
    YETT, Mayor, et al. v. COOK et al.
    (No. 4432.)
    (Supreme Court of Texas.
    Feb. 3, 1926.)
    1. Appeal and error <©=>UI25.
    Motion to reform, and, as reformed, affirm, judgment, held not motion to affirm on certificate (Rev. St. 1925, art. 1841).
    2. Pleading <S=»72.
    Prayer for general relief cannot be construed as prayer for anything expressly excepted by other portions of pleading.
    3. Municipal corporations <&wkey;46.
    Under Rev. St. 1925, art. 1170, charter amendments submitted by city governing body were validly adopted, though not drawn by charter committee.
    4. Municipal corporations <&wkey;l29.
    Austin charter amendment (article. 17, §§ 1, 4) held, to provide for “special election” of councilmen on February 2, 1925.
    5. Municipal corporations &wkey;> 124(2) — Statutes as to poll tax lists mandatory and charter amendment fixing too early date for election of councilman void (Const, art. II, § 5, art. 16, § 2, art. 6, § 2, 4, 5, art. 7, § 3, Vernon’s Ann. Civ. St. 1925, art. 1165, R. S. 1925, arts. 2954-3173, Pen. Code 1925, arts. 206-286).
    Rev. St. 1925, arts. 2975, 2984, 2992, 2993, 2996, 2997, 3005, as to poll tax lists, which must be in precinct judges’ .hands three days before election, are mandatory and provision of Austin charter amendment (article 17, § 1), fixing February 2, 1925, for first election of councilmen, is void and unenforceable by mandamus, in view of Const, art. 6, §§ 2, 4, 5, article 7, § 3, article 11, § 5, article 16, § 2; Vernon’s Aon. CSv. St. 1925, art. 1165; Rev. St. 1925, arts. 2954-3173; and Pen. Oode 1925, arts. 206-280.
    6. Mandamus <&wkey;74(2)— Duty ,of city council, enforceable by mandamus, to name another election date than that fixed by void provision of charter amendment.
    Under Austin charter amendment (article 17, § 4) it was duty of council, enforceable by mandamus, to name later date than February 2, 1925, fixed by void provision of section 1, for first election of councilmen; date of election being “feature” thereof.
    7. Elections <&wkey;2!2 — Poll tax lists must be delivered to election boards in time for city elections first Tuesday in April.
    Rev. St. 1925, art. 2975, requiring delivery of poll tax lists to election boards before April 1st, must be construed consistently with other provisions, and lists must be delivered in time for elections on first Tuesday in April, under Rev. St. 1925, art. 978, in cities chartered under general statutes.
    8. Mandamus <&wkey;23(2) — Mere citizen, taxpayer, and voter cannot sue to compel calling of city election.
    Austin City Charter, art. 15, § 22, having been expressly repealed by amendments adopted August 8, 1924, one cannot sue in mandamus merely as citizen, taxpayer, and qualified voter to compel city officers to call election.
    9. Statutes &wkey;>230.
    Effect must be given to amended law in manner consistent with amendment.
    10. Parties <&wkey;l.
    To maintain action, plaintiff must show justifiable interest in subject-matter in his own right or representative capacity.
    11. Mandamus <&wkey;i23(2) — Action concerning elections not maintainable by one without peculiar private interest.
    Action concerning elections, not involving taxation or unlawful expenditure of public funds, cannot be maintained by one whose in-, terest is only that of public generally, in view of Rev. St. 1925, arts. 3069, 3071, 3173, 4667, 4668, 6011; Loe. & Sp. Acts 31st Leg. (1909) pp. 43, 586, 345, 534, 628, declaring circumstances under which private citizen may sue in public interest.
    12. States <&wkey;192.
    State may sue to prevent abuse of publie officers’ powers and protect people’s interest, where they cannot act.
    13. Municipal corporations <&wkey;54.
    Municipal corporations, in so far as governmental in character, are agencies, and subject to control, of state.
    14. Municipal corporations <©=3168, 188.
    Under Oode Or. Proc. 1925, arts. 33-40, 72-93, 95-103, mayor is “magistrate,” and city police officers are “state officers.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Magistrate; State Officer.]
    15. Mandamus <©=>147 — State may sue to compel city officers to call election.
    At common law, and in view of municipal corporation’s status as state agency under Constitution and Oode Or. Proc. 1925, arts. 33-40, 62, 72-93, 95-103, 867, and Rev. St. 1911, art. 798, state has sufficient interest to maintain mandamus suit to require municipal officers to call election to fill their own offices.
    16. Mandamus &wkey;>il47 — Attorney General, or county attorney under his direction, may institute mandamus suit to compel city officers to call election.
    Attorney General, or county attorney under his direction, may institute mandamus suit for state to compel city officers to call election, and, under Const, art. 5, § 21, when suit is lawfully instituted, county attorney may represent state.
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Mandamus by Chas. B. Cook and others against W. D. Yett, Mayor, and other officers of the city of Austin. Judgment awarding peremptory writ affirmed as on certificate (274 S. W. 196), and defendants bring error. Judgments reversed, and suit dismissed.
    Cofer & Cofer, of Austin, for plaintiffs in error..
    
