author: SWEARINGEN, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. MILLER.
    (No. 5730.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Juey @=>72(3) — Selection — Additional Jueoes.
    Mingling jury wheel and additional jurors’ names and so tendering them for selection of a trial jury is proper, though necessitating the challenging of additional jurors before the jury wheel names are exhausted, for Rev. St. art. 5167, requiring selection from jury list names before summoning additional jurors, refers to forming the weekly list and not a trial jury selection which is governed by articles 5202-5211.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 340-342, 347; Dec. Dig. @=>72(3).]
    2. Teial @=>192 — Injury tu Passenger — In-steuctions — Assuming Negligence.
    An instruction, assuming defendant railway company’s negligence, is proper, where plaintiff passenger was injured in a derailment unexplained by defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. @=>192.]
    3. Damages @=>34 — Aggbavation by Medical Treatment.
    Though plaintiff's injuries caused by defendant’s negligence were aggravated by a surgical operation, he may recover damages for such aggravation, unless negligent in selecting his medical advisers, and it is immaterial whether the operation appeared necessary, or whether it was more beneficial than hurtful.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 43; Dec. Dig. @=>34.]
    4. Trial @=>260(1) — Instructions Covered by Others.
    A requested instruction was properly refused when covered by other instructions.
    [Ed. Note. — For other cases, see Trial, Cent.' Dig. § 651; Dec. Dig. @=>260(1).]
    5. Damages @=>216(8) — Instructions — Personal Injury — Prospective Damages.
    In an action for permanent personal injury a requested instruction to allow no conjectural damages for impairment of physical condition is properly refused, since prospective damages, where the injury is permanent, is necessarily uncertain.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 553; Dec. Dig. @=>216(8).]
    6. Damages @=>100 — Personal Injuries — Earning Capacity.
    In estimating plaintiff’s impairment of earning capacity, his life expectancy should be estimated upon his condition before, and not after, the injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. @=>100.]
    7. Damages @=>216(7) — Instructions — Personal Injuries.
    In an action for permanent personal injury a requested instruction, limiting plaintiff’s recovery to items of damage mentioned in a certain paragraph of the main charge, which did not mention plaintiff’s right to recover for future mental and physical pain, to which he was entitled, was properly refused .because it excluded proper elements of damage, and also contradicted an instruction, given at appellant’s request, authorizing recovery for such pain.
    [E'd. Note. — For other cases, see Damages, Cent. Dig. § 552; Dec. Dig. @=>216(7).]
    8. Appeal and Error @=>1004(1) — Review-Verdict — Amount.
    A verdict cannot be set aside because excessive unless it appears that passion or prejudice influenced the jury.
    [Ed, Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944, 3946; Dec. Dig. @=> 1004(1).]
    9. Damages @=>132(1) — Personal Injury — Bxcessiveness.
    An award of $17,750 held not excessive damages for injuries, reducing plaintiff to a total physical wreck, where before the injury he was a strong, able-bodied young man, whose services were reasonably worth $100 per month, which he had reasonable prospect of increasing.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. @=>132(1).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by A. O. Miller against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Templeton, Brooks, Napier & Ogden, Ed W. Smith, Ball & Seeligson, and C. W. True-beart, all of San Antohio, for appellant. Seth Searcy, H. C. Carter, Champe G. Carter, Randolph L. Carter, and Perry J. Lewis, all of San Antonio, for appellee.
   SWEARINGEN, J.

Appellee, A. O. Miller, sued appellant, Galveston, Harrisburg & San Antonio Railway Company, to recover damages for personal injuries alleged to have been suffered by plaintiff while a passenger upon one of appellant’s trains. Tlie case was submitted in a general charge to a jury, which returned a verdict in favor of appellee for $17,750, upon which judgment was rendered.

Appellee alleged that the train on which he was a passenger was derailed and wrecked through the negligence and carelessness of the appellant, its servants and employés, and the car, on which appellee was a passenger, was overturned, and appellee was thrown about in the car with great force and violence, and suffered severe and violent blows all over his body. It is further alleged that appellee suffers great and constant pain by reason of the injuries claimed; that his heart has become weak, rapid, and irregular, and fails to perform its natural functions, and ap-pellee has become greatly emaciated; and so it became necessary to have surgeons to perform an abdominal operation upon appellee, in which operation his appendix was found involved in extensive adhesions, and the right kidney was found torn loose from its proper place. It is further alleged that this kidney’s pressure upon the gall bladder and bile duct rendered necessary two further operations, which were performed by competent surgeons, and in these operations the adhe-sions were broken up, the appendix removed, and the floating kidney anchored, but that these operations have not cured appellee, and he still suffers great and constant pain, and will probably have to have another operation by reason of the said injuries, and appellee’s kidney will probably have to be removed. It is further alleged that appellee will be afflicted for the balance of his life, that his injuries are permanent, and have rendered him an invalid, unable to perform any physical labor, and seriously impaired his capacity for the enjoyment of life, and that prior to said injuries he was a strong, able-bodied young man, capable of performing severe physical and manual labor, and that his services were reasonably worth $100 per month, which he had a reasonable expectation of increasing. It is further alleged that it became necessary to employ physicians to treat appellee and to operate for his injuries, to have medicines, nursing, and medical and hospital attention, and that in the future appellee will require still more of same.

Appellant answered generally and specially, denying all the facts alleged by appellee, except that it admitted that appellee was a passenger on appellant’s train, and that the train was derailed and wrecked, but specially denied that the derailment was caused by its negligence, and specially denied that ap-pellee’s injuries were caused by the derailment. Appellant further specially denied that the alleged operations were made necessary by the injuries claimed, or that a further operation will be required on that account.

The facts necessary for understanding our rulings upon the assignments will appear in the discussion of the assignments.

The first assignment complains that the trial court erroneously selected the jurors to serve for the week. No complaint is made of the selection of jurors for the trial of the cause. The complaint under this first assignment is expressed in the proposition:

“Article 5167, R. S. of 1911, provides that regular jurors in civil cases shall be solecterl from the names included in the jury list for the week, and when by the court’s action one of such regular jurors, though not challenged by either party or excused for cause, was excluded from the panel over the objection of the defendant, the exclusion of such juror from an opportunity to sit in the trial was a denial to the defendant of a positive statutory legal right.”

The relevant facts are that the court had present in court on Monday morning only 19 of the jurors whose names had been obtained from the jury wheel. The court did not consider the 19 the requisite number of jurors for the week, and thereupon directed the sheriff to summon qualified jurors in such number as were, in the opinion of the court, requisite for the jury for the week. A number of jurors were summoned, with the result that there were 26 qualified jurors selected as jurors for the week, 19 of whom had been secured because their names were drawn from the wheel, and 7 were summoned by the sheriff. These 26 qualified jurors were tendered the parties in this cause from which- to select the jury for the trial of their cause. All 26 names were drawn and properly listed. The twenty-sixth name on the list was one drawn from the jury wheel.

