Cofield v. Britton

• Decision Date: 14 March 1908
• Citation: 109 S.W. 493
• Parties: COFIELD et al. v. BRITTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

109 S.W. 493

COFIELD et al. v. BRITTON.^*

Court of Civil Appeals of Texas.

March 14, 1908.

On Rehearing, April 11, 1908.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Action by J. H. Cofield and others against A. J. Britton to contest a local option election. From a judgment for defendant sustaining the validity of the election, plaintiffs appeal. Affirmed.

W. W. Ballew, W. B. Teagarden, and E. A. Tharp, for appellants. M. D. Carlock, Hart & Hart, and H. C. Geddie, for appellee.

BOOKHOUT, J.

The following statement is taken from appellants' brief, and it appearing to be correct, is adopted: "J. H. Cofield, W. D. Kitchens, and J. W. Amos, appellants herein, filed a petition to contest an election held on the 28th of September, 1907, in commissioners' precinct No. 2 of Wood county, Tex., to determine whether or not the sale of intoxicating liquors should be prohibited in said commissioners' precinct, said election resulting in favor of prohibition. The case was tried before the Hon. R. W. Simpson, judge of the district court of Wood county, Tex., on the 15th day of November, upon an agreed statement of facts, and judgment was rendered against the contestants sustaining said election. Motion for new trial was prepared and overruled on the 16th day of November, 1907. Notice of appeal was given to the Court of Civil Appeals for the Fifth Supreme Judicial District, and said appeal was perfected by the filing and approval of an appeal bond and assignments of error. The undisputed facts in the case are as follows: The town of Quitman was incorporated by a special act of the Legislature on the 28th day of March, 1873 (Sp. Laws 1873, p. 158, c. 38). Said town organized under said special act of incorporation, and elected a mayor and other officers provided for in the act incorporating said town. Said incorporation has never been dissolved, repealed, annulled, or set aside, but has elected no officers for about 30 years. Each of the four commissioners' precincts of Wood county, Tex., center in the courthouse at Quitman, and divide said town, including about one-fourth of the incorporated limits in each commissioners' precinct. On the 15th day of February, 1901, the commissioners' court of Wood county, Tex., ordered an election to be held in justice precinct No. 7, of Wood county, Tex., on the 23d day of March, 1901, to determine whether or not the sale of intoxicating liquors should be prohibited in said justice precinct. Notice of said election was duly posted, as required by law, said election held, and the result thereof, which was in favor of prohibition, was afterwards declared and published, as required by law. In March, 1903, a local option election was held for the entire county of Wood, said election resulting in favor of prohibition. In 1905 another election was held for the entire county of Wood, which again resulted in favor of prohibition for the entire county. On the 31st day of August, 1907, the third election was held for the entire county of Wood, which election resulted against prohibition, and the result of which was duly declared and published, as required by law. On the 11th day of September, 1907, the commissioners' court of Wood county, Tex., ordered an election to be held on the 28th day of September 1907, for commissioners' precinct No. 2, Wood county, Tex., to determine whether or not the sale of intoxicating liquors should be prohibited in said commissioners' precinct. This election resulted in favor of prohibition. Commissioners' precinct No. 2 of Wood county, Tex., embraces all of justice precincts Nos. 2 and 7 and a part of justice precinct No. 1, including about one-fourth of the town of Quitman, and when said election was ordered and held the sale of intoxicating liquors had not been prohibited in justice precinct No. 1 or justice precinct No. 2 of the incorporated town of Quitman, and all that portion of justice precinct No. 1 which embraces the town of Quitman and all of justice precinct No. 2 is what is known as `wet' territory. While the sale of intoxicating liquors had been prohibited in justice precinct No. 7 by the election held on the 23d day of March, 1901."