      J. .Harris Gardner, Paul D. Page, Jr., White, Wilcox, Graves & Taylor, and D. K. Woodward, Jr., all of Austin, for defendants in error.
   CURETON, C. J.

On January 2, 1925, Charles B. Cook filed this suit for mandamus against W. D. Yett, mayor, and other officers of the city of Austin, to secure the issuance of a writ of mandamus requiring the officers named to call an election for councilmen for the first Monday in February, 1925.

One phase of the controversy was before us 'last term, and we refer to the opinion then rendered for a fuller preliminary statement of the case. 268 S. W. 715.

A peremptory writ of mandamus was awarded. An appeal was taken by the plaintiffs in error Yett and others to the extent of giving notice of appeal, filing assignments of error, and the execution of a supersedeas bond. They did not, however, file a statement of facts in the lower court or a transcript in the Court of Civil Appeals. In this state of the case the defendant in error Cook filed a motion for leave to file a transcript in the Court of Civil Appeals, to reform, and, as reformed, to affirm, the judgment of the trial court. A complete transcript accompanied this motion. That court overruled the prayer to reform and modify the judgment, and affirmed the case as on certificate. The case is before the court on writ of error granted W. D. Yett and others. The motion of the defendant in error, acted upon by the Court of Civil Appeals, was in no sense of the word a motion to affirm on certificate, “a request for affirmance signed by the party or his counsel,” as contemplated by the statute and rule named, and without which the Court of Civil Appeals was without power to affirm on certificate. Revised Statutes 1925, art. 1841 [1610]; rule 11A.

We quote from the motion in part as follows:

“That by virtue of such default petitioner is entitled,-upon filing of a certificate as provided by law, to have this cause affirmed as upon certificate, but that such an affirmance upon certificate would be of no avail to petitioner, and would deny to petitioner all relief and protection of the law, in this. * * *
“Petitioner prays that, upon a consideration of this motion and of such transcript, such transcript be ordered filed, and said cause be placed upon the pocket of this Court, and that upon a hearing had after notice given that the judgment of the trial court be so reformed as to require the respondents, named in plaintiffs’ original petition, to wit, W. D. Yett as mayor, H. E. Haynes, George P. Searight, H. W. Nolen And C. N. Avery, as councilmen, and Joe Hornaby as city clerk of the city of Austin, to fix a date for the holding of such election. * * * »

The prayer also contains a request for general relief.

That, the defendant in error did not move for an affirmance on certificate is evident for the reason that the first part of the motion, quoted above, expressly negatives his purpose to ask for any such relief, and the prayer for general relief cannot be construed as being a prayer for anything which is expressly excepted therefrom by other portions of the pleading. Denison v. League, 16 Tex. 400, 406, 408; Hipp v. Huchett, 4 Tex. 20, 23; Silliman v. Gano, 90 Tex. 637, 649, 39 S. W. 559, 40 S. W. 391; Ency. of Pleading and Practice, vol. 16, pp. 805 to 808. See, also, Story’s Equity Pleadings (9th Ed.) § 42.

The action of the Court of Civil Appeals in affirming the case as on certificate, being without pleading to support it, and contrary to the express and direct purposes of the motion, was'erroneous. Wheeler v. Wheeler, 65 Tex. 573. See generally Michie’s Texas Digest, vol. 13, p. 1138.