Appellant contended that it had the right to have the jury wheel jurors first tendered and peremptorily challenged, and then, and not until then, could those jurors summoned by the sheriff for the week be challenged. Appellant has confused the statutory method of the selection of the 30, more or less, jurors for the week, with the statutory method of selection of the 12 jurors for the trial of the particular cause. Chapter 7, tit. 75, of the Revised Statutes defines the method of selection of jurors for the week, and chapter 10, tit. 75, of the Revised Statutes, defines the method for selecting the jury of 12 men for the trial of the cause. These two chapters in no way repeal one another. Article 5168, in chapter 7, authorizes the court to direct the sheriff to summon enough qualified jurors to make up the requisite number of 30, more or less, of jurors selected for the week, where that number, 30, more or less, selected from the wheel, are not present in court. This article 516S was taken from section 22 of the act of August 1, 1876, which is reported in Gammel’s Laws of Texas, vol. 8, p. 918. Section 20 is as follows:

“Sec. 20. On the day the jurors shall be summoned to attend court, the panel for that week shall be called, and the names of such as attend, and are not excused by the court, shall be entered of record as the jurors of that week, and the judge shall order the sheriff 'to summon a sufficient number of good and intelligent citizens having the qualifications of jurors as prescribed in this act, to supply the deficiency, if any, in the panel.”

Under chapter 7 the panel for the week is filled up by the court from those drawn from the wheel If present in sufficient number, and, if not, is filled by directing the sheriff to summon others. When the panel for the week is thus filled, there is no distinction to be made between those selected from the wheel and those summoned by the sheriff. The names of all on the panel for the week are to be indiscriminately mixed in the box from which to draw the jury for the particular cause. The distinction between the method of selecting the jurors for the week’s panel and that of selecting jurors for the trial of the particular cause is clearly drawn by two decisions of our appellate courts: In one Justice Harper, in the case of Gentry v. State, 68 Tex. Cr. R. 567, 152 S. W. 635, construes articles 5165 and 5168, authorizing selection of jurors for the week, as follows:

“The defendant objected to going to trial before the jury then impaneled. It is made to appear that a regular jury was drawn' by jury commissioners, but only 17 of those thus selected were in attendance; the remainder of the jury drawn for that week having been excused, or were disqualified. The court in approving this bill states: ‘The above and foregoing bill is allowed with the following explanations: The jury drawn by the jury commissioners for the third week of the district court was summoned; some of them were sick and sent their written excuse, some were disqualified to serve as jurors, and others presented legal excuses and were excused by the court. So that there were only 17 of the regularly drawn venire present on Monday the first day of the present week, and the court ordered the sheriff to summon talesmen to fill the panel, and the panel was filled, for the week with legally qualified jurors, and the list tendered to the defendant to select a jury from were regularly drawn by the clerk from the jury of the week in the usual and ordinary way.’ As thus qualified, the bill presents no error, as it is shown that the court complied with the law in securing additional jurymen.”

In the other, Justice Gaines, in the case of Railway v. Greenlee, 70 Tex. 553, 8 S. W. 129 construes articles 5203, 5204, 5205, c. 10, providing the method for selecting jurors for the trial of the cause. The opinion designates the numbers of the articles construed as 3092, 3093, and 3094, which are the numbers of the articles in Sayles’ Texas Civil Statutes printed in 1888, the yeair When the Green-lee opinion was rendered. The method of selecting the jurors for the trial of the particular cause is also discussed in the case of Houston Elec. Co. v. Seegar, 54 Tex. Civ. App. 255, 117 S. W. 900. The reasons given for the method of selecting the jury for the trial of the particular cause do not apply to the method of selecting jurors for the week, viz. to save time and to avoid prejudiced jurors. It saves time to fill the panel for the week; and, as no particular cause is at that time in mind, jurors for the week cannot be summoned for any particular motive. The statute for selecting jurors for the week is the same for the trial of civil and criminal cases. The court did not err in the selection of the jurors for the week. The first assignment is overruled.

The second assignment complains of the following charge to the jury:

“In this cause the undisputed evidence shows that the plaintiff was a passenger on one of defendant’s trains, which was derailed and wrecked while plaintiff was a passenger thereon. I, therefore, instruct you that defendant would be liable to plaintiff for any injuries, if any, which you may find from the evidence were directly caused by said derailment and wreck, and- which are alleged in the petition.”

The same rule of law is involved in the third assignment, complaining of another charge. The complaint against both charges is that the court therein presumed negligence from the derailment. Counsel for appellant admit the rule is correctly expressed in the authority cited by them. St. Louis, Southwestern Ry. Co. v. Parks, 97 Tex. 135, 76 S. W. 740, viz.:

“Clearly an injury to a passenger on a railroad resulting from a derailment of a train or the abnormal operation of the machinery gives rise to an inference of negligence on part of the company which may authorize the jury to so find, and it may be that in such a case, where the defendant has offered no evidence to rebut the inference, the court would be warranted in instructing the jury to find for the plaintiff upon the issue.”

However, counsel contend that in the case at bar appellee testified, on redirect examination, that the train was moving at a speed of 45 miles an hour, which was the usual -speed of that train at the place of the derailment; that this testimony was evidence of specific negligence causing the derailment; and the attempt to prove this specific negligence made the rule inapplicable to the case at bar. The evidence above referred to was introduced to prove the allegation in the fifth paragraph of the petition, to the effect that appellant was violently thrown about in the car in which he was a passenger; for the evidence is relevant to that allegation, and there is no allegation that the appellant was negligent because of the speed of the train. Besides, the testimony does not tend to prove that 45 miles an hour was negligence, because the evidence shows the speed of 45 miles an hour was the usual speed of that train at the place of the wreck. The second and third assignments are overruled.

The fourth assignment charges the trial court with error in refusing the following requested special instructions:

“If you find that plaintiff’s condition was impaired, rather than benefited, by any operation performed on him, then you are instructed that plaintiff cannot recover on account of such impaired condition as a result of such operation, if any, unless you find from a preponderance of the evidence that such operation appeared. to the surgeon performing the same to be necessary, and that it was more probable that such operation, when performed, would benefit the plaintiff rather than injure him.”

Inverting the special instruction, it seems that this instruction could be construed by the jury to have required them to find that the operation appeared necessary to the operating surgeon, and to have required the jury also to find as a fact that the operation would more probably benefit than injure the appellee, before the appellee could recover any damages for the impaired condition resulting from the operation, if the jury found that the condition was impaired by the operation. The instruction is not a correct statement of the law. All that could defeat appellee’s claim for damages for increased injury caused by the operation was his own negligence in the selection of a surgeon. If not negligent in the selection of the surgeon, the appellant is liable for the mistake, if any, of the surgeon; and it is immaterial whether the operation appeared to the surgeon as necessary, or whether in fact the operation was more beneficial than hurtful. We believe the authorities quoted and cited by counsel for appellee correctly express the rule of law applicable to the facts of the instant case. We quote from appellee’s brief:

