STAPLES, Secretary of State, et al. v. STATE ex rel. KING et al., 245 S.W. 639

PIERSON, J. Appellees C. E. King, P. C. Short, and L. E. McGhee brought this suit in the district court of Navarro county to prevent the name of Earle B. Mayfield from appearing on the official ballot in the approaching general election, as the nominee of the Democratic party for the office of United States Senator. They brought the suit in a proceeding by quo warranto in the name of the state of Texas upon their relation, and in their own names, under

section 9 of

chapter 88 of the Acts of the 36th Legislature (Vernon’s Ann. Civ. St. Supp. 1922, art. 3174%b). They alleged that said Mayfield had violated provisions of said

chapter 88 in securing the nomination, in that he had expended more than the legal limit of $10,000 as therein provided may be lawfully spent in securing such nomination, and alleged other violations of said chapter. Permission having been obtained from the district judge of the Thirteenth district, the Honorable Hawkins Scarbrough, the petition was filed. Also a temporary injunction was issued restraining the appellant Secretary of State and other election officers from certifying or placing the name of said Mayfield upon the official ballot.

Appellants appealed from the order granting said temporary injunction to the Court of Civil Appeals for the Fifth supreme judicial district at Dallas, and the case is here upon certified questions from that court. By order of the district judge, the temporary injunction remained in full force pending appeal. „ The only allegation of any right or interest in the subject-matter of the suit, in appellees’ petition personal to them, is that of citizenship. It is nowhere shown in the petition that any county attorney or district attorney of the state or the Attorney General consented to or joined in the suit.

For the sake of brevity, we will restate the questions certified as follows:

(1) Were the appellees possessed of the legal capacity, and have they the right to institute and maintain this suit under

section 9 of

chapter 88 of the Acts of the 36th Legislature?

(2) If so, is said

section 9, in so authorizing and empowering said appellees to bring and maintain this suit, in either their own names or in the name of the state, in violation of

section 21, art. 5, and

section 22, art. 4, of the Constitution of Texas? The jurisdiction of the district court of Navarro county or of the district judge in this case is dependent upon the answers to these questions. The answers to these questions do not in any sense bear upon the merits >of the fact issues raised in appel-lees’ pleadings, but only upon their right to bi’ing and maintain the suit in their individual capacities, or in behalf of the state.

Chapter S8 is— “An act to prevent the control of primary elections by the use of money, and to- regulate and limit the expenditure of money to promote or defeat the candidacy of persons for nomination for office in primary elections in this state, and providing penalties for violation of this act, and declaring an emergency?’

Section 9 of

chapter 88 reads as follows: “Sec. 9. If any candidate shall knowingly violate any of the provisions of this act or shall knowingly permit or assent to the violation of any provision of this act by any campaign manager or assistant campaign manager or other person, he shall thereby forfeit his right to have his name placed upon the primary ballot or if nominated in the primary election, to have his name placed on the official ballot at the general election, and proceedings by quo warranto to enforce the provisions of this

section or to determine the right of any candidate(

s) alleged to have violated any of the provisions of this act to have his name placed on the primary ballot or the right of any nominee alleged to have violated any of the provisions of this act to have his name placed upon the official ballot, for the general _ election may be instituted at the suit of any citizen in the district court of any county, the citizens of which are entitled to vote for or against any candidate who may be charged in. such proceedings with having violated the provisions of this act. All such proceedings so instituted shall be advanced and summarily heard and disposed of by both the trial and appellate courts.”

Section 22, .art. 4, of the Constitution, provides that the Attorney General of the state shall represent the state in certain causes, and

section 21, art. 5, of the Constitution, among other provisions, provides: “The county attorneys shall represent the state in all cases in the district and inferior courts in their respective counties.” It also makes provision for the duties of the district attorneys. It is admitted by appellees that they have no pecuniary interest in this suit which is not common to all other citizens of the state. Appellant Secretary of State Staples, through the Attorney General, maintains that the