In view of the disposition to be made of this case, it is immaterial whether the trial below was before the judge in chambers or before the court in session. Hence we will not discuss that question.

The assignment of plaintiffs in error that the charter amendments adopted by the voters and here involved were not validly adopted, because not drawn by a charter committee, selected under the statute, is without merit. Under Revised Statutes 1925, art. 1170, the governing body of the city had a right to submit amendments to the existing charter to the voters of the city. The amendments before us were submitted and adopted under this article. These amendments, while covering a wide range, do not constitute a new charter. They fall far short of such an instrument, covering but a portion of the subjects necessary to be included in a city charter. 19 Ruling Case Law, 751, § 55; People ex rel. Moore v. Perkin's, 56 Colo. 17, 137 P. 55, Ann. Cas. 1914D, 1154, and authorities cited in the notes on page 1172; City and County of Denver v. New York Trust Co., 229 U. S. 123, 144, 145, 33 S. Ct. 657, 57 L. Ed. 1101.

The mandamus awarded required plaintiffs in error to call an election for city councilmen on February 2, 1925, in accordance with one of the charter amendments lawfully adopted on August 8, 1924, at which time all other amendments to be hereafter referred to were adopted by a vote of the electors of the city. There is no statement of facts in the record, but it is conceded that we may take judicial notice of the charter of the city and the adopted amendments, all of which we have before us for examination.

Sections 1 and 4 of article 17, which article is one of the amendments adopted, read in part as follows:

“Section 1. On the first Monday in February, A. D., 1925, and on the first Monday in April, A. D., 1927, and at each successive interval of two years thereafter on the first Monday in April, there shall be elected at large by the qualified voters of-'the city of Austin, at a general election to be held for that purpose, five councilmen, who shall constitute the city council. * * *
“Section 4. All city elections .shall be governed, except as otherwise provided by the .charter, by the laws of the state of'Texas -governing general and municipal elections, so far as same may be applicable thereto;--and in event there should be any failure' of the general laws or this charter to provide for some feature of the city elections, then the city council shall have the power to provide for such deficiency, and no informalities in conducting a city election shall invalidate the same, if it be conduete_d fairly and in substantial compliance with the general laws, where applicable, and the charter and ordinances of the city.”

The above quotation shows that there was to be held' but one election for councilmen on any February 2d. The biennial' election of officers thereafter is to take place each two years after the first Monday in April, 1925. From this we think it clear that the election on February 2d was to be a special election, as distinguished from the regular. biennial election of city officers, and is 'to be regarded as the first step towards carrying into execution and effect the changes in the form of city government brought about by the- adoption of the amendments. Beading all the amendments, and carefully checking them against the original charter provisions of the city, convinces.us that the fundamental changes wrought by these amendments and the erection of a new type of city administration was a matter of paramount and controlling importance to the peoplq who adopted the amendments, and that the date selected for holding the election for new councilmen was of secondary importance.

However, the date named in the section quoted — the first.Monday in February, 1925 — was February 2d, a date at which it was impossible to hold an election in compliance with the general laws of the state.

The purity of' the ballot in Texas has been safeguarded by many constitutional and statutory provisions. Const, art. 16, § 2; article 6, §§ 4, 5, 2; article 7, § 3. See, generally, also, Revised Statutes 1925, arts. 2954 to 3173, and Pen. Code 1925, art. 206 to 280. -

Among other provisions having for their purpose the purity of the ballot are those relating to the payment of poll taxes and evidence thereof for use at elections. Tax collectors are compelled to prepare and furnish poll tax lists to election boards for distribution to the precinct election officers. These lists constitute part of the election supplies, and the number of ballots to be furnished each voting precinct is ascertained by reference thereto. Revised Statutes 1925, arts. 2975, 2984. In the case of municipal elections the election board is composed of the mayor and others, whose duty it is to obtain election supplies, including the poll lists referred to, and furnish them to election officers. - Revised Statutes-1925,..arts. '2997,-. 2996,;-2992, 2993.- Supplemental lists of the voters; who have paid their poll taxes must be fur-, nished “not less .than four days prior to any. * * •* general election.” Revised Statutes 1925,, art. 2975. If all lists are not fur-, nished the' presiding judges of the various election precincts “at least, three days before election,” it is their duty to send for and procure them. Revised Statutes 1925-, art. 2993. These poll lists are used on the day of election as a means of identifying those who appear for the purpose of 'voting. Describing the actual method of voting, ■ article 3005 de-. Clares that, when the votor .presents himself to vote, he shall “announce Ms name, and, the judge after comparing the appearance of the party with the description given in the certified list of qualified voters of the precinct, made out 6y the county collector, and being satisfied that it accords thereicith, shall pronounce in an audible voice the name of the voter, and his number as given in the lists of qualified voters." (Italics ours.)