“In the case of Texas & Pacific Ry. v. McKenzie [30 Tex. Civ. App. 293] 70 S. W. 237, the Court of Civil Appeals made a very clear statement and application of the principle. In that case a special charge was asked which sought to excuse the defendant if plaintiff’s injuries were aggravated by the unskillful treatment of the physicians, and the court, holding that the charge was properly refused, said: ‘A party who receives an injury resulting from the negligence of another, and who neglects to use proper means to effect a recovery, cannot recover for the aggravation of his injuries accruing from such neglect. Railway Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66. Whether there was neglect is a question for the jury to determine. To prevent aggravation of the injury, the party injured is only required to use such care and caution as an ordinarily prudent person would use under similar circumstances. The aggravation of a wound by unskillful treatment would not, of itself, prevent the recovery of damages by reason of such aggravation, unless the injured person failed to use ordinary care to prevent such aggravation. When a personal injury flows from the negligent act of another, that other is responsible for the damages resulting, and all that the law demands of the injured party is to use ordinary care to avert further injury. Selleck v. City of Janesville [104 Wis. 570], 80 N. W. 944, 47 L. R. A. 691, 76 Am. St. Rep. 892; Railway Company v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389. The charge requested was erroneous in instructing that the jury find for the defendant if the injury was aggravated by failure of prompt attention or unskillful treatment. If the defendant negligently caused the injury, then it was responsible for the damages that proximately resulted therefrom. Whether defendant was responsible for the aggravation, if any, caused by a failure of prompt attention or unskilled treatment, depended upon the care used by plaintiff to have the injury properly treated. Railway Company v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389.’ The many authorities cited by the court fully sustain its position. The case of Selleck v. City of Janesville [104 Wis. 570], 80 N. W. 944 [47 L. R. A. 691, 76 Am. St. Rep. 892], decides the point very directly, because there the court instructed the jury that the plaintiff was not responsible for the errors or mistakes of the physician in treating the injuries received, and, this charge being assigned as error, the court said: ‘Error is assigned because the court charged the jury that: “The plaintiff is not responsible for the errors or mistakes of a physician or surgeon in treating an injury received by a defect in the street or- sidewalk providing she exercises ordinary care in .procuring the services of such physician. Where one is injured by the negligence of another or by the negligence of a town or city, if her damages have not been increased by her own subsequent want of care, she will be entitled to recover in consequence of the wrong done, and the full extent of damage, although the physician that she employed omitted to employ thé remedies most approved in similar cases, and by reason thereof the damages to the injured party was not diminished as much as it otherwise should have been.” Such charge is certainly supported by authority as well as reason. Loeser v. Humphrey, 41 Ohio St. 378 [52 Am. Rep. 86]; Railway Co. v. Falvey, 104 Ind. 411, 424, 3 N. E. 389, and 4 N. E. 908; Reed v. City of Detroit, 108 Mich. 224, 65 N. W. 967; Car Co. v. Bluhm, 109 Ill. 20 [50 Am. Rep. 601]; Rice v. City of Des Moines, 40 Iowa, 638; Stover v. Inhabitants of Blue Hill, 51 Me. 439; Tuttle v. Farmington, 58 N. H. 13; Boynton v. Somersworth, Id. 321; Lyons v. Railway Co., 57 N. Y. 489; Bardwell v. Town of Jamaica, 15 Vt. 438. The wrongdoer may well anticipate that the person injured will employ a physician or surgeon, and in doing so will exercise ordinary care in making this selection, but, where that is done, such person cannot be expected to assume the responsibility of the very highest degree of skill.’ In the case of Field v. Mankato Elec. Traction Company [116 Minn. 218] 133 N. W. 577, the defendant offered to prove that the plaintiff’s condition was aggravated by unskillful medical treatment, and the court held that this evidence was properly excluded, and, in its opinion, said: ‘It is conceded that the plaintiff received a severe injury in so falling fi'om the car. Such injuries required expert medical treatment. The necessity for the attendance and services of physicians was created by the defendant. The plaintiff, without negligence on her part, obtained the attendance and services of physicians so made necessary. The risks incident to submitting to treatment and operations were thus incurred through the fault of the defendant, not through the fault of the plaintiff. Whether the physicians skillfully or unskillfully performed the necessary services, the plaintiff not being in fault in any matter, her impaired physical condition at the time of the trial followed in unbroken sequence the negligence of the defendant in handling the car. The trial court did not err in excluding the testimony offered.’ The following cases announce the same doctrine, and many more could be added, but the principle is so well established that it seems to us to be unnecessary to multiply authorities: Railway v. Doyle, 25 S. W. 461; H. & T. C. Ry. v. Hanks [58 Tex. Civ. App. 298], 124 S. W. 136; T. & P. Ry. v. Mosley, 124 S. W. 485; T. & P. Ry. v. Hill, 237 U. S. 208, 35 Sup. Ct. 575, 59 L. Ed. 918; 13 Cyc. 77; Watson, Personal Injuries, § 136.”

The fourth assignment is overruled.

The fifth, sixth, and seventh assignments present error in refusing special instructions similar enough to the special charge involved in the fourth assignment to be disposed of by the authorities and our ruling on the fourth assignment. The fifth, sixth, and seventh assignments are overruled.

The eighth assignment must be overruled because the special charge No. 1 was properly refused for tlie reason that, even if correct in itself, all the issues therein were correctly, and fully contained in the instructions given. Rut the special charge is not correct in itself, for it instructs the jury to allow no conjectural damages for any impairment of physical condition, whether such impairment was produced directly by the injury sustained as alleged or not. Prospective damage, where the injury is permanent, is essentially uncertain. M., K. & T. Ry. Co. v. McGlamory, 34 S. W. 361.

The ninth assignment complains that the court erred in refusing the following special instruction:

“In estimating plaintiff’s damages on account of impairment of Ms capacity to labor and earn money in the future, if any, you must take into consideration his probable life expectancy at the present time, in view of the present state of his health and physical condition as shown by the evidence.”

The contention under this assignment is presented with that great force and logic characteristic of the able counsel for appellant, but the question involved is no longer an open question in Texas, having been definitely determined and established against the contention of appellant. It is true the question has been raised generally upon the admissibility of mortuary tables -to show the life expectancy of the injured party had he not been injured; but the principle or rule of law is the same as is discussed in this ninth assignment. Chief Justice James, in M., K. & T. Ry. Co. v. McGlamory, 34 S. W. 361, states the rule thus:

“In the present case the injury was a permanent one, and the testimony goes to show that plaintiff’s earning capacity is permanently diminished. In both the case of death and permanent injury, the importance of considering the probable duration of the injured person’s life, had the accident not occurred, is the same. Why the testimony should be proper in one case, and not in the other, we fail to perceive. In the case of Railway Co. v. Cooper the Court of Civil Appeals for the First District (2 Tex. Civ. App. 42, 20 S. W. 990) reviewed the question at length, and held the testimony admissible in cases not resulting in death. And we apprehend that the Supreme Court approved this view by refusing the writ of error in the cause. Railway Co. v. Cooper, 85 Tex. 431, 21 S. W. 678.” G., C. & S. F. Ry. Co. v. Mangham, 95 Tex. 413, 67 S. W. 765; M., K. & T. Ry. v. Scarborough, 29 Tex. Civ. App. 194, 68 S. W. 196.

The ninth assignment is overruled.

The tenth assignment is that the court erred in refusing to give the ninth special charge, which is as follows:

“You are instructed that in estimating plaintiff’s damages you cannot take into consideration any items or elements of damage except those .specially mentioned and submitted in paragraph 3 of the main charge, and any damages you may award him must be confined to said items and elements of damage. All the expenses incident to his injuries and this litigation 'for which the law permits a recovery are mentioned and included in said paragraph 3 of the main charge, and in estimating plaintiff’s damages you must not refer to or consider any other item or element of damage, and must not award plaintiff any amount on account thereof.”