section is valid, and that under its proper construction appellees ai'e not entitled to bring and maintain this suit, because not participated in by a properly authorized officer or agent of the state, to wit, any county attorney or district attorney or the state’s Attorney General. Appellants Mayfield and the Tarrant county election board contend that said section, if construed as contended for by appellees, is void and is in violation of

section 21, art. 5, and

section 22, art. 4, of the state Constitution, in that it authorizes private citizens, without interest in the law’s enforcement different from that of every other citizen, to bring and prosecute a quo warranto suit without the participation of - a county attorney or district attorney or the Attorney General. The appellees King et al. earnestly insist that the

section is valid and constitutional and creates the legal right in any citizen to bring and prosecute the specified suit for himself and in his own behalf, without having any interest in the subject-matter of the suit different -from .all other citizens of the state, and without the consent or participation of the county attorney or district attorney or Attorney General, or of any other authorized officer of the state provided by law; and that the Legislature thus created in each citizen a private right or interest, even though none existed before, and that this private right or interest could be maintained in a proceeding by quo war-ranto, and that the people at large, that is, ¿the state as a sovereignty, is not interest-led in the subject-matter or result of the litigation.

In obedience to the command of the statute that the case be “advanced and summarily heard and disposed of by both the trial and appellate courts,” the full court ¡being in perfect accord in the decision herein, we will, without extensive elaboration, state the principles upon which our decision is based. The principles that control the case are fundamental and well established, and are supported by usage of long standing, and by an unbroken line of decisions in 'this and other jurisdictions. The important expressions in

section 9 are, “proceedings by quo warranto,” and “at the suit of any citizen.” The authority conferred upon “any citizen” must be construed and applied in connection with the authorized “proceedings by quo warranto.” The proceeding by quo war-ranto had an established and well-known meaning and application in our jurisprudence, and it must have been in the light of this well-known meaning, as established by the courts of this state and of other jurisdictions, that the Legislature enacted

section 9. Quo warranto proceedings are those through which the state acts to protect itself and the good of the public generally, through the duly chosen agents of the state as provided by the Constitution of the'state and under the laws thereof, though sometimes brought at the instance of, and for the benefit of, a private individual who may have a special interest. This being the fact, and this being the setting, we must give effect to the statute as it reads in the light of the well-known meaning of the term “proceedings by quo warranto” at the time the legislature used it in this

section of the statute, and construe the phrase “at the suit of any citizen” in connection therewith. Thus ascertaining the intent of the Legislature, it is clear that

section 9 means that at the instance of, or on solicitation of, any citizen, proceedings by information in the nature of quo warranto may be instituted, through the proper officer of the state, to determine the right of any candidate charged with a violation of the act to have his name placed on the official ballot. In so construing this section, it is not in conflict with

section 21, art. 5, and

section 22, art. 4, of the Constitution, in which it is provided that the county attorneys and district attorneys and the Attorney General shall represent the state. It must be presumed that the Legislature desired and intended to enact a constitutional law. It will be presumed to have enacted this

section in the light of

section 21, art. 5, and

section 22, art. 4, of the Constitution, which provide that the county attorneys, district attorneys, and Attorney General shall represent the state in. all eases. Where the suit is for the benefit of th^ public at large, and no citizen is affected differently from all other citizens, the state as an agent of all is properly interested for the benefit of all its citizens. Now the Legislature, having in mind these provisions of the Constitution, enacted

section 9, providing that the wrongs and abuses therein mentioned, being essentially public wrongs, could be corrected at the suit of any citizen by quo warranto, the recognized procedure used by the state through its authorized agents for the benefit of all the people. The chief contention of appellees is that the state, the county, or the public at large is not interested in the rights involved nor in the relief sought.

If that be true, the fact appearing without controversy that ap1-pellees sustain no relation to the subject-matter of the suit different from every other citizen of Texas, then there is no actionable interest shown, and there would be no reason to authorize them to maintain the suit under established canons of law. They present that

section 9 creates a legal right in them, though they have no interest different from all other citizens of the state, and that, by the terms of said section, they are invested with a private right, even though none existed theretofore, and that, regardless of the state and its authorized agents, this private right, thus created, authorized them to bring and prosecute this suit. While the proceeding must be founded on an information alleging, and on evidence establishing, condemned practices in the primary election, yet that which is regulated is 'the ballot in the general election, and the supreme purpose of the

section is to protect the purity of the general election and to withhold the aid of the state in the election to office of those who have offended the public policy of the state. The conclusion is unavoidable that the purpose of the law is to protect the public at ■large. It must be so held. Individual rights and remedies were already well protected and provided for. It is contended here that the'state as an entity or political sovereignty is not interested in the result of any primary election.

