Ex parte Towles

• Citation: 48 Tex. 413
• Parties: EX PARTE T. J. TOWLES ET AL.
• Decision Date: 01 January 1877
• Court: Texas Supreme Court

48 Tex. 413

EX PARTE T. J. TOWLES ET AL.

Supreme Court of Texas.

1877.

APPEAL from Van Zandt county. Tried below before the Hon. M. H. Bonner.

On the 16th of May, 1877, an election was held in Van Zandt county, by order of the county judge of that county, on the petition of a number of voters, to locate the county-seat. Canton, then the county-seat, and within five miles of the geographical center of the county, and Wills Point, a town in said county, more than five miles from the geographical center of the county, were voted for.

The county judge having refused to receive and estimate the vote of Canton and another precinct, and estimating the whole vote cast at Wills Point and the other precincts, declared and certified that Wills Point had received 652 votes and Canton 310, and that Wills Point, having received two-thirds of the whole, was elected.

Within twenty days after said election, T. J. Towles and other voters of said county, acting under section 4 of act of 13th of March, 1875, attempted to contest said election, by filing their protest against the same with the clerk of the County Court.

This contest came on to be heard by the County Court on the 20th of June following, and was determined by the County Commissioner's Court adversely to said contestants. Whereupon one of the contestants, claiming to be a legal voter of said county, gave notice of appeal to the District Court of said county, and gave bond, which was approved June 20, 1877, by the county clerk of said county. A transcript of said appeal was filed in the District Court.

The preceding action was had in the County Commissioner's Court. No action was had in the County Court, and to meet that phase of the case, under section 4, page 89, of the above-recited act, the contestants, within five days after the expiration of thirty days given the County Court to try said protest, filed in the District Court a certified copy of said protest and original proceedings, invoking the original jurisdiction of said court. By the above-recited act, as will be seen, it is provided, that “until final adjudication of contest under this act, the county-seat shall remain at the place antecedently fixed by law.”

The county officers, however, at once removed the county records and their offices to Wills Point, which place alone was afterwards recognized as the county-seat of said county.

Under this state of facts, T. J. Towles, and other voters of said county, applied to the Hon. M. H. Bonner, judge of the District Court of said county, in vacation, for a peremptory writ of mandamus, to compel the clerks of the District and County Courts of said county to return the records and keep their offices at Canton during the pendency of said proceedings.

This application was refused by the district judge. At the time for holding the District Court of Van Zandt county, it was opened by the judge at Wills Point; an order was entered consolidating the three proceedings, and the consolidated case was dismissed by the court for the want of jurisdiction.

From this judgment of the court this appeal was taken.

On the 18th of January, 1874, the Legislature of Texas, by a joint resolution, ratified the following amendment to the Constitution, which had received a majority vote of the people, viz.: “Section 40. (art. 12.) The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say, for locating or changing county-seats; regulating county or town affairs; regulating the practice in courts of justice; regulating the duties and jurisdiction of justices of the peace and constables; providing for changes of venue in criminal and civil cases; incorporating cities or towns, or changing or amending the charter of any city or village; providing for the management of common schools; regulating the rate of interest of money; remitting fines, forfeitures, or penalties; changing the law of descent. In all other cases where a general law can be made applicable, no special law shall be enacted; or in any case where a general law can be made applicable, no special law shall be enacted. The Legislature shall pass general laws providing for the cases before enumerated in this section, and for all other cases which in its judgment may be provided for by general laws.”

After and in pursuance of the foregoing amendment, the Legislature, on May 1, 1874, passed an act “providing for the removal of county-seats.” The first section of that act is as follows, viz.:

“Section 1. When a majority of the registered voters of any county shall petition the presiding justice of said county for the removal of the county-seat of said county, it shall be the duty of such presiding justice to order an election for that purpose, giving due notice thereof as in other elections, which election shall be held at the same places and in the same manner as other elections for State and county officers, and the result of said election shall fix and establish the county-seat of said county.”

Section 3 of said act provides that the presiding justice of the county shall, on the tenth day after the time of holding such an election, open the returns of the vote and estimate the result, and shall make and issue his certificate, which shall state the aggregate number of votes polled for each place voted for, and what point or place, if any, received the number of votes required under the law to change the county-seat, which certificate shall be prima-facie evidence of the truth of the matters therein contained, and no other election shall be held for the period of five years, having for its object a change of the county-seat.

Section 4 of said act is as follows, viz.: “Any legal voter of the county may contest the result of said election, by filing, within twenty days after the result of said election for county-seat has been declared, his written protest against said result as declared, with the clerk of the County Court, which protest shall contain the grounds on which said voter intends to contest said election. After the filing of said written protest, the County Court of the county shall, within thirty days, proceed to try said contest, and shall determine the same upon the law and the facts; and for the purposes of said trial, the County Court shall have full authority and power to compel the attendance of witnesses, and the production of all papers and documents necessary for the proper determination of such contest according to the law and the facts. After the determination of said contest by said County Court, any legal voter of the county, who may feel himself aggrieved by the decision of said County Court, may appeal said matter to the District Court of the county, by filing a bond conditioned for the payment of all costs, which bond shall be payable to the preciding justice of the county, which said bond shall be approved by the county clerk; or if the County Court shall fail or refuse, from any cause, within the thirty days aforesaid, to try and decide said contest, the party filing said protest shall have the right to be heard in the District Court of the county, by filing in said court, within five days after the expiration of the thirty days, a certified copy of his protest; and in such case the District Court shall exercise original jurisdiction to hear and determine said contest on the law and the facts. In all cases of appeal to the District Court from the decision of the County Court, or in case the District Court obtains original jurisdiction under this act, such contest shall have precedence on the docket,” &c. “In case of appeal to the District Court, the case shall be tried de novo. Appeal from the decision or judgment of the District Court under this act shall be to the Supreme Court, under the regulations now required by law, so far as not inconsistent with this act; and so soon as said appeal is perfected to the Supreme Court, said court shall at once proceed to determine said appeal,” &c.

Section 56 of article 3 of the Constitution of 1876 provides: “The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special laws authorizing, * * * locating, or changing county-seats.”

Section 2 of article 9 of the Constitution of 1876 provides: “The Legislature shall pass laws regulating the manner of removing county-seats, but no county-seat situated within five miles of the geographical center of the county shall be removed, except by a vote of two-thirds of all the electors voting on the subject. A majority of such electors, however, voting at such election, may remove a county-seat from a point more than five miles from the geographical center of the county, to a point within five miles of such center; in either case, the center to be determined by a certificate from the commissioner of the General Land Office.”Jones & Henry, for relators.

1. If the fourth section of the act of 13th of March, 1875, (Gen. Laws, 14th Leg., 87,) is in force, the District Court erred in dismissing this case for want of jurisdiction of the appeal, provided “County Court,” in the act, can be read “County Commissioner's Court” under the Constitution.

2. If by “County Court” in said act is to be understood “County Court” as defined by section 15 of article 5 of the Constitution, then, no action having been taken in said court on the protest, the original jurisdiction of the District Court was invoked under the provisions of said fourth section of act of 13th of March, 1875, and section 8 of article 5 of the Constitution, by the filing of a certified copy of said protest in said court.

3. If the fourth section of the act of 13th of March, 1875, is unconstitutional, every provision of said act must be held unconstitutional. (Cooley's Const. Lim., 176, 177, 178; Reed v. Omnibus Railroad Co., 33 Cal., 212;People v. Mahaney, 13 Mich., 481;Commonwealth v. Hitchings, 5 Gray, 482;Slauson v. City of Racine, 13 Wis., 398; Warren...