Harrell v. Lynch, Case No. 1897

• Decision Date: 06 November 1885
• Docket Number: Case No. 1897
• Citation: 65 Tex. 146
• Court: Texas Supreme Court
• Parties: J. M. HARRELL, COUNTY ATTORNEY, ET AL. v. J. H. LYNCH ET AL.

65 Tex. 146

J. M. HARRELL, COUNTY ATTORNEY, ET AL.

v.J. H. LYNCH ET AL.

Case No. 1897

Supreme Court of Texas.

Nov. 6, 1885.

APPEAL from Bowie. Tried below before the Hon. W. P. McLean.

This proceeding was a bill for an injunction filed by appellees to restrain the appellants, who were the county officers of Bowie county, from removing their offices and archives, records, books, papers, etc., from Boston, Bowie county, Texas, to Texarkana, in that county, which the bill alleged they were unlawfully about to do in consequence of, and in obedience to, an order of Jno. J. Bell, county judge of Bowie county, by him entered on the records of the commissioners' court, adjudging and ordering “that the county seat of Bowie county be and is hereby removed from its present location at Boston, to Texarkana, Bowie county, Texas.” The bill alleged in substance:

1st. That plaintiffs were residents of Boston, Texas, and owned real and personal property in the town of Boston, and in the county of Bowie, and were citizens and taxpayers in that county.

2d. That on August 10, 1885, a petition was presented to the county judge, signed by two hundred free-holders, praying for an order for an election to move the county seat from Boston to New Boston; that on August 15 an order for such election was made by the county judge, to be held on Thursday, September 24, 1885; that on that date such election was held in Bowie county, and that on September 28, thereafter, the county judge opened the returns and estimated and declared the result, which was as follows:

For removal to Texarkana, 2,551 votes; for removal to New Boston, 626 votes; for removal to Petty's Ferry, 1 vote; for removal to Jim Hubbard, 1 vote; for remaining at Boston, 499 votes; making a total of 3,678 votes; and thereupon entered up his order and judgment declaring that Texarkana had received more than two thirds of the votes polled, and ordering that the county seat of Bowie county, “be, and is hereby removed from its location at Boston to Texarkana, Bowie county, Texas,” etc.

5th. That the result of the election was obtained by various frauds alleged to have been committed in Texarkana and precinct No. 1, in which Texarkana was and is situated.

6th. That plaintiffs were induced to purchase real property at Boston on account of its being the county seat of Bowie county; that such property was worth $10,000, and if the county seat was moved it would be thereby depreciated in the sum of $5,000; that plaintiffs were all tax-payers in Bowie county; that the county jail and courthouse (of the value of $7,000) would be rendered worthless to the county, and new public buildings would have to be erected at great expense to the taxpayers, etc.

7th. That the defendants, the county officers, were about to remove their offices, etc., and prayed for an injunction restraining them from so doing, and on final hearing for a decree perpetuating such injunction; that the petition, orders of the county judge, election and all proceedings thereunder, be declared null and void, and for general relief.

The injunction was granted upon the plaintiff's making of a bond in the sum of $500. The defendants appeared and filed, first, a plea to the jurisdiction of the court by demurrer, which was overruled by the court. Defendants then filed a general demurrer to the bill, which was also overruled, and the court rendered final judgment perpetuating the injunction.

Estes & Henry, Tilson & Henderson, Todd & Hudgins, D. T. Leary, W. W. Dillard, O. C. Porter, J. M. Talbot, H. C. Hynson, R. D. Harrell, for appellants, cited: Const. of Tex., art. 9, sec. 2; Acts of 1875, p. 87 et seq.; Act of April 10, 1879, R. S., app., p. 22; W. U. Tel. Co. v. State, 62 Tex., 630;Baker v. Chisholm, 3 Tex., 157;Alley v. Denson, 8 Tex., 297;Asberry v. Beavers, 6 Tex., 457;Walker v. Tarrant Co., 20 Tex., 16;Wright v. Faucett, 42 Tex., 203;Rogers v. Johns, 42 Tex., 339;ex parte,Towle, 48 Tex., 413;Williamson v. Lane, 52 Tex., 344;ex parte,Whitlow, 59 Tex., 273;Gibson v. Templeton, 62 Tex., 555;State ex rel Jennett v. Owens, 63 Tex., 261;Newton v. Com'rs., 100 U. S., 548;Fearing v. Irwin, 55 N. Y., 486;Wilkinson v. Cheatham, 43 Ga., 258;Howes v. Grush, 131 Mass., 207; Sanders v. Metcalf, 1 Tenn. ch., 419; Maize v. State, 4 Ind., 342;Santo v. State, 2 Ia., 165;Weir v. Cram, 37 Ia., 649; Wilson v. Leslie, 20 Ohio, 173; Cooley Const. Lim., 192, 195, 196, 197, 211 et seq.; 2 High on Inj., 2 ed., secs 1257, 1258, 1316, 1321.

