
    Banton v. Wilson.
    If the court can act upon any one subject of the petition, any matter on which the plaintiff asks its interposition, it roust- be retained.
    The right toan office is one which maybe litigated between parties who claim adversely. The proceeding in such a case is a ‘-suit, complaint, or plea,” within the meaning of the Constitution, over which the District Courts have original jurisdiction. (Note So.)
    A mandamus is the proper writ to restore a party to an office from which he has been illegally ousted, or to put a party in possession of an office which is illegally detained from him, and to cause the books, papers, and archives thereof to be delivered into liis possession. (Note 88.)
    The only information by qm warranto that could be filed in this State, on application by a private person, would be where a public injury is done by the usurpation of a franchise; and the court would possibly have discretionary power to order, in proper cases, an information to be filed by the District Attorney.
    The eleventh section of the fourth article of the Constitution authorizes the district judge to appoint a clerk, in case of a vacancy, " until a regular election can be held.” The term “regular election” does not mean a general election, but any election by the people which is provided for by law f. g. to fill that vacancy.
    Where the term”of an office is fixed by the Constitution at say four years, each succeeding incumbent, although elected to fill a vacancy, is entitled, unless it be otherwise provided in the Constitution itself, to hold tile office for the full period.
    Appeal from Walker. Petition by Banton for a mandamus to Wilson to deliver up to him the office of clerk of the District Court of Walker county, together witli the records, &c.
    •In September, 184G, the clerk of said court, who had been elected the August previous, died. In October tlie district judge appointed Banton, the appellant, clerk, until a regular election could be held. The Chief Justice of Walker county issued and published an order, in due time; for an election on the 1st day of November, 18-17, to fill the vacancy in the office, the duties of which were then being discharged by Banton under his appointment of October previous. Tlie election was on the same day witli that of Governor, Lieutenant Governor, and members of tlie Legislature. Wilson received tlie liigli-est number of votes, and, being commissioned, entered upon the discharge of the duties of the office. Banton claimed the office by virtue of his previous appointment, and brought this suit to be restored to it.
    
      Otthtm and Taylor, for appellant,
    argued that the terms “ regular election,” in the eleventh section of the fourth article of the Constitution) meant the regular periodical election provided by law for the election of clerks of the District Courts. This construction would give the office to the plaintiff until after the regular election of District Court clerks in 1850, four years from the last regular election. But as there was some doubt about the proper construction of'the terms “ regular election,” the Legislature of 1S4G undertook to construe-them, and enacted (p. 204, sec. 10,) “ that in case of vacancy the District Court shall appoint a clerk, who shall hold the office until tito next regular election for county officers,” &c. Under this provision-the appellant was entitled to-hold the office until after the first ¡Monday in August, A. D. 184S. The Legislature having thus construed the Constitution, this court will not declare their construction unconstitutional unless it be clearly so. (Sutherland v: De Leon,¡ ITex. R., 304.)
    P. W. Gray, for appellee,
    argued that the terms “regular election” meant any election by the people in the mode and at the time and place prescribed by law. The term “regular” refers to the constituent of the election. Regularly, under the Constitution, clerks are to be elected by the people. But to prevent mischief, in case of a vacancy the district judge is authorized to appoint a clerk until a regular election can be held.- Regularly the people elect the clerk; irregularly the judge appoints one. Any election, therefore, by the people, at such time and place as may be provided by statute, is a regular election. The statutes provide that in oases of vacancy the Chief Justice shall order an election to fill it. That was done in this cas'e.
    II. But if Wilson was not duly elected, what right has the appellant to question his claim? Unless he have a specific legal right to the office, and has been illegally ousted therefrom, ho lias no cause.of complaint, and has no right to the writ of mandamus. (3 Black. Com., 110; 2 Tom. Law DiCt., 513; 8 East. R., 219; Dew v. Judges, 3 H. & M. R., 1; People v. Judges, 1 Doug. R., 319; Ex parte Daughtry, 6 Ired. It., 155; Cowp. It., 523; Rex v. Mayor, &c., of Oxford. 2 T. It., 177; 3 Id., 578.) The answer of Wilson, which is not coni reverted, shows that Banton surrendered the office to him upon written agreement.
    The only mode by which appellee’s right to the office can be questioned by the public*is by quo warranto. (Bradley v. McCrabb, Dallam, 509; Commonwealth v. Dearborn, 15 Mass. It., 125; Same v. Fowler, 10 Id., 295; People v. Tibbetts, 4 Cow. It., 35S ; People v. Van Slyck, Id., 297 ; People v. Forquer, Breóse It., 08; Ex parte Bellows, 1 Mo. It., 115.)
   ITempiiill, Ch. J.