It can serve no good purpose to make reference to the many statutes which show that the poll lists are one of the things which cannot be dispensed, with if a lawful .election is to be held. Since the statutes contemplate that the poll lists shall be used as an active and efficient aid towards securing the purity of the ballot, they necessarily mean that com-, píete poll lists shall be used; that is to say, the lists should contain the names of every votor who may pay his poll tax prior to the close of January 31st each year. We think it quite evident that the poll lists in a city like Austin could not properly be prepared and distributed and the statutes in other important respects be complied with between the hour of midnight January 31st and the hour of the morning when an election would be held on February 2d. But, aside. from what might be done, the law is that the supplemental lists must be prepared at ieast four days before the election day, and that the poll lists must be in the hands of the. precinct judges at least three days before election day. Revised Statutes 1925, arts. 2975, 2993.

Construing the _ various statutes . bearing on the subject in the light of the Constitution shows conclusively that the provisions relating to poll tax lists are mandatory. We think it too plain for argument that the general laws covering elections could not have been complied with in the city of Austin at an election on February 2d, as provided for by the amendment to the city charter. Since the conflict between the general statutes and this charter provision exists, it follows that, in so far as the amendment named February 2, 1925, as an election day, it is void, and the court erred in directing plaintiffs in error to give effect to that provision. Const, art. 11, § 5; Vernon’s Texas Statutes 1925, art. 1165.

It does not follow from this, however, that an election cannot be bad under the amended charter. It is true the amendment designated February 2, 1925, as an election day, but, of course, that date'was not a mandatory date; in effect no date because a void date. It would be against common sense to say that the people in enacting this amendment intended that, unless the election could be held on February 2, 1925,' then there should be no change in the city government, and the new plan of city management should fail. It is apparent from the amendments that the election of new councilmen, different in number, with different and more limited duties, was the substance of the election, and not the void date named. 'The charter plainly contemplates that, .although some feature of the city election might not he provided for, either by the charter itself or the general laws of the state, the omission shall be supplied, and the election held. Section 4 of article 17 of the charter declares:

“And in the event there should be any failure to provide for some ‘feature’ of the city elections, then the city council shall have the power to provide for such deficiency.”

The date of a city election is certainly a “feature” of the election. There has been a failure of that “feature,” for the date named is, as we have seen, no date, or a void date. There having been a failure of that “feature” of the city election contemplated by the amendment, the quoted provisions of section 4 of the amendment, article 17, are to be given effect; and it is the duty of the city council, in compliance with the terms of the amendment and other relevant portions of the charter, to call an election to be held at a date fixed by the council consistent with the general laws of the state. We are led to the conclusion that the date may be supplied under the charter provision quoted, not only by considering the charter amendments in the light of reason and common sense, but because this construction is in harmony with the public policy of the state, as evidenced by various acts of the legislature.

The charter provisions of a number of cities illustrate the proposition that in the instance of the adoption of a new charter by vote, or the election of the first officers to begin the administration of a city government under a new charter or under an amended one, the substance of the legislative act ordering the election is that the election shall be held rather than the date thereof. Charters of Galveston, Gammel’s Laws, vol. 8, p. 1194; volume 9, pp. 488, 772, 773; Charter of El Paso (1889) § 8, Gammel’s Laws, vol. 9, pp. 1261, 1262; Charter of San Antonio (1876) § 194, Gammel’s Laws, vol. 8, p. 1258; Charter of Corpus Christi, Local and Special Laws, 31st Legislature, p. 350; Charter of Palestine, § 10, Local and Special Laws, 31st Legislature, p. 586; Charter of Amarillo', Local and Special Laws, 31st Legislature, p. 859. See, also, section 22, article 15, Charter of Austin, Local and Special Laws, 31st Legislature, p. 43.

