On Motion for Rehearing.
Appellant contends that Carruthers and White each found an office and took possession because no one else was there, entirely overlooking, in this portion of the argument, the fact that by the ordinance of May 4,1916, the mayor and commissioners, by solemn legislative act, undertook to invest said parties with the offices claimed by them. So far as this record discloses, appellant may have voted for such ordinance, but we have treated the questions involved upon the assumption that he did not vote for the same, and therefore did not pass upon the question whether such an ordinance if voted for by appellant and the other commissioners would take the place of a formal nomination and confirmation.
Appellant also contends that said portion of the ordinance having been held invalid by us it would follow that Carruthers and White could not be de facto officers. It is the very fact that an appointment is illegally made which furnishes a basis for a person to claim to be a de facto officer, for if it is legally made, the officer is safe from removal even by quo warranto proceedings. Said ordinance undertakes to place these parties in the offices respectively claimed by them, and to cure any defects in their appointment or qualification, and we think that such invalid appointment, followed by the possession and recognition shown by the facts set out in our opinion, constituted them de facto officers. These facts are not attacked by appellant, but some of the most important are overlooked in discussing the issues.
Considerable stress is laid upon the theory that appellant is suing to enforce police regulations, and it is contended that an ordinance creating a police department is part of the police regulations of the city. Prom this statement it might be inferred that this is a suit to enforce the ordinance of May 4, 1916, which requires that persons shall comply with certain requisites before entering upon the discharge of duties. As pointed out in our former opinion, plaintiff’s petition fails to set out any particular police regulation, or ordinance in the nature of a police regulation, sought to be.enforced. It is therefore clear that if the ease be viewed as one brought by appellant on behalf of the municipality to enforce police regulations the petition states no cause of action. But suppose the petition contained the necessary averments. The charter does not give any commissioner the express power to bring suits which he may deem necessary or proper to fulfill duties intrusted to him, and if such power exists it would be an implied one, and be subject to the proviso mentioned in paragraph 8 of section 7 of the charter. We are unable to see how section 56 can be construed to abolish the proviso which subjects each commissioner to the direction and control of *386a majority of the commissioners in so far as implied powers are concerned.
We are still of the opinion that a suit by appellant to restrain interference with his right to appoint is a suit brought by appellant in his individual capacity, and distinguishable from a suit by him in his official capacity on behalf of the city to aid in the enforcement of police regulations.
Appellant again urges that there is a difference between the recognition accorded to a de facto officer so far as the public is concerned, and that accorded him when he is undertaking the enforcement of rights in himself. It appears to us that appellant fails to distinguish cases in which a person is suing for the enforcement of rights dependent upon his legal title to the office, and cases in which courts of equity protect a person in the possession and enjoyment of emoluments of an office, not because he shows he has legal title, but upon proof showing that he is a de facto officer. No effort is made to explain away the decisions in the McAllen-Rhodes and Callaghan-McGown Cases, which are very much in point because this is a resort to equity for the purpose of ousting de facto officers, and it is not even alleged that the remedy of a quo warranto proceeding was not available to appellant.
We are not sure that we understand what point is sought to be made in the concluding paragraph of the argument. The ease referred to (Stanfield v. Bexar County, 28 S. W. 114) was one in which the office had been legally abolished, and it was held that Stan-field could not recover for services performed after the office had been abolished. That case throws no light upon the issues involved in this case, for there is no contention by appellant that the offices of captain of detectives and detective had no legal existence. If appellant intends to contend that a de facto officer could not sue to recover the salary of an office, because thereby he would necessarily put his title in issue, we agree that there is much authority for such contention (see note to 32 L. R. A. [N. S.] 949); and it is entirely in harmony with the holdings of our Supreme Court to the effect that the salary is an incident to the title and not to the possession of. and discharge of the duties of an office, and while in the case of Houston v. Albers, 31 Tex. Civ. App. 643, 73 S. W. 1085, it was held that a de facto officer is entitled to compensation for services performed, we have found no case by the Supreme Court which so holds. If it be conceded that such an officer is not entitled to compensation and cannot exact it through the courts, considerable force would be added to the contention of Carruthers and White to the effect that the adoption of an ordinance, voted for by appellant, providing for paying them would constitute appointment and confirmation to the offices designated in the pay roll as held by them. But aside from such question, we think it is immaterial to any issue in this case whether a de facto officer can sue for and recover salary or compensation. This is not such a suit, but a suit in equity to restrain de facto officers from performing duties and from being paid, and is governed by the decisions relating to such suits.
The motion for rehearing is overruled.