Tins was an application by the appellant for a mandamus to compel the appellee to deliver to him the office of clerk of the District Court of the county of Walkin’, with all the immunities, records, books, and papers belonging to the said office.

Before proceeding to the examination of the issues raised and tried in the court, below, we will dispose of the objections made here to the jurisdiction of the court, and the appropriateness of the remedy.

It. is contended in this and also in other cases before the court that the District (tourts have no authority, under the Constitution and laws of the. State, to-issue writs of mandamus, except when they may be necessary to enforce their own jurisdiction, and to give them a general superintendence and control over inferior jurisdictions. The. counsel (if the appellant appears by brief, and not being aware that an objection of this character would be raised, we have not the advantage of the able argument which doubtless would have been presented by him in support of the jurisdiction of the court to award or refuse the-writ in this case. Questions of jurisdiction may, however, always be raised; and when presented, they mnst be examined and decided, whether they he fully and elaborately or hut imperfectly discussed, and whether by both or but one of the parties. . <

In the lucid views of the counsel for the appellant it is urged very forcibly that the jurisdiction and powers of the District Court are specified, defined, and limited by the Constitution, and that it is equally beyond the power of the Legislature to abridge or extend its powers; and that the authority to issue a writ of mandamus to enforce its own or to control an inferior jurisdiction does not embrace every possible case in which the writ may be appropriately issued.

The only point which will be examined is the extent of power conferred on the courts by the authority to issue all writs necessary to enforce their own jurisdiction. And that this may be the better understood, reference will be had to the chart of their powers, to be found in the 10th section of the 4th article of the Constitution, and which is expressed in the following- terms, viz : “ The District Courts shall have original jurisdiction of all criminal cases, of all suits in behalf of the State to recover penalties, forfeitures, and escheats, and of all cases of divorce, and of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall bo valued at or amount to one hundred dollars; and the said courts or the judge thereof shall have power to issue all writs necessary to enforce their own jurisdiction and to give them a general superintendence and control over inferior jurisdictions.” The point to he decided is, was the writ necessary to enforce the jurisdiction of the court?

. On the solution of this question will depend the power of the court to take jurisdiction over the case presented for adjudication. What is jurisdiction? It has been defined to he the power to hear and determine a cause. It is coram judiee, whenever a case is presented, which brings this power into action. If the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction. Whether, on an answer denying and putting in issue tiro allegations of the petition, the petitioner makes out his case, is'the exercise of jurisdiction conferred'by the filing of a petition containing all the requisites, and in the manner prescribed bylaw. (6 Pet. R., 709.) It is the power to hear and determine, the subject-matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is whether, on a case before a court, their action is judicial or extrajudicial, with or without the'authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court lias jurisdiction. (12 Pet. R., 718.)

If tlie court can act on any one subject of the petition, any matter on which the plaintiff asks its interposition, it must be retained; so that the true inquiry is not as to the extent but the existence of any jurisdiction. (12 Pet. R., 732.)

These principles, deduced from the authorities, show very clearly what is to be understood by the jurisdiction of a court.

Did the. matters contained in the pleadings in this ease present a proper case for the exercise of the judicial power of the court? Had it power, under any of the constitutional grants of authority, to inquire into the matters litigated between the parties? If there was power to hear or act upon or determino the case, there was authority to render judgment and issue the appropriate writ to enforce that judgment. The court has, by tlie Constitution, original jurisdiction of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity. Is this a suit, complaint, or plea, either at law or in equity? Por if it be either, the court lias jurisdiction and the express authority to issue all writs necessary to enforce or mgke eileetual that jurisdiction. The right to an office is one which may be litigated between parties who claim adversely, although proceedings may also he instituted by tlie Government to oust an intruder from office, or those exercising franchises in derogation of tlie rights of the State. If tlie rights can he litigated, it must be by a suit, a judicial proceeding at law or in equity; and if so, it is tlie subject of judicial cognizance by the District Court; and in tlie exercise of that jurisdiction it lias The power to issue the rule to show cause, the alternative, and the peremptory mandamus for the purpose of effectually enforcing the jurisdiction of the court. The discussion of the subject might be further extended, and p&rhaps would have been had tlie question been argued by both parlies. Under tlie circumstances we do not deem-it necessary to continue the investigation. Tlie matter in controversy was a subject over which the court had no cognizance by a constitutional grant of power. It could decide the right in favor of either party; and if determined for tlie plaintiff, the writ should have been awarded as the appropriate-process,'and therefore necessary to give effect to the judgment in the cause.

