Betts v. Johnson , 96 Tex. 360 ( 1903 )

This is a motion to file a petition for a writ of mandamus to compel respondents, as constituting "The Board of Eclectic Medical Examiners" for the State of Texas, to issue to him a license to practice medicine.

We are of the opinion that we can not lawfully grant a writ of mandamus in such a case. Our jurisdiction to grant writs of mandamus is defined by statute in the following terms: "The Supreme Court, or any justice thereof, shall have power to issue writs of habeas corpus as may be prescribed by law; and the said court, or the justices thereof, may issue writs of mandamus, procedendo, certiorari and all writs necessary to enforce the jurisdiction of said court; and in term time or vacation may issue writs of quo warranto or mandamus against any district judge or officer of the State government, except the Governor of the State." Rev. Stats., art. 946. The words "officer of the State government" are of a very indefinite meaning. All county and district officers are officers of the State government in a general sense; but we have held that they are not such within the meaning of the statute in question. Travis County v. Jourdan,91 Tex. 217. Whether every officer of the State whose functions are not confined to a political subdivision of the State comes within the meaning of the terms we have never decided. It would seem, however, that it was the purpose of the Legislature to include only such State officers as are charged with the general administration of State affairs — namely, the heads of the State departments. At the time the act under consideration was passed, there was a statute in force which prohibited suits for mandamus against the heads of departments of the State government, and in the case of McKenzie v. Baker, 88 Tex. 669, it was held, that, notwithstanding this law, article 946 of the Revised Statutes conferred jurisdiction upon this court to issue such writs against such officers. This suggests the thought that it was a main purpose of the article to supply the deficiency and to authorize the Supreme Court to issue the writ only in cases in which the district courts had no power to issue it. Incidentally it was provided that this court might issue the writ to a district judge — probably for the reason that it was thought that one such judge should not issue the writ to another judge of the same dignity. It is true, as argued, that if such had been the intention it would have been easy to have said simply "head of departments of the State government," instead of "officer of the State government;" yet the latter words, to our minds, are strongly suggestive that they were intended to have the same meaning.

Article 946 of the Revised Statutes now in force is article 1012 of the Act of April 13, 1892, which provided for the organization of the Supreme Court and defined its jurisdiction under amended article 5 of the Constitution. Before the amendment of that article and the passage of that act, the Supreme Court with the aid of two Commissions had been unable to dispose of the appeals which were brought to it. The purpose of the amendment was to correct this evil by providing for a sufficient number of Courts of Civil Appeals to dispose of the business in the first instance. So as to avoid the very evil which it was the object of the amendment to correct, the Act of April 13, 1892, very carefully limited the jurisdiction of the Supreme Court. It would seem, therefore, that the Legislature did not intend to confer original jurisdiction upon this court, except in cases where there existed some special reason for its exercise. We can see a reason why the court should have been empowered to grant writs of mandamus against the heads of the departments of the State government. These officers must reside and their offices must be kept at the seat of the State government and their official functions are to be performed there. A mandamus proceeding against the head of a department, as a rule, involves questions which are of general public interest and call for a speedy determination. That they are of far more importance than those ordinarily arising in mandamus suits against other officers, whether of the State or of a district or a county, is as we think obvious.

We fail to see any very good and sufficient reason why the Legislature should have deemed it appropriate to confer original jurisdiction upon this court to grant a writ of mandamus against executive officers other than those intrusted with the general administration of State affairs, and who exercise general governmental functions. Others are officers in a certain sense; but in another sense, they are mere agents charged with the performance of special functions. The district courts have jurisdiction to issue the writ of mandamus to all other officers except heads of departments, and, as in other cases, appeals are allowable for the correction of the errors of those tribunals. Therefore, we think, the Legislature might have well considered that it was neither necessary nor proper to give the Supreme Court jurisdiction to issue the writ of mandamus against such officers.

But the writ applied for in this case is against a board of officers and not against an officer. It seems that if it had been the purpose to empower this court to issue the writ as well against a board of officers as against a single officer, the language would have been "any officer or board of officers of the State government."

For these reasons the motion to file the petition for the writ of mandamus is overruled.

Overruled.