Border v. Abell, 10693.

• Decision Date: 02 December 1937
• Docket Number: No. 10693.,10693.
• Citation: 111 S.W.2d 1186
• Parties: BORDER et al. v. ABELL, County Atty.
• Court: Texas Court of Appeals

111 S.W.2d 1186

BORDER et al. v. ABELL, County Atty.

No. 10693.

Court of Civil Appeals of Texas. Galveston.

December 2, 1937.

Appeal from District Court, Wharton County; M. S. Munson, Judge.

Election contest by W. M. Border and others, as duly qualified property tax paying residents of Wharton county, Tex against Thomas H. Abell, county attorney. From the judgment for contestee, contestants appeal.

Affirmed.

Isaac Garrett and M. S. Munson, Jr., both of Wharton, for appellants.

Thos. H. Abell, of Wharton, and S. C. Cappel, Jr., George P. Willis, Jr., and Donald M. Duson, all of El Campo, for appellee.

GRAVES, Justice.

This statement — approved and adopted by the appellee as being correct — is taken from the appellants' brief:

"This is an election contest, filed under the general statutes governing such cases, that is, chapter 9, title 50, Revised Statutes of 1925, by W. M. Border et al., as duly qualified property tax paying residents of Wharton county, Tex., against Thomas H. Abell, county attorney, to contest the result of a certain election held throughout Wharton county, Tex., on May 1, 1937, at which, among others, the proposition of voting bonds in the amount of $85,000 for the erection, construction, and equipping of a county hospital at El Campo, in Wharton county, Tex., which was denominated `Proposition No. 1', was voted upon. The returns of said election showed that `Proposition No. 1' carried by a vote of 937 votes for and 914 votes against. The result of `Proposition No. 1' was the only one contested in this proceeding.

"The contestants (appellants here) in their second amended grounds of election contest, upon which the case was tried, set up various grounds upon which they contended that the petition, order of election, and the proposition voted upon were illegal and the election therefore void, but a special exception directed to these grounds by contestee (appellee here) was sustained by the court, and they were therefore not considered on their merits. The contestants also alleged and proved that the tax collector of Wharton county failed to furnish to the election judges, or any of them, a certified list, or any list, of the owners of real estate in said county who had rendered the same for taxes, as shown on the tax rolls. It was also alleged that various persons voted for said bond issue who had not paid a poll tax, who owned no property rendered for taxation, and who did not vote in the precinct of their residence, and that the result of said election was impossible of ascertainment.

"Upon the trial it was proved that 30 of the voters voting for said `Proposition No. 1' and 14 of the voters voting against said proposition were not qualified voters, and that their votes were illegal and void and should not be counted; it was further proved, after trial amendments had been filed alleging the facts by both parties, that in 9 out of the 23 election precincts of the county the election judges failed to write their signatures on the ballots as required by law.

"The court held that, in the absence of any allegations or proof of fraud or misconduct, or that it in any way affected the result of the election, that the fact that the tax collector failed to furnish the election judges with a certified list of the owners of real property, who had rendered the same for taxation, was immaterial and did not affect the validity of the election. The court also held that the 44 votes cast by illegal voters, as well as the votes cast in the 9 precincts where the ballots were not signed by the judges consisting of 321 votes, should be deducted from the votes cast respectively for and against the proposition, and reached the conclusion that the bond issue carried by a vote of 761 to 725 a clear majority of 36 votes, and rendered judgment for the contestee accordingly, to which judgment, findings, and conclusions the contestants duly excepted and perfected this appeal."

Inveighing on the appeal against the determination so adverse to them below, the appellants in the main contend:

(1) The trial court erred in sustaining the special exception thereto and thereby refusing to consider appellants' averments to the effect that the election was void because the petition and order therefor, as well as the proposition submitted and voted upon therein, were each and all in themselves illegal, hence furnished no proper premises upon which it could be supported.

(2) The election was null and void, because the undisputed evidence showed:

(a) "That the tax collector of Wharton county did not furnish to the election judges, or any of them, in such election a certified list, or any list, of the owners of real estate in said county who have rendered the same for taxes as shown on the tax rolls, as required by law, said election being for the purpose of authorizing the issuance of bonds which place a lien upon real estate."

(b) "That all the voters in nine out of a total of twenty-three boxes were deprived of their vote by the failure of the respective election judges of such voting precincts to write their signatures upon the ballots, and under such circumstances it is impossible to ascertain the true result of such election."

(3) The court below should have further declared the election void, "because it is impossible to ascertain whether or not the bond issue received a majority of the votes of the qualified property-tax-payers voting at the election, since the 321 ballots which were not counted by the court for or against the proposition submitted, because they failed to bear the signature of the election judges, should have been counted in estimating the total vote cast, for the purpose of determining the necessary majority."

None of these contentions, it is thought, should be sustained.

The first of them raises a question that seems to this court to have been already foreclosed in this state — that is, in a statutory election contest within the purview of cited chapter 9, title 50, article 3041 et seq., of our Revised Statutes, such as this one was, the scope of the court's inquiry is limited to matters pertaining strictly and directly to the election itself, together with happenings on the date thereof, such as the casting and counting of the ballots voted therein, as well as the action and conduct of the officers holding it. R.S. arts. 3053, 3054, 3069; Norman v. Thompson, 96 Tex. 250, 72 S.W. 62; Turner v. Allen,...