Doyle WILLIS, Relator, v. William S. POTTS et al., Respondents, 377 S.W.2d 622

GRIFFIN, Justice. This is a suit by Doyle Willis, relator, for mandamus against William S. Potts as Chairman of the Democratic Executive Committee of Tarrant County, the Democratic Executive Committee of Tarrant County, Don Gladden, Don Woodward and Don Kennard, as candidates for the office of .'State Senator of the State of Texas, asking that the Chairman and the Democratic Executive Committee be required to certify relator as a candidate for the office of State Senator and that his name be placed on the ballot for the May 2, 1964, Democratic primary election as a candidate for such office.

The respondent William S. Potts, as Chairman of the Tarrant County Democratic Executive Committee, has advised relator by letter dated March 6, 1964, that relator will not be certified as a candidate, nor will his name be placed on the ballot for the May 2 Democratic primary election. Respondent Potts in his letter and in his answer to relator’s original petition for mandamus takes the position that relator ■cannot be certified as a candidate for the office of State Senator nor can his name be placed on the ballot for the May 2 Democratic primary because

Article III,

Section 19 of the State Constitution Vernon’s Ann. St. makes the relator ineligible for the office of State Senator and Articles 1.05 and 1.06 of the Texas Election Code Vernon’s Ann.St., prevent relator’s name from being certified or placed on the ballot for the May 2 Democratic primary.

His argument is that relator, having been elected to the office of City Councilman of the City of Fort Worth, for a term of office expiring in April of 1965, and beyond the time when the term of office of State Senator will begin, and which said office is a lucrative office under this state, is ineligible for the office of State Senator under said constitutional provision and under our. holding in the case of Kirk v. Gordon et al., Tex. 1964, 376 S.W.2d 560. (Emphasis added.) In that case we did hold that under

Article III,

Section 19 of the Constitution a district attorney whose term of office overlapped with the office of State Representative for which he sought to become a candidate was ineligible to the office of State Representative. In that case there was no question but that the office of district attorney is a “lucrative office under the State.” The constitutional provision,

Article III,

Section 19, is as follows: “No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.” (Emphasis added.) Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility. Relator Willis, as grounds for the relief which he seeks, contends that Art.

Ill, Sec. 19 has no application to his situation, because his office of City Councilman of the City of Fort Worth is not an (1) office “under the State” nor (2) a “lucrative” office, within the Constitutional prohibition. Relator cites the case of Bonner v.

Belsterling (1911), 104 Tex. 432, 138 S.W. 571, as one of his authorities supporting his contention that a city councilman does not hold an office “under the State.” In that case the question decided was that a member of the Board of Education, created under the provisions of the Dallas Charter was not an officer of Dallas County but was an officer of the City of Dallas. No one contended that the school board member was either “an officer of the State” or “under this State.” This case, therefore, is not in point. Neither is the case of Town of Sunnyvale v.

Dallas County Board of School Trustees et al. (Tex.Civ.App., 1955), 283 S.W.2d 296 in point in this case. The City of Fort Worth, Texas, is a Home Rule City, created by virtue of Art. XI, Sec. 5 of the State Constitution, and Art. 1165, Vernon’s Texas Civil Statutes.

Both of the above provisions limit the power of Home Rule Cities as follows: “ * * * and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State * *.” The charter of the City of Fort Worth recognizes — as it must — that the city is created under, the Constitution and laws of the State of Texas as they existed in 1924 when the Home Rule Charter was adopted, and also laws “hereinafter to be enacted by the Legislature of the State of Texas.” A member of the City Council, before entering upon the duties of his office must take and subscribe to an oath or affirmation •that “ * * * he will support and defend the Constitution and laws of the United States and of the State of Texas * Art.' Í175, Vernon’s Texas Civil Statutes ■is the source of many of the powers exercised by Home Rule Cities.

