Brown v. Meeks

• Decision Date: 29 September 1936
• Docket Number: No. 10107.,10107.
• Citation: 96 S.W.2d 839
• Parties: BROWN v. MEEKS.
• Court: Texas Court of Appeals

96 S.W.2d 839

BROWN v. MEEKS.

No. 10107.

Court of Civil Appeals of Texas. San Antonio.

September 29, 1936.

Rehearing Denied October 2, 1936.

Appeal from District Court, Bexar County; S. B. Carr, Special Judge.

Election contest proceeding by S. M. (Charles) Meeks against Gus Brown. From an adverse judgment, the defendant appeals.

Judgment of the trial judge reversed in part, and judgment entered in accordance with opinion.

J. I. Kercheville, Wm. Aubrey, Raymond Gerhardt, M. L. Roark, and J. Arthur Sandlin, all of San Antonio, for appellant.

Leonard Brown, Johnson, Rogers & Slatton, and R. L. Neal, all of San Antonio, for appellee.

MURRAY, Justice.

This is an election contest between S. M. (Charles) Meeks and Gus Brown over the Democratic nomination for the office of constable of precinct No. 1, Bexar county, Tex.

The contest was begun by Meeks, and this suit was filed in the Thirty-Seventh district court of Bexar county, and resulted in a judgment in his favor declaring him to be the Democratic nominee as the result of the primary election held July 25, 1936, for the office of constable of precinct No. 1, Bexar county, Tex., from which judgment Brown has prosecuted this appeal.

The controversy arose in this manner: Heretofore justice of the peace precinct No. 1, of Bexar county, has been composed of that territory which lies within the city limits of the city of San Antonio, including voting precincts 1 to 105, inclusive, and the territory which lies within the city limits of the city of Alamo Heights, including voting precincts 138 to 140, inclusive, and certain rural territory, which includes voting precincts 134 and 141.

On April 1, 1936, the commissioners' court of Bexar county decided to redistrict the county with reference to justice of the peace precincts, and on that date passed an order which by its terms was to become effective on January 1, 1937, redistricting Bexar county, and subdivided the county into five instead of eight justice precincts.

On May 1, 1936, the commissioners' court passed another order, effective January 1, 1937, adding to precinct No. 1 voting precincts 106 to 113, inclusive.

However, on June 1, 1936, the commissioners' court set aside its order as passed on May 1, 1936, and amended its said order of April 1, 1936, by passing the following order, which was also effective January 1, 1937, to wit:

                "Orders County Commissioners' Court of
                          Bexar County, Texas
                              "Monday, June 1st, 1936
                

"Order Rescinding Order Dated May 1, 1936, and Amending Order Dated April 1, 1936, Re-Districting Justice Precincts.

"On motion of County Commissioner Robt. F. Uhr, seconded by County Commissioner J. W. Donnell, all members of the Court being present and voting `Aye,' it is hereby ordered by the Court as follows:

"The order dated May 1, 1936, transferring voting Precincts Nos. 106 to 113, inclusive, from Justice Precinct No. 6, to Justice Precinct No. 1, is hereby revoked.

"The order dated April 1, 1936, re-districting Justice Precincts of Bexar County, Texas, is hereby amended so as to hereafter read as follows:

"Bexar County, Texas, is hereby re-districted in the matter of Justice of the Peace Precincts, effective as of January 1, 1937, as follows:

"Justice of the Peace Precinct No. 1: The city limit lines of the City of San Antonio, including the city limit lines of the city of Alamo Heights, and in addition thereto voting Precincts Nos. 106 to 113, inclusive, shall constitute Justice of the Peace Precinct No. 1. Justice of the Peace Precinct No. 1 shall have two (2) Justices of the Peace, to be known as Place No. 1 and Place No. 2. Justice of the Peace precinct No. 1 shall have one (1) Constable and shall have one (1) Public Weigher.

"Justice of the Peace Precinct No. 2: The boundaries of the present Commissioners' Precinct No. 2, except that part which lies within the corporate limits of the City of San Antonio, shall constitute Justice of the Peace Precinct No. 2. Justice of the Peace Precinct No. 2 shall have one (1) Justice of the Peace and one (1) Constable, and shall have one (1) Public Weigher.