The view here expressed, to the effect that an election of officers may be held in the city of Austin, although the charter day, February 2, 1925, has passed, is supported by the leading authorities. 38 Corpus Juris, pp. 721, 722; Dillon on Municipal Corporations, vol. 4, §§ 1495, 1496 ; 26 Cyc. p. 272; Kent’s Commentaries (13th Ed.) vol. 2, p. (296) 403; Board of Excise v. School District, 31 Okl. 553, 122 P. 520, Ann. Cas. 1913E, 369; McConihe v. State, 17 Fla. 238; State v. Young, 6 S. D. 406, 61 N. W. 165; State v. Davis, 76 W. Va. 587, 85 S. E. 779; Coles Co. v. Allison, 23 Ill. 437; People v. Fairbury, 51 Ill. 152; State v. Smith, 22 Minn. 223.

In the event the city council declines or refuses to order the election, they may be required to do so by mandamus. 4 Dillon on Municipal Corporations, §§ 1495,1496; 38 Corpus Juris, pp. 721, 722; 26Cyc. p.272; 18 Ruling Case Law, 270; 9 Ruling Case Law, 1000; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 622, 2 Am. St. Rep. 505. We cannot undertake to specify what date should be fixed by the city council in the event they undertake to, or are required to, order the election. Revised Statutes 1925, art. 2975, states that the poll tax lists shall be delivered to the election boards before April 1st of each year. This article must be construed consistently with other provisions of the general laws. The first Tuesday in April is election day for cities chartered under the general statutes. Revised Statutes 1925, art. 978. Therefore the collector must deliver the lists in time for the elections to be held on that date. It may be that he could be required to deliver them at an earlier date, but just when and under what circumstances we could determine only as the facts of such a case were before us.

We are convinced, however, that the defendant in error cannot maintain the present action. He predicted his right to relief solely upon the fact that he “is a citizen and taxpayer of the city of Austin, Travis county, Tex., and is a duly qualified voter and entitled to vote in the election hereinafter referred to, and hiings this action in such capacity." (Italics ours.) He has no interest, financial or otherwise, peculiar to himself in the election. His interest is that of the general public only. That he cannot maintain the suit appears not only from the law as declared generally by the authorities of this state, but directly from the charter of the city of Austin as it exists under the amendments adopted and here under review. The special charter of the city at the time of its enactment by the Thirty-First Legislature, and up until the adoption of the amendments of August 8th, contained in section 22 of article 15 the provision quoted below. This section made it the duty of the mayor, as soon as the act took effect, to order a primary and general election at specified dates, and thereafter the regular biennial election on a date named. The section then declares:

“Whenever it is the duty of any ofiieer or officers to order an election under the provisions of this Act, five or more qualified voters of the City of Austin, may compel such officer or officers by mandamus to order the same.” Loe. & Sp. Acts of the 31st Legislature, p. 43.

This clause was placed in the Austin charter because the Legislature was of the opinion that without it voters, citizens, and taxpayers of the city, under the statutes of the state and decisions of the courts, would not have the right to bring a mandamas suit such as this one, and because the Legislature desired that voters, citizens, and taxpayers should have that right. However, one of the amendments adopted by the people of Austin on August 8, 1924, expressly repealed this provision of the charter. An elementary rule of construction is that, when a law is amended, effect must be given to the amended law in a manner consistent with the amendment. Wilson v. Vick, 93 Tex. 88, 53 S. W. 576; Burgess v. Hargrove, 64 Tex. 110; Jessee v. De Shong (Tex. Civ. App.) 105 S. W. 1011; Fire Association v. Love, 101 Tex. 376, 382, 108 S. W. 158, 810; San Antonio, etc., Ry. Co. v. S. W. Tel. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884; Etter v. Mo. Pac. Ry. Co., 2 Willson, Civ. Cas. Ct. App. § 58; 25 Ruling Case Law, pp. 1050, 1051, § 276; City and County of Denver v. New York Trust Co., 229 U. S. 123, 145, 33 S. Ct. 657, 57 L. Ed. 1101.

