Gates v. Hays, 9828.

• Decision Date: 25 March 1936
• Docket Number: No. 9828.,9828.
• Citation: 95 S.W.2d 1020
• Parties: GATES v. HAYS.
• Court: Texas Court of Appeals

95 S.W.2d 1020

GATES v. HAYS.

No. 9828.

Court of Civil Appeals of Texas. San Antonio.

March 25, 1936.

Rehearing Denied July 1, 1936.

Appeal from District Court, Zavala County; Lee Wallace, Judge.

Suit by Norman W. Gates against E. W. Hays. From a judgment dismissing the suit, the plaintiff appeals.

Reversed and remanded.

Ditzler H. Jones, of Uvalde, for appellant.

Mary West and Jackson & Crawford, all of Crystal City, and K. K. Woodley, of Sabinal, for appellee.

MURRAY, Justice.

Appellant, Norman W. Gates, instituted this suit in the district court of Zavala county against appellee, E. W. Hays, seeking to contest the result of an election held on November 6, 1934, at which election appellant and appellee were opposing candidates for the office of county commissioner of precinct No. 2, Zavala county. On November 12, 1934, the canvassing committee met, canvassed the election returns and declared appellee, Hays, elected to the office. On November 9, 1934, appellant caused a notice of his intention to contest, together with a copy of his petition, to be served upon appellee, and on the same day filed his election contest with the clerk of the district court. On January 1, 1935, Hays, having received a certificate of election, gave bond as required by article 3048, R.S.1925, took the oath and assumed the duties of the office of county commissioner of precinct No. 2.

Thereafter, on January 10, 1935, appellant, Gates, filed his first amended petition, in which he attempted to change his cause of action from an "election contest," to a "suit for office and its emoluments." Citation was prayed for and accordingly issued. The cause was thereafter continued that service might be perfected. At the next term of the court appellee filed his plea in abatement, based upon the grounds that appellant had not invoked the jurisdiction of the court to hear his election contest, because he served the notice required by article 3042 before the return day of the election, instead of within thirty days after said return day; and, further, that appellant should not be permitted to change an election contest to a suit for office by filing an amended petition.

The trial judge sustained the plea to the jurisdiction and dismissed the cause, from which judgment of dismissal appellant, Gates, has prosecuted this appeal.

The first question with which we are confronted is, whether or not our election statutes are to be construed as an exclusive remedy by which courts may inquire into the manner and form of conducting elections.

It has been held in this state that in all elections other than one of a person to an office, our statutes, articles 3041 to 3075, R.S.1925, provide the only and exclusive remedy for contesting such an election. 16 Tex.Jur. § 115, p. 142; Treaccar v. City of Galveston (Tex.Civ.App.) 28 S.W.(2d) 276; Thurston v. Thomas (Tex. Civ.App.) 7 S.W.(2d) 105. It is also equally as well settled that in an election for an office, our election contest statutes are not the exclusive remedy available to a candidate who contends that he was in fact elected at such election. Three remedies are available to him. He may bring an election contest under provisions of section 8, article 5, of the Constitution and article 3041 to article 3075, R.S.1925, known as the election contest statutes, which statutes carry into effect this constitutional provision; secondly, he may, with the joinder of the proper county or state official, bring, in the name of the state of Texas, a proceeding in the nature of a quo warranto; and, thirdly, he may bring a civil suit for the office and its emoluments. 16 Tex.Jur. 151; Gray v. State, 92 Tex. 396, 49 S.W. 217, 218; Stubbs v. Moursund (Tex.Civ.App.) 222 S.W. 632; Shipman v. Jones (Tex.Civ.App.) 199 S.W. 329.

This very question was answered by the Supreme Court in the case of Gray v. State, opinion by Justice Brown, in the following language: "We answer the first question, that the district court had jurisdiction to try this suit. The amendment to article 5 of the constitution, which conferred power on that court to try contested elections, enlarged its jurisdiction, and the expression of the authority to try such cases did not limit its power to determine the same question by any other existing mode of procedure."

The Supreme Court had formerly, apparently, decided this question to the contrary. Wright v. Fawcett, 42 Tex. 203, opinion by Justice Gould. We quote from the opinion as follows: "Where the law has provided a mode of deciding cases of contested elections, designed to be final, the courts have no authority to adjudicate such cases, other than that the law may give to them." The case of Lindsey v. Luckett, 20 Tex. 516, is cited in the opinion and turning to that opinion, by Justice Roberts, we find good reasons why election contest statutes should be made an exclusive means of contesting the result of an election. Quoting from the opinion:

"Nor can it be reasonably supposed that the Legislature intended that a question as to the validity of the election, as between the candidates, should remain open during the whole term of service. * * *

"Again, it is the policy of the government that these disputes between individuals for office should be summarily and promptly settled."

However, notwithstanding the above reasons, and many others which might...