Markowsky v. Newman

• Decision Date: 14 March 1940
• Docket Number: No. 10923.,10923.
• Citation: 138 S.W.2d 896
• Parties: MARKOWSKY et al. v. NEWMAN et al.
• Court: Texas Court of Appeals

138 S.W.2d 896

MARKOWSKY et al. v. NEWMAN et al.

No. 10923.

Court of Civil Appeals of Texas. Galveston.

March 14, 1940.

Rehearing Denied April 4, 1940.

Appeal from District Court, DeWitt County; J. P. Pool, Judge.

Proceeding by Gus A. Markowsky and others against J. T. Newman and others to contest an election of the City of Cuero on the question of issuing bonds for construction of an electric lighting and power system. There was a judgment for contestees and the contestants appealed to the Court of Civil Appeals which certified certain questions to the Supreme Court which answered them.

Conforming to answers to certified questions, 136 S.W.2d 808.

Lewright, Dyer & Sorrell, of Corpus Christi, for appellants.

E. A. Tully, Jr., City Atty., John J. Bell, and H. W. Wallace, all of Cuero, for appellees.

CODY, Justice.

This is a contested bond-election case, which was tried without a jury. The election was held in the City of Cuero on November 29, 1938. The proposition submitted to the qualified voters was whether the City of Cuero should issue $150,000 of lighting and power system revenue bonds for the purpose of constructing and installing its own electric lighting and power system. The next day the returns were canvassed, and as a result it was declared that the proposition for the issuance of the bonds had been carried by a majority of 85 votes. As a result of the contest brought by appellants, the court found that 61 of the persons who had voted had cast illegal ballots, which was not sufficient to affect the result of the ballot, and overruled the contest.

The trial court sustained an exception to appellants' allegations that 353 persons had participated in the election who were not qualified voters because they had not voluntarily rendered their property for taxation, and had not rendered their property for taxation on or before April 1, 1938, pursuant to the requirements of Article 1043, R.S.1925, Vernon's Ann.Civ.St. art. 1043,

Article 2955a, which is framed on Art. VI, Section 3a, of our Constitution, Vernon's Ann.St., provides that when an election is held by any city for the purpose of issuing bonds only qualified electors who own taxable property in the city, etc., when such election is held, and who had duly rendered the same for taxation, shall be qualified to vote. We certified, among others, these questions to the Supreme Court:

"Did the court err in sustaining the exception aforesaid (which is quoted in full in the certificate), and thereby holding in effect what the Honorable Fort Worth court held, namely, that assessment of property for taxation by the assessor will satisfy the legal requirement for qualification to vote in a bond-election equally with the voluntary rendition of his property for taxation by a property-owner?" Which the Supreme Court answered, "No".

"Is Article 1043 mandatory, or merely directory?" To which the Supreme Court has returned an answer which we construe as "No". Gus A. Markowsky et al. v. J. T. Newman et al., which is numbered 7594 in the Supreme Court of Texas, and filed in that Court February 21, 1940, and which appears in 136 S.W.2d 808.

Appellants' assignments of error based on the theory that the correct answers to the above questions should be "Yes", are accordingly overruled.

It abundantly appears that some of the partisans for the bond-issue caused some voters to be hauled to the polls who were physically able to go to the polling place without assistance,...