The very first power set out is “[t]he creation of a commission, aldermanic or other form of gov■ernment; the creation of offices, the manner and method -of selecting officers and prescribing their qualifications, duties, compensation and tenure of office.” This

article also authorizes such cities to provide for, and conduct many governmental activities, highways and control of traffic thereon; promote the public health and the keeping of the peace and many, many other governmental functions belonging to the state government, but which by this

article are delegated to Home Rule Cities. , This Court said in Texas National Guard Armory Board v. McCraw (1939), 132 Tex. 613, 126 S.W.2d 627(23, 24) : “The State has vital interest in its cities. In its governmental capacity a city is a political subdivision of the State, and in many instances is considered as an agent of the State; and the State may use such agent in the discharge of its duties.” Citing numerous authorities. In Yett v.

Cook (1926), 115 Tex. 205, 281 S.W. 837(13), we said: “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 two-fold 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.” Citing numerous authorities.

This case further holds the mayor of a city is a magistrate, and that the corporation court exercises state judicial power in the name of the state. Further we said: “ * * * 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 patriae, trustee, guardian, or representative of all the people, should be regularly selected and installed in office in a lawful manner.” In the case of Orndorff v. State ex rel.

McGill (Tex.Civ.App., 1937, writ ref.), 108 S.W.2d 206, the court stated the question to be decided as “Is a county commissioner an officer 'under the Government of the State?’” The court pointed out that “it must be borne in mind that there is a marked difference between the meaning of the phrases ‘under the State Government’ and ‘of the State’ or ‘of the State Government.’ ” The court says that counties are created by the state for the purposes of government.

Their functions are political and administrative, and the powers conferred upon them are rather duties imposed than privileges granted; that counties are subordinate to, and creatures of, the state, and therefore are “under the state government” performing duties imposed by the state. It holds that necessarily, therefore, members of the commissioners’ court, the body charged with the performance of the duties imposed from above, are officers under that superior government.

The case states that this holding is in harmony with the weight of authority, and sets out cases from many jurisdictions which sustain the court’s holding. Among these cases are the following having to do with offices of a city government. Attorney General ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211, holding that the mayor of Detroit was an officer “under the state” of Michigan; State ex rel. Young v.

Robinson, 101 Minn. 277, 112 N.W. 269, 20 L.R.A.,N.S., 1127, holding that “[ojfficers ‘ of municipal corporations * * * are, in respect to all general laws having force and operating within their' municipality, agents of the state”; Wood v. Miller, 154 Ark. 318, 242 S.W. 573, holding that a municipal judge was an officer “under the' state.” The court’s reasoning in the Orndorff' case, supra, with regard to counties applies with like effect to municipalities, i. e., Home Rule Cities.

In the beginnings of our state, cities could only be created by legislative action and the act of the Legislature prescribed the officers of the city, and their duties, and conferred upon the city and its officers governmental duties theretofore performed by the state. Under proper constitutional and legislative sanction, it was provided that cities, towns and villages might be created under general laws passed by the Legislature.

In 1913 the Home Rule amendment to our State Constitution was passed and it was implemented by the Legislature by Art. 1165, Vernon’s Texas Civil Statutes, and the other provisions of what is now

Chapter 13 of Title 28, Cities, Towns and Villages. The Legislature from time to time has passed laws controlling such Home Rule Cities. Such Home Rule Cities exist solely by virtue of the State Constitution and legislative enactments. These cities are therefore political and governmental subdivisions under this state. Members of the City Council of Home Rule Cities in the discharge of their duties as such engage in governmental activities and exercise a portion of the sovereign powers of the State. For instance, in the matter of regulations affecting Public Health, traffic regulations, and many others.

These are duties which the State owes to its citizens. It follows therefore that Members of the City Council are Officers under this state within the meaning of Art. Ill, Sec. 19 of our State Constitution. Relator Willis therefore comes within this prohibition of Art. Ill, Sec. 19 of our State Constitution. The Constitution, Art. Ill, Sec. 19, requires that in addition to relator Willis holding an office “under the state” that such office be a “lucrative” one, before he is rendered ineligible to be elected to the Legislature “during the term for which he is elected or appointed.”

