Canales v. Mullen

• Decision Date: 22 March 1916
• Docket Number: (No. 5706.)
• Citation: 185 S.W. 420
• Parties: CANALES et al. v. MULLEN, County Attorney.
• Court: Texas Court of Appeals

185 S.W. 420

CANALES et al. v. MULLEN, County Attorney.

(No. 5706.)

Court of Civil Appeals of Texas. San Antonio.

March 22, 1916.

Rehearing Denied April 26, 1916.

Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.

Local option election contest by A. C. Canales and others against R. R. Mullen, County Attorney. From an adverse judgment, contestants appeal. Reversed and remanded.

W. G. Love, of Houston, Walter G. Weaver, of Alice, and Love, Channel & Fouts, of Houston, for appellants. R. R. Mullen, I. A. Patton, and W. R. Perkins, all of Alice, and Dawson & Anderson, of Corpus Christi, for appellee.

SWEARINGEN, J.

This is a proceeding to contest a local option election, held on the 6th day of November, 1915. The election resulted in favor of prohibition. The petition of the contestants A. C. Canales and others was filed in the district court on December 16, 1915, the county attorney of Jim Wells county being named as contestee. It was alleged that the commissioners' court did not order the election because they deemed it expedient, but ordered the election because a petition so to do was presented to that court signed by as many as 250 voters in the county, and it was further averred that while the petition did contain as many as 250 signatures that in fact 69 of those were the signatures of persons who were not qualified voters; that, therefore, the order for the election, as well as the election, was invalid and void.

To this petition, contestee filed a general demurrer, contained in his first amended original answer. Contestants filed a first supplemental petition, making substantially the same issue pleaded in their original petition. To this supplemental petition contestee filed a supplemental answer, renewing the general demurrer, both to the original petition and the supplemental petition. The court sustained the general demurrer of the contestee, and, contestants refusing to amend, judgment was finally entered against contestants, dismissing the suit. This appeal followed.

Appellants urge two assignments of error, the substance of which is that the court erred in sustaining the general demurrer of contestee and entering judgment dismissing the suit. The sole question presented by these assignments, and the proposition submitted thereunder, is that where the commissioners' court is petitioned by the voters to order a local option election, that petition alone gives jurisdiction to the commissioners' court to order the election, and that if the petition itself does not comply with the requirement of the statute it fails to confer jurisdiction upon the commissioners' court to order the election, and that the election is therefore void.

The commissioners' court had exclusive power to order an election to determine whether the sale of intoxicating liquors should be prohibited within the county of Jim Wells. This power was given to the commissioners' court by the Legislature, as shown in article 5715, Vernon's Sayles' Civ. Stats. There have been several amendments to local option statutes, by which distinct changes were made in the law. The decisions construing the local option statutes can be harmonized only by bearing in mind the statute in force at the date of the opinion. The following summary may not therefore, be inappropriate.

In 1876 the Legislature made it the duty of the commissioners' court of each county of the state to order an election for local option, upon the written petition of 50 qualified voters of the county. 8 Laws of Texas (Gammel's) 862.

In 1879 the Legislature again amended the local option statute, but the amendment is not relevant to this discussion.

Construing this act of the Legislature of 1876 (Acts 15th Leg. c. 33), as amended by the Legislature of 1879 (Acts 16th Leg. c. 42), the Court of Appeals, in 1882, said:

"It is the petition that confers upon the commissioners' court the jurisdiction to order the election. Without such petition that court would have no power to act in the matter, and an order made by it for such an election, without such petition, or upon an insufficient petition, would be a nullity, and the election held in pursuance thereof would be a nullity. If there was a petition in accordance with the requirement of the law, it would be easy to produce it in evidence. The law requires it to be filed with the clerk of the county court, and it should be found among the archives of his office. Suppose that when this petition is produced, and it is found to have been signed by 10 instead of 50 qualified voters of the county, would the election be a valid one, and in accordance with the laws of this state? We think not." Prather v. State, 12 Tex. App. 401; McMillan v. State, 18 Tex. App. 375.

The statute of 1876, as amended in 1879, did not authorize the district courts to entertain jurisdiction of local option election contests.

In 1887 the commissioners' court was authorized to order an election to determine whether or not the sale of intoxicating liquors should be prohibited whenever the court deemed it expedient, and that statute made it the duty of the commissioners' court to order the election whenever petitioned so to do by as many as 200 voters in any county. 9 Laws of Texas, p. 96.

In 1887, for the first time, courts of competent jurisdiction were given, by statute, authority to hear contests of local option elections. This statute directs that any qualified voter may contest local option elections in any court of competent jurisdiction, and that upon the trial if it should appear from the evidence that the election was illegally or fraudulently conducted, * * * the election would be held invalid. 9 Laws of Texas, 896.

In 1893 the local option statute was amended so as to authorize the commissioners' court to order the local option election when the court deemed it expedient, and made it the duty of that court to order the election whenever petitioned by 250 voters of any county. The amendment of 1893 contains substantially the same article authorizing contests of local option elections as that of the act of 1887. 10 Laws of Texas, 478.

In 1897 the Legislature amended the first article of the local option election law which had been passed in 1893, but made no change material to this discussion. 10 Laws of Texas, 1289.

Construing the first article of the local option statute of 1887, as amended in 1893 and 1897, several of the appellate courts of Texas held that, as power was given to the commissioners' court to order a local option election whenever the commissioners' court deemed...