information in the nature of the ancient common law writ of quo warranto. None of these methods, nor any other pointed out by our statutes or known to the common law, having been pursued in this case, we can not take cognizance of it, but are compelled to declare the whole proceeding coram non judice, and consequently void. The case is therefore ordered to be stricken from the docket for want of jurisdiction.

Dismissed.  