The amendment here had the direct effect and the undoubted purpose to take out of the charter that mandamus provision. There, then can be given to this charter as thus amended but one meaning, and that is that five or more qualified voters oamiot now maintain a mandamus suit to order an election. Any other interpretation would completely ignore the will and intention of the legislative authority (the people who voted the amendment in this instance) when they took the provision out of the charter. It would, of course, be absurd to say that, because the people took from the charter this clause, they thereby intended that, while five or more voters could not maintain a mandamus suit, nevertheless one, the relator, for instance, could do so.

We might well rest our opinion on this question on the construction of the charter alone, but there is still another fundamental reason why the relator cannot maintain this action. It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject-matter in litigation, either in his own right or in a representative capacity. State of Texas v. Farmers’ Loan & Trust Co., 81 Tex. 530, 545, 17 S. W. 60, and other cases cited below.

Whatever may be the rule in other jurisdictions, there can be no doubt that in Texas an action relating to elections or other matters of law enforcement, not involving questions of taxation or unlawful expenditure of public funds, cannot be maintained by a relator or plaintiff whose interest is only that of the public generally, in the absence of a valid statute authorizing the suit. City of San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754; Lewright v. Love, 95 Tex. 157, 160, 65 S. W. 1089; Harrell v. Lynch, 65 Tex. 146, 157; Worsham v. Richards, 46 Tex. 446; Ex parte Towles, 48 Tex. 443, 422; Caruthers v. Harnett, 67 Tex. 127, 131, 2 S. W. 523; Hulse v. Powell, 21 Tex. Civ. App. 471, 51 S. W. 862; McDonald v. Lyon, 43 Tex. Civ. App. 484, 487, 95 S. W. 67; Staples v. King, 112 Tex. 61, 69, 245 S. W. 639; Dickson v. Strickland, 114 Tex. 177, 196, 19S, 265 S. W. 1012; Harding v. Commissioners Court, 95 Tex. 174, 66 S. W. 44; Norton v. Alexander, 28 Tex. Civ. App, 466, 67 S. W. 787; 18 Ruling Case Law, 326, § 274; Bobbett v. State, 10 Kan. 9, 15, 16; Linden v. Board of Supervisors, 45 Cal. 6; O’Brien v. Board of Aldermen, 18 R. I. 113, 25 A. 914; Bryant v. Logan, 56 W. Va. 141, 49 S. E. 21, 3 Ann. Cas. 1011, and many cases in the notes, page 1013; Andrews v. City of New South Haven, 187 Mich. 294, 153 N. W. 827, L. R. A. 1916A, 908, Ann. Cas. 1918B, 100; Stegmaier v. Jones, 203 Pa. 47, 52 A. 56; Delbridge v. Green, 29 Mich. 121; Smith v. Mayor of Saginaw, 81 Mich. 123, 45 N. W. 964; Pearsons v. Ranlett, 110 Mass. 118, 126; Sanger v. County Commissioners, 25 Me. 291; People v. Regents of University, 4 Mich. 98; Wellington et al., Petitioners, 16 Pick. (Mass.) 87, 26 Am. Dec. 631, 643. An extensive review of the Texas cases is not practicable because of the length of the opinion, nor is it necessary. The cases of Staples v. King and Dickson v. Strickland both involved the election law.s, are late cases, and in effect rule the instant case. In Dickson v. Strickland, supra, we reiterated what had been declared in the Staples Case, saying:

“It is not claimed that appellant Dickson has any interest in the subject-matter of this suit other than to subserve the public interest. His lack of special interest is fatal to his capacity to maintain his suit in the absence of a valid statute authorizing him to sue. San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754. Again, as plaintiff declared by this Court in Staples v. State, 112 Tex. 68, 245 S. W. 641: ‘Where the suit is for the benefit of the public at large, and no citizen is affected differently from all other citizens, the State, as agent of all, is properly interested for the benefit of all its citizens;’ and such a suit can only he maintained by those authorized under the Constitution to protect public rights and interests.” 114 Tex. 196, 197, 265 S. W. 1012, 1019.

The case of Bobbett v. State, 10 Kan. 9, is directly in point, and has been approved by this court. Sansom v. Mercer, 68 Tex. 488, 493, 5 S. W. 62, 2 Am. St. Rep. 505.