. Another objection is urged : that mandamus is not the appropriate remedy to effect the object sought to be accomplished by this proceeding. This objection was urged and overruled in ilie case of Bradley v. McCrább, decided by the Supreme Court of the Republic. (Dallam, 506.) Some of the purposes to which the writ of mandamus may be applied-were there enumerated. It was stated to be a proper remedy to restore to his office the clerk of a court who had been ousted therefrom by the illegal appointment of another person. (2 Tuck. Comm., 202.) That at common law the writ of quo warranto will lie, in tlie nainc of the king or the Republic, against any perso'n or corporation, as well for tlie usurpation as for tlie non-nser or abuse of any franchise or liberty, to show by what warrant- or authority they claim such right or franchise; hut where the object was not only to restore to office him who had been illegally ousted, but also to cause the hooks, papers, aiict archives thereof to he delivered to his possession, the writ operated a more complete and effectual remedy.

This has been tlie settled law of the court and the country for the last seven years; and if it were admitted that it might properly have been decided differently, yet it lias been too long established to be disturbed on slight grounds. It was perhaps unfortunate that any of these writs should have been introduced by name, and as possessing all or any of their incidents at common law. Why should an aetion to try tlie right to an office have a name or designation any more than an action to try tlie. right to property? All forms of action have .been abolished in our system of 'jurisprudence, or'rather they were never introduced. The distinctive actions of assumpsit, debt, trover, trespass, detinue, action on tlie case, &c., are not. now nor were they ever recognized or permitted to mar the heanly of our judicial system. The distinctive forms of action were supposed at common law to be essential to the administration of justice. We 'know from experience that the supposition is totally unfounded, and the distinctions in actions by quo warranto, mandamus, &c., are equally groundless. Tlie writ called quo warranto was the ancient method of proceeding against 'those who exercised franchises in derogation of the rights of tlie crown. This was the king’s writ of right, and issued whenever liis attorney thought it expedient. tinder some early statutes a general proclamation was to be made to command all those who enjoyed franchises t-o come before tli£ justices in eyrr and show their title, under pain of forfeiture, if they neglected to do so, in the next eyre, unless they should come before-the king in his bench or other -of liis justices. These proclamations were temporary, ¡ind tlie writ lias grown obsolete; but. on it is founded tlie information in the nature of quo warranto at common law, filed by the king's attorney general, of liis own authority, or by the king's coroner. (Wil. M. C., 453; 9 Co. R., 28; 3 Burr. R., 1616.)

Besides the eases in which the statute of Anne lias empowered the court to grant leave to a private person to file an information in the nature of a quo warranto, it lias power at common law to direct such an information to he filed by the master of the crown office, on application by any subject who shows that a public injury is done by the usurpation of franchises. The information is of a criminal character ; and on a verdict against the defendant, the court will impose a lino for the offense. (3 Burr. R., 1616; 1 Id., 407: Wil. M. C., 457.)

The information under the statute of Anne, filed with leave of the court at the relation of any private person, assumed finally the form of an action between the parties, the fine being only nominal. This cannot be used in this State, the statute of Anno not being in force. (2 Tex. R., 150.)

Tile only information by quo warranto that could be filed in this State on application by a private person would be where á public injury is done by the usurpation of franchises; and the court would possibly have discretionary power to order, in proper eases, an information to be filed by the district attorney.

The object of the proceeding in this case is not to vindicate the rights of the public or have the offense punished as a misdemeanor, but the plaintiff, having a clear legal right, as he believes, to the office, prays for his individual benefit that the same be restored to him, with its emoluments. Waiving further discussion of the subject, I proceed to the examination of the merits of the ease.

Tlie material facts are that John D. Banton, clerk of the District Court, dying in September, 1846, the appellant, Glover W. Banton, was appointed in ÓctcH her, 1S46, by the presiding judge of the district to fill the vacancy. At an election for Governor, Lieutenant Governor, and members of the State Legislature. and for clerk of the District Court of Walker county, held on the 1st November, 1847, the appellee, Wilson, was elected cleric of the District Court, and entered upon the duties of his office about the last of December, 1S47.

The only point I shall examine is whether he was duly and constitutionally elected to the office.

