Lightner v. McCord

• Decision Date: 28 April 1941
• Docket Number: No. 5297.,5297.
• Citation: 151 S.W.2d 362
• Parties: LIGHTNER et al. v. McCORD, Co. Atty.
• Court: Texas Court of Appeals

Page 362

151 S.W.2d 362

LIGHTNER et al. v. McCORD, Co. Atty.

No. 5297.

Court of Civil Appeals of Texas. Amarillo.

April 28, 1941.

Rehearing Denied May 26, 1941.

Appeal from District Court, Lynn County; Louis B. Reed, Judge.

Action by L. S. Lightner and others against Rollin McCord, County Attorney, to contest two elections in a school district on the questions of consolidation of such district and another district and assumption of such other district's bonded indebtedness by the consolidated district. From a judgment declaring the results and validity of the elections, plaintiffs appeal.

Affirmed.

Nelson & Brown and Geo. W. McCleskey, all of Lubbock, for appellants.

Crenshaw, Dupree & Milam, of Lubbock, for appellees.

STOKES, Justice.

On March 30, 1940, simultaneous elections were held in O'Donnell Independent School District No. 15 and Joe Bailey Independent School District No. 11, in Lynn County, upon the questions of whether or not the Joe Bailey and the O'Donnell Independent School Districts should be consolidated and whether or not the consolidated district should assume the outstanding bond indebtedness of the O'Donnell District. In returning the results of the elections, the officials who held the same failed to prepare and execute the formal returns as provided by Art. 3026, R.C.S. 1925, showing the total number of votes polled and the number polled for and against each of the propositions submitted at such elections, but merely returned and delivered to the county judge the tally sheets, ballots and the register of the official ballots. The county judge delivered the envelopes containing these documents to the county clerk who submitted them to the commissioners' court and at the proper time the court examined them and treated the documents so returned as being the returns of the elections. It seems that the election officials probably were of the opinion that some five or six of the ballots cast were either mutilated or unintelligible and did not count them but returned them in a separate envelope. Upon the tally sheets they entered figures which indicated that they had counted 27 of the votes as having been cast in the Joe Bailey District for the consolidation of the two districts, and 28 votes against consolidation. Upon inspecting the tally sheets and ballots, the commissioners' court found that in the Joe Bailey District 32 votes had been cast in favor of consolidation and also in favor of the assumption by the consolidated district of the bonded indebtedness of the O'Donnell District, and that 28 votes had been cast against the consolidation of the two districts and also against the assumption of the bonded indebtedness of the O'Donnell District, and certified the elections accordingly.

This suit was filed by appellants as a contest of the two elections that were held in the Joe Bailey Independent School District No. 11 and they prayed for a decree of the court declaring that a majority of the legally qualified voters of the district had voted against the consolidation and against the assumption of the indebtedness of the O'Donnell District. In their first amended original petition upon which the case was tried appellants set out a large number of irregularities in regard to the procedure observed by the election officials and the commissioners' court, among which were that the commissioners' court, in canvassing the returns of the elections, opened and inspected the envelopes containing the ballots and tally sheets; that they counted the votes in the envelope which the election officials had marked "Challenged" and had not counted; that they made a complete recount of the ballots and based their certificate of the results upon such recount instead of formal election returns; that some of the votes counted by the commissioners' court were illegal and fraudulent votes; that a number of legal votes cast against the two propositions were not counted by the commissioners' court and various votes were counted in favor of the two propositions which were not entitled to be counted because they were insufficient in form or the voters were not qualified to vote; that the person who served as judge of the elections was not the person who had been appointed by the county judge; that the ballots cast at the elections were not signed by the election judge as required by law; that no returns upon either the question of consolidation or assumption of the bonded indebtedness were made upon the forms provided by law; that separate ballot boxes were not used in the elections as required by law but all of the ballots were deposited in the same box which was composed of cardboard instead of metal or wood as provided by law; that the ballots were not placed in ballot boxes but were placed in envelopes and were not preserved under lock and key, but remained open for the inspection of anyone who desired to inspect them after they were returned to the county clerk's office; that the voters were not required to exhibit poll tax receipts or make affidavits that their poll taxes had been paid, and that at least two voters and probably others did not cast ballots at the election because the election judges and clerks advised them that, in order to be qualified to vote, they must have been residents of the school district for six months prior to the election.

The case was tried by the court without the intervention of a jury and resulted in a judgment declaring that the elections had resulted in a majority of the qualified voters in the Joe Bailey Independent School District voting for the consolidation of the two districts and for the assumption by the consolidated district of the bonded indebtedness of the O'Donnell Independent School District; that the elections were valid and that appellants take nothing by their suit. Appellants duly excepted to the judgment and have perfected an appeal to this court.

We do not find it necessary to discuss in detail the large number of assignments of error and propositions of law presented by the briefs. Our disposition of the case must be controlled by four general contentions made by appellants which are, first, that the trial court erred in rendering judgment sustaining the validity of the elections in the Joe Bailey Independent School District because the proposition of whether or not a tax should be levied on the property of the district for the purpose of discharging the O'Donnell District bonds was not submitted to the voters at such elections. Secondly, that the elections were invalid because no separate elections were held upon the two propositions voted upon nor separate notices given nor separate ballot boxes and tally sheets used as required by law. Thirdly, that the declaration of the result of the elections and elections themselves were rendered void by the acts of the commissioners' court in making a recount of the ballots; deciding whether they were properly challenged or mutilated or valid votes, and in altering the results of the election, as reflected by the tally sheets, in such manner as to change the results as entered by the election officials, and, fourthly, that the court erred in refusing to permit appellants, after the evidence was closed and the argument was practically finished, to file a trial amendment alleging vital and essential matters not included in the former pleadings.

Referring to the first contention made by appellants the record shows that the two propositions mentioned, that is, whether the school districts should be consolidated and whether or not the consolidated district should assume the bonded indebtedness of the O'Donnell School District, were submitted and the elections were held simultaneously. There was no proposition submitted with reference to the question of whether or not a tax should be levied to pay the interest and principal of the outstanding bonds of the O'Donnell District and appellants' contention is that the two elections that were held, especially the election to determine whether or not the consolidated district should assume the outstanding bonds of the O'Donnell District, were thereby rendered void and ineffective because the district could not incur an indebtedness in that manner without, at the same time, making provision for the levy and collection of a tax with which to pay the same. Art. 2807, R.C.S. 1925, provides that if, at the time of the proposed consolidation, there are outstanding bonds of any such districts, then at an election held for that purpose on some future day, there shall be, or at the election held for the purposes of consolidation, there may be, submitted to the qualified taxpaying voters of such proposed consolidated district the question of whether or not the consolidated district shall assume and pay off such outstanding bonds and whether or not a tax shall be levied therefor. There is no intimation in the statute, nor in any other statute, as far as we know, which would render void an election either upon the question of consolidation of two or more districts or of the assumption by the consolidated district of bonded indebtedness of one of the merged districts merely because an election was not held at the same time upon the question of whether or not a tax should be levied to pay the assumed indebtedness. On the other hand, Art. 2807 clearly provides that the election to determine whether or not a tax shall be levied may be held simultaneously with the elections on the question of consolidation and assumption of indebtedness or that such election shall be held on some future day. No tax could be levied by the district, of course, without authority of the voters expressed at an election held for that purpose, but that does not mean that such authority must be obtained simultaneously with the assumption of the obligation. When the election upon the question of consolidating the two districts was held, the results declared and the proper orders entered consolidating the...