Coffee v. Lieb

• Decision Date: 30 April 1937
• Docket Number: No. 1791.,1791.
• Citation: 107 S.W.2d 406
• Parties: COFFEE, County Atty., v. LIEB et al.
• Court: Texas Court of Appeals

107 S.W.2d 406

COFFEE, County Atty., v. LIEB et al.

No. 1791.

Court of Civil Appeals of Texas. Eastland.

April 30, 1937.

Appeal from District Court, Shackelford County; M. S. Long, Judge.

Suit by Henry Lieb and others against S. C. Coffee, County Attorney. From an adverse judgment, defendant appeals.

Affirmed.

Thomas L. Blanton, Jr., of Albany, for appellant.

G. B. King, of Albany, for appellees.

FUNDERBURK, Justice.

Following a local option election in justice precinct No. 4 of Shackelford county, held on January 9, 1937, Henry Lieb and four others instituted this suit, which is an action to contest the election. Of the seven grounds of contest, two were sustained. The trial court concluded that the election was void because (1) "No proper order was entered by the commissioners' court calling said election," and (2) "that the notice as given was not for the time required by law and was not a substantial compliance with the statutes of this State."

In response to proper petition, the commissioners on December 28, 1936, passed the following order:

"Be it remembered that on this the 28th day of December, A. D. 1936, there came on a Special Term of the Honorable Commissioners' Court with the following officers present, to-wit: (Mr. L. C. McKelvy, Mr. C. E. Burns and Mr. H. C. Knight were present, and Mr. Homer T. Bouldin was also present) when the following proceedings were had, to wit:

"Whereas a petition signed by Forty-Nine (49) qualified voters of Justice Precinct Number Four (4) of Shackelford County, Texas, was duly presented to this Court requesting that this Court pass an order calling an election to be held in said Justice Precinct Number Four immediately to allow the qualified voters of said precinct to vote on the question: `For legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of four per cent (4%) by weight,' and `Against legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of four per cent (4%) by weight.' `For legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of fourteen per cent (14%) by volume,' and `Against legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of fourteen per cent (14%) by volume,' and `For legalizing the sale of all liquors,' and `Against legalizing the sale of all liquors.' Motion was made by Commissioner Burnes and seconded by Commissioner McKelvy that an order pass calling said election to be held on Saturday, January 9, 1937, in said precinct, and said election to be held in each of the three election precincts in said Justice Precinct, Post Oak, Hastings and Berryhill, on said day during the hours provided by law, and that the judges heretofore appointed by this Court to conduct general and special elections held in said precincts are to hold said election on January 9th, 1937.

"No further business appearing, court adjourned this the 28th day of December, A. D. 1936.

                  "[Signed] Homer T. Bouldin
                          "County Judge, Shackelford
                                   County, Texas."
                

The county clerk was not in attendance upon court when the order was made. The order was filed by the county judge in the county clerk's office on January 2, 1937. On January 6, 1937, the county clerk issued notices reading as follows:

                "The State of Texas
                "County of Shackelford
                "To voters of Justice Precinct Number
                    Four of Shackelford County, Texas
                

"Notice is hereby given that the Commissioners' Court of Shackelford County, Texas, on the 28th day of December, 1936, passed an order calling for an election to be held in Justice Precinct Number Four of said County on Saturday, January 9th, 1937, and that said order provides that said election shall be held in each election box in said justice precinct on the said 9th day of January, 1937, between the hours of 8:00 o'clock A. M. and 7:00 o'clock P. M. as provided by law for the purpose of allowing the qualified voters of said Justice Precinct to vote upon the following issues which shall be printed on the ballots of said election:

"For legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of four per cent (4%) by weight.

"Against legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of four per cent (4%) by weight.

"For legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of fourteen per cent (14%) by volume.

"Against legalizing the sale of vinous and malt liquors that do not contain alcohol in excess of fourteen per cent (14%) by volume.

"For legalizing the sale of all liquors.

"Against legalizing the sale of all liquors.

"Witness my official hand and seal of office this the 31st day of December, 1936.

                     "[Signed] R. S. Long
                              "County Clerk, Shackelford
                                         County, Tex
                          "By [Signed] Margaret Darling
                                             Deputy."
                

