Willis v. Potts

HAMILTON, Justice

(dissenting).

I agree with the court’s holding that the office of City Councilman of the City of Fort Worth is a lucrative office, but I cannot agree with, the court that the City Councilman is an officer under this state within the meaning of Aritcle III, Section 19 of the Constitution.

A home rule city possesses powers not denied by statute or Constitution so long as the city has incorporated these powers in its charter. There are many powers which the City of Fort Worth could exercise under the Constitution and statutes, but it cannot do so because they are not contained in its charter. See Davis v. City of Taylor, 123 Tex. 29, 67 S.W.2d 1033; Zachry v. City of San Antonio, 296 S.W.2d 299 (Tex.Civ.App.1957), affirmed 157 Tex. 551, 305 S.W. 2d 558. It is the people of the City of Fort Worth through its charter who have given the City Council of Fort Worth all the powers it possesses, and herein lies the distinction between a city councilman as an officer under the city and an officer under the state. There is no statute which imposes upon the councilman any state duty above and beyond the duties placed upon him by - the charter of the City of Fort Worth. His office is not created by the state, his powers *628and duties are not defined by the state, neither has the state by statute placed any particular duty upon him by virtue of his office of City Councilman. Under these circumstances I would say that relator is not holding an office under this state.

The term “office under this state” as used in Article III, Section 19 of the Constitution, has never been construed by the courts of this state as applied to a municipal office, but it has been so construed by many other states. Without exception every jurisdiction has declared a municipal office not to be an office tmder the state unless it is one created by the Constitution or statutes, its powers and duties defined by statute, or an office created by some other authority such as a municipality, but upon which there is imposed by statute certain state duties.

The Supreme Court of Michigan has written an exhaustive opinion on the subject before us and has analyzed many cases in other jurisdictions, and in the opinion of the writer has verified the conclusion he has reached above. Attorney General ex rel. Moreland v. Common Council of City of Detroit, 112 Mich. 145, 70 N.W. 450, 37 L.R.A. 211 (1897) and cases cited therein.

In State ex rel. Platt v. Kirk, 44 Ind. 401 (1874) it was held that the office of City Councilman was not an “office * * * under this State.” In making such holding, the Indiana Supreme Court stated as follows :

“The office of councilman is an office purely and wholly municipal in its character. He has no duties to perform under the general laws of this State. The State has enacted a law applicable to all cities which may organize under it. The inhabitants of the particular locality, after having taken the other necessary steps for an organization, elect the designated number of councilmen, who have the power to enact by-laws, and do such other acts and perform such other duties as pertain to their office in the municipality. These powers and duties of councilmen are beyond and in addition to any acts, powers, and duties performed by officers provided for under the state government.” 44 Ind. at 406-407.

The Supreme Court of Missouri, in holding that a mayor of a city is not an officer-under the state, stated:

“We do not regard the mayor of a city as an officer under the State within the meaning of the constitutional provision. There is a recognized distinction between State officers, whose duties concern the State at large, or the general public, although exercised within defined territorial limits, and municipal officers, whose functions relate exclusively to the particular municipality. * * * A State officer may be connected with some of the municipal functions, but he must derive his powers from a State statute and execute his powers in obedience to a State law. * * * Whilst it is true, that the State grants the charter under which a city is organized and acts, yet those elected in obedience to that charter perform strictly municipal functions, and do not act in obedience to State laws in the manner enjoined upon State officers.” Britton v. Steber, 62 Mo. 370, 374 (1876).

The above holding was also applied to the office of city alderman in State at Inf. of Dalton ex rel. Tucker v. Mattingly, 268 S.W.2d 868 (Mo.Sup.Ct. 1954)

In Klair v. Bacharach, 10 N.J.Misc. 448, 159 A. 538 (1932), it was held that a City Commissioner or Mayor, although acting as judge of a police court, was not an officer “under government of this State.”

The Florida Supreme Court in Attorney General ex rel. Wilkins v. Connors, 27 Fla. 329, 9 So. 7 (1891) held that municipal offices are not offices “under the government of this State.”

In People v. Capuzi, 20 Ill.2d 486, 170 N.E.2d 625 (1960), it was held that the President of a Village is not an “office under * * * this State * *

*629Respondent relies on Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922) in support of his position that a City Councilman is an officer under the State. In that case it was held that the office of judge of the municipal court of a city is a “civil officer under this State.” The Arkansas court made the following statement:

“The words ‘under this state,’ as used in the Constitution, mean under the laws of this state, or by virtue of or in conformity with the authority conferred by the state as sovereign. It embraces all offices created by the laws of the state as contradistinguished from other authority. Municipal offices are created by the statutes of the state, and are therefore civil offices ‘under this state.’ ”

That case is distinguished from the case before us in that in Arkansas municipal offices are created by the statutes of the state as “contradistinguished from other authority”. The other authority in the instant case is the charter of the City of Fort Worth, which created the office of City Councilman.

Respondent relies on Attorney General ex rel. Moreland v. Common Council of City of Detroit, supra, and State ex rel. Young v. Robinson, 101 Minn. 277, 112 N.W. 269, 20 L.R.A.,N.S., 1127 (1907), along with language by this court in Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926).

While it was held in Attorney General ex rel. Moreland v. Common Council of City of Detroit that the office of Mayor was an office “under * * * this State”, the Supreme Court of Michigan did recognize that municipal officers “whose duties are simply and purely municipal, and who has no function pertaining to state affairs, does not come within the constitutional description of officers holding office under the state”. That court based its decision on the fact that a mayor was a conservator of the peace in common with all magistrates and that the legislature had placed general duties under state law on mayors of municipalities.

State ex rel. Young v. Robinson, supra, is based on a similar proposition. That case involved the right of the Attorney General of Minnesota to bring a suit to remove a person from the office of mayor of a municipality. The court held him to have such right, such holding being based on the fact that in Minnesota the mayor was required by state law to report all violations of the state liquor laws and any neglect of duty by a mayor was made cause for removal.

In Yett v. Cook, supra, it was stated by this court, and respondent relies thereon:

“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 authorities.)
“The mayor of a city is a magistrate, and its police officers are state officers.” (citing authorities.)

The holding of the court was that individuals in their private capacity did not have a justiciable interest other than as a member of the general public, hence could not compel calling of city election. In using the above language, this court was merely holding that the State was the proper party to bring suit to compel a municipal election. That case did not pass on whether a city councilman is an officer under the State as used in Article III, Section 19 of the State Constitution. A municipal officer may be an officer under the State when the statute placed certain duties on him which he is bound to enforce. For example, a municipal police officer may be said to be an officer under the State, since he has the duty, made so by statute, to enforce the general criminal laws of the State. See Articles 36 and 37, Vernon’s Ann.C.C.P.

*630The court also relies strongly on the case of Orndorff v. State (Tex.Civ.App., 1937, writ ref.), 108 S.W.2d 206, in which the court held that a county commissioner was an officer under the government of the state. That case is not contrary to the test that has been set out above. The office of county commissioner was created by the state. Its duties and powers are set by statute and the counties themselves are created by the state without regard to the wishes of the people therein residing.

I agree with the statement in this court’s opinion in this case that “Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility.” In keeping with that premise, I would hold that a city councilman of the City of Fort Worth is not an officer under this state and I would grant relator’s application for writ of mandamus.