State v. Moore (57 Tex. 307, 1882)

Stayton, Associate Justice.

This'action was brought by the state of Texas, through the attorney general, by motion, against E. T. Moore, county attorney for Travis county, to compel Moore to pay into the state treasury a certain sum of money, collected of A. M. Mcllvaine and others by Moore, as county attorney, under a judgment against Mcllvaine, who was a defaulting tax collector, and his sureties. Moore, the county attorney, resisted the motion, upon the ground that he was entitled to retain the money in controversy as his commission of ten per cent, on the sum collected from Mcllvaine and his sureties.

There were pending six other motions of the same character against Moore, in all of which he set up the same defense.

The motions in the seven cases were consolidated, and a judgment was rendered therein that Moore should pay into the state treasury the sum of §97.90, the same being ten per cent, on sum collected by him in fees due to officers as fees in felony cases, to pay which the" appropriation was exhausted, and on that account no commissions on the sum so collected was allowed."

Before final judgment was entered upon the seven motions, Moore paid the $97.90 into the state treasury, and produced evidence thereof to the court, and the court ordered that no execution should be issued therefor. The court adjudged that Moore, the county attorney, was entitled to ten per cent, commissions on sums collected on judgments recovered by him, and that he was entitled to hold the same, and gave judgment against him for the cost of only one motion.

It is claimed that the court erred in consolidating the seven motions.

These motions were all made by the state of Texas against E. T. Moore, and the fact that the money which it was sought to comp^V him to pay into the state treasury was collected from seven defaulting tax collectors, did not render it necessary to file a motion in each case.

The motions were practically suits, and being between the same parties, the court did not err in consolidating them (R. S., 1450), nor did the court err in refusing the costs of more than one motion.

In the months of February and March, 1881, the Hon. W. M. Brown, comptroller of public accounts, placed in the hands of J. H. McLeary, attorney general of the state of Texas, certain accounts against the following defaulting collectors, to wit:

Against G. W. Loftin and sureties, against J. T. Wilson and sureties, against J. W. Stockley and sureties, against A. Mcllvaine and sureties, against J'. J. McConn and sureties, against B. B. Headers and sureties, and against J. M. Elkins and sureties.

Petitions were prepared by the attorney general in his office, and filed in the district court of Travis county, on the dates and with the dockets numbers as follows:

Docket No. Style. Date of file.

5597............The State v. G. W. Loftin et al.................. March 11, 1831

5607............The State v. J. T. Wilson et al..................March 19, 1881

5610 ............The State, v. J. W. Stockley, Adm’r, et al.........March 22, 1881

5611 ............The State v. A. McIlvaine et al.................March 22, 1881

5617............The State v. J. J. McConn et al.................. March 25, 1881

5621............ The State v. B. B. Meaders et al.................March 28, 1881

5623............ The State v. J. M. Elkins et al..................March 29, 1881

And service obtained on the defendants thereunder by the efforts of the attorney general.

On the 11th day of April, 1881, E. T. Moore, Esq., filed motions in all the above cases, in which, after setting out that he was county attorney of Travis county; that there was no district attorney; that under the constitution and laws of the state, it was his duty and privilege to institute and prosecute these suits; that these suits had been instituted against his consent, and without his knowledge, by the attorney general, and prayed that the court enter an order in each of said causes recognizing his right to prosecute and control these suits to the exclusion of all other officers or attorne3rs.

This motion was argued before the court on the 16th of April, in the case of The State of Texas v. J. J. McConn, No. 5617.

The court sustained the county attorney’s motion, took from the attorney general the right of appearing and prosecuting in suits he had brought, and in everything gave control to the county attorney to the exclusion of the attorney general.

After this action of the court the several suits were prosecuted to final judgment by E. T. Moore, and the money upon which he claimed commissions was collected on said judgments, partly by him and partly by the attorney general, and the same, less ten per cent, as commission, was paid into the state treasury b3r the officer collecting the same, which sum E. T. Moore, as county attorney, claimed the right to retain, and his right so to do presents the main question in the case. While it is true that our government is departmental in character, and that the officers of the different departments are to a very large extent independent of and free from the control of the heads of other departments, yet in the very nature of things, in the details of business, occasions will and do arise, where officers of the executive department do and ought to exercise a power at least advisory over some officers, who, although classed in a different department, exercise powers in fact partaking more of the character of executive power than of judicial power; among these are district and county attorneys, sheriffs and constables.

