Jordan v. Overstreet

• Decision Date: 26 October 1961
• Docket Number: No. 6489,6489
• Citation: 352 S.W.2d 296
• Parties: M. C. JORDAN et al., Appellants, v. Dwayne V. OVERSTREET, County Attorney, Appellee.
• Court: Texas Court of Appeals

Page 296

352 S.W.2d 296

M. C. JORDAN et al., Appellants, v. Dwayne V. OVERSTREET, County Attorney, Appellee.

No. 6489.

Court of Civil Appeals of Texas, Beaumont.

Oct. 26, 1961.

Rehearing Denied Nov. 22, 1961.

Musslewhite & Musslewhite, Lufkin, Graves, Dougherty, Gee & Hearon, Austin, for appellant.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellee.

McNEILL, Justice.

An election was ordered to be held January 7, 1961, by the County Judge of Hardin County to determine whether the Batson Independent School District and Saratoga Independent School District should be consolidated. For consolidation carried by a big majority in the Saratoga district but returns showed there was only a majority of ten votes for consolidation in the Batson district. Four resident tax paying voters of the Batson district gave notice of contest of the election in said district, which was served upon Dwayne Overstreet, County Attorney of said county, within the 30 day period and suit was also filed within such period naming only the county attorney contestee. A plea to the jurisdiction of the court was filed by contestee, asserting that since he was not a proper party contestee and none such had been served with notice nor made contestee under Art. 9.31 of the Election Code, V.A.T.S., the court had no jurisdiction to determine the questions raised by the contest. The court in due course overruled this plea. By counter-point appellee raises the issue here. Article 9.31, in pertinent part, reads:

'In any case provided for in the preceding Section [art. 9.30], the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; * * *.'

The principal case relied upon by appellee to sustain his position that he was not a proper party contestee is Hooker v. Foster, 117 Tex. 237, 1 S.W.2d 276. This is the landmark case on the question. There an election was held to determine whether an additional maintenance tax should be levied in the Shiro Independent School District. After the election certain residents of the district contested its result by serving notice upon and bringing a proceeding against the members of the school district. The county attorney of the county was neither served with notice nor made a party contestee, and a plea to the jurisdiction of the district court was urged on account thereof. The trial court sustained this plea and dismissed the suit. The Court of Civil Appeals certified to the Supreme Court the question whether the trial court erred. That court held the trial court did err in sustaining the plea. In reaching this answer the Supreme Court reasoned that since the county attorney was not the legal advisor of the independent school district he was not legally concerned with the proceeding, and only that officer or officers peculiarly or legally concerned with the outcome of the election was a necessary party under Art. 3070 (now Art. 9.31 Election Code).

It was held in Funderburk v. Schulz, Tex.Civ.App., 293 S.W.2d 803, that the county attorney is not a proper contestee in an election contest brought by citizens of a school district attacking a bond election held therein. And this court in Hayter v. Baker, 293 S.W. 331, held he was not a proper party contestee in a suit attacking a city election. But the present is not a suit involving a single unit of the county as is one school district or city. When two school districts are sought to be consolidated, the election must be administered by the county government. Art. 2806, Vernon's Ann.Tex.St. requires the petition for a consolidation election to be submitted to the county judge, who is required to issue the order calling the election and to issue notice of the election. This article also requires the Commissioners Court to canvass the returns and to declare the result of the election. It is, therefore, the primary duty of the county government to see that a proper election is held and its results declared. In connection with this, it is the duty of the county attorney to advise the county officials upon their action. Neither the school districts involved were proper party contestees since each school board's 'only proper concern would be with a fair determination of contests, not necessarily with upholding as a contestee the declared results of elections.' Funderburk v. Schulz, Tex.Civ.App., 293 S.W.2d 803, 807. The notice and petition here did not expressly make the canvassing body (the Commissioners Court, or one of its members) a party contestee. But since the county attorney is the legal advisor of the court and by force of the very language of Art. 9.31 he is named a contestee, the action was one, in effect, against the members of the Commissioners Court and necessarily brought their action into question. Thus, there is no real distinction whether one or more members of the court was made directly the party contestee. This view comports with the holdings in Rister v. Plowman, Tex.Civ.App., 98 S.W.2d 264, and Baker v. Webster, Tex.Civ.App., 123 S.W.2d 690. The trial court's ruling is upheld.

Appellants' first point asserts that the trial court should have ruled that the election had failed to carry for consolidation, because the order of the Commissioners Court declaring the result of the election held in the Batson district, and other evidence, established the proposition did not receive a majority of the valid votes cast. The returns of the election from the Batson voting place made by its officials certified that there were cast 365 votes of which 138 votes were 'for' consolidation and 128 votes 'against' consolidation. The Commissioners Court on January 9, 1961, canvassed these returns and its order declaring the result of the election in the Batson district stated 'there were cast at said election 365 valid and lagal votes of which number there were cast for consolidation 138 votes and against consolidation 128 votes.' The order then declared a majority of the qualified voters of said district voted for consolidation. Appellants attack the order of the Commissioners Court declaring this result of the election, asserting that on its face it was shown that a majority did not vote 'for' consolidation and that the proposition for consolidation should be declared lost in the Batson district. It is apparent that an error was made either in the figure 365 showing the total number of votes cast or in the number for or against consolidation. The returns of the election are in evidence. The poll list which was made listing each voter's name revealed that 265 votes were cast in the election. At the trial it was also shown that a Mrs. Walter B. Johnson voted just before the polls closed, and her name was inadvertently left off the list, thus indicating there were actually 266 votes cast. The tally list of the election officials also was in evidence and reflected 138 votes for consolidation and 128 against consolidation. Ordinarily the order declaring the result of an election by the Commissioners Court is conclusive of the number of votes cast. But it appears the order here involved so declaring is self-contradictory. The returns prepared and delivered by the election officials to the Commissioners Court, we think, clearly show that the election officials made a mistake in the total number of votes cast, and the Commissioners Court carried forward the same mistake. The present is a situation comparable to that of a judgment of a trial court. If the judgment is ambiguous, the judgment roll may be examined to relieve the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 567, 111 A.L.R. 1152. The trial court examined the 'judgment roll', the various returns of the election officials, to eliminate the ambiguity in the order of the Commissioners Court, and we think he did so properly.

The 2nd, 3rd, 4th, and 5th points urge that the trial court erred in refusing to grant appellees' request to open the ballot box because of errors and irregularities apparent. Much stress is laid upon the fact that there were 99 'valid and legal votes' which were cast and unaccounted for. We are not persuaded this is true. The detailed records of the election officials as pointed out next above clearly reflected that 266 votes were cast. It is easily seen that an error in failing to put one voter's name on the poll list may take place where polls are open from 7 o'clock a. m. until 7 p. m., and the election officials become weary at the close of the long day. Under such circumstances one person's name could be omitted from the list. In connection with these points, as well as point one, appellants press upon us the case of Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d 363. We have studied that case carefully but we do not believe it controls the present situation. The last paragraph of the Sewell-Chambers case on p. 366 sums up most of the errors there shown to have taken place, but in addition--we think an important addition--votes were recorded and counted as cast by four persons who had not voted at all and the election officials had counted eleven votes of eleven unknown persons. This we think is undoubtedly 'some evidence' of fraud under Art. 3130, and this together with the many other irregularities justified the opening and examination of the ballots in the ballot box. While there were, undoubtedly, some irregularities in the election now involved, as will be set out hereinafter, we believe they are not of such character as to compel the action sought by appellants. Unless there is substantial evidence of wrongdoing or fraud we think the discretion of the trial court as to whether the ballot box is...