Holcomb v. Spikes

• Decision Date: 06 June 1921
• Docket Number: (No. 1829.)
• Citation: 232 S.W. 891
• Parties: HOLCOMB et al. v. SPIKES.
• Court: Texas Court of Appeals

232 S.W. 891

HOLCOMB et al. v. SPIKES.

(No. 1829.)

Court of Civil Appeals of Texas. Amarillo.

June 6, 1921.

Rehearing Denied June 29, 1921.

Appeal from District Court, Lubbock County; W. R. Spencer, Judge.

Suit by S. C. Spikes against C. A. Holcomb and others to establish plaintiff's right to the office of tax collector. Judgment for the plaintiff, and defendants appeal. Affirmed.

W. H. Bledsoe and Percy Spencer, both of Lubbock, for appellants.

J. E. Vickers and W. F. Schenck, both of Lubbock, for appellee.

HUFF, C. J.

C. A. Holcomb was elected sheriff of Lubbock county November 2, 1920. S. C. Spikes was elected tax collector. The other appellants in this case were county judge and county commissioners of Lubbock county. The issue involved in this case is whether or not at the November election, 1920, Lubbock county had a population of 10,000, as determined by the next preceding census of the United States. Lubbock county under the 1910 census had a population of less than 10,000, but under the 1920 census the population is shown as 11,096. The appellee, S. C. Spikes, having noticed in the Dallas News prior to the July primaries a report that the population of the county was in excess of 10,000 applied to have his name placed on the official ballot as the Democratic candidate for the office of tax collector, but the application came too late for his name to go on the ticket. However, the voters of the county, by writing the appellee's name on the ticket, nominated him to such office. His name was certified as nominated by the party, and was placed on the official ballot at the November, 1920, election as a Democratic candidate. Having received the highest number of votes for the office, a certificate of election was issued to him by the county judge on November 26, 1920. The bonds required by law were prepared, duly signed, and tendered to the commissioners' court by the appellee, but were rejected by the commissioners court because "the official bond of S. C. Spikes was not approved for the reason that, while the court realized the bond is in proper form and is good and sufficient, but in the judgment of the court C. A. Holcomb, under the facts and circumstances, is entitled to the office." After the rejection of the bond appellee, Spikes, instituted suit against Holcomb, praying for a writ of injunction enjoining the said Holcomb and restraining him from exercising the functions of tax collector, and to restrain him from appropriating the fees of the office and against the county judge and commissioners to compel them to approve the bond of the appellee and install him in the office of tax collector. It is conceded in this case that the appellee received a majority of the votes and received his certificate of election, and that his bonds were in proper form and the sureties thereon sufficient, and that Holcomb was duly elected sheriff of that county. The only question presented for our determination is whether the census taken in 1920 determined the question under the Constitution of this state of the population of Lubbock county. The facts show that the Dallas News and other papers published the result of the census, giving Lubbock county over 10,000 inhabitants. On September 30, 1920, the following certificate was issued:

"I hereby certify that according to a preliminary count, subject to correction, of the returns of the fourteenth census of the United States, on file in the Bureau of Census, the population of the county of Lubbock, state of Texas, taken as of January 1, 1920, is 11,096. [Signed] Sam L. Rogers, Director of the Census."

And on the 10th of November, 1920, the following certificate:

"I hereby certify that according to the official count of the returns of the fourteenth census of the United States, on file in the Bureau of Census, the population of the county of Lubbock, state of Texas, taken as of January 1, 1920, is 11,096." Signed by the Director.

On the 30th day of September, 1920, the Director wrote a letter to John R. McGee, county attorney, in which he states:

"In compliance with your request of September 24th I take pleasure in inclosing herewith an official certificate of the population of Lubbock county, Texas, as shown by a preliminary county, subject to correction, of the returns of the fourteenth census, taken as of January 1, 1920"

—inclosing a bulletin to McGee, which was offered in evidence, which is as follows:

"Released for immediate use, Department of Commerce, Bureau of the Census, Washington. Fourteenth Census, preliminary announcement of population, subject to correction. Lubbock county, Texas.

