Martin v. Mitchell

• Decision Date: 02 May 1903
• Citation: 74 S.W. 565
• Parties: MARTIN et al. v. MITCHELL et al.
• Court: Texas Court of Appeals

74 S.W. 565

MARTIN et al. v. MITCHELL et al.

Court of Civil Appeals of Texas.

May 2, 1903.

Appeal from District Court, Haskell County; P. D. Sanders, Judge.

Proceeding by Rush Mitchell and others against Oscar Martin and others to contest a local option election. From the judgment, contestees appeal. Reversed.

S. W. Scott, A. C. Foster, O. E. Oates, and G. W. Thomason, for appellants. J. F. Cunningham and H. G. McConnell, for appellees.

STEPHENS, J.

This appeal is from a judgment obtained by appellees, Rush Mitchell and others, qualified voters and retail liquor dealers in Haskell county, against appellants, Oscar Martin and D. H. Hamilton, county attorney and county judge, respectively, of said county, and J. E. Pool, editor and proprietor of the Haskell Free Press, a weekly newspaper published in the town of Haskell; enjoining them from taking the final steps necessary to put in force the law prohibiting the sale of intoxicating liquors in Commissioners' Precincts 1, 3, and 4 of said county, which had been adopted at a local option election held therein on the 8th day of September, 1902. Appellees instituted this proceeding under article 3397 of the Revised Statutes of 1895, and sought both to contest the validity of the election, and to enjoin the proceedings looking to the enforcement of the law, alleging in the statement of the grounds of contest that it had been illegally and fraudulently conducted at one or more of the voting boxes, to sustain which, however, no evidence whatever was offered on the trial, and further alleging that in ordering the election the commissioners' court had included more territory than was covered by the subdivisions above mentioned, in that the order included a part (two sections of land) of Commissioners' Precinct 2. The contestants further alleged that they were liquor dealers in Haskell county, and had paid both internal revenue and occupation taxes for a year in advance, the revenue license in one instance having until January 12, 1903, to run, and charged that, unless restrained by injunction the contestees would proceed to enforce the law, and that contestants would consequently suffer irreparable damage, inasmuch as they would either have to cease to do business, which would cause deterioration in the value of the liquors in stock, loss of profits, loss of money paid for rents and as revenue, and occupation taxes in advance, or else be exposed to innumerable and vexatious criminal prosecutions, without being able to give the great number of bail bonds that would be required of them, etc. A preliminary injunction was granted, which was made perpetual on final hearing, the court holding that the inclusion of a part of Commissioners' Precinct 2 rendered the election void, following the decision of this court in Oxford v. Frank, 70 S. W. 426, and further holding that appellees would sustain irreparable injury from the enforcement of the law. From that judgment this appeal is prosecuted by the contestees, as provided in article 1804u of the Revised Statutes of 1895, without giving bond.

In the first assignment of error it is alleged that "the ground upon which the court in this case declared the said election void and perpetuated the injunction was not a ground upon which said election could be contested under article 3397, Rev. St. 1895"; and, as authority for the proposition, the opinion of the Supreme Court on a certified question in case of Norman v. Thompson, 72 S. W. 62, is cited, which seems, in effect, to overrule the previous decision of this court in Oxford v. Frank, 70 S. W. 426, although there is much force in the answer of appellees, contending that the two rulings are distinguishable.

But however this may be, the judgment must be reversed under other assignments, complaining of the court's rulings in excluding evidence offered by the contestees to show the true boundaries of the commissioners' precincts in question, and of the holding that extraneous territory was included. The boundary, as originally established by the orders of the commissioners' court, between Commissioners' Precincts 1 and 2, was governed by the Haskell and Throckmorton Road, as designated in the report of the jury of view adopted by the commissioners' court, which contestees offered to prove had been actually laid out on the ground by the jury of view along the north boundary of Railway Surveys 11 and 26, which would place them in Commissioners' Precinct 1, as designated by the commissioners' court in ordering the election, instead of in Precinct 2, as alleged by contestants. The road as thus laid out had been worked, used, and recognized for many years, and up to the time the election was ordered, and it was called for in the order, which...