Section 3 of the main charge is as follows:

“If, under the instructions given you, you find for the plaintiff, you will allow him as damages such sum as you may believe from the evidence, if paid now, will fairly compensate him for the injuries received by him, if any, which are alleged in his petition. And in estimating the damages you may award plaintiff, if any, you may take into consideration the physical and mental pain, if any, suffered by plaintiff by reason of such injuries,.if any, and the reasonable expenses, if any, necessarily incurred by plaintiff for medical and surgical treatment, nursing, or medicines, by reason of such injuries, if any. And if you find from the evidence that plaintiff’s injuries, if any, are permanent and will impair his capacity to work and earn money in the future, then you may award plaintiff such sum as you may believe from the evidence, if paid now, will fairly compensate him for such impaired capacity, if any, to work and earn money in the future.”

This special charge should not have been given, because it contradicts appellant’s seventh special instruction, which was given to the jury at appellant’s request, and because it excludes from the jury the consideration of elements of damage proper to be considered by them. Paragraph 3 of the main charge does not specifically mention the elements of mental and physical pain that appellee may suffer in the future, and yet such are proper elements of damages to be considered by the jury, and these elements were expressly stated, though limited, in the special instruction No. 7, given to the jury at appellant’s request. The seventh special charge is as follows:

“In estimating plaintiff’s damages on account of physical or mental pain he may suffer in the future, if any, you must take into consideration his probable life expectancy at the present time in view of the present state of his health and physical condition as shown by the evidence.”

The tenth assignment is overruled.

The eleventh assignment, -complaining that the verdict is excessive, must be overruled because it does not appear that there was passion or prejudice which influenced the jury to render the verdict for so large an amount.

There was abundance of testimony that plaintiff is a total wreck, and that he was reduced to such a condition by the derailment. The jury believed this testimony, and this court is bound by the jury’s verdict, and cannot hold that the damages awarded are excessive. G., H. & S. A. Ry. Co. v. Webb, 182 S. W. 424.

The judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    UHR v. BROWN, Mayor et al.
    (No. 5828.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1916.
    On Motion for Rehearing, Jan. 24, 1917.)
    1. Municipal Corporations @=184(1) — Police Department — De Jure Officers — Charter and Ordinance.
    Under the commission charter of San Antonio, giving the commissioner of police sole power to nominate all employes in that department, and an ordinance creating a police department consisting of the mayor, the police commissioner, and one captain of detectives, 15 detectives, etc., who before entering upon the duties of their offices and within five days after confirmation of their appointment should subscribe the oath of office, give bond, receive their commissions, and thereupon to enter upon the duties of such offices and receive the compensation specified therefor, and providing that persons theretofore appointed to the corresponding offices and then employed or acting de facto, or otherwise in the performance of such duties, should hold such offices and perform their duties regardless of any defects in their appointment or qualification, to serve until their successors should be appointed and commissioned, persons appointed as policemen previous to the ordinance, whose appointments were never confirmed as required by the charter then in force, and designated by the ordinance as captain of detectives and as a detective, had no legal title to such office.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 488-490; Dec. Dig. @=184(1).]
    2. Officers <§=>13, 95 — De Facto Officers— Compensation — Award as Confirming Appointment.
    A de facto officer can demand pay for his services, so that a vote to give him such compensation would not have the effect of appointment, confirmation, and qualification.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 15, 134, 139; Dec. Dig. @=>13, 95.]
    3. Municipal Corporations @=>184(1) — Police Department — “De Facto Officers.”
    Persons appointed as policemen and thereafter designated as a captain of detectives and a detective respectively, and who, under an ordinance creating a police department, were designated to such offices and thereafter discharged the duties of such offices, though not de jure officers because the provisions of the ordinance investing them with title conflicted with the charter provisions giving the police commissioner sole power of appointment in his department, but who are recognized by the department as officers and received pay as such, were “de facto officers.”
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 488⅛90; Dec. Dig. @=>184(1).
    For other definitions, see Words and Phrases, First and Second Series, De Facto Officers.]
    4. Municipal, Corporations @=>185(3) — De Facto Officers — Removal.
    San Antonio Charter, § 17, providing that any appointive officer may be removed only by a majority vote of the commissioners on charges preferred in writing and after a public hearing thereon by the commissioners, did not protect de facto officers, and they must surrender possession to any duly appointed and confirmed to such offices as prescribed by an ordinance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 495; Dee. Dig. @=> 185(3).]
    5. Officers @=82 — Police Department — Compensation — Injunction.
    After nominees of a police commissioner, vested with the sole power to nominate to office in a police department, were confirmed by the commissioners and qualified and received a commission and the salary incident to the office, equity would not aid de facto officers to restrain such appointees from discharging their duties or receiving their salary.
    [Ed. Note. — For* other cases, see Officers, Cent. Dig. § 114; Dec. Dig. @=82.]
    6. Municipal Corporations @=184(1) — Police Department — Interference with Police Commissioner — Right to Appoint.
    De facto officers in a city police department, designated by an ordinance and discharging the duties of the offices claimed by them, did not interfere with the police commissioner’s exercise of his sole right to nominate officers in the police department, where their performance of the duties of their offices did not prevent him from nominating others to such offices, any wrongful motive actuating the other commissioners in refusing to confirm his appointees not being chargeable to such de facto officers.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 482, 488-490; Dee. Dig. @=184(1).]
    7. Officers @=82 — Injunction—Police Commissioner-Interference with Duties.
    The failure of de facto officers serving in the police department under an ordinance to cease performing the duties of and exercising the rights of their offices did not constitute an interference with the discharge of the police commissioner’s duties of supervision and the enforcement of police regulations, as their duties did not conflict, and as the commissioner might be presumed to need every subordinate office filled in order to properly conduct his department.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. § 114; Dec. Dig. @=82.]
    8. Officers @=82 — Injunction — Subjects —Public Office.
    A public officer de jure or de facto in possession of an office is entitled to an injunction to restrain any one disputing his right to it or interfering with his discharge of its duties.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. § 114; Dec. Dig. @=82.]
    9. Municipal Corporations @=992 — De Facto Officers — In junction — Taxpayer’s Action.
    A taxpayer cannot secure the aid of equity to prevent de facto officers from serving and receiving compensation, and the relief which cannot be granted to a taxpayer for the public benefit as well as for his own benefit cannot be granted to commissioner of any city department on the sole ground that he holds such position.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2157; Dec. Dig. @= 992.]
    10. Officers @=119 — Duties—Action.
    A public officer, in the absence of a prohibition, has the implied authority to institute suits necessary to the proper and faithful performance of his duties.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 197-206; Dec. Dig. @=119.]
    11. Officers @=119 — Injunction — Public Officers — Scope of Relief.
    In a suit by the police commissioner of a city to enjoin the mayor from approving pay rolls containing the names of a de facto captain of detectives and of a de facto detective, and from appointing any person to office in the police department, and to cancel any orders previously issued appointing or assigning officers to that department, an order requiring the mayor to cancel such orders was too broad, as requiring the cancellation of orders prior to the time plaintiff was elected police commissioner, and which could not have constituted an infringement of his rights to appoint to office in the police department.
    [Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 197-206; Dec. Dig. @==>119.]
    On Motion for Rehearing.
    12. Municipal Corporations @=>181(1) — Police Department — De Pacto Officers.
    Under an ordinance designating a captain of detectives and a detective notwithstanding any defect in their appointment or qualification, such officers, upon possession of the offices and the • discharge of their duties, became de facto officers, as it is the very fact that an appointment is illegally made which furnished a basis for claiming to be a de facto officer.
    [Ed. Note. — Por other cases, see Municipal Oorporations, Cent. Dig. §§ 488-190; Dec. Dig. @=>184(1).]
    IS. Municipal Corporations @=>1027 — Action — Suit by Police Commissioner — Personal Capacity.
    A suit by a city’s police commissioner to restrain interference with his right under the charter to appoint to offices in the police department is a suii; brought by him in his individual capacity, as distinguished from a suit by him in his official capacity on behalf of the city in aid of the enforcement of police regulations.
    [Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 2198; Dec. Dig. @=> 1027.]
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Action for an injunction by Robert P. Uhr against Clinton G. Brown, Mayor of the City of San Antonio, J. W. Carruthers, Joe White, and others. Judgment for plaintiff as to all except the named defendants, and he appeals.
    Reformed and affirmed.
    Prank H. Wash, Scott & Dodson, and Ryan & Matlock, all of San Antonio, for appellant. Geo. R. Gillette, R. G. Harris, and E. J. McMillan, all of San Antonio, for appellees.
   MOURSUND, J.