The provisions of the Constitution and the statutes by which the question must be determined are as follows: “There shall be a clerk of the District Court for each county, who shall be elected by the qualified voters for the members of the Legislature, and who shall hold his office for four years.” &c. “In case of vacancy the judge of the district shall have the power' to appoint a clerk until a regular election can be held.” (Sec. 11, art. IY, Const.) In case of a vacancy the District Court shall appoint a cleric, who shall hold the office until the next, regular election for county officers, &c. (Sec. 19 of the act to organize the District Courts,-and to define their powers and jurisdiction, approved May 11, 1846, p. 204,)

An act regulating elections was approved the same day, and by its third section it was enacted that the Chief Justice, or in case of vacancy in that office or the inability of the Chief Justice to act, then any two of the county commissioners, shall order an election in- their respective counties. By the 5th section of the. same act it was declared “ that in all cases of vacancy in any civil office, of the county which by law is filled by election of the people, the officer or officers authorized by this act to order elections shall immediately make such order for an election to fill the vacancy by giving like notice and issuing writs as prescribed for regular elections.” (Laws of ÍS46, p. 210.)

What is meant by the «onstitufional provision that the appointee of the judge shall hold his office until a regular election can be held? Does it necessarily mean a regular election for any other office than that of clerk itself? The terms “regular election” are to be understood undoubtedly as an election by the people at the time and in the mode proscribed and regulated by law. In section 7 of the 3d article of the Constitution it is declared that all elections by the pteople shall be. held at such time and place in Hie several counties, cities, or towns as are now or may be hereafter designated by law.

Note 85.—See Wright v. Fawcett, 42 T., 203; Rogers v. Johns, 42 T., 339.

Norn 80.—Lindsay v. Luekett, 20 T., 516.

Was there any legal provision by which an election could he held for the office, of clerk of the District Court at an earlier or different period from that of the regular or, as the Legislature perhaps intended, the, general election for county officers, if it he admitted that by the laws then in force any provision was made for such general election?

" If bylaw an election could be held to fill such vacancy at any other period than (he time or election of other eouuf.y officers or any one or more of them, the statutory provision authorizing the appointee of the judge to hold until a regular election for sneli county officers is in conflict; with the Constitution; because, under 'that fundamental chart, the ad interim^ clerk could hold only until a regular 'election to fill the office of clerk, or,'hi other words, until an election for that purpose was held in the time, mode, and places prescribed by law.

'The 5t!i section of the act regulating elections, approved on the same day with the District Court law, requires, iii cases of vacancy of any civil office of the count y, an order for an election to fill such vacancy to be issued immediately.

Under this law an immediate election could be hold-to (ill a vacancy in the •office of clerk, and when so held it would be held at tlie time and in the manner prescribed by law; and being an election, it would necessarily be the regular election designated by the Constitution at the period at which the office of temporary clerk should cease and that of the regular- officer deriving his authority directly from the people would commence.

'the appellant could retain his office only until a legal election could be held to lili the vacancy, because a legal election is a regulit# election for that purpose. To this limit his right is fixed by the.Consliliirjpn, and which it was not in the power of the Legislature either to enlarge or abridge.

If there had been no law authorizing elections to Oil vacancies, the authority of the Legislature was competent to vest the temporary clerk with the power until an election would be held-for other'-officers, or for anytime less than four years, the duration of the constitutional tenure of the office. But under the laws as they existed the right to hold'office after the vacancy was legally Oiled could not be conferred.-

The'order of the Chief Justice to hold an’election for the office of clerk was issued, and tlxe election was held hythe authority of law; and the appellee, being duly elected, is entitled to hold, and the writ of mandamus was therefore properly refused.

The statutes of 1S4G did not prescribe any fixed period for elections of county officers after the first election for that purpose in July, 1846.

No such provision would be constitutional, or at least but partially so. The tenure of several of the county officers is .fixed by the Constitution, and the incumbent elected to fill the office or a vacancy is entitled to hold to the full end and term of the period guaranteed by the Constitution. There is no probability that all the incumbents of county offices would- hold the entire term. Vacancies by death, resignation, or otherwise must in' the nature of tilings he of frequent occurrence; and if they be filled by election, the incumbent is secured for the constitutional limit in the enjoyment of the office. (Bradley v. McCrabb, Dallam, 504; Roman v. Moody, Id., 512; Shelby v. Johnson, Id., 597.)

The provision that a temporary clerk should hold until a regular election for county officers has no certain or definite meaning. No general election for county officers had been prescribed; and if tlie Constitution opposed no obstacle it would have been difficult, if not impossible, under the laws of 1S46, to have carried into effect the intention of the Legislature. We are of opinion that there is no error in the judgment, and it is ordered that the same he .affirmed.

Judgment affirmed.  