Marks v. Jackson

• Decision Date: 08 June 1939
• Docket Number: No. 10912.,10912.
• Citation: 130 S.W.2d 925
• Parties: MARKS et al. v. JACKSON, Dist. Atty., et al.
• Court: Texas Court of Appeals

130 S.W.2d 925

MARKS et al. v. JACKSON, Dist. Atty., et al.

No. 10912.

Court of Civil Appeals of Texas. Galveston.

June 8, 1939.

Rehearing Denied June 28, 1939.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Suit by E. H. Marks and others against Dan Jackson, District Attorney, and others to contest an election held in the Addicks Independent School District in Harris County for the purpose of determining whether or not the board of trustees should be authorized to issue bonds in the amount of $40,000, to supplement federal aid for building and equipping a public free school building. From a judgment in favor of defendants, the plaintiffs appeal.

Affirmed.

Guynes & Colgin and C. L. Bass, both of Houston, and Guynes, Colgin & Vivier, of Houston, on rehearing for appellants.

Ernest A. Knipp and Harvey T. Fleming, both of Houston, for appellees.

GRAVES, Justice.

This was a contest of an election held in the Addicks Independent School District in Harris County on August 15, 1938, for the purpose of determining whether or not the Board of Trustees should be authorized to issue bonds in the amount of $40,000, to supplement federal aid for building and equipping a public free school building.

The election resulted in favor of the issuance of the bonds, the returns canvassed showing a majority of five, the vote being 51 to 46.

The contest was instituted on August 25, 1938, ten days after the election, the contestants being three residents of the district (the appellants here), all alleged to be duly qualified voters and property taxpaying citizens thereof, and the contestees (the appellees here), named in the original petition and notice being the Criminal District Attorney of Harris County, the Hon. Dan W. Jackson, and seven persons named "as trustees" of the school district, all declared to be residents thereof, and duly qualified and acting as such trustees.

The district court found in favor of the contestees, after hearing full evidence from contestants only, the contestees offering none, and judgment was entered upholding the validity of the election.

The alleged grounds for a contest of the election were, (1) that certain persons qualified to vote were not permitted to do so; (2) that certain persons not qualified were permitted to vote; (3) that discrimination was practiced in the conduct of the election, especially in permitting unqualified persons, known to favor the issuance of the bonds, to vote, while others qualified to vote, but known to be against the bonds, were not permitted to do so.

In this court, where a hearing has been advanced pursuant to R.S. Art. 3056, the appellants have presented 22 assignments against the trial court's adverse decree, 20 of which complain of its action in sustaining special exceptions to amended statements or petitions, tendered by them in lieu of certain provisions in their original statement or petition; the twenty-first one is a general contention to the effect that the court erred in rendering judgment for the contestees, while the twenty-second assails the court's exclusion of "the Minutes of the County School Board in so far as they related to the incorporation of Addicks Independent School District and of the Trustees in that district and fixed the boundaries of said corporation,—said objection of appellees being that said evidence offered was immaterial and irrelevant and encumbered the record with a lot of useless matter."

The appellee School District was shown to comprise a sparsely settled area, without an incorporated city or town within its limits. Its population, while not definitely appearing, may be closely approximated from the fact that 97 ballots were counted in the election here under review.

While, as indicated supra, appellants allege fraud and discrimination in the conduct of the challenged election, the trial court, by implication at least, found against such claims, and no evidence sufficient to even question such finding has been pointed out upon the appeal.

The core of the controversy, however, seems to have been over just what application to the fact situation developed by appellants' evidence should be made of this provision in Article VI, § 3a, of our State Constitution, Vernon's Ann.St.: "When an election is held by * * * any political sub-division of a county, or any defined district now or hereafter to be described and defined within the State and which may or may not include towns, villages or municipal corporations, or any city, town or village, for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt, only qualified electors who own taxable property in the * * * political subdivision, district, city, town or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote."

The court will not in this cause accept the invitation of both sides (although the appellees agree it is not indispensable) to undertake a construction of the quoted section 3a, Article VI, of the Constitution, nor to apply it to what are deemed to be the determinative issues presented by this appeal, for two reasons:

(1) It is held that this appeal may and should be decided upon the fact situation presented here, irrespective of how that constitutional provision should be construed and applied in a proper case.

(2) This court, in a like contested-election case, No. 10,923, styled Gus A. Markowsky et al., appellants, v. J. T. Newman et al., appellees, from the district court of DeWitt County, have, on June 1 of 1939, certified to the Supreme Court questions seeking to elicit an authoritative declaration as to what is the correct construction and application of such section 3a.

Two well-settled rules of law governing such controversies as the one at bar may be thus stated:

(1) "* * * In a statutory election contest within the purview of cited chapter 9, title 50, article 3041 et seq., of our Revised Statutes, such as this one was, the scope of the court's inquiry is limited to matters pertaining strictly and directly to the election itself, together with happenings on the date thereof, such as the casting and counting of the ballots voted therein, as well as the action and conduct of the officers holding it." Border v. Abell, Tex. Civ.App., 111 S.W.2d 1186, 1188, writ of error refused.

(2) In an election-contest, the burden is on the contestants to allege and prove either that a different result should have been reached by counting or not counting certain specified votes; or that the irregularities in the conduct of it were such as to render it impossible to determine the true will of the majority of the voters participating in the election; and irregularities in the conduct of the election, which...