This is an appeal from an order refusing to grant certain relief by temporary injunction in favor of Robert P. Uhr, fire and police commissioner of San Antonio, suing also as a taxpayer, in a suit against Clinton G. Brown, mayor of said city, E. L. Ankerson, Lonnie Crow, R. E. Delaney, Adolph P. Kohr, J. W. Carruthers, Joe White, and L. Eckhardt. The court granted plaintiff an injunction against all the defendants except Carruthers, White, and Eckhardt, and upon this appeal complaint is only made by plaintiff of the refusal to grant him all the relief he asked' against Brown, and the failure to grant any relief against Carruthers and White. His assignments also embrace Eckhardt, but, as the latter has left the police service, appellant waives his assignments as to him. We will, therefore, in stating and discussing the case, confine ourselves to the controversy between plaintiff and Mayor Brown, Carruthers, and White.

Plaintiff alleged that the executive administrative powers, authorities, and duties were distributed among five departments by the charter of the city of San Antonio, one of which was that of fire and police, and that he had been duly elected as commissioner of said department, and under the charter had under his special charge the enforcement of all fire and police regulations in said city, and was vested with the sole power to propose and nominate all employés in said department, and that the mayor had no power to propose, nominate, or appoint employés therein ; that Carruthers and White were pretending to be employés in said department, and assumed to act as officers therein, claiming their right to do solely upon a pretended nomination and appointment therein by Mayor Brown; that plaintiff as commissioner of said department has notified said defendants that they were pretending to be employés without authority of law, and were usurpers and trespassers in said department, and demanded that they forthwith cease to exercise any authority so unlawfully assumed; that they had defied his authority to remove them, and that they remain therein by force of arms, still unlawfully pretending to be em-ployés therein; that said defendants have never been nominated to employment in said department by any commissioner thereof; and that their wrongful and illegal conduct has hindered and interfered with plaintiff in the discharge of the duties imposed upon him as commissioner, and that unless restrained they will continue to hinder and interfere with him, and that he has no adequate remedy at law, and no adequate relief save through writ of injunction. He prayed that they be restrained from pretending or assuming to be employés in said department, and from interfering with plaintiff in the supervision and control thereof, and in the enforcement of the public regulations of saM. city.

riaintiff sought to restrain Mayor Brown from approving any pay rolls with the names of Carruthers and White -thereon, and from nominating or appointing any person to any employment connected with the department of fire and police, and from assigning any person to duty in said department; also that he be commanded to forthwith cancel, recall, and withdraw every order and instruction, verbal and written, which he has heretofore issued, given, or extended purporting to propose or nominate any person to any employment in said department or assigning any person to any duty in said department.

Defendants all answered together by general demurrer, general denial, and specially that defendants (except Mayor Brown) are actually engaged in performing the duties of regular officers in the police department, and that said Carruthers has been so engaged since December 20, 1914, and said White since January 13, 1913; that they have performed the regular duties of police officers, have been recognized as such by the officials and citizens, have duly qualified for such officers, been commissioned by the mayor, received regular clothing allowances dispensed to police officers, and received the compensation provided for the positions which they hold. They then pleaded certain ordinances which they claimed created a police department.

Said defendants further alleged that if they are not officers de jure, they are at least officers de facto, and should be permitted to serve until their successors are nominated and confirmed according to law.

Plaintiff, by supplemental petition, alleged that prior to May 4, 1916, there was never an ordinance duly enacted by the city council creating any officers in the police department, except that of chief marshal, two assistant marshals, and one police matron; that prior to May 4, 1916, there was no legally created office available and to which defendants could have been appointed at the respective dates they plead they were appointed; that the present commission charter came into effect June 1, 1915, since when only the police and fire commissioner could make nominations for positions in said department, and such nominations required confirmation by a majority of the commissioners before any right or title to office was conferred, and that defendants were never so nominated or confirmed; that defendants have no status as de facto officers. Plaintiff further pleaded the holding in the Coultress Case, 169 S. W. 919, as binding law to the effect that no office of city policeman existed in San Antonio between July 17, 1911, and May 4, 1916. Defendants denied plaintiff’s said allegations, and alleged that the decision in the Ooultress Case is not conclusive or decisive as to the law of this case.

The trial court, after hearing evidence, granted an injunction against Mayor Bfown as prayed for, with the exception that he did not restrain him from approving pay rolls and signing warrants in favor of Car-ruthers and White. He refused to grant plaintiff any relief as against Carruthers and White.

Carruthers’ only commission, dated December 21, 1914, was “to the office of policeman of the city of San Antonio, Tex.” He also had a letter, signed Albert Steves, Commissioner of Pire and Police, dated February 16, 1916, advising him that he has “this day been placed in the position of captain of detective department under Chief F. H. Lancaster,” effective March 1, 1916, and directing him to put himself under orders of Chief Lancaster as “per our conversation of this date.” He testified he never worked as a patrolman; when he got the commission he reported to Chief Lancaster, who told him to go to work as a detective, which he did until February 20, 1916, when he assumed the duties of captain of detectives. He also testified that a policeman’s pay is $70 per month, but he was paid $85 until he got $100 as captain of detectives, which salary was subsequently raised to $125. This was done upon Commissioner Uhr’s recommendation, and the increase began on June 1, 1916. Uhr was elected police and fire commissioner' of the city of San Antonio on April 3, 1916. Hé is a taxpayer of said city. Carruthers wears no uniform, but has a regular policeman’s badge; he has no regular beat, comes and goes as he pleases, and is under Chief Lancaster’s orders.

