Lindsey v. Luckett

• Decision Date: 01 January 1857
• Citation: 20 Tex. 516
• Parties: ANDREW M. LINDSEY v. LEVIN H. LUCKETT.
• Court: Texas Supreme Court

20 Tex. 516

ANDREW M. LINDSEY

v.LEVIN H. LUCKETT.

Supreme Court of Texas.

1857.

Every court of limited powers must determine its own jurisdiction in the first instance. That does not preclude another court, of general powers, from making the same inquiry.

It is, therefore, competent for the district court to inquire into the fact of whether or not the commissioners' court did acquire jurisdiction of this case (a contested election for district surveyor), although an appeal or writ of error cannot be taken from the latter to the former court. 15 Tex. 500;24 Tex. 317.

The notice and statement of the grounds on which a party intends to contest the election of any one holding a certificate of election to a county office, which are required to be served on the latter within ten days after return day, are the predicate upon which the power of the county court is set in motion, and without which, within the time prescribed, that court has no jurisdiction to investigate the validity or event of such election.

A mandamus is the proper remedy to recover possession of an office to which the plaintiff has been elected and commissioned.

Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.

The venue was changed by consent to Bexar county. The facts are stated in the opinion.

Hancock & West, for appellant. (We were not furnished with the brief of appellant's counsel in this case. The trial of a contested election, in such a case, by the county court of one of the counties composing the district, is anomalous. Perhaps provision therefor is found in the act organizing Guadalupe county, which we have not now at hand.--REPS.)

I. A. & G. W. Paschal, for appellee. The grounds of error assigned, either go behind or attack the county court's judgment. To this we have three answers. 1. That the county court had exclusive jurisdiction of the subject matter, and there was no appeal to the district court either directly, indirectly, or collaterally. 2. That even if this were not so, the errors, if any, could not be reached except by appeal or certiorari; and therefore the judgment was a complete annulment of the defendant's right. 3. But there is no valid objection to the judgment. Did the county court have exclusive jurisdiction of the subject matter? We think that it has been expressly held, by this court, that upon the subject of elections the jurisdiction of the county court is exclusive, and their judgments final and conclusive. O'Docherty v. Archer, 9 Tex. 295;Truehart v. Addicks, 2 Id. 217;Arberry v. Beavers, 6 Id. 457; Walker v. Tarrant County, No. 955, at this term of the court. The county court was competent to determine its own jurisdiction; and having determined it, this court will not disturb its judgment. Burditt v. Sillsbee, at the last term. Every presumption will be indulged in favor of the jurisdiction. Cook v. Halsey, 16 Peters, 71; Thompson v. Tolmie, 2 Id. 171; The United States v. Arredondo, 6 Id. 720; Voorhies v. The Bank of the United States, Id. 473; The Philadelphia and Trenton Railroad Co. v. Stimpson, 14 Id. 458, cited and approved by this court in Truehart v. Addicks.

The second proposition is familiar; and there have been few departures from it from the Duchess of Kingston's case down to the present time. Curry v. York, 3 Tex. 357;Punderson v. Love, Id. 60;Yates v. Houston, Id. 433;Sutherland v. De Leon, 1 Id. 250; Dennison v. Ingram, Dall. 319; Foster v. Wells, 4 Tex. 101; Soye's Heirs v. McCallister, and Alexander v. Maverick, at the last term; Tucker v. Harris, 13 Ga. 1, which exhausts all the authorities. Certainly there has been no disposition shown by this court to depart from the well settled principles of law, in favor of the conclusiveness of judgments. 1 Greenl. Ev. §§ 19, 525, 526, 528; Clay v. Clay, 13 Tex. 195.

Our third proposition, like the first and second, assumes that the county court had jurisdiction; and for the sake of the argument admits, that there may have been delay beyond the statutory time in commencing the suit; yet we hold, that it is no such irregularity as upon appeal or writ of error, would vitiate the proceedings. The office is a public one, in which the whole community is interested, and the will of the sovereign people is not to be defeated by the mere neglect of officers to perform those ministerial duties required of them by law. Indeed the neglect of the parties, or even connivance, will not be allowed to defeat the expressed will of the people.

All election statutes are but directory; and their observance or non-observance is never the question; but upon a contestation the inquiry always is, what has been the fair result of the election? We might amplify the argument to support this, but we prefer to confine ourselves to precedent. This court has approved precedents which hold, that failures of the officers to do their duty cannot defeat the will of the people. And that all these statutes are merely directory. See Truehart v. Addicks, already cited. Again, this court has affirmed the principle in The People on relation of Enos v. Albany, C. P. 7 Wend. 485, which answers the whole objection as to regularity of the judgment. Again, in Truehart v. Addicks this court affirms the principle so clearly expressed in The People v. Allen, 6 Wend. 486, and the cases there cited, viz.: Colt v. Eves, 12 Conn. 244, 253 and 255, and cases cited.

ROBERTS, J.

This is a suit for the office of district surveyor of the Travis district, instituted by Luckett against Lindsey, and the remedy adopted is mandamus. Appellee claims the office by virtue of his election on the ninth day of March, 1857, and a commission by the governor in pursuance thereto.

For cause against a peremptory mandamus, appellant shows that a regular election was held for the office on the 4th day of August, 1856, and upon counting the votes by the county commissioners of Travis county, he received a majority of the votes returned, and was declared duly elected and received a certificate of election; upon which the governor issued to him a commission on the 28th day of August, 1856; and that thereby he was entitled to the office for the term of two years thereafter. He further shows, in his answer, by a certified transcript of the proceedings in the commissioners' court of Travis county, that on the 2d day of October, 1856, he was cited by the sheriff of Travis county to answer a petition filed in said court by appellee for the purpose of contesting his election on the ground that he, Luckett, had received a majority of the votes at said election, but that said Lindsey had received the certificate, “because the returns were not received within twenty days, from Guadalupe county;” that at a special session of said court, Lindsey having been notified thereof, held in January, 1857, said contest was tried and determined. Lindsey objected to the court taking cognizance of the contest, because the proceedings were not instituted according to the statute so as to give that court jurisdiction, and because the contest was not commenced in the time limited by law, to wit, in ten days from the day of counting the votes. These objections being overruled, the court proceeded to count the votes, including those from Guadalupe county, which were returned on the 5th day of ...