Hill v. Ramsower

• Decision Date: 31 October 1923
• Docket Number: (No. 6697.)
• Citation: 258 S.W. 495
• Parties: HILL et al. v. RAMSOWER, County Attorney.
• Court: Texas Court of Appeals

258 S.W. 495

HILL et al. v. RAMSOWER, County Attorney.

(No. 6697.)

Court of Civil Appeals of Texas. Austin.

October 31, 1923.

Rehearing Granted January 9, 1924.

Rehearing Denied February 13, 1924.

Appeal from District Court, Burnet County; J. H. McLean, Judge.

Suit by W. T. Hill and others against V. A. Ramsower, County Attorney. From an order sustaining a plea in abatement and dismissing the suit, plaintiffs appeal. Reversed, with instructions.

J. Harris Gardner and White, Wilcox, Graves & Taylor, all of Austin, for appellants.

Hammond, Christian & Hammond, of Burnet, and V. A. Ramsower, of McAllen, for appellee.

BLAIR, J.

This is an appeal from an order sustaining a plea in abatement and dismissing a suit instituted by appellants to contest an election held in the Oatmeal consolidated school district No. 25, in Burnet county, for the purpose of authorizing the issuance of bonds in the sum of $4,000, with which to erect a school building. Appellants, as contestants and residents of the school district in question, filed a petition in the district court of Burnet county, on July 15, 1922, alleging that an election was ordered in said school district by the county judge of said county, to be held on May 20, 1922, to determine whether or not bonds should issue with which to erect a school building; that on June 16, 1922, the commissioners' court of Burnet county declared the results of the election to be 52 for and 45 against the bond issue. The petition further alleged several irregularities as to notice and other matters concerning the holding of the election; and further that several voters were permitted to vote for the bonds who were not qualified voters in said common school district; also that other voters were intimidated by election officers and cast votes for the bonds when it was their desire to vote against the same. No allegation was made that notice had been given by the contestants to the contestee of their desire to contest the election; nor was it alleged that they had furnished contestee a written statement of the grounds upon which they sought to contest the election. On July 15, 1922, the clerk of the district court of Burnet county issued a citation based upon the petition filed, which was the regular form of citation used in civil cases, and in which the nature of plaintiffs' demand was stated by the clerk by merely copying into the citation appellants' petition, except the signatures thereto. This citation was delivered to the sheriff of Burnet county, who on the same day, July 15, 1922, made his return in accordance with the command, showing that he had at a certain time and place delivered to V. A. Ramsower, county attorney of Burnet county, in person a true copy of this citation. At the January term, 1923, of said court, the case was regularly called for trial, and contestee's plea in abatement requesting the court to dismiss the cause of action for want of jurisdiction because of the failure of contestants to give contestee notice as required by law that they intended to contest said election, and because contestants did not serve contestee with a written statement, signed by contestants, their agents or attorneys, of the grounds on which they intended to contest said election, as provided by article 3051 of the Revised Statutes, was sustained by the court; to which ruling the appellants duly excepted and gave notice of appeal, and here now present their case upon the record.

The order of the court dismissing the cause was a general one to the effect that it was the opinion of the court that the law was with contestee, and that the cause should be dismissed.

Opinion.

The appellants by assignments of error contend that the trial court erred in dismissing their cause of action, because of a failure to give notice to contestee of their intention to contest the election and to furnish him with a written statement of the grounds upon which they intended to contest said election, for the reason that a citation was served upon contestee setting forth plaintiffs' petition, which alleged the grounds upon which appellants intended to contest said election, and was therefore a substantial compliance with article 3051, Revised Statutes. Article 3051, Revised Statutes, requires three conditions precedent to confer jurisdiction upon the district court to hear and determine election contests. They are as follows: (1) Contestants must give notice in writing to contestee of their intention to contest the election. (2) Contestants must give contestee a written statement of the grounds upon which they rely to contest said election. (3) Such written notice and written statement of grounds of contest as provided for in the two preceding prerequisites must be given contestee within 30 days from the date of the return day of said election.

We are of the opinion that contestants did not comply with the second prerequisite in this case, in that they failed to furnish contestee with a written statement of the grounds upon which they relied to contest said election. The statute which requires a written statement of the grounds of contest to be served by contestants upon contestee is not complied with by serving a citation as in civil cases, in which citation the clerk, acting in his official capacity, after stating that the nature of plaintiff's demand is as follows, to wit, sets forth plaintiff's petition, except the signatures thereto. The clerk, in his official capacity, is not an agent or an attorney for a contestant of an election, and contestee is entitled to a written statement of the exact grounds upon which the contestant relies, and not in substance what is contained in his petition. This article of the statute has been construed numerous times by this and other Courts of Civil Appeals as well as by the Supreme Court, and, although no case has been found presenting the exact state of facts as this case, we are of the opinion that they by analogy sustain our holding herein.

A summary of the holdings of the decisions construing this article is as follows:

"To decide the results of an election is part of the process of political organizations and not a question of private right. 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." Wright v. Fawcett, 42 Tex. 203; Lindsey v. Luckett, 20 Tex. 516; Barker v. Wilson (Tex. Civ. App.) 205 S. W. 543; Odell v. Wharton, 87 Tex. 173, 27 S. W. 123.

Election contests are not subject to the rules of procedure in civil suits. Same authorities cited above, and Norton v. Alexander, 28 Tex. Civ. App. 466, 67 S. W. 787.

The provisions of article 3051 are mandatory and cannot be waived. The district court is without jurisdiction to hear and determine election contests, unless the provisions of article 3051 have been complied with. Bassel v. Shanklin (Tex. Civ. App.) 183 S. W. 105; Barker v. Wilson (Tex. Civ. App.) 205 S. W. 543; Lindsey v. Luckett, 20 Tex. 516; Wright v. Fawcett, 42 Tex. 203; Mercer v. Woods, 33 Tex. Civ. App. 642, 78 S. W. 15; Garitty v. Halbert (Tex. Civ. App.) 235 S. W. 231.

Each of the prerequisites prescribed by article 3051 must be complied with. It avails a contestant nothing that he has complied within one or more of the requirements, where it is shown that he failed to comply with any one of them. Barker v. Wilson (Tex. Civ. App.) 205 S. W. 543, and cases cited.

Oral notice of the grounds of contest is not sufficient. Neither the notice of the time in which notice is to be given, or the statement of the grounds of the contest, can be waived, since jurisdiction is not a subject of waiver. Barker v. Wilson (Tex. Civ. App.) 205 S. W. 543, and cases cited.

Service of a copy of a citation issued upon a petition filed in the district court to contest an election within 30 days after the result of said election has been declared has been held by some courts as sufficient notice of the contestants' desire to contest the election. Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169.

Service within 30 days after the official declaration of the result of an election of a citation and a copy or certified copy of contestant's petition filed in the district court to contest such election has been held to be a substantial compliance with the article under discussion. Barker v. Wilson (Tex. Civ. App.) 205 S. W. 543; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671; Dunne v. Sayers (Tex. Civ. App.) 173 S. W. 503; Garitty v. Halbert (Tex. Civ. App.) 235 S. W. 231; Kennison v. Du Plantis (Tex. Civ. App.) 220 S. W. 118; Messer v. Cross, 26 Tex. Civ. App. 34, 63 S. W. 169; R. S. of Texas, art. 3051.

Thus it will be seen that courts have gone far in their interpretation of this...