Dissenting Opinion,
Bonner, Associate Justice.—In this’ case I respectfully dissent from the conclusion reached by a majority of the court. I
*105In this proceeding by quo warranto, unlike an ordinary action, the burden of both allegation and proof devolved in favor of the government, upon the respondent Flatan, to show a valid right or title to the office of sheriff of Camp county. He was required either to disclaim or to justify. High on Ex. Rem., §§ 712, 716.
He attempted to justify by showing that there was a vacancy in the office, by reason of the failure and refusal of the relator, Edwards,’ who was the prior incumbent and the new officer elect, to qualify by giving bond, and his own subsequent appointment by the commissioners’ court, and his qualification to fill the vacancy.
If there was such vacancy, qualification and appointment, then the demurrer to the answer should have beeii overruled; if not, it should have been sustained.
The answer admitted the election of relator Edwards at the general election in 1880; that he had received his certificate of election, and his efforts to qualify by giving the three bonds required by law. That one of these had been accepted and approved, but that the other two, though regular in form, had been rejected because deficient in security. It alleged his refusal to give other bonds or additional security; and that thereupon the commissioners’ court, on the same day they had rejected his bonds, had declared the office vacant and had appointed respondent Flatan, who subsequently qualified.
The controlling question in the case is, was there such vacancy in the office as authorized the appointment by the commissioners’ court of respondent Flatan ?
A preliminary question arises, whether relator Edwards had such right or interest in and to the office as was subject to a legal declaration of forfeiture or vacancy.
In The State ex rel. Bickford v. Cocke, 54 Tex., 482, it was held, under the authority of adjudicated cases, that there was a distinction between the right to an office and the right to enter upon the duties of the office. It was *106there held that Crawford, the new officer elect, who never attempted to qualify at all, had nevertheless acquired such a right to the office of sheriff as to vacate that held by Bickford, the former incumbent, and that Crawford’s failure to qualify within the twenty days would be ground for judicial declaration of forfeiture. It is true the question of Crawford’s resignation incidentally came up in that case; but if he had no office: he had nothing to resign.
This doctrine was reaffirmed in the present case on the former appeal.
Articles 3400 and 4518, Revised Statutes, clearly show that the election of itself to an office gives such right or interest thereto as is subject to judicial declaration of removal. That relator Edwards had such right to the office as was subject to be vacated was recognized by the commissioners’ court, as it judicially declared the office vacant.
Did, then, the commissioners’ court have the power, in effect, to remove Edwards by such declaration of vacancy ?
That court had only such power as was conferred by the constitution and statutes. Const. 1876, article V, section 18.
By article XV of that constitution ce'rtain state officers were subject to be removed by impeachment, and the district judges by the supreme court.
Article V, section 24, provides for the removal of all county officers, which would include sheriffs, for certain causes therein named, “ or other causes defined by law,” upon its being set forth in writing, and the finding of its truth by a jury.
Thus it will be seen that the subject matter of removal of officers was provided for by the constitution giving, according to the grade of the office, the power to three separate tribunals.
In accordance with this constitutional provision, and *107evidently in compliance with its terms, article 3400 of the Revised Statutes was enacted as follows: ‘ ‘ All county officers who are required to give official bonds, who shall fail to execute their bonds within the time required by law, . . . may also be removed from office by the district judge, on the matter being brought before him in the manner hereinafter provided for bringing such matters before the court.”
This statute covers the very case now under consideration; and in subsequent provisions, upon complaint in writing and after notice, a trial by a jury is provided for, as required by the constitution. This trial can be had either in term time or vacation; thus carrying out the policy of the law that such litigation shall be speedily terminated. R. S., arts. 3401-8.
We have then an - express statute, under an express grant of constitutional power, providing for a removal by the district judge for the very cause here invoked.
I have been unable, either in the constitution or the statutes, to find any such power granted to the commissioners’ court. If to be found at all, it is only impliedly in article 4518. This provides that, “whenever any person elected sheriff shall neglect or refuse to give bond and take the oath of office within twenty days after notice of his election, the office shall be deemed vacant, and the commissioners’ court of the county shall appoint a sheriff as in other cases of vacancy.”
It will be noted that this does not give to the commissioners’ court for the neglect or refusal, as does article 3400 give to the district judge for the failure to give the bond, the power of removal, but to fill the vacancy only. Honey v. Graham, 39 Tex., 1.
If it be conceded that the commissioners’ court, in a clear case, when there has been a total neglect or refusal without excuse therefor, to qualify within the twenty days, 'could take judicial notice of a negative state of *108facts which the law deems a ground for judicial declaration of forfeiture or vacancy, as they might do in an undisputed case of death, and thereupon declare the office vacant, yet, in the opinion of the writer, that court could not do so in a case of contest like the present.
On the former appeal the distinction was drawn between such case and one in which the officer elect had in good faith attempted to qualify, but, through inadvertence or otherwise, had failed to give such bond as w;as approved.
If the neglect or refusal be considered as a ground for the forfeiture of the office, clearly the commissioners’ court, under the constitution, would not have the power exercised in this case. Article V, section 8.
If that court had the power to reject bonds made in good faith — as these evidently were, one of them having been accepted,— and then to summarily declare the office vacant and make a new appointment the same day, it would, if the bonds were in fact good, deprive the officer elect of an important right, and would conflict with the power expressly conferred upon the district judge — a superior tribunal, with right of trial by jury, both by the constitution and article 3400 of the statutes. This case comes within the very terms of that article, and which in its spirit also must have been intended to embrace a case of contest in which the officer elect had the right to show that in fact he had given a good bond, or good cause why he had not done so. Else why require him to answer at all, and why provide for a trial ?
If it was intended by articles 3400 and 4518 to give concurrent jurisdiction over the same subject matter to the district judge and the commissioners’ court, why was a right of trial, and that, too, by a jury, after citation, given to the superior tribunal, and the right to summarily declare the office vacant without a trial given to the inferior ?
*109It is an elementary rule that statutes like these, passed at the same session of the legislature, should, if possible, be so construed as not to conflict. Neill v. Keese, 5 Tex., 33.
In accord with article 3400 and article 4519, pertaining especially to the office of sheriff, which gives to the commissioners’ court the power to require of him a new bond, and if upon citation he shall neglect or refuse so to do (although this fact is judicially known to them), he may be removed, not, however, by that court, but by the district judge in the manner provided by articles 3401-8.
If it was intended by article 4518 to give to the commissioners’ court the power to declare a vacancy, and thereby in effect remove the sheriff elect, because he had in the first instance neglected or refused to give the bond, why in the very next section withhold this power in a similar contingency ?
In Ex parte Hogg, 36 Tex., 15, the officer was removed under a statute very similar to article 3400, which provided that “if the justice shall fail to give the assessment bond required,” he might be removed by the district judge. It was held that this act conflicted with the provision of the constitution then in force, which provided for the removal of such officers by conviction of a jury after indictment found; and that the removal by the district judge was unauthorized.
If the action of the district judge in that case was held unauthorized, though exercised by virtue of an expressed statute, how much the more should the action of the commissioners’ court be so held in this case, when neither authorized by the constitution nor by the statute.