Hutson v. Smith

• Decision Date: 13 December 1945
• Docket Number: No. 11757.,11757.
• Parties: HUTSON v. SMITH et al.
• Court: Texas Court of Appeals

Page 779

191 S.W.2d 779

HUTSON v. SMITH et al.

No. 11757.

Court of Civil Appeals of Texas. Galveston.

December 13, 1945.

Rehearing Denied January 3, 1946.

Appeal from District Court, Trinity County; Max M. Rogers, Judge.

Proceeding by Walter Smith and others against A. J. Hutson, Jr., county attorney of Trinity County, to contest a local option election. From a judgment in favor of contestants, contestee appeals.

Reversed and remanded with instructions.

Musslewhite & Fenley, of Lufkin, for appellant.

Collins, Dies, Williams & Garrison, of Lufkin, for appellees.

CODY, Justice.

This is a proceeding to contest a local option election which was held June 9, 1945. The original petition of contest was filed in the district court of Trinity County on June 27, 1945, by Walter Smith and others as contestants; and the County Attorney of Trinity County as contestee.

The original petition of contestants urged fourteen grounds for contesting the validity of the election, and on September 10th contestants filed a trial amendment urging three additional grounds. The grounds of the contest ranged from the allegation that the order of the Commissioners' Court for the election to be held was void because it failed to comply with Section 40, Art. 666, Vernon's Ann.P.C. (Texas Liquor Control Act), in that said order failed to submit clearly and fully any issue authorized by law to be voted on by the voters of a county, in a local option election, which was the first ground alleged in contestants' original petition, to the allegation that the Commissioners' Court was without jurisdiction to order said election because the petition, upon which said order was predicated, was itself insufficient to invoke the jurisdiction of the Commissioners' Court to issue said order, because said petition was allegedly not serially numbered as required by Section 32, Art. 666, P.C., which was the last of three grounds set up and urged in contestants' trial amendment.

The answer of the contestee contained among other things a plea of general denial, and a plea that the matters urged in the trial amendment were urged for the first time more than 30 days after the result of the election had been declared, and so were urged too late—i. e., the contestee urged a plea in the nature of a plea of limitation against grounds of contest set up in the trial amendment.

The trial was to the court without a jury, and began on September 10th and concluded the following day. The court rendered judgment that the election was void; also the court declined to order another election. The contestee duly gave notice of appeal, and in response to contestee's request the court filed conclusions of fact and law on September 20th. Four days later contestee presented his objections and exceptions to the aforesaid conclusions of fact and law, which were overruled. The contestee then presented his request for additional conclusions, which the court did not comply with.

The court's findings of fact were substantially these:

1. That the petition presented to the Commissioners' Court to call said election did not comply with Section 32, and was therefore insufficient to confer jurisdiction on the Commissioners' Court to call said local option election.

2. That said petition did not comply with Section 32, in that it did not clearly state the issue or issues to be voted upon, and in that it was not serially numbered, and so was not in strict compliance with the statutes governing same.

3. That the provision of Section 32 that "the petition so issued shall clearly state the issue or issues to be voted upon in such election" is mandatory, and said issue must be stated in the petition in the statutory language as set forth in Section 40.

4. That the order of the Commissioners' Court calling the election did not comply with Section 33, in that it failed to state the issue or issues as specifically required by Section 33.

5. That the issue or issues specified in Section 33 means the issue or issues as specifically set forth in Section 40, and the order calling the election does not strictly comply with Sections 33 and 40. The evidence in this case consisted wholly of stipulations of counsel, documents relating to the election, and the testimony of the County Clerk of Trinity County, Mrs. Hazel Ross. There is no contention that there is any dispute in the evidence. The findings embraced in the Court's "Findings of Fact", being in effect that the petition to the Commissioners' Court to order a local option election, and said order calling such election, did not conform to statutory requirement, are in reality conclusions of law. The Court's "Findings of Fact" are further not binding on contestee on appeal because he seasonably objected and excepted to them.

