Bassel v. Shanklin

• Decision Date: 19 January 1916
• Docket Number: (No. 5572.)
• Citation: 183 S.W. 105
• Parties: BASSEL, Mayor, et al. v. SHANKLIN et al.
• Court: Texas Court of Appeals

183 S.W. 105

BASSEL, Mayor, et al. v. SHANKLIN et al.

(No. 5572.)

Court of Civil Appeals of Texas. Austin.

January 19, 1916.

Appeal from District Court, Bell County; W. W. Hair, Special Judge.

Proceeding by M. H. Shanklin and others against Neal Bassel, Mayor, and others, to contest an election on a city charter. From an adverse judgment, defendants appeal. Reversed and remanded.

J. L. Beringer and A. L. Curtis, both of Belton, Winbourn Pearce, of Temple, and J. B. Hubbard, of Belton, for appellants. G. M. Felts, of Belton, and Marshall Surratt, of Waco, for appellees.

RICE, J.

The city council of the city of Belton ordered an election to determine whether said city should accept a new charter which had been theretofore prepared by a committee selected by the council. This election was held in accordance with said order, and resulted, as declared by said body, in favor of its adoption, and an order was entered by the city council so declaring the result of such election; and this suit was brought by appellee Shanklin and 35 other qualified voters of said city to contest said election, assailing its validity on the ground, among others, that said council improperly ordered said election, in that it appointed a committee to draft the proposed charter, whereas it is contended that the selection of said committee should have been left to the qualified voters of said municipality. (2) That the question as to whether or not a commission should be chosen to frame a new charter was not left to the vote of the people, but was determined by the council itself. (3) That such proposed charter was not submitted to be voted on by sections, so that its provisions could be separately passed on, but was submitted as a whole; and because the city council did not cause the city clerk or secretary to mail a copy of the proposed charter to each qualified voter in the city not less than 30 days prior to the election; and also on the ground of fraud in conducting the election.

Appellants in their answer admitted the truth of the above allegations relating to the method adopted in ordering said election and the selection of a commission to draft said charter, and asserted that, notwithstanding they had failed to follow the procedure as contemplated by chapter 147, Session Acts of the 33d Legislature, p. 307 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 1096a-1096i), still that said election was held and fairly conducted, and the majority of the votes cast were in favor of such charter, and hence it became and was effective.

To which answer asserting the validity of said election as ordered, appellees addressed an exception, to the effect that it constituted no defense to plaintiffs' cause of action; which being sustained, and appellants declining to amend, the court directed the jury to return a verdict in favor of appellees, which was done, and judgment was rendered declaring said charter illegal and void, from which this appeal is prosecuted.

In the view we take of the case it will not be necessary, we think, to discuss any of the assignments of error presented in behalf of appellants, because we have concluded that the trial court had no jurisdiction of the case, as the record is now presented. On inspection of the petition we find no allegation showing that notice of contest was served upon appellants, which was necessary in order to confer jurisdiction. By article 3077, title 49, chapter 8, of Vernon's Sayles' Civ. Stats. vol. 2, it is provided that:

"If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town or village, any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office."

The succeeding article in case of contest of city elections requires, among other things, that:

"The mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office," etc.

Article 3051, Id., provides that:

"Any person intending to contest the election of any one holding a certificate of election as a member of the Legislature, or for any office mentioned in this law, shall, within 30 days after...