J. H. Jackson, City Judge, v. James W. Swayne, County Attorney, 92 Tex. 242

BROWN, Associate Justice. James W. Swayne was and is the - •duly elected and qualified county attorney of Tarrant County, there being no district attorney in the judicial districts embraced in said county. J. H. Jackson was and is the duly qualified judge of the city -court of the city of Fort Worth, a municipal corporation in Tarrant County, chartered by special act of the Legislature of the State of Texas, and William D. Williams was and is city attorney of the said city.

The city council of the city of Fort Worth passed in due and proper form! ordinances which declared certain acts to be offenses against such ordinances and liable to punishment as prescribed therein, which acts were also made penal and liable to punishment by the penal laws of the State of Texas.

At divers times before the institution of this suit, complaints had been made and filed in the city court before Judge Jackson, charging the defendants with certain acts in violation of the ordinances of the city, the prosecution being conducted in the name of the city of Fort Worth, and the acts therein charged were likewise made penal offenses and subject to punishment by the penal laws of the State. The county attorney, Mr.

Swayne, or his deputy, appeared in the city court ■ from day to day and demanded the right to prosecute all cases which were presented in the said court by affidavit or complaint, charging the defendant with acts which constitute an offense against the laws of the State of Texas, whether the complaint be made in the name of the State or in the name of the city of Fort Worth, and at the same time said county attorney or his deputy offered to file in each one of the cases in the name of the State of Texas a complaint charging the defendant with the same acts as violations of the laws of the State.

Judge Jackson refused to permit the county attorney to prosecute in those cases in which the complaint had been filed in the name of the city of Fort Worth charging a violation of the ordinances of the said city, and refused to permit the county attorney to file complaints in the name of the State of Texas against such persons, charging them with the same acts as a violation of the laws of the State when such persons already stood charged in his court by complaint, upon the same facts, with a violation of the ordinances of the city.

The city judge did not refuse to permit the county attorney to prosecute by complaint in the name of the State in the city court any person who was charged to be guilty of a violation of the laws of the State and against whom no charge previously had been filed in his court under the ordinances of the city and in the name of the city.

The county attorney filed this suit, seeking a mandamus against the judge of the city court of the city of Fort Worth to compel him to permit the plaintiff, as county attorney, to prosecute all cases in his court in which the defendants stood charged with acts which constituted an offense under the laws of the State, and to compel the city judge to permit him, the said county attorney, to file complaints and prosecute persons charged with such offenses in his court although a prosecution might be at the time pending for the same acts in the name of the city of Fort Worth, under a charge of violating the ordinances of said city.

The district judge granted the writ as prayed for, and entered judgment that the writ of mandamus issue, which judgment was by the Court of Civil Appeals affirmed. ■ . The defendant in error contends for the affirmance of the judgment herein for the following reasons:

(1) Under

article 5,

section 12, of the Constitution of the State, all prosecutions are required to he conducted in the name of the State of Texas, and the ordinances of the city of Fort Worth which authorize and require prosecution in the name 'of the city, of acts which are in violation of the laws of the State, are void; (2) that the city of Fort Worth had no authority to enact ordinances which declared acts committed within the limits of the city to he offenses against the municipal ordinances when such acts constitute offenses under the penal laws of the State of Texas, and all such ordinances are void; (3) the city court of the city of Fort Worth was created prior to the adoption of the amendment to the Constitution which empowered the Legislature to create such courts, and the law creating it is void; (4) that under

article 5,

section 21, of the Constitution of the State of Texas, it was the duty of the county attorney to represent the State of Texas in all cases in the district and inferior courts of that county. If the ordinances of the city of Fort Worth which declared the acts complained of to he offenses against the city and authorized prosecution in the name of the city were void, then no prosecution in law was begun when such charges were filed in the city court, and the county attorney had no authority to appear in a case which was inaugurated and prosecuted contrary to the Constitution.

If the law which created the city court for the city of Fort Worth was enacted at a time when the Legislature could not create it, then it is no court, and the county attorney had no right to appear in it to prosecute any case pending or to inaugurate a prosecution. If the city court had jurisdiction of the cases and the ordinances of the city were valid, the county attorney had no authority to prosecute a ease in the name of the city of Fort Worth. That duty was imposed by law upon the city attorney.

If the city court had jurisdiction to try offenses against the laws of the State and the county attorney had the right to file complaints therein in the name of the State upon facts constituting such offenses, its jurisdiction was not exclusive, but the same cases might have been prosecuted by the county attorney in the justice court or in the county court of that county.

This would have furnished an adequate, convenient, and effective remedy for the wrong done him by the judge of the city court, if it be a wrong, by refusing permission to file his complaint in the city court, and having such adequate and efficient remedy at law, the writ of mandamus can not be lawfully issued. The Serewmen’s Benv. Assn. v. Thos. Benson, 76 Texas, 552; Ewing v. Cohen, 63 Texas, 482.

The wisdom of that rule is well vindicated by the history of this case, in which much time has been spent and costs incurred in an attempt to force a judicial officer to surrender his convictions upon a vexed question of law when the prosecutions would not have been questioned in other courts. The judgments of the District Court and of the Court of Civil Appeals are reversed and this cause is dismissed. Reversed and dismissed.