On Motion for Rehearing. That notice of the charges and an opportunity to be heard thereon is to be read into the section of the chapter authorizing the removal of the *Page 750 corporation counsel is not seriously questioned. Indeed, it cannot be, we think under the authorities cited in our original opinion and many others that might be cited to the same effect. It only remains, therefore, to determine whether such notice and opportunity was given. It was not so alleged by appellees, and not so found by the trial court. It was alleged and found that appellant was called before the board of city commissioners, and a resolution to remove was read in his hearing. Not only was such resolution legally insufficient as notice of any specific charge of incompetency, as we pointed out in our original opinion (see, also, on this point People v. Starks, 33 Hun, 384, where an officer was notified that the board deemed him "incompetent for the proper and credible performance of his duties," and it was held that no cause for removal was specified), but it is evident from the record as a whole that such call of appellant and such reading of the resolution was not intended as a presentment of the acts of incompetency relied upon, nor as an opportunity to meet charges of that character, but was intended merely and simply as offering appellant an opportunity to resign, and thus avoid the damage and odium naturally arising from an open discharge. Evidently the commissioners at the time were laboring under the impression that neither notice nor opportunity for a hearing was required, but that their power to remove was within their unrestricted and unregulated discretion. This is made apparent from the city's answer in this case. We quote a part of paragraph 4 of the city's answer as so showing:
"These respondents admit that section 12 of chapter 1 of the charter of the city of Fort Worth is correctly pleaded in paragraph B of subdivision 4 of relator's petition, and with great respect they show unto your honor that by virtue of the terms of section 30 of chapter 11 of the said charter, pleaded by relator in paragraph 3 of subdivision 4, of his petition, the corporation counsel of the city of Fort Worth is removable by the board of commissioners of said city at their discretion for incompetence, corruption, malconduct, malfeasance, or nonfeasance in office. These respondents admit that no charges in writing of incompetence, corruption, malconduct, malfeasance on the part of relator were filed with the board of commissioners, and that no copy of any charges was served upon relator, and that relator was not advised to be present with his witnesses in respect to any charges; and they allege the facts to be that under the terms of the charter of the city of Fort Worth, pleaded by the relator, and existing, they were not required to do any of those things, but were vested with full power and authority to remove the corporation counsel at their discretion, for incompetence, corruption, malfeasance or nonfeasance in office, and they allege the facts to be that the relator herein was, as will be hereinafter more specifically pleaded, incompetent and guilty of corruption, malconduct, malfeasance, and nonfeasance in office, all within the knowledge of the board of commissioners of the city of Fort Worth, upon which they acted."
We accordingly think we must adhere to the conclusion on this subject expressed in our original opinion.
Nor do we think it can be justly said that due notice and opportunity was waived. As stated in our original opinion, there is no plea or finding of waiver, and with the conception entertained by the commissioners of their powers, as evidenced by their answer herein, it is apparent that relator stood helpless before the commissioners. The matter was apparently predetermined. But one privilege was presented — that was to resign. It seems altogether improbable from the record that the notice of hearing, contemplated by the charter provision authorizing removal, would have been accorded. We think we may analogize the question with the decision of a like question in the case of Haverbekken v. Hale, County Judge, 109 Tex. 106, 204 S.W. 1162. That was a proceeding for the establishment of a public road, and it was held by our Supreme Court that neither Haverbekken's personal appearance before the jury of view, nor before the commissioners' court, when it made its final order, amounted to a waiver of the notice required in such cases, since it did not secure to him the same rights he would have had if such notice had been given. We, therefore, are yet unwilling to deprive relator of his clear constitutional rights on the ground that the record shows that he waived them.