As was said by Roberts, J., in the case of The State v. The Southern Pacific R. R. Co., 24 Tex., 117, in speaking of the powers of the attorney general and of district attorneys, and of their relation to the executive of the state, “ In England the king could direct and control the bringing of suits by his direct control over the officer who might be attorney general. In this state such direct control as a legal power is cut off by the independence of the law officers of the state. Still it does not follow that all official connection is severed between the supreme executive officer of the state and those who represent the state in our courts. The power of the governor may be advisory or suggestive of duty in this case, as it is in many of his functions. And, although absolute subjection does not exist, harmony between executive officers who are impelled by a common duty is to be expected generally, unless a difference of opinion should exist as to the proper course to be pursued. That is an inconvenience which is consequent upon maintaining the independence of inferior officers. . . . While our statutes seem designed to make a division of powers and duties between them (attorney general and district attorneys), in representing the interest of the state in the several courts, they evidently contemplate a correspondence for advice and information between them.”

From the 11th day of May, 1846, until the present time, this relationship has, under the statutes of this state, been recognized, and it is not believed that the fact that, under the present constitution, they have been placed in different departments, severs that relationship, their duties being of the same character; for while the constitution declares that no person, “ being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein provided,” it also declares that the attorney general, in addition to the powers and duties which are expressly conferred upon him by the constitution, shall “ perform such other duties as may be required by law.”

Under this provision of the constitution the legislature has the power to make the attorney general, as it has done, the adviser of district and county attorneys. He is the superior law officer of the state.

In reference to the duties of the attorney general, art. 2802a, R. S., provides that “he shall, at least once a month, inspect the accounts in the offices of the state treasurer and comptroller of public accounts of all officers and of individuals charged with the collection or custody of funds belonging to the state, and proceed immediately to institute or cause to be instituted against any such officer or individual who is in default or arrears, (suit) for the recovery of funds in his hands.”

Under the provisions of this act we have no doubt that the attorney general would have the power to institute and prosecute a suit for the recovery of money due to the state, in any county of the state in which there might not be a county or district attorney—and there are frequently counties in which there are none,— or that he might in such case fully represent the. state in any character of suit pending in the district or inferior courts of the state, to which the venue of the case pertained; otherwise occasions might arise in which no official representation could be had by the state. His power to prosecute a suit against a county or district attorney, to • compel the payment into the state treasury of money collected by such officer, would clearly exist. His power under the article above referred to, to prosecute this suit in the district court, is not questioned. And under that act we have no doubt that the attorney general might prosecute, in connection with the proper district or county attorney, such suits as are therein provided for; such action upon his part, however, could not control the right of a county or district attorney to such fees as may be provided by law for such officers in such cases, nor deprive them of their freedom and independence of action as to method of managing and conducting the case, further than he may do so by advisory methods, unless the legislature has the power to impose upon him the powers which the constitution expressly confers upon county and district attorneys.

Had the legislature such power? This question is not without difficulty, and its solution depends upon the true construction of the provisions of the constitution, which are apparently somewhat conflicting, in regard to the powers and duties of the attorney general and county attorneys.

The constitution provides that “the attorney general . . . shall represent the state in all suits and pleas in the supreme court of the state in which the state may be a party, and shall especially inquire into the charter rights of all private corporations, and, from time to time, in the name of the state, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power, or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such ’ charters, unless otherwise- expressly directed by law, and give legal advice in writing to the governor and other executive officers, when requested by them, and perform such other duties as may be required by law. . . . He shall receive for his services an annual salary of two thousand dollars, and no more, besides such fees as may be prescribed by law; provided, that the. fees which he may receive shall not amount to more than two thousand dollars annually.” Const., art. 4, sec. 22.

So much of the constitution as prescribes the powers, duties and compensation of county attorneys is as follows: “ The county attorneys shall represent the state in all cases in the district and inferior courts in their respective counties. . . . County attorneys shall receive as compensation only such fees, commissions and perquisites as may be prescribed by law.” Const., art. 5, sec. 21.