                  1920               1910           1900
                 11,096             3,624           293"
                

The precincts of the county are given, which are not considered essential in this case; also a letter and bulletin addressed and inclosed to the Chamber of Commerce of the city of Lubbock. The letter and bulletin show the same facts as shown in the letter and bulletin sent to McGee. A trial was had before the court without a jury, and judgment rendered in favor of S. C. Spikes on the 7th of January, 1921, commanding the defendants, commissioners' court of Lubbock county, Tex., to approve in their official capacity the bond of appellee as tax collector, and further directing the appellant C. A. Holcomb to turn over to appellee all the books, papers, etc., of said office after the bonds of appellee were approved by the comptroller and after S. C. Spikes should have taken the oath of office.

The first and only assignment to be discussed is:

"The judgment is contrary to the law and evidence in that the undisputed evidence shows that defendant C. A. Holcomb was the duly elected and qualified sheriff of Lubbock county, Tex., and as such was entitled to the office of tax collector of Lubbock county, Tex., under the Constitution and laws of the state."

Article 8, § 16, of the Constitution of this state reads:

"The sheriff of each county, in addition to his other duties, shall be the collector of taxes therefor. But in counties having 10,000 inhabitants, to be determined by the last preceding census of the United States, a collector of taxes shall be elected, to hold office for two years and until his successor shall be elected and qualified."

The next preceding census must determine the inhabitants of the county to be 10,000 before the office of tax collector is created for that county.

"A census must be an official enumeration of the people, and as such a public record containing not merely a sum total, but an official list of the names, of all the inhabitants preserved in public archives, and, except so far as the statute under which it is taken prescribes otherwise, subject to public inspection." 11 C. J. p. 70.

The definition above is, of course, general, and must be considered in the light of acts of Congress authorizing the taking and under the provisions of which the census for 1920 was taken. Counsel for appellant state they have failed to find any provision in the act of Congress itself as to when the census takes effect. We think it is evident that the census which is to determine the inhabitants is so much thereof as related to its population, which was completed and ready to be officially pomulgated. Until the law authorized the announcement of the enumeration of the census, no official notice of it as such could be taken. Nelson v. Edwards, 55 Tex. 389; Wolfe v. Moorhead, 98 Minn. 113, 107 N. W. 728; Lancaster v. Owensboro (Ky.) 72 S. W. 731; Childers v. Duvall, 69 Ark. 336, 63 S. W. 802.

Congress, by act of March 3, 1919 (40 Stat. 1291), provided for the fourteenth and subsequent decennial censuses. The enumeration of the population by the act was to be taken as of the 1st day of January, 1920, by the Director General, and to that end he was authorized to employ supervisors, clerks, enumerators, interpreters, special agents, etc. The enumerator was to commence the enumeration of his district on the day following the 1st day of January, and in any event it is made the duty of each enumerator to prepare the returns and to forward the same to the supervisor of his district within 30 days from the commencement of the enumeration of his district. He is required to forward the original schedules properly filled out and duly certified to the supervisor of his district as his returns under the provisions of the act. In the event of discrepancies or deficiencies being discovered in these schedules, he shall use all diligence in correcting or supplying the same. The supervisor is charged with the duty to consult with the Director of Census in regard to division of his district; to designate suitable persons as enumerators to the Director, etc., and "to examine and scrutinize the returns of the enumerators, and in the event of discrepancies or deficiencies appearing in any of the said returns, to use all diligence in causing the same to be corrected or supplied; to forward the completed returns of the enumerators to the Director at such time and in such manner as shall be prescribed." U. S. Comp. St. Ann. Supp. 1919, § 4388c. It is made a felony for the supervisor, enumerator, clerk, etc., to publish or communicate, without authority from the Director of Census, any information coming into his possession by reason of his employment. By ...