Funderburk v. Schulz, 13014

• Decision Date: 20 September 1956
• Docket Number: No. 13014,13014
• Citation: 293 S.W.2d 803
• Parties: E. C. FUNDERBURK et al., Appellants. v. Adrian SCHULZ et al., Appellees.
• Court: Texas Court of Appeals

Page 803

293 S.W.2d 803

E. C. FUNDERBURK et al., Appellants. v. Adrian SCHULZ et al., Appellees.

No. 13014.

Court of Civil Appeals of Texas, Galveston.

Sept. 20, 1956.

Rehearing Denied Oct. 11, 1956.

Cutrer, Burks & Burrus, Lewis W. Cutrer and Thomas Burrus, Houston, for appellants.

Painter, Painter & Cook, J. H. Painter, Jr., Ernest A. Knipp, Houston, for appellees.

GANNON, Justice.

This is a contest of a bond election held in the Aldine Independent School District of Harris County on November 19, 1955, to decide upon the issuance of $3,500,000 of bonds. On November 21, 1955, the Board of Trustees of the District declared the results of the election to show that the bond issue carried. The appellants, E. C. Funderburk, and others, all residents of the District and qualified under the law as taxpaying property owners within the District, brought this contest seeking to set aside the declaration of the results of the election and to enjoin the District from issuing any bonds based thereon.

The contestants named as contestees the following: Aldine Independent School District, which was sued in its capacity as a public corporation and body politic, Adrian Schulz, O. K. Saathoff, Roy L. Anderson, Ralph T. Bellamy, J. E. Harrell, Joe Thompson, and M. F. McCracken, trustees of the District, and Burke Holman.

Burke Holman was sued in his official capacity as the county attorney of Harris County. But we regard his presence in the case as irrelevant to the questions hereinafter discussed. We rule he was not a proper party contestee in the present proceeding.

The individual defendants comprising the Board of Trustees of the District, though not made parties in their personal capacities, were sued individually in their official capacities as members of the Board. There were allegations that the contestee members of the Board of Trustees, each and all, ordered the contested election and that each and all of them officially declared the results thereof.

The contestees filed a plea in abatement, setting up want of jurisdiction in the trial court to entertain the contest. The gist of the plea is that though personal service of notice of intention to contest and of a statement of the grounds of such contest was had upon two members of the Board of Trustees, namely Joe Thompson and M. F. McCracken, neither the District itself, in its corporate capacity, which was claimed to be the sole proper and necessary contestee, nor the remaining members of the Board of Trustees, were personally served with such notice and statement of the grounds of the contest, and that contestants' attempted substituted service upon these parties was invalid and unauthorized because said parties so served with substituted service, each and all, could have been found within the county, as contemplated by statute within the statutory thirty-day period and personally served with process.

The trial court sustained the plea in abatement and dismissed the contest for want of jurisdiction. This appeal follows.

Appellants assign several points of error but, in the view we take of the case, it is necessary to consider only the second point, reading as follows:

'The trial court erred in sustaining the aforesaid plea and dismissing this cause for the reason that the undisputed evidence shows that two of the members of the Board of Education of the Aldine Independent School District, Joe Thompson and M. F. McCracken, were made party Contestees herein in their official capacities as members of said Board, and personal service of the notice and statement of election contest were had upon them in the time and manner required by law, and therefore, under Article 9.31 (Election Code), Vernon's Annotated Texas Statutes, such court had jurisdiction of this election contest.'

Appellees counter appellants' second point with the proposition that since the Board of Trustees of the Aldine Independent School District was 'the officer who declared the result of the election,' the Board as such was the only proper and necessary contestee and in the absence of proper service of notice of contest upon the Board as such within the thirty-day period required by statutes, the trial court was without jurisdiction of the election contest.

Without ruling on the sufficiency of the substituted service, we decide the case on the assumption that the trial court was justified in determining the invalidity and insufficiency of such service, and base our decision upon the timely personal service of notice of the contest and of a statement of the grounds thereof upon two members of the Board.

We hold that each and all of the members of the Board who acted officially in declaring the results of the election were officers within the meaning of that term as used in Article 9.31 of the Election Code, V.A.T.S. reading as follows:

'In any case provided for in the preceding Section (art. 9.30), the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town, or village which they may represent, nor shall such contestee be required to give bond upon an appeal. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 159.' (Emphasis supplied.)

We further hold that where any one of the officers declaring the results of an election contest is made a party thereto, others though proper parties are not necessary or indispensable parties to such contest in order to confer jurisdiction on the trial court.

We feel that any possible ambiguity in respect to the meaning of the statutory expression 'the officer who declared the official result of said election, or one of them' has been resolved by the re-enactment, after judicial construction without substantial change in verbiage, of Article 3078 of the Revised Statutes of 1911, and of its counterpart, Article 3070 of the Revised Statutes of 1925, by the Election Code of 1951.

The quoted expression as it appeared in Article 3078 of the 1911 Statutes, and in Article 3070 of the 1925 Statutes, was construed in 1925 by the...