Holden v. Phillips, 5700.

• Decision Date: 05 August 1939
• Docket Number: No. 5700.,5700.
• Citation: 132 S.W.2d 419
• Parties: HOLDEN et al. v. PHILLIPS et al.
• Court: Texas Court of Appeals

132 S.W.2d 419

HOLDEN et al. v. PHILLIPS et al.

No. 5700.

Court of Civil Appeals of Texas. Texarkana.

August 5, 1939.

Rehearing Denied September 28, 1939.

Appeal from Special District Court, Gregg County; D. S. Meredith, Jr., Judge.

Election contest by Ralph E. Holden and others against H. D. Phillips and others. From an adverse judgment, contestants appeal.

Affirmed.

A. V. Grant and M. Neal Smith, both of Longview, for appellants.

Jack E. Price and Mike Anglin, both of Longview, for appellees.

WILLIAMS, Justice.

An election was ordered by the county judge of Gregg county to be held March 18, 1939, in Sabine Common School District No. 4 of said county, to determine whether or not said district should be incorporated into an independent school district, and for the election of seven trustees. Notices of election were timely posted. The petition for the election, the order, and the notices complied with all statutory requirements. On March 15th, after notices of election had been posted, the county judge entered a subsequent order in the commissioners court minutes wherein he revoked the original order. The rescinding order was entered after a petition had been presented to him requesting that the election be called off. This request was signed by a substantial number of those who had signed the original petition. These petitioners and the county judge all acted in good faith and without any fraudulent motive. The county judge caused notices of this revocation to be posted, as well as published over his signature in two daily newspapers circulating in the district. This revocation order was also exhibited by the officials theretofore designated to hold the election. Pursuant to this revocation the ballots were not printed, and the officials designated in the order to hold the election did not appear for that purpose on the day and at the place designated.

Shortly before 8:00 A. M. of March 18th, eight qualified voters in said district assembled at Sabine School, the place designated in the original order for the election to be held; elected a presiding judge and other officials from their number and proceeded to hold an election. These eight and one other voted. The evidence reflects that they used a basement room in the school house and otherwise proceeded to conduct the election in a secretive manner. Such procedure prevented some few who appeared for the purpose of voting from finding a place to cast their ballots. Thereafter the returns of such purported election were filed with the county clerk. The returns so filed disclosed nine voting, and all votes cast in favor of incorporating the common school district into an independent school district. Appellants received all nine votes for trustees for the proposed new district.

More than 400 qualified voters resided in the district. Because of an agreement only twelve were subpoenaed and testified. Appellants' attorneys agreed that all the witnesses expected to be subpoenaed by the respondents in the approximate number of 400 would testify that if it had not been for the notice of the county judge calling off and rescinding the election, they would have presented themselves at the polls and voted against the incorporation of the common school district; and if present, they also would testify that it was generally understood that the election had been called off.

In this contest filed under the provisions of Chapter 9, Title 50, Article 3041 et seq., R.C.S. 1925, appellants seek to have the order of the county judge vacated wherein that official decreed that a valid election was not held, and no valid...