It was suggested in the oral argument on the submission of the motion for rehearing, but not otherwise presented, that the judgment below could not be disturbed for the reason that there is no finding by the trial court to the effect that relator was in fact in all things duly competent and qualified to act as corporation counsel. The suggestion rests upon the contention that the applicant for a writ of mandamus, as in cases of injunction, must anticipate and answer every objection which may be urged against the application, and the cases of Houston Tap B. B. Co. v. Randolph, 24 Tex. 317, Johnson v. Elliott (Tex. Civ. App.) 168 S.W. 968, and Watkins v. Huff (Tex. Civ. App.) 63 S.W. 922, have been called to our attention in support of the suggestion. The principle embodied in the contention must be freely conceded. In disposing of the question so presented, we will first observe that it may be doubted whether, in order to avail himself of the right of notice of charges against him and of an opportunity to be heard in answer thereto, it was necessary for him to assume the burden of alleging or proving his qualification to hold the office. His qualification had been theretofore duly affirmed by *Page 751 the formal action of the board of commissioners in appointing him, and before his removal could legally take place it was necessary, as we have seen, that he have notice of any charge of disqualification or incompetency upon which the commissioners based their proposed action of removal. Nevertheless, the relator in his application for the writ of mandamus made full and complete allegations of his qualification and competence to fill the office to which he had been appointed, and thus met the rule announced in the cases cited in support of the suggestion under consideration. The case of Railway v. Randolph, supra, went off on demurrer to the petition for mandamus. It was held, as already stated, that the petition should negative or meet all legally supposable defenses to the application. The same is true of the case of Johnson v. Elliott, supra. Neither of these cases go so far as to hold that upon a trial of the application for the writ of mandamus the burden of proof is upon the applicant, to sustain these allegations. Naturally and legally the burden is upon those resisting the application. It is true that in the case of Watkins v. Huff, 63 S.W. 922, the Court of Civil Appeals of San Antonio, after affirming the general principle that a plaintiff in a mandamus proceeding is required to anticipate and answer every possible objection or argument in fact, which it may be expected will be urged against the claim, held on original hearing that the judgment awarding the writ should be reversed on the ground that there was neither allegation nor finding that there were school funds sufficient to meet the contract in that case sought. On motion for rehearing, however, the judgment was affirmed, the court, among other things, stating that —
"It is true that there is no allegation in the petition, in terms, that the contract would not create a deficiency in the school fund. There is, however, the general allegation that the contract was in all things regular and legal. A careful examination of the answer in reference to the matter of deficiency develops that appellant does not claim that, in view of other obligations, there would be no money whatever to apply to this contract. The allegations of the answer go this far only, viz. that there was not money in the funds of the particular year sufficient to satisfy this salary at the rate and for the time specified."
No emphasis was given to the fact stated in the original opinion that the court failed to find that the contract would not create a deficiency. The distinction that we are now seeking to point out is that the rule invoked in support of the suggestion under consideration is one of pleading, and not one relating to the proofs required upon the part of an applicant for mandamus. As illustrating the distinction, we cite the case of Wilson v. Hawthorne, 14 Colo. 534, 24 P. 549, 20 Am. St. Rep. 290. Among other things, it was there said:
"The showing of merits should not be required to the extent of compelling a party against whom a judgment has been obtained, without jurisdiction over his person, to come into a court of equity, and assume the burden of disproving his liability. On the contrary, a party thus circumstanced is entitled to the maintenance of his right to defend against such supposed liability in an action wherein his adversary must assume the burden of proof. This distinction is important in all cases, and in many may be absolutely controlling. The allegation of merits, though not traversible, may very properly be required as an earnest of good faith from the party seeking relief from a supposed unauthorized judgment; and as a rule, under our system, such pleading may be required to be verified. If a pleading be demurred to for want of such averment, it may be dismissed, unless amended; but in this case the absence of the averment, not having been made a ground of demurrer, did not justify the dismissal of the cross-complaint. Freem. Judgm. § 498; Bell v. Williams, 1 Head, 229; Ryan v. Boyd, 33 Ark. 778; Crawford v. White,17 Iowa 560."
