Bell v. Faulkner

• Decision Date: 26 March 1892
• Citation: 19 S.W. 480
• Parties: BELL v. FAULKNER.
• Court: Texas Supreme Court

Page 480

19 S.W. 480

BELL v. FAULKNER.

Supreme Court of Texas.

March 26, 1892.

Commissioners' decision. Section A. Appeal from district court, Waller county; W. H. BURKHART, Judge.

This was a petition by E. Bell against K. H. Faulkner. From an order sustaining a demurrer and dismissing the case, the petitioner appeals. Affirmed.

Sayles' Ann. St. art. 1663a, provides that commissioners' courts may change the election precincts in their respective counties, but that each justice precinct shall constitute an election precinct. Article 1664 provides that in each incorporated city each ward shall constitute an election precinct.

A. J. Harvey, for appellant. H. M. Browne and J. J. Mahan, for appellee.

COLLARD, J.

The first question in this case is, was this a proceeding to contest an election or a suit for the office? Judging from the form of the petition, the allegations, and the prayer, we think it was the latter. The petition is addressed to the district judge. It alleges that the petitioner, who is styled "relator," was elected to the office of sheriff for the county of Waller at the general election held in the county, November 4, 1890; that the certificate of election was issued to his competitor, K. H. Faulkner, who unlawfully holds the office and enjoys its emoluments and honors, to relator's great damage; that the value of the office for the term of two years from the 10th day of November is $3,000, and the prayer is that the respondent "be ousted of said office of sheriff of Waller county, and the relator installed therein." The record does not show that the proceeding was begun by notice from the contestant to the contestee, with a statement of the grounds relied on, as required in the statute relating to the mode of contesting an election, (Sayles' Ann. St. art. 1724,) nor does it appear that the reply thereto was delivered to the contestant in the manner directed by the statute, (Id. art. 1725;) but the proceeding was begun and replied to by demurrer and answer in the district court filed in an ordinary suit. The case was heard in term time, and determined by the presiding judge upon the general and special demurrer sustaining the same. There is nothing in the record to show that the proceeding was one to contest the election; besides, all necessary allegations were made to give the court jurisdiction to the right to the office, and oust the intruder, if he should be found to be such. The suit was for the office, and not an election contest. That the district court may entertain a suit for an office, the value of which is within the court's jurisdiction, is not an open question. It has always been recognized quo warranto is only a cumulative remedy. State v. Owens, 63 Tex. 261; Williamson v. Lane, 52 Tex. 335; McAllen v. Rhodes, 65 Tex. 351.

But the question still remains, did the court err in sustaining the demurrer? The contention of the plaintiff below was and is that the election in the city of Hempstead was illegal, for the following reasons: "The city was incorporated under the general laws of the state, and consisted of four wards, which are by statute made voting precincts, but that the election was held at only two places in the city, at the courthouse and at Kemper's drug store; that there were no legal orders made by the commissioners' court or county judge by which Amcler or Crook [the acting managers of the election] were managers of the aforesaid election, and that the election at said boxes was illegal and void:" that, if the votes so cast at these boxes were thrown out, he would be elected by the majority vote; and, further, that there were never any "legal orders of the commissioners' court of Waller county designating the place or places at which an election for state and county officers should be held in the corporate limits of the city of Hempstead aforesaid, and such attempted or pretended orders, appearing upon the minutes of the proceedings of said court, are null and void, because of the attempt in the said pretended orders to direct and permit voters who resided beyond and outside the limits of the corporation to vote within the said limits in said pretended orders specified, to wit, the courthouse and market house." It seems from the foregoing that the commissioners' court of Waller county had passed orders establishing two voting precincts in the city of Hempstead, including portions of the county outside the city limits, disregarding the wards which by law are made election precincts. Sayles' Ann. St. art. 1664; Amend. Laws 1889, ...