"Justice of the Peace Precinct No. 3: The boundaries of the present Commissioners' Precinct No. 3, except that part which lies within the corporate limits of the city of San Antonio, and except the territory within the corporate limits of the city of Alamo Heights, shall constitute Justice of the Peace Precinct No. 3. Justice of the Peace Precinct No. 3 shall have one (1) Justice of the Peace and one (1) Constable, and shall have one (1) Public Weigher.

"Justice of the Peace Precinct No. 4: The boundaries of present Commissioners' Precinct No. 4, except that part which lies within the corporate limits of the City of San Antonio, shall constitute Justice of the Peace Precinct No. 4. Justice of the Peace Precinct No. 4 shall have one (1) Justice of the Peace and one (1) Constable, and shall have one (1) Public Weigher.

"Justice of the Peace Precinct No. 5: The boundaries of present Commissioners' Precinct No. 1, except that part which lies within the corporate limits of the City of San Antonio, and except voting Precincts Nos. 106 to 113, inclusive, shall constitute Justice of the Peace Precinct No. 5. Justice of the Peace Precinct No. 5 shall have one (1) Justice of the Peace and one (1) Constable and shall have one (1) Public Weigher.

"The Justices of the Peace and Constables in the five (5) Justice of the Peace Precincts, as hereinabove constituted, shall remain on what is commonly known as the fee basis.

"Any resident in any of the several Justice of the Peace Precincts Nos. 1 to 8, inclusive, who will be after January 1st, 1937, a resident in any of the several Justice of the Peace Precincts Nos. 1, 2, 3, 4 and 5, as hereinabove re-districted, and who is otherwise qualified may become a candidate for the office of Justice of the Peace, Constable or Public Weigher in such Justice of the Peace Precinct of his residence, as hereinabove defined, and the several candidates for such offices in the several Justice of the Peace Precincts, as hereinabove defined, who shall be duly nominated in the July, 1936, primary, and duly elected at the general election in November, 1936, shall be the duly elected Justices of the Peace, Constables and Public Weighers in said respective Justice of the Peace Precincts, and shall respectively assume office January 1, 1937.

"The qualified voters in the respective Justice of the Peace Precincts, as hereinabove defined, may vote in any Primary or General Election for the candidates for Justice of the Peace, Constable and Public Weigher who stand for election in the respective Justice of the Peace Precincts, as hereinabove defined."

This order placed practically all the territory of what we will hereafter call "Old Precinct No. 1 and Old Precinct No. 6" into what we will hereafter call "new Precinct No. 1." The only territory in old precinct No. 1, which was not included in New precinct No. 1, was that territory in which are situated voting precincts Nos. 134 and 141.

At the Democratic primary, held on July 25, 1936, S. M. Meeks and Gus Brown were opposing candidates, and the only candidates, for the office of constable of precinct No. 1, Bexar county. The election was not held in old precinct No. 1, but was held in new precinct No. 1. Thus the Democratic executive committee attempted to give effect to the last two paragraphs of the order of June 1, 1936, which provided, in effect, that, while the New Precinct No. 1 was not to come into existence until January 1, 1937, persons might become candidates and vote as though the order had gone into immediate effect; that is, on June 1, 1936, prior to the primary election.

According to the election returns, Brown received a majority of 498 votes in the territory which was to constitute new precinct No. 1, if, as, and when the order of June 1, 1936, became effective.

This presents the question of whether or not it was within the power of the commissioners' court to authorize persons to become candidates for office and vote in a precinct to be created in the future, or whether such persons otherwise possessed the legal right to become candidates and to vote in such new precinct No. 1, as was stated in such order.

The Constitution and statutes of this state, particularly article 2927, R.S.1925 prescribe the qualifications of candidates. One of such qualifications is that a candidate for office must reside for six months in the precinct in which he attempts to become a candidate for office. Certainly no one is at the present time a resident of new precinct No. 1, for the very simple reason that this legal entity does not exist at the present time. It will not come into existence, according to its own terms, prior to January 1, 1937. Until that time no legal entity in the form of a new justice precinct is in existence.

There can be no question as to the power of the commissioners' court to create new justice precincts, from time to time, for the convenience of the people. This power is given to the commissioners' courts by the Constitution of Texas (article 5, § 18) and by the statutes of this state. Article 2351, subd. 1, R.C.S.1925; State ex rel. Dowlen v. Rigsby, 17 Tex. Civ.App. 171, 43 S.W. 271; Turner v. Allen (Tex.Civ.App.) 254 S.W. 630.

The commissioners' court also has the power, when lawfully exercised, to pass an order redistricting the county into new justice of the...