The cases of Sansom v. Mercer, just cited, Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808, and Boynton v. Brown (Tex. Civ. App.) 164 S. W. 893, are not in point in favor of defendant in error. In each of these cases there was á statute, conferring upon certain peti■tioners the right to have an election ordered. Mandamus was awarded to enforce this special statutory right. Other Texas cases relied on by defendant in error are not in point. In Porter v. State, 78 Tex. 591, 14 S. W. 794, the state was a party. Tire cases of McLaughlin v. Smith (Tex. Civ. App.) 140 S. W. 248; Oden v. Barbee, 103 Tex. 449, 129 S. W. 602; Dubose v. Woods (Tex. Civ. App.) 162 S. W. 3; and Terrell v. Middleton (Tex. Civ. App.) 187 S. W. 367, all involved in some form the questions of taxation or the unlawful expenditure of public funds, and were, therefore, maintainable under the generally accepted rule. But that rule, being one of property interest, has no application to this case.

None of these cases support the position of defendant in error. In Kimberly v. Morris a question of taxation was also involved, and the Court expressly declined to determine the broad position relied on by relator.

What we have said is in accord with the established legislative policy of the state, which has from time to time, when thought necessary, declared by statute when and under what circumstances a private citizen-could bring suit in the interest of the public, thereby evidencing a legislative determination that without such enactments the citizen could not maintain actions of that character. Revised Statutes 1925, arts. 3069, 3071, 3173, 4667, 4668, 6011; Charter of Austin, Doe. & Sp. Acts of 31st Legislature, p. 43; Charter of Palestine, Loe. & Sp. Acts, 31st Legislature, p. 586; Charter of Corpus Christi, Loc. & Sp. Acts 31st Legislature, p. 345; Charter of Gainesville, Loe. & Sp. Acts 31st Legislature, p. 534; Charter of Greenville, Loe. & Sp. Acts 31st Legislature, p. 628. Perhaps there are other statutes—we have made no effort to collect them all. These suffice, however, to show the legislative policy as to both general and local laws. Under the only admissible construction of the charter as amended, as well as under the authorities cited, defendant in error cannot maintain this suit.

However, the people of the city are not without remedy, for the reason that the state, the guardian and protector of all public rights, can maintain a mandamus suit for redress of the wrongs complained of, if any exist. The rule is an elementary one that the state may maintain an action to prevent an abuse of power by public officers, and in general protect the interest of the people at large in matters in which they cannot act for themselves. Staples v. State, 112 Tex. 61, 68, 245 S. W. 639; Kansas v. Colorado, 185 U. S. 125, 142, 22 S. Ct. 552, 46 L. Ed. 838; 36 Cyc. 908; 25 R. C. L. 408 ; 2 R. C. L. 918; Missouri v. Illinois, 180 U. S. 208, 21 S. Ct. 331, 45 L. Ed. 497: State v. Metschan, 32 Or. 372, 46 P. 791, 53 P. 1071, 41 L. R. A. 692; People v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178, 185, 186; State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627, 631.

That the state has a justiciable “interest” in its sovereign capacity in the maintenance and operation of its municipal corporations in accordance with law does not admit of serious doubt. Municipal corporations are created for the exercise of certain functions of government. They have a twofold character, one governmental and the other private, and, in so far as their character is governmental, they are agencies of the state, and subject to state control. 19. R. C. L. p. 697, § 9; page 739, § 36, page 739, § 45 ; page 749, § 54; page 751, § 56; page 751; Dillon on Municipal Corporations (5th Ed.) vol. 1, § 109, p. 182, 2nd sections 103, 104, 105, 106, 108, 115, and 117; Trent v. Randolph (Tex. Civ. App.) 130 S. W. 737, 738; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; Blessing v. Galveston, 42 Tex. 641.

The mayor of a city is a magistrate, and its police officers are state officers. Code Cr. Proc. 1925, arts. 33, 34, 35, 36 to 40. 72 to 93, and 95 to 103; Ex parte Tracey (Tex. Cr. App.) 93 S. W. 540; Whitfield v. City of Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 783, 31 Am. St. Rep. 69; Givens v. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; Dillon on Municipal Corporations, vol. 1, §§ 103 and 390. See, also, Shanewerk v. City of Fort Worth, 11 Tex. Civ. App. 271, 32 S. W. 918.

