Callaghan v. Tobin

21 Citing cases

  1. Oden v. Barbee

    103 Tex. 449 (Tex. 1910)   Cited 22 times
    In Oden v. Barbee, 103 Tex. 449, 129 S.W. 602, it is held that an injunction is the proper remedy for preventing, at the suit of citizens and taxpayers of an unorganized county, its illegal organization.

    11 Cyc., 364; Bradley v. Commissioners, 2 Humph., 428, 37 Am. Dec., 563; Ford v. Falmer, 9 Humph., 152; Segars v. Parrott, 30 S.E. 273, We particularly commend to the court the Tennessee case of Bradley v. Commissioners as a strong, well-reasoned one, exhibiting in the plainest manner most cogent and unanswerable reasons for restraining the illegal organization by injunction rather than permitting the illegal organization to take place, then resorting to quo warranto proceedings to dissolve it. In connection with these authorities we also ask the court to refer to the cases of Caruthers v. Harnett, 67 Tex. 127; Nalle v. City of Austin, 21 S.W. 375, 377-8; Callaghan v. Tobin, 40 Texas Civ. App. 441[ 40 Tex. Civ. App. 441], and City of Austin v. McCall, 95 Tex. 577. Knight Slaton, for defendants in error.

  2. Diffie v. Cowan

    56 S.W.2d 1097 (Tex. Civ. App. 1932)   Cited 6 times

    As we understand the law applicable, the Legislature acted within the limits of power it possessed when it authorized the city council to hear and determine, in the manner pointed out, charges preferred against any of the city's officers, including alderman. Riggins v. Richards, 97 Tex. 229, 77 S.W. 946; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328; Bonner v. Belsterling (Tex.Civ.App.) 137 S.W. 1154. The contention to the contrary, as to aldermen, is on the theory that it appeared the intention of the Legislature was to limit the exercise of power it conferred to officers of the city other than alderman.

  3. Smith v. Kidd

    228 S.W. 348 (Tex. Civ. App. 1921)   Cited 2 times

    The plaintiff did not attempt to do so, but, as we have seen, stated that the damages that would be suffered by him would be "continuous, progressive, irreparable, and incapable of ascertainment." These allegations would, under the present provisions of the Constitution, have brought the case within the jurisdiction of the district court, unless the prayer for recovery of the $500 damages already sustained would fix the amount in controversy and bring the case within the exclusive jurisdiction of the county court. Cotton v. Rea, 106 Tex. 220, 163 S.W. 4 (4); Thorne v. Moore, 101 Tex. 205, 105 S.W. 985; Dean v. State, 88 Tex. 290, 30 S.W. 1047; modified in 31 S.W. 185; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 333; Jones v. Dodd, 192 S.W. 1137; Acme Cement Plaster Co. v. American Cement Plaster Co., 167 S.W. 183; Young v. Dudney, 141 S.W. 119. Since the recovery of the damages already sustained was incidental to the main purpose of the suit, as stated, we do not think it should control the question of jurisdiction.

  4. De Castro v. Board of Commissioners

    322 U.S. 451 (1944)   Cited 76 times
    Holding that "to justify reversal by the federal courts of a decision of an insular supreme court in a matter of local concern, `the error must be clear or manifest; the interpretation must be inescapably wrong'"

    On the other hand, if they are to be deemed appointed for their own lives, the result would be that on the death or resignation of one City Manager, his successor would be unable to select even his most immediate subordinates and a life tenure would be implied for a large group of municipal employees in disregard of the rule of Shurtleff v. United States. State courts have held that a provision for tenure "during good behavior" does not preclude the termination of the tenure by good faith abolition of the office, Shira v. State, 187 Ind. 441, 119 N.E. 833; that such a provision is not necessarily inconsistent with a constitutional restriction on the number of years for which the office can be held but will be read as creating a tenure for a term of years during good behavior, Callaghan v. Tobin, 40 Tex. Civ. App. 441, 448, 90 S.W. 328, 331; Callaghan v. Irvin, 40 Tex. Civ. App. 453, 459, 90 S.W. 335, 338; Callaghan v. McGown, 90 S.W. 319, 322 (Tex.Civ.App.); Neumeyer v. Krakel, 110 Ky. 624, 640, 62 S.W. 518, 523; but cf. Stuart v. Ellsworth, 105 Me. 523, 75 A. 59; Roth v. State, 158 Ind. 242, 266-8, 63 N.E. 460, 468-9; and that a provision that officers appointed by the Mayor and Council shall hold office "during good behavior or until they may be severally removed by the Mayor or by three-fourths vote of the Council . . ." authorizes removal at will by the Mayor or Council, Smith v. Bryan, 100 Va. 199, 40 S.E. 652; cf. People ex rel. Maloney v. Douglas, 195 N.Y. 145, 150, 87 N.E. 1070, 1072. Contra, Chesley v. Council of Lunenburg, 28 Dominion Law Rep. 571.

  5. State ex Rel. Dishman v. Gary

    163 Tex. 565 (Tex. 1962)   Cited 26 times
    In State ex rel. Dishman v. Gary, the state unilaterally nonsuited its removal petition after the defendant filed a "cross action" asserting, as an affirmative defense, the argument that actions before his election to office could not be the basis for removal.

