McAllen v. Rhodes

• Decision Date: 26 January 1886
• Docket Number: Case No. 2087
• Citation: 65 Tex. 348
• Parties: JOHN MCALLEN v. T. M. RHODES.
• Court: Texas Supreme Court

65 Tex. 348

JOHN MCALLEN

v.T. M. RHODES.

Case No. 2087

Supreme Court of Texas.

Jan. 26, 1886.

APPEAL from Hidalgo. Tried below before the Hon. John C. Russell.

This suit was instituted, by petition as in ordinary suits, in the district court of Hidalgo county, January 13, 1885, by the appellant, John McAllen, against the appellee, T. M. Rhodes, for the office of county judge of Hidalgo county.

After exceptions to his original petition had been sustained, the plaintiff, in his first amended petition, filed May 11, 1885, alleged, that he had been duly and legally elected to the office of county judge of Hidalgo county, at the general election held in that county November 4, 1884, and that the office was of the net annual value of $2,000; that, thereafter, the commissioners' court convened and made a partial and erroneous estimate of the number of votes cast at the election, and declared the result to be that appellant had received only two hundred and eighty-two votes, and that appellee had received three hundred and sixteen votes; and that under that estimate appellee had pretended to qualify as county judge of Hidalgo county, and was still unlawfully occupying the office and enjoying its fruits and revenues.

That at the time of making the false, fraudulent and pretended canvass, above set forth, the commissioners' court was composed of ignorant and unscrupulous men, only one of whom could read, write, or speak the English language, and all were determined partisans of the defendant, and bitter foes of the plaintiff, under the influence of the defendant, and were candidates for re-election in the same election with him; that a conspiracy was entered into by the commissioners and appellee to corruptly “count out” the appellant and declare the defendant elected; that, in pursuance of this conspiracy, the commissioners' court corruptly threw out and refused to count the election returns from precinct No. 2, where the appellant had received one hundred legal votes and the appellee had received two, apparently legal, votes, although the returns were, in all respects, legal; that plaintiff was present in person and by attorney at the pretended canvass, demanded his certificate of election, offered to take the oath of office and give the necessary bond, and to do all acts necessary to his qualification as county judge of Hidalgo county, but all his attempts and endeavors were at once refused by the court.

That at the time of the canvass, the town of Hidalgo, where the same was being conducted, was filled with armed partisans of defendant, and the court house, itself, was so filled and guarded; that all officers permitted by law to administer the oath of office, were bitter partisans of defendant, and would, none of them, administer the oath of office to the plaintiff, and, as he could find no one who would administer to him the oath of office, although he endeavored so to do, he was obliged to content himself with his attempts to assert his rights; that he had been prevented from qualifying as county judge by the threats, armed force and resistance of the defendant and his partisans; and that, at the time of the canvass, he prepared and filed with the clerk of the commissioners' court a written protest against its illegal action in declaring the defendant elected.

That now, here in open court, he tenders his bond and official oath before entering upon the discharge of his official duties as county judge; that if the commissioners' court had, as it ought to have done, included, in its estimate of the result of the election, the returns from election precinct No. 2, which were in all respects legal and proper, and in which precinct the election was properly and legally held, the true result of the election, from the face of the returns alone, would have showed that plaintiff had received three hundred and eighty-two votes and the defendant three hundred and eighteen votes.

That the returns from precint No. 1 were false, in that, at the polls in that precint, fifty illegal votes were falsely and fraudulently cast for defendant and counted in his favor in the estimate by the court; and these returns were further illegal and ought to have been rejected, for the reason that at the polls twelve other persons--naming them--voted illegally for defendant, and their votes were illegal in that they, each and all, were residents of election precinct No. 6; and that ten illegal votes--naming the parties--had been cast and counted for the defendant in election precinct No. 3.

The petition concludes with a prayer for the office of county judge of Hidalgo county, and for the fees and emoluments thereof; for injunction, and for general and special relief, etc.

In his first amended answer filed May 12, the defendant pleaded to the jurisdiction, and demurred generally and specially to the sufficiency of plaintiff's petition. The plea to the jurisdiction was overruled, but the court sustained the defendant's demurrer, the grounds of which were, amongst others, that the suit had not been brought in the name of the state of Texas by information in the nature of a quo warranto, as required by the act of the legislature, approved 1879, prescribing the remedy and regulating the proceedings by quo warranto, and that the plaintiff had not alleged that he had executed the bond and taken the oath of office within the time required by law. The plaintiff declining further to amend, the court dismissed the cause; and from that judgment the plaintiff has prosecuted his appeal to this court.

Rentfro & Scott, for appellant, cited: The State ex rel. R. C. Jennett v. W. P. Owens, 63 Tex. 261;Ex parte Whitlow, 59 Tex. 273;Williamson v. Lane, 52 Tex. 335;Ex parte Towles, 48 Tex. 435; citing Eng. and Am. authorities; Wright v. Fawcett, 42 Tex. 206;Banton v. Wilson, 4 Tex. 400; Chowning v. Boyer, Tex. Law Rev. vol. 5, No. 40, p. 623; R. S., 991, 4518?? Gen. Laws of 1883, p. 50.

Ballinger, Mott & Terry, also for appellant, that the remedy provided by statute is merely cumulative, cited: Acts of 1879, extra session, ch. 48, sec. 6; R. S. app., p. 46.

W. H. Mason, for appellee, that the statutory remedy must be pursued, cited: Proceedings quo warranto, R. S. app., p. 45; State, ex rel. Jennett v. Owens, 63 Tex, 270, 271;State v. Cooke, 54 Tex. 482;Watts v. State, 61 Tex. 184;Wright v. Allen, 2 Tex. 158; Bradley v. McCrabb, Dallam, 504; High on Ex. Leg. Rem. sec. 623, et seq; Lindsey v. Attorney General, 33 Wis. 508.

That the State was a necessary party, he cited; R. S. app., p. 45; Lindsey v. Luckett, 20 Tex. 520;People v. Hooker, 28 Cal. 123.

WILLIE, CHIEF JUSTICE.

The principal question raised by the record in this cause is: Can an office be recovered from a usurper by the party entitled to it in an ordinary suit and without proceeding by an information in the nature of a quo warranto, as prescribed by act of July 2, 1879. It has been heretofore settled by this court that the district court has jurisdiction of a suit for the recovery of an office, if its value is over five hundred dollars. State v. Owens, 63 Tex. 261;Williamson v. Lane, 52 Tex. 335.

It has also been held that an information in the nature of a quo warranto, filed by the proper officer, at the instance of a private relator, as prescribed in the above act, is an appropriate proceeding, and may be used, not only to oust the intruder, but to adjudge to the relator...