Wlhite’s only commission, dated June 16, 1913, was also “to the office of policeman of the city of San Antonio.” He was transferred to the detective department by Mr. Miller, then chief of detectives; wears no uniform, but has a badge; consults Chief Lancaster and works under Carruthers’ orders. He received $70 per month, and clothing allowance. The names of Carruthers and White have been carried on the pay rolls since their entry into the department, and ordinances have been passed each month providing for payment of the amounts set out in the pay rolls. Commissioner Uhr voted “nay” on the passage of all pay rolls since he has been in office except the one for July, 1916. He voted “aye” on making the appropriation ordinance to pay that pay roll. This pay roll contained the names of Carruthers and White. Said ordinance provided that no moneys should, however, be paid out except on the approval of the commissioner in charge of the department, or the head of a division in the department. All pay rolls since Uhr became commissioner have been certified to by F. H. Lancaster, city marshal of said city, and none were certified to or approved by Uhr. On September 1, 1916, Commissioner Uhr wrote Carruthers, as captain of police, that his services were no longer required in the police department, and on September 4, 1916, wrote Carruthers and White they had no legal authority to act as an employé in the police department, and demanding that they surrender all city property and cease to pretend to act as an employé in said department. They paid no attention to these letters. Mr. Uhr never gave Carruthers any orders. White testified that a few days before the trial Mr. Uhr, while acting in the capacity of judge in the police court, told him to go ahead and enforce the law and arrest all speeders. The appointments of Carruthers and White to the office of policeman were never confirmed by the city council, and after the commission amendments were adopted no commissioner of fire and police ever nominated either of them to any office Or employment in the department of fire and police. At the times when they entered the police service, the department contained 150 or 160 men, and at no time thereafter did it contain as few men as 101. The membership changed constantly, owing to resignations and removals, and at the time of the trial probably half of the men in the department in June, 1913, were still serving.

On March 2, 1003, an ordinance was passed providing that the police force shall consist of one chief marshal, two assistant marshals, one police matron, and such detectives and unmounted patrolmen as the mayor and city council may deem necessary.

Chapter 58 of the criminal ordinances, comprising all ordinances in force August 7, 1899, provides that the police force will consist of the following grades: City marshal (ex officio chief of police), assistant marshals, detectives, and patrolmen.

An ordinance passed December 4, 1905, provides:

“The police department of said city shall hereafter consist of one city marshal, one first and one second assistant marshal, and not to exceed 53 policemen.”

This ordinance repealed all ordinances and parts of • ordinances in conflict therewith.

On August 5, 1907, the number of men serving in the police department was increased by ten. On September 3, 1912, it was provided by ordinance that 26 patrolmen and 12 mounted policemen be added to the regular force.

On May 4,1916, an ordinance was passed and approved creating a police department “which shall consist of the mayor and commissioner of fire and police as ex officio members, together with the officers enumerated in section 2, who are as follows: One city marshal or chief of police, one inspector of police, three captains of police, one captain of detectives, one lieutenant of motorcycle police, three desk sergeants, one night detective sergeant, one chauffeur examiner, one police matron, two police women, 15 detectives, and 160 policemen. This ordinance provided that each should hold an office of a designated number, with a corresponding metal badge, and that a continuous record should be kept by the chief of police of all such numbers and the persons holding same. Section 4 of said ordinance reads as follows:

“Each of said officers mentioned or referred to in section 2 hereof, before entering upon the duties of such office, and within five (5) days after confirmation of his appointment shall take and subscribe the oath of office, give bond for the due performance of the duties thereof, and have and receive a 'commission for such office, and thereafter, and not before, he shall enter upon and perform the duties of such office, and receive from the city of the compensation specified therefor, all as provided by law, charter or ordinance: Provided, however, that each person heretofore appointed to any such office, or paid compensation by the city to perform any service corresponding to the duties of any such office, and now employed or acting de facto or otherwise in the performance of such duties, or hereafter to be appointed and commissioned to any such office, shall hold such office and perform the duties thereof, including full power and authority as a public officer, subject to all lawful ordinances or-regulations now existing or hereafter to be provided; and no omissions or defects in connection with the appointment or qualification of any person now serving, or hereafter appointed and commissioned to serve, on said police force in any of said offices herein mentioned or referred to, shall be held to affect the legality of his acts as such officer, but such omissions or defects, if any, shall be supplied or corrected as soon as practicable; nor shall the term of office of any person now- acting or serving as aforesaid in any such capacity be held to be either extended or diminished by this ordinance or anything therein contained, but, except as otherwise provided by law or charter, each such person shall continue to serve in such capacity and as such officer until his successor shall have been duly appointed, confirmed, qualified and commissioned, and during the period of such service shall receive from the city the compensation fixed for such office.”

Section 6 repeals section 2 of chapter 39, Book of Revised Criminal Ordinances, passed and approved August 7, 1899, and all other ordinances or parts of ordinances in conflict with such ordinance of May 4, 1916.

Appellant contends that the court erred in refusing to restrain Carruthers from pretending to occupy the office of captain of detectives in the police department, against the protest of appellant, as commissioner of said department, and makes a similar contention in regard to White’s occupancy of the office of detective in the police department. Various propositions are submitted under the two assignments, many of which relate to the status of Carruthers and White prior to the passage of the ordinance of May 4, 1916. Whether or not either of them had any title to the office of policeman is immaterial in determining whether they should be restrained from pretending to occupy the offices, respectively, of “captain of detectives” and “detective,” which offices were created by the ordinance of May 4, 1916. However, we call attention to the fact that the office of captain of detectives had no legal existence prior to the ordinance of May 4, 1916, and while there was a prior ordinance which mentioned “detectives,” it was subject to the objection pointed out in the Coultress Case, as well as superseded by subsequent ordinances taking the place of same and repealing all ordinances in conflict, in which subsequent ordinances the term “detectives” does not appear. It is also clear that the appointments of Carruthers and White, made by Mayor Brown, were to the office of policeman. These appointments were never confirmed by the council as required by the charter then in force, and White’s appointment was more than two years old, and to an office to which there was no succession. They never were de jure policemen, but, if they had been, such fact would not confer title to the offices now claimed by them. We hold that Carruthers has no legal title to the office of captain of detectives created by the ordinance of May 4, 1916, and White has no legal title to one of the offices of detective created by said ordinance. Neither of them was ever nominated by Commissioner Uhr, who has the sole power to nominate persons to said office, and both, nomination and confirmation are absent as well as qualifying in the manner pointed out in the ordinance, which thereby is made a prerequisite to the right to “enter upon and perform the duties of such office.” Dillon on Municipal Corporations, §§ 385, 395.

We attach no importance to the fact that ordinances were passed appropriating money to satisfy pay rolls containing the names of these men. It has been held in this state that a de facto officer can demand pay for his services, and there is much authority to the same effect. We will not concern ourselves with the side issue as to the true rule to apply in such cases, for these men in good faith performed the services for which they were paid by July ordinances, for which Uhr voted, and there were no de jure claimants of the offices and the salary incident thereto, so it clearly appears that they were entitled to receive pay, and a vote to give it should not be given the effect of appointment, confirmation, and qualifying.