Chapter 3, Sec. 3 of the Charter of the-City of Fort Worth provides: “Each member of the City Council shall receive as compensation for his services the sum of Ten ($10.00) Dollars per diem for each regular meeting attended by him, such compensation in no event to exceed the sum of Five Hundred and Twenty ($520.00) Dollars per annum.

In addition to the above, all necessary expenses incurred by the City Council in the performance of their official duties shall be paid by the city.” Relator contends that such compensation is not “adequate compensation” for the time spent in the performance of his duties as a City Councilman, and therefore he does not hold a “lucrative office” within the constitutional prohibition. . He cites the Wyoming case of Baker v. Board of Commissioners of Crook County (1900) 9 Wyo. 51, 59 P. 797, and the case of State ex rel. Platt v. Kirk, 44 Ind. 401, as so holding. The case of Baker v.

Board of Com-' missioners of Crook County, supra, defines a lucrative office as follows: “What is a lucrative office seems to be very well settled upon reason and authority. Mr. Mechem says: ‘An office to which salary, compensation, or fees are attached is a lucrative office, or, as it is frequently called, an “office of profit.” The amount of the salary or compensation attached is not material.

The amount attached is supposed to be an adequate compensation, and fixes the character of the office as a lucrative one, or an office of profit.’ Mechem, Pub.Off. § 13.” (Emphasis added.) The court holds that the office of coroner is a lucrative one under the Wyoming statutes. However, the court holds that even though the office of coroner is a lucrative one, the office of county physician is not an ■ office of the county, and therefore the county physician may be appointed county coroner without violating the statutory provisions under construction. No constitutional provision was involved.

The case of State ex rel. Platt v. Kirk (1873), 44 Ind. 401, holds that a director of the Indiana State Prison may also be a city councilman within the language of a constitutional prohibition of the State of Indiana. The court says that there is no doubt but that the office of city councilman is a lucrative office. The court quotes from authorities as follows: “An office to which there is attached a compensation for services rendered is a lucrative office.

Webster defines the word lucrative to mean ‘yielding lucre ; gainful; profitable; making increase of money or goods; as a lucrative trade; lucrative business or office.’ In Dailey v. The State [ex rel. Huffer], 8 Blackf. 329, Perkins, J., in speaking of the offices of recorder and county commissioner, said: ‘We think, also, they are lucrative offices. Pay, supposed to be an adequate compensation, is affixed to the performance of their duties. We know of no other test for determining a “lucrative office” within the meaning of the constitution.

The lucrativeness of an office;; — its net profits — does not depend upon the amount of compensation affixed to it. The expenses incident to an office with a high salary may render it less lticra-tive, in this latter sense, than other offices having a much lower rate of compensation.’ ” The basis for the court’s holding that the prison director may also be a city councilman is that a city councilman is not an officer “under the state” because, according to Indiana law and authorities, a city government is separate and distinct from the government of the state.

This is contrary to the Texas holding that a city government is a subdivision of and under the state government. Black’s Law Dictionary, 4th Ed., defines “lucrative” as “yielding gain or profit, profitable bearing or yielding a revenue or salary.” Black also defines a “lucrative office” as “one which yields a revenue (in the form of fees or otherwise) or a fixed salary to the incumbent; according to some authorities, one which yields a compensation supposed to be adequate to the services rendered and in excess of the expenses incidental to the office.

One the pay of which is affixed to performance of duties of office.” Under the above authorities the relator holds a lucrative office. It is undisputed that relator’s terms as City Councilman, to which he was elected, will not expire until April, 1965, and that should he be successful in being elected State Senator his term would begin before April 1965. Therefore, since he holds a lucrative office under this state, he is ineligible to serve as State Senator at the session to which he seeks to be elected.

Being ineligible to serve, he cannot have his name appear on the ballot at the coming primary election May 2, 1964, as a candidate for State Senator. Arts. 1.05 and 1.06 of Election Code, State of Texas. Relator’s Application for Writ of Mandamus is refused. No motion for rehearing will be entertained. HAMILTON and STEAKLEY, JJ., dissenting.