City officers may be appointed by an agency selected by the Governor. Ex parte Tracey, supra; Brown v. Galveston, 97 Tex. 1, 75 S. W. 488.

Corporation courts exercise state judicial power, and this power runs in the name of the state. Code Cr. Proc. 1925, arts. 62, 867; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650; Blessing v. Galveston, 42 Tex. 641; Johnson v. Hanscom, 90 Tex. 321, 37 S. W. 601, 38 S. W. 761. Other interests of the state in its municipalities, such as schools, public health, etc., might be enumerated. 19 Ruling Case Daw, 760 to 767.

It is plain from the foregoing that it is' a matter of obvious interest to the state that the agency selected by it for the various public purposes and functions involved should Conduct and maintain itself in the manner prescribed by law; that officers, upon whom rests the duty of administering the franchises of government confided to the city, and acting as the state’s agents in custody of public property, and in the performance of the state’s duties as parens patriai, trustee, guardian, or representative of all the people, should be regularly selected and installed in office in a lawful manner. See the cases of State v. De Gress, 53 Tex. 387, and State v. De Gress, 72 Tex. 242, 11 S. W. 1029.

Aside from the above, under the common law, by which our Constitution and statutes are to be interpreted, the state could forfeit municipal charters for misconduct of their officers. Dillon on Municipal Corporations, vol. 4, § 1558; volume 1, § 330. There are cases where this may be done. Revised Statutes 1911, art. 798. However, the less destructive remedies of mandamus and proceedings in equity are more generally employed. Dillon on Municipal Corporations, vol. 4, §§ 1480, 1483, 1484, 1495, 1496, 1570, 1573, 1576, 1587.

On the whole, it is evident that the state, not only for the reasons we have given predicated upon our statutes and from the status of a municipal corporation as an agency of the state, but under the ancient and modern rules of the common law, has sufficient interest to, and can, maintain an action to require municipal officers to call an election to fill their own offices. This, too, is the practice both in this country and in England. 4 Dillon on 'Municipal Corporations (5th Ed.), §§ 1495, 1496.

Since the state can bring a mandamus suit similar in purpose to the one before us, it is elementary that the Attorney General has the power to institute such an action. Queen Ins. Co. v. State (Tex. Civ. App.) 22 S. W. 1048, 1052; State v. Doan & Trust Co., 81 Tex. 530, 551, 17 S. W. 60; Ruling Case Daw, vol. 2, pp. 916, 917, 918, 919, 924, 925; 6 Corpus Juris, pp. 809, 810, and volume 38, p. 837; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 D. Ed. 714, 13 D. R. A. (N. S.) 932, 14 Ann. Cas. 764; State v. Robinson, 101 Minn. 277, 112 N. W. 269, 20 D. R. A. (N. S.) 1127, 1132; State v. Ehrlich, 65 W. Va. 700, 64 S. E. 935, 23 D. R. A. (N. S.) 692, 694; Respass v. Boro, 131 Ky. 807, 115 S. W. 1131, 21 D. R. A. (N. S.) 836, 838; 4 Dillon on Municipal Corporations, §§ 1495, 1498, 1527, 1577, 1587. See, also, State v. De Gress, 72 Tex. 242, 11 S. W. 1029.

We shall not at this time determine whether or not the county attorney can, on his accord, institute, in the name of the state, such a suit as the present one. It is certain that, when once lawfully instituted he can, under the express language of the Constitution, represent the state. Const, art. 5, § 21. It is clear, however, that the county attorney can, under the direction of the'Attorney General, institute a suit of this character in the name of the state.

Plaintiffs in error present many assignments attacking the validity of various amendments to the charter as adopted. We do not regard the questions raised as involved in this case, and, therefore, do not discuss them. We have intended to determine only the questions actually decided in this opinion.

From what we have said it is apparent that the district court erred, not only in awarding the mandamus, but in permitting the defendant in error to maintain this suit; and that the Court of Civil Appeals likewise erred as pointed out in the opinion. In view of the conclusions reached, the judgments of the Court of Civil Appeals and district court must be reversed and the suit dismissed, and it is so ordered. 
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