Buchanan v. Graham

• Decision Date: 25 June 1904
• Citation: 81 S.W. 1237
• Parties: BUCHANAN et al. v. GRAHAM et al.
• Court: Texas Court of Appeals

81 S.W. 1237

BUCHANAN et al. v. GRAHAM et al.

Court of Civil Appeals of Texas.

June 25, 1904.

Appeal from District Court, Ector County; James L. Shepherd, Judge.

Suit by H. Graham and another against M. C. Buchanan and others to recover the offices of school trustees. From an adverse judgment, Buchanan and another defendant appeal. Affirmed.

W. W. Martin, for appellants. A. S. Hawkins, for appellees.

SPEER, J.

Appellants, M. G. Buchanan and E. M. Graham, were appointed school trustees of School District No. 1 in Ector county under the following circumstances: L. M. Wilson, the county judge, for some reason failed to order an election for school trustees at the proper time. After having discovered this omission, he sought advice from the State Superintendent of Public Instruction as to his duty in the premises, and was advised that it would be his duty to appoint the school trustees, since an election, in the absence of an order therefor, would not be legal. Acting upon this advice, he caused it to be made known that there would be no election at the regular time provided by law by showing this letter to a number of persons and otherwise making public the information. Upon the first Saturday in April, however, a number of persons, who thought the election could and should be held, assembled at the accustomed place of holding elections, and proceeded to elect trustees. No one, of course, had been appointed to hold the election, nor did the voters there assembled formally make selection of the parties who held the election, but no objection of any kind was made by any one, but all tacitly consented to the action of those who undertook to hold the election. These election officers were not sworn, nor were they in any manner provided with proper blanks for holding the election. There were other irregularities, which, in the view we take of the case, are not necessary to be mentioned. At this election the appellees H. Graham and R. H. Thain were the only candidates for school trustees, and they received every vote cast. The election was fairly held, and no voter was denied the privilege of voting who offered to do so. It was well known throughout the district that the election was being held. Indeed, it seems that at the trial no one could be found who did not know of it. All parties who participated in any way in the election did so in good faith, and there is no evidence whatever to indicate that the result was not the expression of the will of the majority of the legal voters who would have voted at such election even if the statutory call and notice had been made and the appellants themselves had been candidates. Indeed, it is agreed between the parties that appellees, and each of them, received 42 legal votes at the election as held; and, further, that the appellants, if they had been candidates at such election, would have received 40 legal votes; but that appellants were not candidates, because of the information above referred to, to the effect that said election would be illegal. On the 27th day of April after said election, appellees subscribed to the following oath of office: "The State of Texas, County of Ector. Department of Education. I, ______, having been elected trustee of School District No. 1, in Ector county, Texas, do solemnly swear that I can read and write the English language; that I am a qualified voter in said county; that I have been a resident of said district for the six months last past, and that I will faithfully and impartially discharge my duties as school trustee according to law, and the rules and regulations of the county superintendent of public instruction, and the state superintendent of public instruction, during the time for which I have been elected, beginning May 1, 1903, and ending April 30, 1905." This oath, in writing, was administered by the clerk of the county court of Ector county. At the time provided by law for the newly elected trustees to enter upon the discharge of their duties, appellees presented to County Judge Wilson (he being ex officio county superintendent of the county) their said oaths of office, but were informed by him, as they had been previously notified, that he considered their election illegal, and that he had that day appointed appellants to the positions of school trustees for said district. Appellants accepted the appointments, took the oath of office before the county judge, and at once entered upon the performance and discharge of the duties of the offices to which they had been appointed. The appellees thereupon instituted this suit against appellants to recover the offices, making the county judge a party thereto, and seeking as against him a writ of mandamus to require him to recognize them as the lawfully elected and qualified trustees for said district. The trial resulted in favor of the plaintiffs in the action as against the appointees, M. G. Buchanan and E. M. Graham, ousting them from the offices, and restoring the same to the plaintiffs; but against the plaintiffs as to the writ of mandamus prayed for. M. G Buchanan and E. M. Graham, the deposed trustees, alone appeal.

We have had no difficulty in...