This is a contest of a local option election authorized by article 3397 of the Revised Statutes of 1895. Such a contest is a special proceeding and the courts are limited in their investigation to such subjects as are specified in the statute. The sole questions to be determined are whether "the election was illegally or fraudulently conducted; or whether by the action or want of action on the part of the officers to whom was intrusted the control of such election such a number of legal voters were denied the privilege of voting as, had they been allowed to vote, might have materially changed the result; or if it appears from the evidence that such irregularities existed as to render the true result of the election impossible to be arrived at, or very doubtful of ascertaining." Rev. St. 1895, art. 3397. The investigation is restricted to the things done on the day of election in casting and receiving of ballots from the voters, counting the ballots, and making returns thereof. Norman v. Thompson, 96 Tex. 250, 72 S. W. 62.

Commissioners' precinct No. 2 in which the election was held was composed of all of the justice precincts Nos. 2 and 7 of Wood county and a part of justice precinct No. 1, which said justice precinct No. 1 included a part of the incorporated town of Quitman. The election resulted in said justice precinct No. 2 in a majority of 38 votes in favor of prohibition, and in justice precinct No. 3 in a majority of 80 votes in favor of prohibition, and in that portion of precinct No. 1 embraced within the limits of commissioners' precinct No. 2, which included a part of the town of Quitman, 14 votes in all were cast, 7 of which were for local option, and 7 against it, a majority in the entire commissioners' precinct of 118 votes in favor of prohibition.

The contentions raised in the brief of appellants are: (1) That the commissioners' court had no power or authority to order an election in a commissioners' precinct, because the same is not such a political subdivision of the county as is contemplated by the Constitution; (2) that the commissioners' court has no power to order a local option election for a commissioners' precinct, which embraces two or more justice precincts, unless all of said territory occupied the same status—all must be "wet" or all "dry"; (3) that the commissioners' court has no power to order an election for any subdivision of a county which divides a city or town.

There is no contention that there was any fraud in the holding of the election, i. e., the casting of the ballots, receiving of the ballots from the voters, counting of the ballots, or making of the returns. It is clear that the result of the election was not affected by the votes cast in justice precinct No. 1, which included a part of the town of Quitman. But 14 votes were cast therein, and 7 of those were in favor of local option, and 7 against it. It does not appear from the evidence that the election was illegally or fraudulently conducted, or that any legal voter desiring to vote was denied the right to do so, or that such irregularities existed as to render the true result of the election impossible to be arrived at, or of doubtful ascertainment. Such being the state of the record, there was no ground for the contest.

The questions raised by appellants' contentions relate, not to things done on the day of election, but to the action of the commissioners' court in ordering the election in this particular territory. These matters are not a ground of contest under the statute, and we are not authorized to consider the same. These conclusions are supported by the opinion in the case of Norman v. Thompson, supra, upon which they are based.

The judgment is affirmed.

Additional Conclusions.

When our opinion was prepared we overlooked the act of the Thirtieth Legislature approved May 14, 1907 (Gen. Laws 1907, p. 447, c. 8), amending article 3397 of title 59 of the Revised Statutes. Upon our attention being called to this statute we, of our own motion, set aside the judgment of affirmance. This amendment gives to the district court of the county in which a local option election has been held original and exclusive jurisdiction of all suits for the contest of a local option election, and confers upon such court "jurisdiction to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto, embracing final count and declaration and publication of the result putting local option into effect." This statute makes it our duty to pass upon all the contentions of appellant.

The first is that the commissioners' court had no power to order a local option election in a commissioners' precinct, because the same is not such a political subdivision of the county as is contemplated by the Constitution. The Constitution provides for the dividing of each county into four commissioners' precincts, and the election of one commissioner from each precinct, and that the commissioners so elected and the county judge shall compose the county commissioners' court. Article 5, § 18, Constitution. The statute makes similar provision. Rev. St. 1895, Arts. 1532, 1533. Section 20, art. 16, of the Constitution, as amended in 1891, reads: "The Legislature shall at its first session enact a law whereby the qualified voters of any county, justice's precinct, town, city (or such subdivision of a county as may be designated by the commissioners' court of said county) may by a majority vote determine from time to time whether the sale of...