    " (Italics supplied.) The three Callaghan cases by the San Antonio Court of Civil Appeals (Callaghan v. McGown, 90 S.W. 319; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328; and Callaghan v. Irvin, 90 S.W. 335, wr. ref. in all cases) are likewise of little value to respondents. This language from the Tobin case describing the nature of the suit is typical of all three cases and demonstrates that they are not in point here:

  6. Thorne v. Moore

    101 Tex. 205 (Tex. 1907)   Cited 30 times

    See also Ex parte Strong, 34 Texas Crim. App., 310. All doubt upon this point is removed by the decision of this court in the case of the county of Anderson v. Kennedy, 58 Tex. 616; Callaghan v. Tobin, 90 S.W. 333. In Day v. Chambers, 62 Tex. 191, we find it said that "a general authority is given by the Constitution, article 5, section 8, to the District Courts and to the judges thereof to issue the writs of mandamus, injunction, and certiorari, and a further power is super-added to issue all writs necessary to enforce their jurisdiction.

  7. Lipscomb v. Randall

    985 S.W.2d 601 (Tex. App. 1999)   Cited 7 times
    Holding that the Flower Mound Town Charter's forfeiture provision for conviction of a crime was self-enacting and automatic regarding a councilman's conviction for assault

    Texas has long adhered to the rule that courts of equity will not interfere to prevent removal of a person from office if the power of removal is given by law. See City of Alamo v. Garcia, 960 S.W.2d 221, 223 (Tex.App. — Corpus Christi 1997, no writ); Huntress v. McGrath, 946 S.W.2d 480, 484-85 (Tex.App. — Fort Worth 1997, no writ); Crouch v. Stanley, 348 S.W.2d 543, 545 (Tex.Civ.App. — Fort Worth 1961, no writ); Miles v. Logan, 265 S.W. 421, 424 (Tex.Civ.App. — Beaumont 1924, no writ); Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328, 330 (1905, writ ref'd); Riggins v. Thompson, 30 Tex. Civ. App. 242, 70 S.W. 578, 578 (1902, writ ref'd). When a home-rule charter vests power in a town council, the trial court has no right to substitute its judgment and discretion for the judgment and discretion of the council, and may only determine whether the council acted illegally, unreasonably, or arbitrarily.

  8. City of Alamo v. Garcia

    960 S.W.2d 221 (Tex. App. 1997)   Cited 6 times
    Holding that trial court lacked authority to interfere with self-enacting city charter provision providing for office forfeiture by city council member for failure to attend meetings

    Texas courts, in recognition of the autonomy and separate powers of municipal legislatures, "will not interfere to protect a person from removal from office by a man or body of men to whom the power to remove is given by law." Huntress v. McGrath, 946 S.W.2d 480, 484-85 (Tex.App. — Fort Worth 1997, n.w.h.) (quoting Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328, 330 (1905, writ ref'd)). The courts will, however, be able to review a city council's (or commission's) actions for abuse of discretion and due process.

  9. Huntress v. McGrath

    946 S.W.2d 480 (Tex. App. 1997)   Cited 5 times
    Analyzing Garza and distinguishing it on its facts

    fficial must first submit to the administrative proceeding before the official is able to challenge the proceeding. See Crouch v. Stanley, 348 S.W.2d 543, 545 (Tex.Civ.App. — Fort Worth 1961, no writ) (holding district court erred in enjoining probate judge from removing administrator and appointing new one because courts of equity will not interfere to protect a person from removal from office if power of removal is given by law; thus, injunction could not stand and aggrieved administrator must be left to his remedy at law and his right to appeal from order of probate court), disapproved on other grounds, Ex parte Lindley, 163 Tex. 301, 354 S.W.2d 364, 366 (1962); Miles v. Logan, 265 S.W. 421, 424 (Tex.Civ.App. — Beaumont 1924, no writ) (holding city clerk was not entitled to injunction against city commission to prevent his removal from office because the power to remove the city's civil service employees is vested in city commission as prescribed by duly enacted city ordinances); Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S.W. 328, 330 (1905, writ ref'd) (holding that because power to remove chief of fire department was conferred by charter upon commissioners "[c]ourts of equity will not interfere to protect a person from removal from office by a man or body of men to whom the power to remove is given by law"); Riggins v. Thompson, 30 Tex. Civ. App. 242, 70 S.W. 578, 578 (1902, writ ref'd) (holding mayor of city of Waco, who sought injunctive relief to prevent aldermen and city council from proceeding with impeachment trial, had adequate remedy at law). In Riggins v. City of Waco, 100 Tex. 32, 93 S.W. 426 (1906) (refusing writ of error), the city council removed the mayor from office, and the mayor sought relief by writ of mandamus to restore him to office; the relief was denied by the district court and the court of appeals.

  10. Hand v. State ex rel. Yelkin

    335 S.W.2d 410 (Tex. Civ. App. 1960)   Cited 10 times

    In Wortham Independent School Dist. v. State ex rel. Fairfield Consolidated Independent School Dist., Tex.Civ.App., 244 S.W.2d 838, error ref., n. r. e., the court issued an order of injunction ancillary to a quo warranto suit to protect the status quo pending a determination of the merits of the quo warranto proceeding. See also Ware v. Welch, Tex.Civ.App.1912, 149 S.W. 263, no writ; Callaghan v. Tobin, 40 Tex.Civ.App. 441, 90 S.W. 328, 1905, writ ref.; Davis v. Turner, Tex.Civ.App.1940, 145 S.W.2d 258, no writ; Temple Independent School Dist. v. Proctor, Tex.Civ.App.1936, 97 S.W.2d 1047, error ref.; Hyatt v. Mercury Life & Health Co., Tex.Civ.App., 1947, 202 S.W.2d 320 ref., n. r. e.; 21 C.J.S. Courts Sec. 88, p. 136. In Needham v. Arno Co-op. Irr. Co., Tex.Civ.App.1917, 196 S.W. 887, error ref., it was held that a district court had jurisdiction to enjoin a special stockholders' election while the main controversy was on appeal in the Supreme Court, where the action indicated or threatened would tend to render any judgment finally entered ineffectual.