In further opposition to the suggestion under discussion, we wish to observe that, while a potential power has been given the city commission to remove the corporation counsel, the proceeding is a special one, similar, it may be said, to the powers conferred upon a commissioners' court to open public roads. It may be invoked only when the prescribed proceedings are followed; such proceedings being jurisdictional in their nature. Thus, in the Haverbekken Case, supra, it was held, in effect, that a failure of eight freeholders of the precinct to sign the petition for the road and to give 20 days' notice thereof rendered void the action of the commissioners in ordering the road to be opened. So here, we think, the action of the commissioners, without legally assigned cause and without an opportunity for a hearing, was void, and it is not our understanding that in such cases, in order to set aside the void proceeding, the burden rests upon the complainant to prove a meritorious defense. Thus in 15 R.C.L. p. 719, paragraph 171, it is said:
"The rule requiring an affidavit of merits on an application to set aside a judgment does not apply where it was grossly irregular for the judgment to have been entered. If a judgment is void by reason of an entire lack of jurisdiction of the party, it is a nullity, and the party affected is entitled to have it set aside whenever such fact is made to appear, and without proof or suggestion of merits."
In the case of San Bernardo Townsite Co. v. Hocker (Tex. Civ. App.)176 S.W. 644, it was held that a void judgment may be enjoined without showing a defense against the cause of action, and that in determining *Page 752 whether such Judgment is void the entire record may be looked to, and that when from the entire record it appears that the judgment is void, it may be attacked by injunction without pleading or showing a meritorious defense. To the same effect is the decision of our Supreme Court in the case of August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303.
Under the city charter the sole tribunal authorized upon the performance of the prerequisites to remove the corporation counsel is the city commission. No appeal from their conclusion is provided for, and the district court was without any jurisdiction to determine the existence or nonexistence of the charges alleged in the respondent's answer, except, possibly, in so far as it was necessary to determine whether as alleged by the relator, their action was induced by ill will and spite, and the trial court made no attempt to go beyond this. He made no finding upon any issue of relator's incompetency, and to now hold that because the relator has not presented to this court a finding in his favor on any such issue is in effect to transfer the power from the city commission to the district court. The essential object of this suit was to determine, not whether the relator was competent or incompetent, but whether, after having been duly appointed as corporation counsel, he had been duly removed from his office in accordance with the law of the land. We conclude, therefore, that the suggestion we have been discussing, must be overruled.
Other questions presented in the motion for rehearing we think have been sufficiently disposed of in our original opinion. The motion for rehearing will accordingly be overruled.
For the first time respondents also present an independent motion to dismiss relator's appeal. The motion is based upon two grounds. It is alleged that the relator at the time of his appointment, was not eligible to the office of corporation counsel under section 6 of the charter of the city, which provides:
"No person shall be eligible to the office of corporation counsel, whether the same be elected by popular vote or appointed at the hands of the board of commissioners, who is not licensed to practice law in the Supreme Court of the state of Texas, and in the federal courts."
Under this portion of section 6 of the charter it is alleged that the relator at the time of his appointment was not licensed to practice law in the Circuit and Supreme Courts of the United States.
The second ground of the motion to dismiss is also predicated upon section 6 of the charter, which further reads that:
"The mayor and each of the said five commissioners shall not be less than twenty-five years of age, citizens of the United States, and for three years immediately preceding their election, residents of the city of Fort Worth, qualified voters and property owners and taxpayers in said city. Other city officers made elective under this act by popular vote, shall be qualified voters and bona fide residents of the city of Fort Worth for two years next preceding their election."
It is alleged that relator was disqualified under this portion of the section for the reason that he was not a bona fide resident of the city of Fort Worth for the two years next preceding his appointment and the allegations of disqualification as above set forth are supported by the affidavit of Hon. E. R. Cockrell, mayor of the city, attached to the motion as an exhibit.
It seems obvious to us that the questions so presented go to the merits of the case, and in no wise affect the jurisdiction of this court to determine the appeal. Moreover, no such ground of ineligibility or want of qualification was set up by the respondents in their answer to the application for the writ. The relator distinctly alleged in his application that he was at the time of his appointment "in all respects duly eligible therefor." The respondents, neither by exception nor by allegations in their answer, set up any such grounds as are set up in the motion to dismiss, nor have we any finding of the court on any such issue. So that we think it clear that the issues presented in the motion are not now available to respondents in this court.
The motion to dismiss is accordingly overruled.
BUCK, J., recused and not sitting. *Page 753