The state as such entity and sovereignty is certainly interested in the enforcement of its laws, in the purity of the ballot and the sanctity of general elections, and in the final outcome as developed 'by the general election. This is sufficient interest upon which to base this legislation and for the enforcement of which the Legislature might provide a remedy by quo warranto in the name of the state, as it did in this instance.

The suits of private citizens contesting the right of a possessor to hold a public office that have been sustained have been eases where the party bringing the suit had an interest in the subject-matter above and different from the commonalty of citizens, and his rights were such that he was permitted to maintain a civil action to protect them. It is necessary for the state to be a party where the action is for the benefit of the public at large, though growing out of a party primary election.

The statute cannot confer a right upon private individuals to act for all where it is shown they have no interest different from all others.

Section 21, art. 5, and

section .22, art. 4, Constitution of Texas. We will briefly discuss the law as to quo warranto proceedings. We deem it unprofitable to review the origin and development of this ancient writ, and will refer only to applications made of it in modem times and by our courts. That it was the legislative intent that the usual procedure by quo warranto should here be followed — that eff an action brought by a county attorney or a district attorney or the Attorney General, upon the relation of any citizen — is supported, not only by the fact that this procedure had a well-defined status under all the decisions at the time the Legislature enacted

section 9, but is further strengthened by

article 368, Revised Statutes, which

article the Legislature is presumed to have had in mind. That

article reads as follows: “It shall be the duty of district and county attorneys to institute and prosecute quo war-ranto proceedings against persons and corporations in such cases and under such circum¿stances as are prescribed in

article 6408 hereia, and in such other cases as may be prescribed by law.” '■ '

Section 9 comes under the clause “and in ¡such other cases as may he prescribed by law.” This is the natural construction of section.9, taken as a whole, giving full force to the phrases “at the suit ■ of any citizen” and “proceedings by quo warranto.” To give the

section the meaning contended for by appellees would be to seriously infringe upon the mandate of

section 21, art. 5, of the Constitution, that “the county attorneys shall represent the state in all cases in their respective counties,” and of

section 22, art. 4, relating to’the Attorney General. The holding of this court in Maud v. Terrel, 109 Tex. 97, 200 S. W. 375, opinion by Chief Justice Phillips, is to the effect that the Legislature is without authority under the Constitution, to restrict the exclusive powers of the county attorneys or district attorneys and .the Attorney General to represent the state. Judge Phillips says: “That instrument [the Constitution], by

section 21 of

article 5, lodges with the county attorneys the duty of representing the state in all cases in the district and inferior courts, with the right in the Legislature to regulate by law the respective duties of district and county attorneys where a county is included in a district having a district attorney; and by -section 22 of

article 4 that duty as to suits and pleas in the Supreme Court is confided to the Attorney General, With the limitation existing in the authority of -the Legislature, under

section 22 of

article 4, to create additional causes of action in favor of the state and entrust their prosecution, whether in the trial or in the appellate courts, solely to the Attorney General, the powers thus conferred by the Constitution upon these officials are exclusive. The Legislature cannot devolve them upon others. Nor can it interfere with the right to exercise them. Brady v. Brooks, 99 Texas, 366; Harris County v. Stewart, 91 Texas, 133; State v. International & G. N. R. R. Co., 89 Texas, 562.

It may provide assistance for the proper discharge by these officials of their duties, but since, in the matter of prosecuting the pleas of the state in the courts the powers reposed in them are exclusive in their nature, it cannot, for the performance of that function, obtrude other persons upon them and compel the acceptance of their services.