On the same day (January 6, 1937) three copies of said notice were posted by the sheriff at three schoolhouses in said precinct. On January, 11, 1937, the commissioners' court of Shackelford county at a regular meeting canvassed the returns of the election and declared the result to be in favor of legalizing the sale of vinous and malt liquors of alcoholic content not in excess of 4 per cent. by a majority of 15 votes; of vinous and malt liquors with alcoholic content not in excess of 14 per cent., by a majority of 16 votes; and of all liquors by a majority of 16 votes. The court having rendered judgment in accordance with the conclusions above stated, the statutory contestee has appealed.

On the question of the sufficiency of the election order, it is to be observed that it shows no action by the commissioners' court directing that the election be held. The purported order recites the presentation, nature, and contents of a petition for the election, and a motion by one of the commissioners that an order pass calling said election to be held at a time and at places stated, and that the regular judges hold same; but no action on the motion is shown. This defect in the order was recognized by the contestee and was sought to be obviated by parol testimony of one of the commissioners to the effect that the motion was put to a vote and carried, thus ordering the election in accordance with the prayer of the petition.

If such parol evidence was inadmissible for reasons other than that it was incompetent, we are of the opinion that any error in its admission has been waived. Contestee presents no cross-assignments of error specifying as a ground of error the ruling or action of the court in admitting the testimony. This court has had occasion in a number of cases to express its views upon the necessity of cross-assignments of error under such circumstances, among which, with the authorities cited, see Hardwicke v. Trinity Universal Ins. Co., 89 S.W.(2d) 500 (syllabus 7); Miller v. Fenner, Beane & Ungerleider, 89 S.W.(2d) 506 (syllabus 5); Texas Co. v. Graham, 107 S.W.(2d) 403.

If, however, the parol testimony was inadmissible, we think it was so for the reason that it was incompetent. In such case, even if the testimony was admitted without objection, it could not properly be considered in determining the sufficiency of the order. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533. See also collation of authorities in United States Fidelity & Guaranty Co. v. Inman (Tex.Civ.App.) 65 S.W.(2d) 339.

Was the testimony inadmissible? Its admissibility is sought to be sustained on the principle declared in certain decisions to the effect that if an order is passed but not entered of record, it is not necessarily void because of the failure to enter it, and may be proved by parol evidence. Brown v. Ruse, 69 Tex. 589, 7 S.W. 489; Ewing v. Duncan, 81 Tex. 230, 16 S.W. 1000; Rusk County v. Maloney (Tex.Civ.App.) 38 S.W.(2d) 868; Marshall v. Simmons (Tex.Civ.App.) 159 S.W. 89; Whitaker v. Dillard, 81 Tex. 359, 16 S.W. 1084.

But, as we see it, the question is not one of proving an order which was actually made but not entered of record. The law requires the order to be in writing. This results as a necessary implication from the requirement that copies of the order shall be posted as notices of the election. Vernon's Ann.P.Code, art. 666 — 34. The order was in writing. The effect of the testimony, therefore, was to change the terms of the order by adding essential requisites. This, we think, was a violation of the parol evidence rule under the following authorities: Gano v. Palo Pinto County, 71 Tex. 99, 8 S.W. 634; Brown v. Reese, 67 Tex. 318, 3 S.W. 292; Polly v. Hopkins, 74 Tex. 145, 11 S.W. 1084; Ball v. Presidio County, 88 Tex. 60, 64, 29 S.W. 1042, 1043; City of Tyler v. L. L. Jester & Co. (Tex.Civ. App.) 74 S.W. 359, 366; King v. Marion County (Tex.Civ.App.) 202 S.W. 1052; Mosler Safe Co. v. Atascosa County (Tex. Civ.App.) 184 S.W. 324.

The validity of the order of election and of the notice of election may properly be considered together since the same principles are believed to be applicable to each. The defect in the order has already been stated. There were two defects in the notice: (1) The notice was not a copy of the order; and (2) it was not posted for at least six days before the day of the election. The statute requires the clerk to "post or cause to be posted at least one copy of said order in each election precinct * * * for at least six (6) days prior to the day of election." Vernon's Ann.P.C. art. 666 — 34. The notices were posted late in the afternoon of January 6, less than three days prior to the day of election.

We have been favored by counsel for both parties with very thorough and helpful briefs. The validity of the election was sought to be sustained by showing that, notwithstanding the defects in the order calling the election and in the notices of election and time of posting, there was a full and fair expression...