Sansom v. Mercer, 68 Tex. 488; Kimberly v. Morris, 87 Tex. 637; Kimberly v. Morris, (Civ. Apps.) 31 S.W. 809; Terrell v. Middleton, 108 Tex. 14, 187 S.W. 367; Porter v. State, 78 Tex. 591; Commissioner of General Land Office v. Smith, 5 Tex. 471; McLaughlin v. Smith, 140 S.W. 248; Dubose v. Woods, 162 S.W. 3; Boynton v. Brown, 164 S.W. 893; Westerman v. Mims, 111 Tex. 29; Felton v. Kansas City, etc., R. Co., 143 S.W. 650; Railway v. Hall, 91 U.S. 343; Hamilton v. State, 3 Ind. 452; Pike County v. The State, 11 Ill. 202; Ottawa v. People, 48 Ill. 233; People v. Collins, 19 Wend., 56; Hyett v. Allen, 54 Cal. 353; Gibbs v. Bartlett, 63 Cal. 117; People v. Halsey, 37 N.Y. 344; Iowa v. Judge, 7 Iowa 186; State v. Rahway, 33 N.J.L. 110; Watts v. Police Jury, 11 La. Ann., 141; Cannon v. Janvier, 3 Hous. (Del.) 27; State v. Brown, 38 Ohio St. 344; State v. Francis, 95 Mo., 44; Attorney-General v. Boston, 123 Mass. 460; Scott v. County Commissioners, 17 Fla. 707; McConihe v. State, 17 Fla. 238; Chumasero v. Potts, 2 Mont. 242; State v. Van Duyn, 24 Neb., 586; State v. Ware, 13 Ore., 380; Wise v. Bigger, 79 Va. 269; People v. Board of Education, 127 Ill. 613; State v. Gracey, 11 Nev. 223; Board v. State, 61 Ind. 75; Moses v. Kearney, 31 Ark. 261; State v. City Council, 39 N.J.L. 620; 38 Corpus Juris, 839, et seq.; High on Extraor
In that case our Supreme Court said: 'The cases of Sansom v. Mercer [68 Tex. 488, 5 S.W. 62], * * * Kimberly v. Morris, 87 Tex. 637, 31 S.W. 808, and Boynton v. Brown (Tex.Civ.App.) 164 S.W. 893, are not in point in favor of defendant in error. In each of these cases there was a statute conferring upon certain petitioners the right to have an election ordered.
In making this holding the court made a distinction as follows: 'The cases of Sansom v. Mercer [68 Tex. 488, 5 S.W. 62], just cited, Kimberly v. Morris, 87 Tex. 637, 31 S.W. 808, and Boynton v. Brown (Tex.Civ.App.) 164 S.W. 893, are not in point in favor of defendant in error. In each of these cases there was a statute conferring upon certain petitioners the right to have an election ordered.
Scarborough v. Eubank, 93 Tex. 106, 53 S.W. 573; State v. Goodwin, 69 Tex. 55, 5 S.W. 678; State ex rel. Thompson v. Lester, Tex.Civ.App., 50 S.W.2d 386 (wr. ref.); Word v. Schow, Tex.Civ.App., 68 S.W. 192 (wr. ref.); Thompson v. State, 23 Tex. Civ. App. 370, 56 S.W. 603 (no writ); Driver v. Edwards, Tex.Civ.App., 107 S.W.2d 1109 (no writ); State ex rel. Wilkinson v. Self, Tex.Civ.App., 191 S.W.2d 756. See also Boynton v. Brown, Tex.Civ.App., 164 S.W. 893 (wr. ref.); Wolf v. Young, Tex.Civ.App., 277 S.W.2d 744 (wr. ref. n. r. e.). Respondents argue that a different rule should be applied in this case, because here the ultimate issue is decided by the authority which makes the preliminary determination rather than by a vote of the people.
