Fowler v. State

Decision Date18 January 1887
Citation3 S.W. 255
PartiesFOWLER <I>v.</I> STATE <I>ex rel.</I> GEORGE.
CourtTexas Supreme Court

county failed and refused to count the votes cast for relator at said precincts, and issued their certificate of election to one J. H. Fowler for said office; that relator was entitled to said office; and prayed the attorney of the state to institute proceedings to oust appellant herein, and place relator in possession, etc. A jury having been waived, the court gave judgment in favor of relator, ousting respondent. Respondent appeals.

Cowan & Fisher and J. F. Eidson, for appellant. J. B. Scarborough, for appellee.

WILLIE, C. J.

Article 39 of the Code of Criminal Procedure authorizes the district judge, whenever the district and county attorneys fail to attend any term of the court, to appoint some competent attorney to perform their duties during such term. Such appointee represents the state in all matters in which it may be interested that may arise during the term. The state is interested in a quo warranto proceeding like the present, and its representative is named in the statute as the proper person to file the information; and this information was filed during the term of the court at which Chaffee was appointed, and during the absence of the district and county attorney. The above article does not require the appointee to give bond, as does article 244, Rev. St., which provides for an appointment by the governor when the office becomes vacant. Moreover, Chaffee, who was made district attorney pro tem. in the absence of the regular attorney of the state, was recognized as such by the court, and as the proper officer to file this information, and he was at least a de facto district attorney, whose authority could not be attacked in this collateral manner.

The information alleged that George was a citizen of Nolan county, and entitled to the office of county treasurer; and this was a sufficient averment as to his being qualified to hold it, at least as against a general demurrer.

The allegation that the relator received a majority of the ballots of the qualified voters of the county was sufficient, without setting forth the fact which constituted their qualifications. The statute enumerates what facts must exist in any case to qualify a person to vote for this office. Hence to aver that a voter is qualified so to do is in effect to aver that he possesses all these qualifications. More definite allegation might have been required if the relator had claimed that ballots had not been counted on the ground that the persons casting them lacked some of the qualifications named in the statute, when in fact they possessed them all, and that thereby the relator lost his election; but this was not the case, no question of the kind having been raised.

As to all other objections to the pleadings of the appellee, it is sufficient to say that, taken together, they show a perfect title to the office in controversy, and the exceptions which we have not noticed are not deemed of any importance, or are not sustained by the record. The objections to the admissibility of evidence, and to the conclusions of law and fact found by the court, are either disposed of in what we have already said, or will be by what we shall say in determining the main and important question in the case. It is proper to add that any want of allegation in the informations as to the manner in which the election was conducted, and the returns made, is fully supplied by the pleadings of the respondent, and evidence upon that subject thereby rendered admissible.

The important question is as to whether the court below erred in counting the ballots cast at precinct No. 3 for the respective candidates for county treasurer, and in estimating them in determining who was legally elected to that office. The returns of precinct No. 4 are also brought in question, but whether they should have been counted or not is unimportant, because they do not affect the result. If the votes of precinct No 3 are to be estimated, the relator has received a majority, and is entitled to the office whether or not the returns of precinct No. 4, or the vote of that box, is taken into consideration. The only objections to box No. 3 which require attention are: (1) No tally-sheets of the votes cast, or poll-list of the voters by whom they were cast, were kept or returned by the presiding officer and managers of the election; (2) the election returns, which contained no more than a mere statement of the result of the voting, and the ballot-box containing the tickets voted,...

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37 cases
  • Mitchell v. Kinney
    • United States
    • Supreme Court of Alabama
    • January 15, 1942
    ...in numerous decisions. See, especially, Taylor v. Taylor, 10 Minn. 107; Russell v. McDowell, 83 Cal. 70, 23 P. 183; Fowler v. State, 68 Tex. 30, 3 S.W. 255.' (Italics supplied.)" [Parenthesis supplied in paragraph of quotation.] In McCall et al. v. Automatic Voting Mach. Corp. et al., 236 A......
  • State ex rel. City of Memphis v. Hackman
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1918
    ...... use of either poll books, ballot boxes or tally sheets. The. statute in regard to the duty of the clerk in this particular. is in no sense mandatory, but was simply intended to. designate someone by whom the duty should be performed. [ Willeford v. State ex rel., 43 Ark. 62; Fowler. v. State, 68 Tex. 30, 3 S.W. 255; Stockton v. Powell, 29 Fla. 1, 15 L.R.A. 42, 10 So. 688.] In the. absence, therefore, of any showing that the proper. instrumentalities were not employed, we overrule this. contention. . .          IX. The. regularity of the election is also ......
  • State v. Hackman
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1918
    ...but was simply intended to designate some one by whom the duty should be performed. Willeford v. State, 43 Ark. 62; Fowler v. State, 68 Tex. 30, 3 S. W. 255; Stockton v. Powell, 29 Fla. 1, 10 South. 688, 15 L. R. A. 42. In the absence, therefore, of any showing that the proper instrumentali......
  • Eason v. Robertson, 3342
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 1, 1956
    ...90), 107 S.W. 945 (no writ history); State ex rel. Paggi v. Fletcher (Tex.Civ.App.), 50 S.W.2d 450 (writ dis(missed)); Fowler v. State (68 Tex. 30), 3 S.W. 255. '5. The fact that Eldona Wilson did not reside in voting Precinct or Ward 7 is a mere irregularity which is not sufficient ground,......
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