Ex parte Whitlow

• Decision Date: 20 April 1883
• Docket Number: Case No. 4754.
• Citation: 59 Tex. 273
• Parties: EX PARTE WHITLOW.
• Court: Texas Supreme Court

59 Tex. 273

EX PARTE WHITLOW.

Case No. 4754.

Supreme Court of Texas.

Apr. 20, 1883.

APPEAL from Wichita. Tried below before the Hon. B. F. Williams.

An ex parte proceeding begun by A. G. Whitlow in the district court on the 30th of December, 1882, under section 10, chapter 76, acts 1879, regulating the removal and location of county seats; protesting against the result of an election, held in Wichita county on 7th November, 1882, as declared by the county judge in his official count on the 22d of December, 1882. The declaration of the result of the election, as certified by the county judge, showed no place in nomination and voted for, as the permanent location of county seat, to have received a majority of votes cast.

The object of the protest was to contest the validity of certain votes cast, in certain precincts, on the ground of illegality, and to exclude the same in the counting of votes, as against one of the places in nomination for county seat, and to add one other vote claimed to have been illegally excluded by the managers of the election in precinct No. 4, as having been voted for “state school section No. 2,” one of the places in nomination for county seat.

The court dismissed the protest for want of jurisdiction.Wm. W. Flood, for appellant, cited Const., art. IX, sec. 2; Acts 1879, ch. 76, p. 84, sec. 10; 42 Tex., 349. Dissenting opinion of Justice Gould in Ex parteTowles, 48 Tex., 414.

STAYTON, ASSOCIATE JUSTICE.

In the case of Ex parteTowles, 48 Tex., 414, it was in effect decided that the constitution did not confer jurisdiction upon the district court in cases of this character, and that the legislature had no power to change the jurisdiction given by the constitution, unless the power to make such change was given to the legislature by the constitution itself.

In that case the matter was sought to be tried in the district court upon appeal from a county court, and although the act of the legislature then in force provided for such appeal, yet it was held that an appeal would not lie.

If the legislature had no power to confer such an appellate jurisdiction upon the district court, the constitution not having confided such appellate jurisdiction to some other tribunal, the legislature would be equally impotent to confer an original jurisdiction over the matter upon that court.

The constitution does not expressly prohibit the legislature from conferring either appellate or original jurisdiction upon the district courts, which is not given by the constitution itself; but it must be presumed that the constitution conferred upon each court created by it all the jurisdiction which it may have intended it should exercise, and that the legislature has no power to add to, or withdraw...