We are of the opinion, however, that Carruthers and White are de facto officers. In the ordinance creating the offices it was undertaken to place these men in such offices because they had theretofore discharged duties corresponding to those to be discharged by the holders of such offices. Carruthers had theretofore been known as captain of detectives, and White as a detective, and they proceeded after such ordinance was adopted to discharge the duties of the offices therein created. That provision of the ordinance undertaking to invest them with title to the offices is invalid because it conflicted with the charter provision which gives Mr. Uhr the sole power to nominate employés in his department. In this connection we wish to say that the other provision of the ordinance undertaking to make offices therein named continuations of the offices of the same name theretofore existing is not involved in this case, and we express no opinion concerning the same, for the offices claimed by Carruthers and White could not be continuations, as there were no such offices legally in existence when the ordinance was passed. Both Carruthers and White discharged the duties of the offices claimed by them from May 4, 1916, to September 1, 1916, without objection from any source, so far as is disclosed by the record. They were recognized by the public and their associates in the police department as officers, and received pay as such. With full knowledge that Carruthers was claiming the office of captain of detectives the salary of such office was raised on July 1, 1916, at the suggestion of Commissioner Uhr, and Mr. Uhr’s first letter to Carruthers shows that he recognized Carruthers as the holder of the office and sought to remove him. We think &e evidence sustains a finding that these men were the de facto holders of the respective offices of “captain of detectives” and “detective” created by the ordinance of May 4, 1916, and so held said offices at the time Uhr wrote them that they were acting without authority, and demanded that they cease to perform duties in the police department.

Appellant contends that if Carruthers and White are only de facto officers, section 17 of the charter, which relates to the removal of officers and employes, does not apply to them. Said section provides:

“And any appointive officer or employs may be removed or discharged only by a majority vote of the commissioners on charges preferred in writing and after a public hearing on such charges by said commissioners.”

This section gives rights to duly appointed officers and employés, and not to those who have no legal title to offices. It will not protect de facto officers who mus't surrender possession as soon as men are duly appointed and confirmed to such offices and qualify as prescribed by ordinance. To hold such section of the charter applicable to de facto officers would amount to deciding that such officers were entitled to a two-year term, unless charges were preferred, a trial had, and such charges sustained. If appel-lees are entitled to win in this case, their rights must rest upon other grounds than said charter provision.

Having held that Carruthers and White are de facto officers and not entitled to the rights given by section 17, we will now consider the question presented by appellant’s said assignments of error. The propositions in appellant’s brief fully cover all questions relating to the status of Carruthers and White, but it appears to be taken for granted that if they are de facto officers Uhr is entitled to the relief prayed for by him. Ap-pellees deny that such would be the result, and we have therefore considered the various theories deducible from plaintiff’s pleadings upon which he relies for relief against said appellees. Plaintiff’s allegations are of a rather general character, but may be considered as presenting the following theories: (1) That Carruthers and White are interfering with appellant’s rights and duty to nominate all employés in the fire and police department; (2) that they interfere with him in the discharge of his duties with respect to the enforcement of police regulations and supervision of the department; (3) that in his capacity as head of the department, or as a taxpayer, he is entitled to the aid of equity to eject all persons from the service who are not de jure officers, and restrain the payment of salaries to them.

We havei heretofore held that the commissioner of fire and police has the sole right of nominating employés in his department, and have sustained him in his suit to prevent interference with such right on the part of the mayor. Brown v. Uhr, 187 S. W. 381; Uhr v. Lambert, 188 S. W. 946. But are Carruthers and White interfering with such right? It is clear that their dis charge of the duties of the offices claimed by them, and their having the status of de facto officers, does not prevent Commissioner Uhr from nominating men to the offices said defendants claim. If his nominees are confirmed by the commissioners and qualify and receive a commission, the salary incident to the offices would be paid them, and equity would not lend its aid to Carruthers and White to restrain such appointed persons from entering upon the discharge of the duties of the office or restrain the payment of salary to them. High on Injunctions, § 1313; Stamps v. Tittle, 167 S. W. 776. The trouble lies in the fact that the other commissioners refuse to confirm appellant’s appointees, and the charter fails to provide any remedy for the deadlock thus caused. We fail to see any way in which the discharge of the duties of the offices by these defendants interferes with appellant’s right to nominate men for such offices. There is, of course, a probability that the remainder of the commissioners will be more apt to confirm appointments if no one is discharging the duties of the office than if somel one is discharging the same; but this probability furnishes-no basis for holding that the discharge of the duties of the offices by defendants interferes with appellant’s right to nominate. He has such right, and when he nominates he has performed his duty, and if any wrongful motives actuate the other commissioners in refusing to confirm his appointees, the same cannot be charged up to the men serving in the department.

We will next consider whether appellant has shown that Carruthers and White are interfering with him in the discharge of his duties of 'supervision and enforcement of police regulations. He fails to allege or prove any specific acts of interference unless the refusal to quit the service at his request constitutes such interference. In other words, does the failure of a de fac-to officer, serving in' the police department, to cease performing the duties of and exercising the rights of an office constitute an interference with the discharge of duties by the head of the department? In determining the question it must be borne'in mind that no duty is imposed upon the commissioner, by charter or ordinance, to prevent de facto officers from performing services. Their performance of services and exercise of the rights incident to the office cannot be an interference with the duties resting upon their superior officer of enforcing police regulations and supervising the police department. The duties of the offices do not conflict, and the performance of the duties of one office cannot constitute an interference with the performance of the duties of the other. The courts have been very liberal to de facto officers on account of the necessity of having official i duties performed. This court, in the ease of Callaghan v. McGown, 90 S. W. 319, said:

“That a public officer, either de jure or de facto, in possession of an office, is entitled to an injunction to restrain one who disputes his right to it or any one else from interfering with him in the discharge of his official duties, is too well settled to require discussion.”

Our Supreme Court, in the case of McAllen v. Rhodes, 65 Tex. 353, used the following language:

“We are of opinion, howevei’j that the plaintiff had no right to an injunction, either to restrain the defendant from exercising the rights and discharging the duties of county judge, or of enjoying its emoluments during the pendency of the'suit for the office. It is to the interest of the public that the office should be filled, but it would be rendered vacant, if, by means of an injunction, the officer de facto were absolutely prohibited from discharging its duties, or were robbed of every inducement to do so, by having all compensation- for his services absolutely withdrawn from him. High on Inj. § 1312 et seq. The plaintiff has his remedy at law by suit for the money received by his antagonist whilst acting as de facto judge, and cannot resort to the extraordinary process of injunction, which, whilst it is not necessary for his protection, works a hardship and an injury to the public.”

In the case of the State v. Hoff, 88 Tex. 297, 31 S. W. 290, it was held that the district judge had the discretion to deny leave to file an information in quo warranto, upon the relation of a citizen who claimed no right in himself or another, to remove de facto municipal officers, basing such holding upon the ground that relator’s suit was purely in the interest of the public, or at least should be, and that the public interest would not be subserved by depriving the town of officers until another election could be held. These cases illustrate the importance attached by the courts to having the duties of offices performed by some one in the interest of the public. The necessity for having the duties of “captain of detectives” performed, and especially of detectives, when there are 14 others, is, of course, .not comparable with the necessity for having the offices filled which were involved in the last-cited case; still there is a presumption that the offices were necessary and proper, and the public being interested in having the duties thereof performed until de jure officers are secured, it appears to us that it could not consistently be held that the performance of such duties constituted an interference with the discharge of his duties by the head of the department who may be presumed to need every subordinate position filled in order to properly conduct the department.