M. L. Sims and John L. Sheppard, for appellees, on jurisdiction, cited: Const. of the State, sec. 8, art. 5, sec. 2, art. 9, sec. 56, art. 3, sec. 48, art. 16; County of Anderson v. Kennedy, 58 Tex., 616;Purvis et al. v. Sherrod, 12 Tex., 140;Fort Worth v. Davis, 57 Tex., 236;ex parte,Whitlow, 59 Tex., 273; 2 High on Inj., 2 ed., arts. 1308-9, 1319, 1321, 1327, 1257-8; McCrary on Elect., 2 ed., art. 458; Bosen v. Smith et al., 47 Ill., 482; 3 Wait's Acts. and Def., 749, (title, public officers); 3 Wait's Acts. and Def., 680, et seq. (title, injunction); Fowler et al. v. Brown et al., 5 Tex., 407-8;Alley v. Dinson, 8 Tex., 299; Cooley on Const. Lim., 2 ed., 227.

On constitutionality, they cited: Const. of the State, 1876, sec. 2, art. 9; Const. of the State, 1874, sec. 40, art. 12; Bill of Rights, secs. 13, 19, 29; Acts Leg. 1879, R. S., app., p. 22; Acts Leg. 1875, 87; Acts Leg. 1838, Pas. Digest, art. 1067; ex parte,Towle, 48 Tex., 413;Williamson v. Lane, 52 Tex., 335;city of Fort Worth v. Davis, 57 Tex. 236;ex parte,Whitlow, 59 Tex., 273;Gibson v. Templeton, 62 Tex., 557;State ex rel. Jennett v. Owens, 63 Tex., 261; Owens v. State ex rel. Jennett, Tyler Term, 1885; W. U. T. Co. v. State, 62 Tex., 630; Cooley's Const. Lim. 2 ed., 214, 215, 216, 217, 218; Warren et al. v. Mayor and Aldermen of Charleston, 2 Gray, 84.

ROBERTSON, ASSOCIATE JUSTICE.

It was claimed by the appellees in the court below that the removal of the county seat of Bowie county from Boston to Texarkana was not effected by the election of September 24, 1885, on two grounds: first, that illegal votes and fraud produced the majority counted for Texarkana in that election; and second, that the law under which the election was held was unconstitutional and void. Upon the latter ground, without reference to the former, the court below rendered a decree perpetuating upon the petition of appellees an injunction restraining appellants, the county officers of Bowie county, from transferring their offices and the county records and archives to Texarkana. On this appeal the appellants contend that the law under which the election was held was constitutional, and that the district court of Bowie county was without power to question the declared result of that election.

The theory upon which the court below held, and on which the appellees here contend that the act of April 10, 1879, under which the election was had, is repugnant to the constitution, is that section ten of that act being manifestly void upon the authority of ex parte Towle, 48 Tex., and ex parte Whitlow, 59 Tex., there is not enough of the law left to effectuate the object of the law, or that section ten forms so material a part of the act that the legislature would not have passed it if the invalidity of that section had been anticipated. It was upon this theory that the act of March 13, 1875, also providing for the removal of county seats, was held to be repugnant to the constitution in ex parte Towle.

The third section of the act of 1875 provided that the result of the county seat election authorized by the act should be ascertained by the presiding justice of the county and declared in a certificate, and that this certificate should be prima facie evidence of the truth of the matters therein stated. What was to be done with the certificate was not provided. It was not given the force and effect of a declaration, political or judicial, that the object of the election, the refusal to remove, or the removal of the county seat, had been accomplished, but only in any proceeding or inquiry in which the result of the election should come in question the certificate of the presiding justice should be “ prima facie evidence of the truth of the matters therein stated.” In the enactment of this section it was evidently contemplated, from the excitement attending such elections in the past, and the dissatisfaction with the result manifested by appeals to the courts in every form suggested by the learning of counsel, and on every ground imaginable in law, that the contest provided for by the fourth section would be instituted in every case in which it was authorized. This contest was to be had in the first instance in the commissioners court, but it was provided that it could be had de novo on appeal, and on some contingencies, originally, in the district court. An appeal was also given from the district to the supreme court, and until the final adjudication of the...