Barker v. Wilson

• Citation: 205 S.W. 543
• Decision Date: 28 November 1917
• Docket Number: (No. 5896.)
• Parties: BARKER et al. v. WILSON, Co. Atty.
• Court: Court of Appeals of Texas

Page 543

205 S.W. 543

BARKER et al. v. WILSON, Co. Atty.

(No. 5896.)

Court of Civil Appeals of Texas. Austin.

November 28, 1917.

On Motion for Rehearing, June 25, 1918.

Appeal from District Court, San Saba County; N. T. Stubbs, Judge.

Contest of school election by L. W. Barker and others, in which A. B. Wilson, county attorney, was made contestee. Judgment for contestee, and the contestants appeal. Affirmed.

See, also, 189 S. W. 748.

Walker & Burleson, of San Saba, for appellants.

KEY, C. J.

An election was held in school district No. 22 of San Saba county to determine whether or not bonds should be issued in the sum of $10,000 for the purpose of building a schoolhouse. There were 102 votes cast, 52 in favor of, and 50 against, the issuance of the bonds; being a majority of 2 in favor of the proposition. Thereafter L. W. Barker, Hugh Barber, and J. H. Hamlin brought this action for the purpose of contesting the election, and, among other things, alleged that the officers who conducted the election refused to permit three qualified voters to vote in the election; that, if they had been permitted, they would have voted against the issuance of such bonds, which would have resulted in the defeat of the proposition voted upon. As authorized by statute, the county attorney was made the contestee, and, among other pleas, he filed a general demurrer, a special exception, and a general denial.

At the trial, by consent it seems of both sides, the court pursued the unsatisfactory course of hearing the law and the evidence together, and then entered judgment sustaining the general demurrer and special exception to the contestants' petition; and also holding that the facts failed to sustain certain material and necessary allegations; and therefore judgment on the merits was rendered in favor of the contestee and against the contestants upon the facts.

As stated before, that method of procedure seems to have been satisfactory to the respective parties, and, however irregular it may have been, it is not complained of in this court, and does not constitute such fundamental error as requires a reversal.

The contestants have brought the case to this court, and seek to have it reversed, their contention being, first, that the trial court erred in sustaining the general demurrer and special exception to their petition; and, second, that error was committed in holding that the proof failed to show that two of the voters alleged in appellants' petition to have been denied the right to vote were qualified voters. If either of these contentions be decided against appellants, the judgment must be affirmed. The demurrer and exception were sustained because the trial court held that the delivery of their original petition by appellants to the county attorney, and his reading the same before it was filed, did not constitute such service of written notice to the county attorney as is required by statute as a prerequisite to the commencement of an election contest; and whether or not that ruling was correct need not be decided by this court, because the other ground upon which the court based its judgment against appellants is sustained by the record.

According to the statement of facts it was not shown that either Clay Walker or Ray Walker, two of the persons alleged to have been unlawfully denied the right to vote, resided or owned property in school district No. 22 of San Saba county. Such proof was necessary to constitute them legal voters, and that, proof not having been made, the proper judgment was rendered, and it is here and now affirmed.

Affirmed.

On motion for Rehearing.

This motion has been given careful consideration, with the result that we feel compelled to adhere to our former decision.

The motion asserts that this court erred in holding that the record did not show that Clay Walker and Ray Walker resided in, or owned property in, school district No. 22 of San Saba county. The motion concedes that the statement of facts does not show that any witness testified to that effect, but it is contended that the inference is absolutely conclusive that the two persons referred to lived at Cherokee, which was in district No. 22, at which place the election was held.

It is further stated in the motion that the statement of facts, which was not agreed to by the attorneys, but made by the trial judge over two months after the trial, "is very meager and incomplete." But that statement, however true it may be in fact, cannot be considered by this court in disposing of the case. The statement of facts is signed and certified to by the trial judge, and therefore it imports absolute verity, and must be accepted by this court as such.

The motion also states, and makes a partial but incomplete quotation from the judgment to show, that the trial court held that W. S. Reeves and Clay Walker were qualified voters. The motion contains the further statement that the judgment finds that Ray Walker was entitled to vote.

The trial judge filed no findings of fact, and, to show that the above statements are not sustained by the record, we here copy that portion of the judgment which deals with the testimony:

"And the court is of the further opinion, after hearing the evidence submitted, that the two parties alleged by contestants, viz. W. S. Reeves and Clay Walker, as being qualified voters, were not entitled to vote at the election sought to be contested herein, because they failed to comply with the law; the said Reeves failing and refusing to make the affidavit required by the election judges, and the said Walker failing to properly present himself at the polling place and demanding the right to vote. It is therefore ordered by the court that the contestors take nothing by this suit, that same be dismissed, and that the injunction heretofore issued and served in this cause be in all things dissolved, and that the contestants pay all costs in this behalf expended."

That portion of the judgment which precedes that quoted sustains the contestee's exceptions to the contestants' petition, and holds that the court had no jurisdiction, because of the fact that the contestants had failed to properly and legally serve the contestee with notice of intention to contest the election; and then the judgment proceeds as quoted above. It will be noted that it does not hold that W. S. Reeves and Clay Walker were qualified voters, but states that they were so alleged to be by contestants. The judgment then proceeds to give the trial judge's reason why the two persons referred to were not entitled to vote, even if they were otherwise qualified; but it does not hold that they were so qualified. Ray Walker, the other person who was not permitted to vote, is not mentioned in the judgment, and we cannot agree with counsel for appellants that it "is virtually a judgment that Ray Walker should have been allowed to vote." But, even if the court had declared in the judgment that the three parties referred to were qualified voters and entitled to vote, except for the reasons stated in the judgment, such declaration would not have constituted a finding of the facts necessary to show that they were qualified voters. Such a declaration would be more a conclusion of law than a finding of fact, and therefore appellants would not be entitled to have it given controlling effect in disposing of the appeal. In a democratic government, wherever the people are authorized to determine for themselves, by a majority or other character of vote, any matter pertaining to the public interest, the result of such election should not be set aside by the courts, until it is clearly made to appear that the election was not properly and fairly held. And, therefore, when an election is contested upon the ground that one or more persons were unlawfully denied the right to vote, it devolves upon those who so attempt to set aside a declared result of the election to show by clear and satisfactory testimony that such persons possessed all the necessary qualifications of a voter. This rule of law is not controverted by counsel for appellants, nor is it denied that the burden rests upon them to show that Mr. Reeves and the two Walkers resided in school district No. 22.

In the motion for rehearing and argument in support thereof, it is stated that the proof referred to was made, but that the judge inadvertently omitted the same from the statement of facts; but, notwithstanding such omission, it is contended that the testimony set out in the statement of facts, considered in connection with the judgment, shows that they did so reside. That contention may be correct in so far as Mr. Reeves is concerned, because he testified that he owned a farm near Cherokee, in school district No. 22, and that he was residing thereon at the time he offered to vote. No witness testified that either of the Walkers resided in that district.

The proof shows that the election was held at a place called "Cherokee," which we presume, from the circumstances, is a small town or village, but whether all or only part of it is within school district No. 22 does not affirmatively appear in the statement of facts. Clay Walker testified:

"I was 21 years old in September, 1915. On the 31st day of January, 1916...