These two sections taken together render it evident that it was not intended to confer upon county attorneys the power, or to impose upon them the duty, of representing the state m all suits in the district and inferior courts; for it is made the express duty of the attorney general to prosecute certain classes of suits which can only be prosecuted in the district courts of the state. The State ex rel. Clement v. The Paris R'y Co., Austin Term, 1881. If in this class of suits he may call to his assistance a district or county attorney, this detracts nothing from his powers or duties.

It is claimed, however, that under that clause of art. 4, sec. 22, which provides that the attorney general shall aperform such other duties as may be required by lawf. that the legislature may empower him to discharge such duties as are imposed upon district or county attorneys, and that by art. 2802a, R. S., the attorney general is empowered to institute and prosecute against delinquent tax collectors, in the district courts, all such suits as may become necessary to secure the payment into the treasury of the state of the sums by them collected.

That article read as follows: “ He shall, at least once a month, inspect the accounts in the offices of the state treasurer and the comptroller of public accounts of all officers and individuals charged with the collection or custody of funds belonging to the state, and shall proceed immediately to institute or cause to be instituted against any such officer or individual who is in default or arrears, (suit) for the recovery of funds in his hands; and he shall also institute immediately criminal proceedings against all officers or persons who have violated the laws by misapplying or retaining in his (their) hands, funds belonging to the state.” This article is broad enough to, confer all the power claimed; but it is not believed that it was the intention of the constitution to confer, by the general clause above referred to, power upon the legislature to give to the attorney general power to perform those acts which the constitution itself conferred upon county attorneys; but that it was intended thereby to give the legislature power to confer upon the attorney general such powers as might be deemed necessary in regard to matters which had not been expressly conferred by the constitution upon some other officer. Any other construction would lead to the doctrine that the constitution had empowered the legislature to alter the constitution itself, without an express grant of such power. Art. 2802a, R. S., grants some powers and imposes some duties upon the attorney general in regard to matters upon which the constitution is silent, and in so far as it does so, there can be no objection to their exercise. The legislature has imposed upon the attorney general many duties in regard to which the constitution says nothing, among which it is made his duty to examine the charters of contemplated railway corporations (Acts 1876,14:1); he is made a member of the board to contract for public printing (Acts 1876, 31); he is member of the board to have land for new capital surveyed, sold and capital built (Acts 1879, 9, 111); and many other powers and duties are imposed upon that officer.

It must be presumed that the constitution, in selecting the depositaries of a given power, unless it be otherwise expressed, intended that the depositary should exercise an exclusive power, with which the legislature could not interfere by appointing some other officer to the exercise of the power.

This is recognized in art. 2 of the constitution, which provides that “ the powers of the government of the state of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

The attorney general is made a member of the executive department, while county attorneys are made members of the judicial department. They each have certain powers, the exercise of which would seem to require that the one as well as the other might properly have been made a member of the executive department; but the constitution provides otherwise, and grants to the attorney general certain powers, the exercise of which can only be had in the judicial department, and those are “ in the instances herein expressly permitted.”

The powers granted to county attorneys in reference to representing the state mi all cases in the district a/nd i/nferior courts in their respective counties, is broad, and comprehends alike cases civil and criminal, except so far as the constitution itself confers power upon the attorney general to represent the state in those cases.

If the legislature had attempted to confer power upon a county or district attorney to represent the state in the supreme court, to the exclusion of the attorney general, no one would question its want of power to do so, and this for the sufficient reason that the constitution declares that the attorney general shall represent the state in that court, and the legislature has no power to alter it or evade its commands.

That the constitution might empower the legislature to withdraw power from the hands in which the constitution placed it, and to confer the same upon an another officer or tribunal, cannot be questioned ; but to enable the legislature to do so, the power must be given in express terms, and it cannot be implied. Such a power is found in article 5, section 22, of the constitution, which provides that “ The legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.”

The constitution does not in express terms make it the duty of the attorney general to represent the state in suits in which it is interested in the court of appeals, but it does not confer that power upon any other officer; hence the legislature had full power to impose, as it has done, that duty upon the attorney general.

The provision- of the constitution which declares that the attorney general, in addition to the duties specifically imposed upon him, shall “ perform such other duties as may be required by law,” is general; that part thereof which declares that