The nature of the points upon which contestee predicates his appeal sufficiently appears below.

Opinion

As indicated above, contestants' trial amendment was filed more than thirty days after the result of the local option contest had been declared. Had it constituted the original petition of contest, instead of a trial amendment, it would have been filed too late. Art. 666—40a, P.C. But the original petition was filed within the required thirty days. Art. 666—40a, P.C., further provides that a local option contest proceedings shall be conducted in the same manner as a general election contest. Pleadings in a general election contest are amendable, R.C.S. Art. 3047. The trial amendment did not set up a new or different cause of action from that set up in the original petition, which, among other things, alleged that the order for the election was not statutory, so void. The trial amendment alleged substantially that the petition for the election was not statutory, and so was insufficient to invoke the jurisdiction of the Commissioners' Court to order the election. The trial amendment thus set up but another ground as invalidating the order for the election. In no event can it be said that the matters urged in the trial amendment are wholly based upon or grow out of a new distinct or different transaction or occurrence. R.C.S. Art. 5539b. Contestee's points urging that the court erred in overruling his plea, in the nature of a plea of limitation to the trial amendment, are overruled.

It was the theory of contestants below and it is their theory here, that the petition to the Commissioners' Court did not comply with the requirements of Art. 666—32, P.C., and therefore was insufficient to invoke the jurisdiction of, or to clothe with jurisdiction, the Commissioners' Court to call the local option election. The Court found that the petition was fatally defective in (1) that it did not clearly state the issue or issues to be voted on and in (2) that it was not serially numbered, as required by the terms of Art. 666—32, P.C.

Only the Commissioners' Court has power or jurisdiction to call a local option contest. Art. 666—32, P.C. This it may do on its own motion, and must do on a proper petition of the qualified voters of the area to be affected. Arts. 666—32, 666—40, P.C. We believe the sufficiency of a petition to invoke the jurisdiction of the Commissioners' Court to call a local option contest has only been passed on in Texas, in the case of Canales v. Mullen, County Attorney, Tex.Civ.App., 185 S.W. 420. The petition there related to an election which was called in Jim Wells County for sometime in November 1915. At that time, the only requirement relating to the petition, which was specified in what is now Art. 666—32, P.C., was that the petition must be signed by 250 qualified voters. In the petition of contest it was alleged that the Commissioners' Court did not order the election because it deemed it expedient, but ordered it because a petition so to do was presented to that court signed by 250 purportedly qualified voters, and it was further alleged that 69 of the signers were not qualified voters, and that consequently (it was alleged) the order for the election, and the election, was void. The contestee filed a general demurrer which was sustained. The effect of filing the demurrer was to admit that the Commissioners' Court ordered the election because it had by laws to do so, believing that the fraudulent petition which deceived the court had been signed by the necessary number of qualified voters. Said the court in its opinion at pages 422, 423 of 185 S.W.:

"If the commissioners' court ordered the election because of a voters' petition then that petition for a prohibition election signed by the requisite number of qualified voters of the county is essential to establish the fact that the commissioners' court was legally invested with jurisdiction to order the election in the premises. This jurisdiction could be acquired by the petition only in the event it was in compliance with the statutory requirements, among which was that it should be the petition of 250 qualified voters.

"In a contest of the election it is the right of the contestee and the duty of the district court to inquire into the voting qualifications of the signers of the petition for the local option election when contestants make the qualifications of the signers an issue by proper pleadings."

The case just quoted from comprehensively reviews the legislative history of local option election laws. We think the holding does not reach to the extent which contestants contend. The pleadings in the case established as facts there that the election was ordered, not because the Commissioners' Court deemed it advisable to order the same, but upon the petitioners' petition which constituted a fraud upon said court. Had the Commissioners' Court found that the petition did not have the requisite number of qualified voters' signatures, and, with full awareness of such defect, proceeded to order the election, a different question would have been presented.

Now proceeding to examine the court's "Findings of Fact" to the effect that the petition to...