Wherever provision is ’made for the service's of other persons for this express purpose, it is the constitutional right of the Attorney General and the county and district attorneys to decline them or not at their discretion, and, if availed of, the services are to be rendered in subordination to their authority.” Again he says: “The presumption is that the Legislature acted in the light of the Constitution, with the intention to observe it rather than violate it.

Where the language of the particular enactment is unambiguous and the conflict with the Constitution is hence apparent, there is no alternative but to declare the enactment void. In such cases words cannot be read into a statute or out of it to save it. But where the language is of doubtful meaning, reasonably susceptible of different constructions, rendering the act valid if construed in one sense and invalid if construed in another, that construction will be adopted which sustains the act rather than destroys it.

Likewise, where the terms used in a statute are general, reasonably admitting of a construction which does not condemn it, the language will be restrained in its operation so as to harmonize the statute with the Constitution, though, literally, it be susceptible of a broader meaning which would conflict, with the Constitution. These are just and wise rules. They are of general application. They exist because courts are not to sit as severe and anxious critics of legislative expression, or as censors of the form in which statutes are written.

It is the duty of courts to see that the Constitution is observed in the enactment of laws, and to fearlessly declare a law void which violates the Constitution.

But these rules are Ifor their guidance as an injunction that the language used in the writing of statutes is not always precise; that frequently terms of doubtful meaning are employed; that where this is true and the terms used reasonably admit of it; that construction is to be applied which will uphold the law; and that it is only where the language plainly contravenes the Constitution are they warranted in holding a law invalid.” In applying these rules of construction to that case, Judge Phillips uses the following language: “The character expressly given by the act to the person thus employ,ed is that of an assistant for this purpose to the duly constituted public officials. * * * It [the act] undeniably is open to the construction that the person employed pursuant to its provisions may assist in the prosecution of suits for the taxes, but it cannot be said to require a construction 'that bis action in this regard shall serve to displace those officials in the exercise of their constitutional powers.” In San Antonio v.

Strumberg, 70 Tex. 366, 7 S. W. 754, Judge Gaines, speaking for the court, said: “It was objected in the court below, and is insisted here, that the plaintiff showed no such interest as authorized him to bring this suit, and if this ground be well taken the judgment must be reversed. We think it a principle established by the overwhelming weight of authority in the courts of all countries subject to the common law, that no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself.

As applied to public measures the doctrine is elementary. 2 Cooley’s Blackstone, 219. Por a special damage resulting from the invas". ,,n of a right enjoyed by a party in common with the public, the law affords him a remedy by private action, but if the damages be only such as are common to all, the action must be brought by the lawfully constituted guardian or guardians of the public interest. ¡The principle has been frequently applied in this Icourt to another class of cases, and the right io£ an individual to sue wtthout showing some special damage, either suffered or threatened, has been uniformly denied.

Walker v. Tarrant Co., 20 Texas, 16; Harrell v. Lynch, 65 Texas, 146; Caruthers v. Harnett, 67 Texas, 127; Worsham v.

Richards, 46 Texas, 441. * * * .It has- been intimated that the reason this rule was established was in order to prevent a multiplicity of suits, which might result if ■each individual were permitted to sue for damage resulting from a public nuisance which was common to all others; but we apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike he is not the representative of the public interest.” In Matthews v. State, 82 Tex. 577, 18 S.

W. 711, Associate Justice Henry says: “A relation under oath may properly be relied upon as the sole ground for beginning and permitting the prosecution of the case; hut it does not result from this that the conduct and continued prosecution of the cause is any less under the exclusive control of the state’s attorney and the court than it would have been if, upon facts sufficiently well known by the state’s ■officer without the aid of an affidavit, it had been begun by the officer upon his own motion.” In State ex rel. Smith v. Broach et al., 35 S.

W. 86, the Court of Civil Appeals, through Chief Justice Garrett, used the following lan.guage: "When quo warranto has been brought at the relation of a private party, the relator becomes responsible for the costs of the suit. 19 Am. & Eng. Enc. Law, 685, and note 3. But, although the private relator is responsible for setting .the information in motion, the conduct and continued prosecution of the cause is under the exclusive control of the state’s attorney and the court. Mathews v. State, 82 Tex. 501, 18 S. W. 711.” In State ex rel. Cavanaugh et al. v. Nelson et al., 170 S.

