Kidd v. Truett, Co.

• Decision Date: 08 March 1902
• Citation: 68 S.W. 310
• Parties: KIDD v. TRUETT, Co. Atty.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 310

KIDD v. TRUETT, Co. Atty.¹

Court of Civil Appeals of Texas.

March 8, 1902.

Appeal from district court, Grayson county; Rice Maxey, Judge.

Contest by W. P. Kidd of a local option election. From a judgment sustaining the election, contestant appeals. Affirmed.

Smith, Templeton & Tolbert, for appellant. J. T. Suggs, for appellee.

TEMPLETON, J.

In December, 1901, a local option election was regularly ordered and held in school district No. 54 of Grayson county. The election resulted in favor of prohibition. The appellant, W. P. Kidd, who is a qualified voter of said district, instituted this proceeding to contest such election. The appellee, J. H. Truett, who is the county attorney of Grayson county, was made contestee. The said school district lies partly in justice precinct No. 2 and partly in justice precinct No. 3. The local option law was in force in the latter precinct at the time said election was ordered and held. These facts were alleged by the contestant as a basis for his contention that the election for the school district was a nullity. On a trial before the court without a jury, judgment was rendered for the contestee, and the contestant has appealed. The questions presented are: (1) Did the district court have jurisdiction of the contest? (2) Could a legal election be held in and for said school district?

1. Under the amendment of 1891 to the judiciary article of the state constitution, the district courts are given jurisdiction of contested elections. It was held in Odell v. Wharton, 87 Tex. 173, 27 S. W. 123, that the constitution was not self-executing, because it prescribes no rules by which the jurisdiction may be enforced. Subsequently, chapter 7, tit. 36, Rev. St. 1895, was adopted, thereby prescribing rules regulating contests of elections. It is provided by article 1797, which is a part of said chapter, that contested elections for other purposes than for the election of officers shall be tried in the district court of the county where the election was held. Contests of local option elections were provided for by article 3397, Rev. St. 1895, which reads as follows: "At any time within thirty days after the result of the election has been declared, any qualified voter of the county, justice's precinct or subdivision of such county, or in any town or city of such county in which such election has been held, may contest the said election in any court of competent jurisdiction, in such manner as has been or may hereafter be prescribed; and should it appear from the evidence that the election was illegally or fraudulently conducted; or that by the action or want of action on the part of the officers to whom was intrusted the control of such election, such a number of legal voters were denied the privilege of votting as had they been allowed to vote might have materially changed the result; or if it appears from the evidence that such irregularities existed as to render the true result of the election impossible to be arrived at, or very doubtful of ascertaining, the court shall adjudge such election to be void, and shall order the proper officer to order another election to be held, and shall cause a certified copy of such judgment and order of the court to be delivered to such officer upon whom is devolved by law the duty of ordering such election." The appellee contends that under said article a local option election can be contested only when the ground of the contest consists of alleged irregularities, such as would render the true result of the election impossible to be arrived...