Christy v. Williams
| Decision Date | 06 February 1957 |
| Docket Number | No. A-5988,A-5988 |
| Citation | 156 Tex. 555,298 S.W.2d 565 |
| Court | Texas Supreme Court |
| Parties | George W. CHRISTY et al., Petitioners, v. W.S. WILLIAMS et al., Respondents. |
Lloyd M. Lunsford, South Houston, for petitioners.
Robert R. Breaker, South Houston, Homer T. Bouldin, Houston, for respondents.
For opinion of the Court of Civil Appeals, see 292 S.W.2d 348.
One of the reasons for granting writ of error in this case was to preserve the rights of the petitioners while we had under submission and consideration the case of State ex rel. Bennett v. Clarendon Independent School District, Tex., 298 S.W.2d 111. In that case we were called upon to determine whether the legal controversy between the parties constituted a "contested election" within the meaning of Article 1821, Vernon's Annotated Texas Statutes. That Article makes the jurisdiction of the Courts of Civil Appeals final in "all cases of contested elections of every character" except those in which (1) a contest for state office is involved, (2) the validity of a statute is questioned by the decision of the Court of Civil Appeals, (3) the judges of the Court of Civil Appeals have disagreed upon a question of law material to a decision of the case, or (4) the Court of Civil Appeals has held differently from a prior decision of another Court of Civil Appeals or of the Supreme Court upon a question of law.
We were of the tentative opinion that this case involved a "contested election" within the meaning of Article 1821, V.A.T.S., that it did not fall within any of the exceptions above noted and that the jurisdiction of the Court of Civil Appeals was final, but we were concerned that the definition we would finally give to the words "contested election" in the Clarendon Independent School District case might be such as to authorize us to take jurisdiction in this case under Article 1728, subdivision 6, Vernon's Annotated Texas Statutes, on the ground that it did not involve a "contested election" and that an error of substantive law affecting the judgment had been committed by the Court of Civil Appeals. Our decision in the Clarendon case leads to no such result.
We are now well convinced that this suit involves a "contested election" within the meaning of Article 1821 and that we have no jurisdiction of the case unless it comes within one of the exceptions above noted.
The suit was begun as a special statutory election contest under Chapter 9, Texas Election Code, Vol. 9, Vernon's Annotated Texas Statutes, art. 9.01 et seq., a type of proceeding recognized in the Clarendon case as being a "contested election" case within the meaning of Article 1821. Its purpose was to invalidate an election held in the City of South Houston on April 5, 1955, which authorized the issuance by such City of $125,000 Water Works bonds and $175,000 Sanitary Sewer System bonds. Petitioners alleged many irregularities in the calling and holding of the election and the canvassing of the returns thereof as a basis for declaring the same to be null and void. They prayed that the election and the declaration of the results thereof be declared null and void and that a writ of injunction issue restraining and enjoining the issuance of any bonds by the City of South Houston pursuant to and based upon the results of said election. The points of error upon which they predicated their appeal to the Court of Civil Appeals were based upon alleged irregularities in the calling and holding of the election. Their points of error in their application before this Court are predicated upon two irregularities, to wit: the failure to publish notice of the election in a newspaper "entered as second-class postal matter in the county where published" as required by Article 28a(2), Vernon's Annotated Texas Statutes, and the failure to number the ballots, as required by Sections 8, 13 and 25 of Article 7.14, Texas Election Code, in such manner as to tie them to the poll list. Petitioners begin their petition for writ of error with this statement: "This is an election contest." We agree. Clary v. Hurst, 104 Tex. 423, 138 S.W. 566, 571; Kincannon v. Mills, Tex.Civ.App., 275 S.W. 1083, writ dismissed, w.o.j.
It remains to be decided whether jurisdiction of this Court attaches to the case under any of the exceptions above noted.
Obviously the case does not involve a contest for state office and does not come within the first exception.
One of the grounds of jurisdiction asserted by petitioners is "because the Court of Civil Appeals in determining the case construed Vernon's Civil Statutes, Art. 28a, Art. 704 and Texas Election Code Article 7.14, and in so doing erred and questioned the validity of such statutes." A reading of the opinion of the Court of Civil Appeals clearly discloses that that Court did construe and apply the statutes referred to, but a search of that opinion fails to disclose that the decision of the Court questioned the validity of such statutes, either by way of affirming or denying their validity. For that matter, petitioners had before the Court of Civil Appeals no point of error challenging the validity of such statutes. Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 626-627. The case does not come within the second exception.
There is no dissenting opinion in the case, and it therefore does not come under exception 3 which gives this Court jurisdiction where the judges of the Court of Civil Appeals have disagreed upon a question of law material to a decision of the case.
Petitioners also assert jurisdiction on the ground that the Court of Civil Appeals in this case has held differently upon a question of law from the holding of this Court in the case of State ex rel. Barry v. Connor, 86 Tex. 133, 23 S.W. 1103. For this Court to have jurisdiction on the ground of conflict it must appear that the rulings in the two cases are "so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other." Dockum v. Mercury Ins. Co., 134 Tex. 437, 135 S.W.2d 700, 701. Or, "in other words, the decisions must be based practically upon the same state of facts, and announce antagonistic conclusions." Sun Mut. Ins. Co. v. Roberts, Willis & Taylor Co., 90 Tex. 78, 37 S.W. 311, 312. "An apparent inconsistency in the principles announced, or in the application of recognized principles, is not sufficient." Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825, 827. We must examine the facts in the case of State ex rel. Barry v. Connor and in the instant case as the facts are reflected in the opinions before us, to determine whether they are so nearly the same that the decision in one of the cases would be conclusive of the decision of the other.
The facts in State ex rel. Barry v. Connor, relevant and material to the questions decided, are as follows: Article 1694, Revised Statutes of Texas, 1879, then in force in this State, provided that the clerks of an election should...
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