W. 814, the Court of Civil Appeals at Amarillo held that where á quo warranto proceeding was prosecuted by the Attorney General, district or county attorney, either of his own vojition or at the instance of a private relator, and appeal from adverse judgment by such private relator not joined by such officer for the state was unsustainable and would be dismissed. We quote briefly from the Supreme Court of Colorado in the case of State Railroad Commission v. People, 44 Colo. 245, 98 Pac. 7, 22 L. R. A. (N.

S.) 810: “The sole and the only reason which relators give for seeking to oust respondents is to protect their purely private interests as contra-distinguished from the rights of the people. Primarily, this remedy belongs to the state, in its sovereign capacity, to protect the interests of the people as a whole and guard the public welfare by ousting incumbents of office who wrongfully hold to the injury of the public.

The district attorney or the Attorney General, ns the case may be, is tbe proper one to determine, in the first instance, when the interests of the public justify a resort to this, remedy.” We can see no good reason to depart from the usual and ordinary rules of construction' as applicable to

section 9 of

chapter 88, especially when to so do we would do violence to the co-ordination of its parts, and would refuse to give to one of its most significant provisions its familiar application, and on the other hand endanger its validity under the Constitution. It is hardly necessary for us to discuss the wisdom of requiring suits of this character to conform to the quo warranto procedure. Upon reflection it becomes apparent.

In proceedings by quo warranto the information upon which the suit is based must be presented by a county attorney, a district attorney, or the Attorney General, though it may be based on facts related and verified by any citizen, and if, upon his examination- and investigation thereof as a sworn officer of the sovereignty, he thinks same sufficient and his judgment approves, he petitions the district judge for permission to file the information upon the relation of said citizen.

If the district judge thinks the information with its verification sets out sufficient cause, and his judgment is satisfied, he enters his order authorizing the suit to be filed. Thus the sovereignty safeguards the rights of parties by requiring that two of its, authorized agents and officers — its Attorney General or county attorney or district attorney, and district judge — approve the legality and sufficiency of the petition before the suit may be instituted.

Our answer to question No. 1 is that ap-pellees were not possessed of legal capacity or right to institute and maintain this suit, and therefore the district court and the judge of the district court of Navarro county were without jurisdiction to act upon or 'hear same. To question No. 2 we answer that, as construed herein,

section 9 of

chapter 88 of the Acts of the 36th Legislature is not in violation of

section 21, art. 5, and

section 22, art. 4, of the Constitution and is valid. By appropriate motion, appellants pray that further proceedings in this cause be stayed in the trial court pending the determination by the Court of Civil Appeals of, the questions presented on the appeal. Under our statute, questions of law certified are to be finally determined by the Court of Civil Appeals in accordance with this court’s decision.

Since the questions certified cannot be determined, in accordance with this court’s decision, without an adjudication that the steps requisite to confer any jurisdiction of the parties or subject-matter on the district court or on the judge of the district court, were lacking, it is manifest that jurisdiction could not be exercised by the district court, pending the appeal, without conflict with the ■undoubted jurisdiction of this court and of the Court of Civil Appeals. Conley v. Anderson (Tex. Sup.) 164 S. W. 985; Hovey v. Shepherd, 105 Tex. 242, 147 S. W. 224.

It is therefore ordered by this court, as essential to the enforcement of its own jurisdiction, as well as that of the Court of Civil Appeals, that no further proceedings be had in the quo warranto cause by .the district judge or by the district court of Navarro county pending the final judgment of the Court of Civil Appeals, wherein all directions may be given essential to the complete enforcement of the jurisdiction of the Court of Civil Appeals. The statute directing that all proceedings instituted under

section 9 of the 1019 act be summarily disposed of by the appellate courts, it is ordered that this opinion be immediately certified to the honorable Court of Civil Appeals at Dallas, and that a certified copy be at once transmitted, by mail, to the honorable judge of the district court of Navarro county.