The decisions in the eases referred to also demonstrate that a taxpayer cannot secure the aid of equity to prevent de facto officers from serving and receiving compensation, so the fact that appellant also sues as a taxpayer does not aid him. See, also, High on Injunctions, §§ 1314, 1315.

We are also of the opinion that the relief which cannot be granted to a taxpayer for the public benefit as well as his own benefit cannot consistently be granted to the head of a department upon the sole ground that he holds such position, and the defendants are only de facto holders of subordinate positions. There being no express authority given him to oust de facto officers, his claim must rest upon the general proposition that, as head of the department, it is his duty to protect the public from the payment of salaries to persons not legally entitled thereto. But the rule is well settled that the payment of salary to a de facto officer will not be enjoined at the suit of a taxpayer or the adverse claimant, and the same rule would be applicable, we think, to a suit by the head of a department.

It is, of course, well established that a public officer, in the absence of a prohibition, has the implied authority to institute suits necessary to the proper and faithful performance of his duties. We do not understand that appellant’s petition attempts to assert a cause of action in aid of the enforcement of. police regulations, for no such regulations are described therein. It may also be doubted whether one of the commissioners could assert the implied authority to bring such suits without the consent of a majority of the commissioners, in view of the proviso in paragraph 8 of section 7 of the charter.

We conclude that the court did not err in refusing to grant the relief prayed for against Carruthers and White, and therefore overrule the first two assignments of error.

The third and fourth assignments must also be overruled.

Appellees present a cross-assignment of error complaining of that part of the court’s order requiring Mayor Brown to “forthwith cancel, recall, and withdraw every order and instruction, verbal or written, which he had theretofore issued, given, or extended, purporting to propose and nominate any person to any employment in said department or assigning any person to any duty in said department.” It is contended that this part of the decree is too broad, in that it affects the rights of Carruthers and White, as well as many other hold-overs in the police department originally appointed by Mayor Brown, who are not parties to this suit. We think this order is entirely too sweeping, for it imposes a burden upon the mayor to cancel or attempt to cancel appointments made prior to the time when appellant was elected commissioner, and even those made at a time when the mayor had the right to appoint and which could not have constituted any infringements upon appellant’s rights. We think the injunction should at least be modified so as to apply only to appointments, instructions, and orders given since the election and qualification of appellant as commissioner of fire and police. The trial court’s order will be reformed to that extent, and, as so reformed, the judgment will be affirmed.

On Motion for Rehearing.

Appellant contends that Carruthers and White each found an office and took possession because no one else was there, entirely overlooking, in this portion of the argument, the fact that by the ordinance of May 4,1916, the mayor and commissioners, by solemn legislative act, undertook to invest said parties with the offices claimed by them. So far as this record discloses, appellant may have voted for such ordinance, but we have treated the questions involved upon the assumption that he did not vote for the same, and therefore did not pass upon the question whether such an ordinance if voted for by appellant and the other commissioners would take the place of a formal nomination and confirmation.

Appellant also contends that said portion of the ordinance having been held invalid by us it would follow that Carruthers and White could not be de facto officers. It is the very fact that an appointment is illegally made which furnishes a basis for a person to claim to be a de facto officer, for if it is legally made, the officer is safe from removal even by quo warranto proceedings. Said ordinance undertakes to place these parties in the offices respectively claimed by them, and to cure any defects in their appointment or qualification, and we think that such invalid appointment, followed by the possession and recognition shown by the facts set out in our opinion, constituted them de facto officers. These facts are not attacked by appellant, but some of the most important are overlooked in discussing the issues.

Considerable stress is laid upon the theory that appellant is suing to enforce police regulations, and it is contended that an ordinance creating a police department is part of the police regulations of the city. Prom this statement it might be inferred that this is a suit to enforce the ordinance of May 4, 1916, which requires that persons shall comply with certain requisites before entering upon the discharge of duties. As pointed out in our former opinion, plaintiff’s petition fails to set out any particular police regulation, or ordinance in the nature of a police regulation, sought to be.enforced. It is therefore clear that if the ease be viewed as one brought by appellant on behalf of the municipality to enforce police regulations the petition states no cause of action. But suppose the petition contained the necessary averments. The charter does not give any commissioner the express power to bring suits which he may deem necessary or proper to fulfill duties intrusted to him, and if such power exists it would be an implied one, and be subject to the proviso mentioned in paragraph 8 of section 7 of the charter. We are unable to see how section 56 can be construed to abolish the proviso which subjects each commissioner to the direction and control of a majority of the commissioners in so far as implied powers are concerned.

We are still of the opinion that a suit by appellant to restrain interference with his right to appoint is a suit brought by appellant in his individual capacity, and distinguishable from a suit by him in his official capacity on behalf of the city to aid in the enforcement of police regulations.

Appellant again urges that there is a difference between the recognition accorded to a de facto officer so far as the public is concerned, and that accorded him when he is undertaking the enforcement of rights in himself. It appears to us that appellant fails to distinguish cases in which a person is suing for the enforcement of rights dependent upon his legal title to the office, and cases in which courts of equity protect a person in the possession and enjoyment of emoluments of an office, not because he shows he has legal title, but upon proof showing that he is a de facto officer. No effort is made to explain away the decisions in the McAllen-Rhodes and Callaghan-McGown Cases, which are very much in point because this is a resort to equity for the purpose of ousting de facto officers, and it is not even alleged that the remedy of a quo warranto proceeding was not available to appellant.

We are not sure that we understand what point is sought to be made in the concluding paragraph of the argument. The ease referred to (Stanfield v. Bexar County, 28 S. W. 114) was one in which the office had been legally abolished, and it was held that Stan-field could not recover for services performed after the office had been abolished. That case throws no light upon the issues involved in this case, for there is no contention by appellant that the offices of captain of detectives and detective had no legal existence. If appellant intends to contend that a de facto officer could not sue to recover the salary of an office, because thereby he would necessarily put his title in issue, we agree that there is much authority for such contention (see note to 32 L. R. A. [N. S.] 949); and it is entirely in harmony with the holdings of our Supreme Court to the effect that the salary is an incident to the title and not to the possession of. and discharge of the duties of an office, and while in the case of Houston v. Albers, 31 Tex. Civ. App. 643, 73 S. W. 1085, it was held that a de facto officer is entitled to compensation for services performed, we have found no case by the Supreme Court which so holds. If it be conceded that such an officer is not entitled to compensation and cannot exact it through the courts, considerable force would be added to the contention of Carruthers and White to the effect that the adoption of an ordinance, voted for by appellant, providing for paying them would constitute appointment and confirmation to the offices designated in the pay roll as held by them. But aside from such question, we think it is immaterial to any issue in this case whether a de facto officer can sue for and recover salary or compensation. This is not such a suit, but a suit in equity to restrain de facto officers from performing duties and from being paid, and is governed by the decisions relating to such suits.

The motion for rehearing is overruled.
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