When such duties have been performed, as in this case, and, as here, there is no charge of fraud or arbitrary action, the relief afforded by mandamus will not be granted. See Nelson v. Lindsey et al., 151 Fla. 596, 10 So.2d 131; Ferguson v. Board of Supervisors, 71 Miss. 524, 14 So. 81; Ayers et al. v. Moan et al., 34 Neb. 250, 51 N.W. 830; Crews et al. v. Coffman et al., 36 Neb. 824, 55 N.W. 265; Boyton v. Brown, (Tex.Civ. A.), 164 S.W. 893; State ex rel. Goodhope et al. v. Leyse, 60 S.D. 384, 244 N.W. 529; Black et al v. Coons, (Tex.Civ. A.), 244 S.W. 1080; Haines v. Standoven, (N.J.), 91 A. 804; State ex rel. Crow v. Carothers, 204 Mo. App. 209, 222 S.W. 1043; People ex rel. Ryan v. City of San Diego, 71 Cal.App. 421, 236 P. 377; Martin v. Board of Supervisors, 181 Miss. 363, 178 So. 315. The judgment is affirmed.
In other words, the necessity of the exercise of judgment or discretion is generally held to be the distinguishing test. Reclamation Dist. No. 535 of Sacramento County v. Hamilton, supra; Boynton v. Brown, (Tex.Civ.App.) 164 S.W. 893. Judged by this test, the service of a summons is ministerial and not judicial in its nature, for the law plainly describes the duty to be performed, and the officer is given no discretion as to his right or duty to perform it. Havens v. Stiles, 8 Idaho 250, 67 P. 919, 101 Am. St. Rep. 195, 1 Ann. Cas. 277, 56 L.R.A. 736; Weil v. Geier, 61 Wis. 414, 21 N.W. 246; Whipple v. Hill, 36 Neb. 720, 55 N.W. 227, 38 Am. St. Rep. 742, 20 L.R.A. 313. Defendant contends that the final proviso in our statute above quoted that "injunctions, attachments, claim and delivery and writs of prohibition may be issued and served on any day," under the rule of expressio unius est exclusio alterius, implies that ordinary civil processes may not be issued and served on a holiday. While there is some force perhaps to this contention, we think that on reason and authority, so far as service is concerned, the better rule is to the contrary.
It is elementary law that the purpose of a writ of mandamus is to enforce the performance of legal duty, and where a positive and official duty is enjoined by law upon any court, board, or officer, and no discretion is given as to the mode or manner of performance of this duty, mandamus is the proper remedy to compel its performance. C. J., Vol. 38, p. 590; DePoyster v. Baker, 89 Tex. 155; Teat v. McGaughey, 85 Tex. 478; Ewing v. Cohen, 63 Tex. 482; Kuechler v. Wright, 40 Tex. 600; Jefferson v. McFaddin, 178 S.W. 714; Boynton v. Brown, 164 S.W. 893. The Supreme Court of Texas has ample power under the Constitution and statutes of Texas to issue a writ of mandamus against any officer to require the performance on his part of an official duty.
Having admitted the existence of the facts required to be shown by Articles 3164, 3165 and 3166 of the Revised Statutes, and that the respondent, Audrey Fuller, was qualified under the Constitution and laws, the Secretary of State had no discretion in the matter and he can be compelled by writ of mandamus to issue his instructions as above provided. Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62; Boynton v. Brown, 164 S.W. 893-895; Dubose v. Woods, 162 S.W. 3-5; McLaughlin v. Smith, 140 S.W. 249, 148 S.W. 288. The relators have sufficient interest in the controversy to maintain this suit.
The determination by a governing body of the sufficiency of a petition to hold an election is generally a discretionary function which may not be the subject of mandamus. Boynton v. Brown, 164 S.W. 893, 895 (Tex.Civ.App.-San Antonio 1914, writ ref'd). However, the action of the Commissioners Court must be based on reason and fairness, and not be compelled by fraud, caprice, or unfairness.
The determination by a governing body of the sufficiency of a petition to hold an election is generally a discretionary function which may not be the subject of mandamus. Boynton v. Brown, 164 S.W. 893, 895 (Tex.Civ.App. — San Antonio 1914, writ ref'd). However, the action of the Commissioners Court must be based on reason and fairness, and not be compelled by fraud, caprice, or unfairness.