Bickley v. Lands

• Decision Date: 26 October 1926
• Docket Number: (No. 9954.)
• Citation: 288 S.W. 514
• Parties: BICKLEY v. LANDS et al.
• Court: Texas Court of Appeals

288 S.W. 514

BICKLEY v. LANDS et al.

(No. 9954.)

Court of Civil Appeals of Texas. Dallas.

October 26, 1926.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Injunction suit by E. P. Bickley against Floyd Lands and others to restrain enforcement of judgment entered in contested primary election suit. From judgment refusing relief and from a judgment in election contest to effect that defendant named was entitled to nomination, plaintiff appeals. Appeal from injunction suit affirmed, and appeal from contested election suit dismissed.

L. D. Hartwell, of Commerce, and H. L. Carpenter, of Greenville, for appellant.

Crosby & Estes, of Greenville, for appellees.

PER CURIAM.

This is an injunction suit filed in the district court of Hunt county, Sixty-Second judicial district, by appellant, Bickley, against appellee Lands, the members of the election board of Hunt county, and the district judge of the Eighth judicial district, to restrain the enforcement of a judgment entered in a contested primary election suit filed by appellee, in which judgment appellee was declared to be the Democratic nominee for the office of public weigher of precinct No. 6, Hunt county, Tex., and his name ordered properly certified for a place on the official ballot for the coming general election. The injunction relief was refused, and the appeal is duly perfected. Appellee received a plurality vote in the July primary for the Democratic nominee for such office, and appellant received the next highest vote in such primary. In a primary held in August appellant received a majority vote and was declared by the Democratic executive committee to be the Democratic nominee for such position. Contest was duly filed before the executive committee of Hunt county by appellee, and a ruling adverse to him resulted from such hearing. An appeal was duly perfected to the district court for the Eighth judicial district by appellee, with the result that the court declared the second primary void, and appellee, having received a plurality vote in the first primary, was declared entitled to the nomination. An appeal from this decision has been perfected to this court and was submitted at the same time of the injunction suit and will also be disposed of in this opinion.

In the trial of the appeal in the district court, the only ground of contest considered was the alleged ground that the Democratic county executive committee of Hunt county failed to order the second primary for county and precinct offices, and that by reason of such failure the second primary was void as to such office. Appellant's theory is that neither the executive committee nor the district court had jurisdiction to determine this issue, under the statutes governing contested elections, and therefore the judgment is void. The injunction suit was filed on this theory.

Appellant announces the following proposition of law:

"In an election contest, in the district court, under the statutory provisions of this state, the authority and jurisdiction of the court is limited and confined in the inquiry to matters happening on the day of the election, and pertaining strictly to the election, such as casting and counting of ballots, and the actions and conduct of the officers holding the election."

The specific question to be passed upon in this case is, in a suit filed to contest the nomination for a precinct office, does the statute, prescribing the procedure in such suit, permit an inquiry into the validity of a second primary election to determine the nomination for county and precinct offices....