Citations
- 108 Tex. 150
Full opinion text
Me. Justice HAWKINS
delivered the opinions of the court.
This action grows out of City of San Antonio v. Coultress, 169 S. W., 918. Therein the County Court for Civil Cases rendered judgment in favor of Coultress, but the Court of Civil Appeals for the Fourth Supreme Judicial District reversed that judgment and rendered judgment in favor of the city.
Thereupon, Coultress filed therein an application for a writ of error, which application we dismissed for want of jurisdiction, pursuant to the views of a majority of this court as enunciated in Cole v. State ex rel. Cobolini, 106 Texas, 472, 170 S. W., 1036, the case having originated in a county court.
Subsequently, by motion in said Court of Civil Appeals, Coultress sought to have that court certify to this court certain questions of law which, said motion urged, had been decided differently by other Courts of Civil Appeal of this State; but said motion was overruled, and those questions have not been certified.
Following said refusal to certify relator instituted here this original proceeding under article 1623, Revised Statutes, 1911, praying for a writ of mandamus directed to said Court of Civil Appeals, and the justices thereof, requiring them to certify, for our determination, those-questions which", for convenience,'may be divided, as follows:
(1) “Whether the petition in this case is good on general demurrer.”
(2) “And, if appellee, under the allegations of said petition, was an officer under the State law, charter and ordinance of the City of San Antonio, regularly appointed and qualified.” .
(3) “And the further question: ' Whether, under the allegations of said petition, the removal of appellee (Coultress) by the city marshal, is in compliance with section 17 of the city’s charter—providing that only the mayor can legally so remove, and, therefore, if it is material whether appellee was an officer or only an employee or servant of the city, in a suit for recovery of salary, so long as he was not removed by the mayor in accordance with said section ■ 17.”
As grounds for mandamus relator alleges that said decision of said Court of Civil Appeals in the Coultress case is in conflict with the decision of the Court of Civil Appeals for the Fifth District in City of Paris v. Cabiness, 44 Texas Civ. App., 587, 98 S. W., 925, and with the decision of the Court of Civil Appeals for the First District in City of Houston v. Albers, 32 Texas Civ. App., 70, 73 S. W., 1085.
The City of San Antonio has not answered, but the Chief Justice and the Associate Justices, respondents, answered, jointly, by general demurrer and special exceptions, and by general and special denial of the existence of such conflict upon any question of law.
It is well settled, under our decisions, and generally, that unless the duty is plain mandamus will not lie. Glasscock v. Commissioner, 3 Texas, 51, and eases cited: Arberry v. Beavers, 6 Texas, 457, 55 Am. Dec., 791; Durrett v. Crosby, 28 Texas, 688; Tabor v. Commissioner, 29 Texas, 508; Texas Mex. Ry. Co. v. Jarvis, 80 Texas, 456, 15 S. W., 1089; Teat v. McGaughey, 85 Texas, 478, 22 S. W., 302; DePoyster v. Baker, 89 Texas, 155, 34 S. W., 106; Erp v. Robison, 155 S. W., 180, decided April 2. 1913, not yet officially reported [106 Texas, 143],
Assuming, in favor of relator, the sufficiency of his petition for mandamus, we come directly to the vital issue as to whether, within the meaning of article 1623, Revised Statutes, any such “conflict” really exists. If such conflict dues exist mandamus should be awarded; otherwise the writ should be denied.
Article 1623 is as follows:
“Wherever, in any cause at any time pending in any of the Courts of Civil Appeals of the several supreme judicial districts of the State of Texas, any one of said courts may arrive at an opinion in the decision of any such' cause that may be in conflict with the opinion heretofore rendered, or hereafter rendered, by some other Court of Civil Appeals in this State on any question of law, and such Court of Civil Appeals refuses to concur with the opinion so rendered by such other Court of Civil Appeals, it shall be the duty of such court failing to concur with the opinion in conflict with the opinion so arrived at by such court, through its clerk, to transmit the question of law, duly certified to, involved in the cause wherein said conflict of. opinion has arisen, together with the record or transcript in such cause, to the Supreme-Court of the State of Texas for adjudication by the Supreme Court.”
Whatever difficulties may arise, in a particular instance, in applying this article of the statute, we regard its meaning and legal effect as plain and well settled. The sole duty which it imposes upon a Court of Civil Appeals arises only when a decision of that court upon a question of law, actually involved in a cause before it, is in direct conflict with the decision of another. Court. of Civil Appeals upon that very question of law, arising upon an issue actually involved in a cause before it,—the test being whether “one would operate to overrule the other in case they were both rendered by the same court.”
