Robert B. Seay ex rel. v. Zimri Hunt, 55 Tex. 545

Gould, Chief Justice. 1. This is an information regularly filed under the act of 1879, regulating proceedings by quo warranto, charging that the defendant Hunt had usurped the office of mayor of the city of Dallas. The relator Stone was elected to that office on the first Tuesday in April, 1881, and having received a regular certificate of election, presented himself before the city council on the 18th of April, to be installed as mayor.

On that occasion four aldermen, elected also on the first Tuesday in April, were duly installed as such, but, objection being made that Stone did not possess the qualifications prescribed by the charter, the council did not install him, but passed a resolution appointing a committee of three of its members “ to take evidence on the question of the eligíbility of the mayor elect.” It was also provided by resolution that when the committee meet Stone be notified, and be entitled to be present in ])erson or by counsel, or both, and that the evidence taken be brought before the council one week thereafter.

The evidence thus taken when Stone was present in person and by counsel was reduced to writing and reported to the city council at the time directed, and after one or two adjournments that body proceeded with the trial on the evidence, heard the argument of counsel on both sides, on the 28th of April rejected by a vote of six to two a resolution: “That John Stone, mayor elect of the city of Dallas, is entitled to be inaugurated in said office,” and after a further adjournment to April 30th adopted by the same vote the following resolutions: “Whereas, John Stone, who received a majority of the votes cast for mayor of the city of Dallas, at an election held on the 5th day of April, 1881, had not been a resident of the city of Dallas for the length of time required by the charter thereof, therefore “Resolved, first.

That the election of said John Stone to said office is null and void. “Resolved, second. That another election for mayor of the city of Dallas be, and the same is hereby ordered to take place, on Tuesday, the 17th day of May, 1881.” It appears that John J. Good was mayor of Dallas at the date of the election on April 5th, and presided at the various meetings of the city council, including that of April 30th, on which day he resigned.- On April 19th, in accordance with the directions of the charier, the city council had elected one of the aldermen president pro tern., Zimri Hunt being the alderman so elected.

The charter directs that in case of failure, inability, or refusal of the mayor to act, the president pro tern, shall perform the duties and receive the fees and compensation of the mayor. Under this provision the defendant Hunt, after the resignation of Good, performed the duties of mayor. The information was filed on May 9th. The defendant filed two distinct pleas, in each of which the proceedings of the council are substantially alleged, and in one of them it was in addition alleged that Stone was in fact ineligible. A general demurrer to these pleas was overruled.

In a supplemental petition or information various matters are alleged tending to impeach the validity of the proceedings of the council determining that Stone was ineligible. The court, after various rulings on the pleadings, heard the case on May 25th, without a jury, and gave its judgment in favor of the defendant. The evidence shows that Stone came to Dallas in 1876 for the purpose of making it his home, and with his family occupied different rented places in the city up to the fall of 1878, when he rented a place outside of the corporate limits and occupied it with his family for two years.

In February, 1880, he purchased a lot within the city and commenced at once to improve it for his homestead, but did not occupy it with his family until the latter part of September of that year. During the entire time he has been carrying on business in the city, and since the spring of 1878 in premises which he owned. He testifies that during the entire time he had no other permanent home than the city of Dallas; that any other home was temporary.

There is other evidence, but these are the leading facts bearing on the question whether Stone had resided within the city for twelve months next preceding his election. The briefs on both sides are voluminous, and the propositions submitted are so numerous, that instead of attempting to dispose of them separately, we propose to simply state our conclusions on what we deem the material questions in the case as presented.

The court below based its judgment on the ground that the proceedings of the council were conclusive against the right of Stone to the office, or as it is not very clearly expressed in the judgment, “that defendant’s plea of res adjudicaba is well taken.” Obviously a leading question in the case is as to the power of the city council to determine the eligibility pf appellant to the office of mayor, and as to the conclusiveness of their determination against him.

By the charter the city council is made “'the judge of the election and qualification of its own members.” In this state it is settled law that the determination of the result of an election is a question of a political nature, and therefore one which it is competent for the lawmaking power to refer to other tribunals than the constitutional courts. ' Williamson v. Love, 52 Tex., 335, and cases there cited.

On principle and authority the question of eligibility to office is one of a like nature, being one which the public welfare demands should be promptly decided prior to the induction into office of the party elected. Speaking of this very question the supreme court of Pennsylvania say. “Whenever the corporate law provides a mode of settling disputes therein without the intervention of the courts, that mode is deemed exclusive .of the ordinary remedies, and the judicial authority is dispensed with because adequately supplied.’’ Duffield’s Case, Brightley’s Lead. Cas. on Elections, p. 564; Commonwealth v.

Allen, 70 Pa. St., 465; People v. Matzker, 47 Cal., 524; Trigg v. State, 49 Tex., 667; Jones v. Shaw, 15 Tex., 577; 1 Dillon on M. C., sec. 139 et seq. We do not doubt that it was competent for the legislature to make the city council the tribunal to determine primarily Stone’s eligibility to the office of mayor. As to the conclusiveness of that determination to estop Stone from resorting to the constitutional courts to have it revised, the different members of this court do not agree. But we are all agreed that the decision of the city council was not subject to revision in this proceeding by quo warranto. 2.

We are further of opinion that the pleadings of defendant, setting up the action of the council as a judicial determination that the relator was ineligible to the office of mayor, were sufficient on general demurrer, and that the court did not err in overruling such demurrer. Although the decision of the council was expressed in the form of a resolution, we are of opinion that the entire proceedings show a judicial determination against the relator, of the question of his eligibility.

The different pleas of defendant were, on general demurrer, a sufficient showing that he had authority to exercise the functions of the office of mayor of the city of Dallas. High on Ex. Rem., secs. 710 and 716. 3. The record shows that the relator objected to the validity of the action of the council on various grounds, and amongst others, on the ground that J. J. Good presided over the council as mayor during said proceedings, and that the continuance in office of said Good depended upon the exclusion of Stone.

We are of opinion that the question thus raised is sufficiently presented in the record and briefs to entitle appellant to the benefit thereof. But as we have reached the conclusion that the judgment should be affirmed, even if those proceedings were invalid, it is not necessary that this question be passed upon. 4. Under the various provisions of the charter, we are clear that the mayor is required to have resided within the corporate limits of the city for one year next preceding the election. We are also satisfied that the evidence negatives the possession by Stone of this necessary qualification.

It thus appears that Stone was not entitled to be installed as mayor, and that Hunt, the presiding officer of the council, was lawfully discharging the duties of mayor of the city of Dallas. The judgment of the court was right, and it is not important to inquire whether the reasons leáding the court to give that judgment were right or wrong. 5. From the record it appears highly probable that Hunt is not now discharging the duties of mayor, and if this had appeared with certainty, this court might have declined to consider the case.

As the facts justifying a contrary course do not clearly appear, we have thought best to dispose of the case. The judgment is affirmed. Affirmed. [Opinion delivered December 21, 1881.]