Adamson v. Connally, 1821.

• Court: Court of Appeals of Texas
• Citation: 112 S.W.2d 287
• Docket Number: No. 1821.,1821.
• Parties: ADAMSON, Judge, et al. v. CONNALLY et al.
• Decision Date: 03 December 1937

112 S.W.2d 287

ADAMSON, Judge, et al. v. CONNALLY et al.

No. 1821.

Court of Civil Appeals of Texas. Eastland.

December 3, 1937.

Rehearing Denied January 14, 1938.

Appeal from District Court, Ninety-First District, Eastland County; B. H. Atchison, Judge.

Action by G. Connally and others against W. S. Adamson, County Judge, and others, to procure a temporary restraint of official action by defendants and to have judgment declaring a prohibition election held in Eastland County on May 1, 1937, illegal and void. Judgment for plaintiffs, and defendants appeal.

Reversed, and cause dismissed.

Earl Conner, Jr., of Eastland, for appellants.

Milton Lawrence, of Eastland, for appellees.

FUNDERBURK, Justice.

This action may properly be regarded as having been brought by the filing of plaintiffs' first amended original petition, on June 5, 1937. The record suggests that prior to that time there was an injunction proceeding wherein was first granted, and later dissolved, a temporary injunction against the county commissioners' court, restraining the canvass of returns and declaration of the result of a prohibition election held in Eastland county on May 1, 1937. The parties to the action, as shown by said amended pleading, are G. Connally and nine other individuals, as plaintiffs, and W. S. Adamson, county judge, and the other members of the commissioners' court of Eastland county, and also Earl Conner, Jr., district attorney of said county, as defendants; said district attorney being first made a party by said amended pleading. The purpose of the action, other than to procure a temporary restraint of official action by the defendants, is well reflected in the prayer that "plaintiffs herein have their judgment declaring said election, held on May 1, 1937, illegal and void and that said Eastland County, Texas remain in its present status until proper election is called," etc.

The allegations of plaintiffs' petition designed to show their interest in the subject-matter of the action are to the effect that after legalization, by a former election, of the sale of vinous and malt liquors that do not contain alcohol in excess of 14 per cent. by volume "that the plaintiffs with others filed their application with the County Judge of Eastland petitioning for the issuance of a permit or license permitting and authorizing them to sell in Eastland County, Texas, vinous and malt liquors that do not contain alcohol in excess of 14 per cent by volume; that said applications were by the County Judge granted and the plaintiffs herein have their license authorizing them to sell vinous and malt liquors that do not contain alcohol in excess of fourteen per cent by volume; that said license are in full force and effect * * *. Plaintiffs would further represent and show to the court that since the declaring of the results of said election had on May 1, 1937, and entering an order for the prohibition of all liquors in effect in Eastland after thirty days from said date, which order being void and based upon a void election, if permitted to carry out the terms of said void order, would greatly jeopardize their business and mean a loss to them of several thousand dollars and plaintiffs have no remedy to prevent cancellation of their permits under said void order unless this honorable court suspends the operation of said void order pending final adjudication of the matters and things herein presented."

The defendants appeared by filing their original answer on June 11, 1937, wherein they designated themselves as "contestees."

Upon a nonjury trial the court, referring to the parties as "contestants" and "respondents," adjudged the election of May 1, 1937, to be null and void and "that the status of Eastland County remain as it was prior to said election of May 1, 1937." The defendants ("contestees" or "respondents") have appealed.

This action was evidently regarded by all parties as being a statutory election contest. Upon motion alleging it to be such, it was given an advance submission in this court. The statutory provisions authorizing and governing that kind of action at the time are R.S.1925, arts. 3069 and 3070. Said statutes also make applicable by reference and adoption articles 3042, 3044, and 3047, etc.

An election contest of the character authorized by said statutes is a political proceeding, of which the district court had no jurisdiction prior to the 1891 amendment of article 5, section 8, of the Constitution of Texas. Since said amendment by which was added to the jurisdiction of the district court the jurisdiction "of contested elections," with procedure prescribed in the above statutes, such actions are still none the less special and political in nature. Odell v. Wharton, 87 Tex. 173, 27 S.W. 123; Robinson & Watson v. Wingate, 36 Tex.Civ. App. 65, 80 S.W. 1067. See other authorities cited in De Shazo v. Webb, Tex.Civ. App., 109 S.W.2d 264, 267. The action being a special proceeding, it is necessary that the record affirmatively show the prescribed requisites by which the district court becomes vested with active jurisdiction thereof. One of these is a notice of contest, provided in said article 3042. Another is the service of such notice, provided for in said article 3044. These jurisdictional requisites are not shown by the record herein. The contestees in a statutory election contest have no authority to waive such notice and/or service, and hence an appearance by answer does not imply such waiver nor authorize a presumption of the requisite notice and service. Moore v. Commissioners' Court of Titus County, Tex.Civ.App., 192 S.W. 805; Norton v. Alexander, 28 Tex.Civ. App. 466, 67 S.W. 787; Thurston v. Thomas, Tex.Civ.App., 7 S.W.2d 105; Cauthron v. Murphy, 61 Tex.Civ.App. 462, 130 S.W. 671; Moon v. Alred, Tex.Civ.App., 277 S. W. 787; Barker v. Wilson, Tex.Civ.App., 205 S.W. 543, 546; Kincannon v. Mills, Tex. Civ.App., 275 S.W. 1083; Shipman v. Jones, Tex.Civ.App., 199 S.W. 329, 331.

This court must, therefore, determine whether the action is only a statutory contest of an election, and if it be determined to be such, our further jurisdiction will be limited to a reversal of the judgment of the court below solely on account of the want of jurisdiction of the trial court, and a dismissal of the case for that reason.

Was the action, although apparently regarded by all parties as an election contest, maintainable by the so-called "contestants" as a civil suit invoking the jurisdiction of the court as to a matter within its regular judicial functions? Before the district court, by the 1891 amendment of the Constitution, art. 5, § 8, was given jurisdiction "of contested elections," it did have jurisdiction over actions of quo warranto, or informations in the nature of quo warranto, as included in its jurisdiction "of all suits, complaints or pleas * * * when the matter in controversy shall be valued at or amount to $500 exclusive of interest." An action of quo warranto, or information in the nature of quo warranto, is a suit to which the state is a party plaintiff. R.S.1925, art. 6253. Such an action must be brought by the Attorney General or the district or county attorney of the county or district. Const. art. 4, § 22; Id. art. 5, § 21. The Legislature would have no constitutional power to authorize such an action to be brought by any other person without one of the officers named. Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639; Maud v. Terrell, 109 Tex. 97, 200 S.W. 375. The instant action was obviously not brought in the name of the State; neither was it brought by the district attorney (there being no county attorney in Eastland county); but, on the contrary, it was brought by the individuals named, and the district attorney, instead of being a party plaintiff, was made a party defendant. There can, therefore, be no plausible contention that the action is a quo warranto proceeding, or an information in the nature thereof.

It is unnecessary to consider whether plaintiffs could under any circumstances have a right of action other than a statutory election contest, or an action of quo warranto or...