As long ago as 1896, upon an application for a writ of error, in construing article 941, Revised Statutes, 1895, afterward article 1522, Revised Statutes, which was amended by Acts 1913, page 107, this court said:
"In this case the judgment of the District Court was reversed and the catise remanded. Although the cause is sent back with instructions, the decision of the Court of Civil Appeals does not settle the case; nor is it averred in the petition for the writ of error. But in order to show jurisdiction in this court it is alleged that the decision of the-Court of Civil Appeals is in conflict with certain decisions of this court on two propositions announced in the opinion. We have examined the cases cited in support of the averment, and, while we find that there may be some apparent inconsistency between the propositions stated in the opinion in the present case and those announced in the cases referred to in the petition, we think that the present case is distinguishable from either of those cited, and that there is not that well defined conflict between them which is necessary to give this court jurisdiction of a remanded cause. Therefore, the application is dismissed for want of jurisdiction.” Bassett v. Sherrod, 90 Texas, 32, 36 S. W., 400.
A few months afterward, in passing upon an application for writ of error, this court said:
“It is sought to give this court jurisdiction of the application under article 941, Revised Statutes, which reads as follows:
“‘All causes shall be carried up to the Supreme Court by writs of error upon final judgment, not on judgments reversing and remanding causes, except in the following cases, towit: . . .
“ c5. Cases in which a Court of Civil Appeals overrules its own decisions 'or the decision of another Court of Civil Appeals or of the Supreme Court/
“Under this statute the conflict between the decision of the court in question and that with which it is claimed to be in conflict must be of such a. nature that one would operate to overrule the other in case they were both rendered by the same court. In other words, the decisions must be based, practically upon the same state of facts and announce antagonistic conclusions. It is not sufficient to give jurisdiction that a Court of Civil Appeals may have misapplied a principle of law announced by a decision of another Court of Civil Appeals or of this court. In the two cases cited as being in conflict with the decision in the present case, the question of waiver arose upon exceptions to pleading, and in the course of the opinion a general proposition was laid down upon that question which might be considered in the case presented by this application, but the facts of the case are so different that we do not consider the conflict to be such as under the statute gives us jurisdiction to grant a writ of error.” Sun Mutual Insurance Co. v. Roberts, 90 Texas, 78, 37 S. W., 311.
We think that the same rule of construction should be applied to said article 1623. And in 1902, some five years after the two decisions last cited, this court did apply to that statute the same rule of construction which, previously, had been applied in .the two cases mentioned, saying:
“We have held that in order to give this court jurisdiction of a reversed and remanded case on the ground of a conflict of decisions, there must be a well defined conflict (Bassett v. Sherrod, 90 Texas, 32); and we think the same rule should apply to the construction of the statute which requires a Court of Civil Appeals to-certify a question upon which its opinion conflicts with that of another Court of Civil Appeals.” McCurdy v. Conner, 95 Texas, 246, 66 S. W., 664.
And during the same term this court denied a petition for mandamus upon the ground that the decision of the Court of Civil Appeals for the Fifth District, in Kidd v. Truett, County Attorney, to the effect that .an election on prohibition of the sale of intoxicating liquors could not be held in a school district lying partly in a justice precinct in which prohibition had already been adopted did not present such “conflict” with certain previous decisions of another Court of Civil Appeals as to require such certification, saying:
“The cases relied upon by the relator are State v. Harvey [11 Texas Civ. App., 691], 33 S. W., 885, and Adams v. Kelley [17 Texas Civ. App., 479], 44 S. W., 530. Both decisions were by the Court of Civil Appeals for the Second Supreme Judicial District. In the former it was held, that where an election had been held in the entire county, and as a result thereof prohibition had been adopted, another election in a precinct of the county, while prohibition was still in force in the entire county, was invalid. In the latter the ruling was in principle the same. There it was held that after an election under the local option law held for a county had resulted in favor of prohibition, the Commissioners Court could not be compelled to order an election for a city in the county, although the result of the county election had not been declared. Clearly the decisions in these two'cases, and the decision of the Court of Civil Appeals for the Fifth District, were upon very different questions. Because a local option election can not be held in a subdivision of a large territory in which prohibition already exists, is no conclusive argument against the validity of such an election in a certain district in a part of which only the sale of' intoxicating liquors is already prohibited. Where the decision in a case is not necessarily conclusive of the decision in another, there can be no conflict.” Kidd v. Rainey, 95 Texas, 556, 68 S. W., 507.
Again, in 1908, this court said: