McKinney v. O'connor

• Decision Date: 01 January 1861
• Citation: 26 Tex. 5
• Parties: JOHN F. MCKINNEY v. JOSEPH O'CONNOR.
• Court: Texas Supreme Court

26 Tex. 5

JOHN F. MCKINNEY

v.JOSEPH O'CONNOR.

Supreme Court of Texas.

1861.

Where it appears from the returns of an election that the person who acted as presiding officer and signed such returns is a different person from the individual appointed by the county court to be the presiding officer, it is the certificate of the managers of the election that such individual so appointed failed to attend or refused to act, and that the person acting was duly chosen by the electors present, which is made by the statute (art. 627, O. & W. Dig. 152) the evidence of the authority of the person so acting to hold the election.

It is also such certificate of the managers which invests the person so acting as the presiding officer with the authority to make a return of the election which shall of itself import the same degree of verity as though made by the regular appointee of the county court. Without such certificate, the return does not of itself import such verity.

The statute regulating elections, above cited, has prescribed but one mode, to wit: the certificate of the managers to the effect aforesaid, of authenticating the authority and acts of a person officiating as presiding officer of an election in place of the regular appointee of the county court.

The constitution confers the right to vote upon a “qualified elector,” and provides that “all elections by the people shall be held at such time and places in the several counties, cities or towns, as are now or may hereafter be designated by law.” Art. 3, secs. 1 and 7, O. & W. Dig. 15. The essential matters to constitute an election are that a time and place should be designated by or according to law; and that the qualified electors should then and there actually hold an election.

The statutory rules prescribing the manner in which the qualified electors shall hold the election, and the mode in which their act shall be so authenticated as to import verity on its face, are directory; and irregularities in their observance will not vitiate an election, unless they be such that the true result of the ballot cannot be ascertained with reasonable certainty.

The ultimate test of the validity of an election is determinable by the question, did the qualified electors, acting in concert, hold an election at the time and place designated, and in a manner so far in conformity to the law that the true result can be arrived at with reasonable certainty?

Presupposing the proper transmission to the chief justice of the county of the return of an election, if it bears upon its face the name of the presiding officer regularly appointed by the county court, the certificate is prima facie evidence that he acted in that capacity, and that the facts stated in and implied by the return were true; and a contestant seeking to controvert the facts so evidenced must disprove them by extrinsic evidence.

But a return bearing the name of a person as presiding officer who is unknown in that capacity to the chief justice and the county court, and which does not contain the certificate of the managers required by law, is no evidence of the authority of such person, or of the other facts stated in or implied by such return. A contestant claiming the benefit of such a return must sustain it by extrinsic evidence establishing a substantial compliance with the requirements of the law in the holding of the election, and identifying the return in question as the act of the persons recognized by the qualified electors as the officers of the election. The measure of proof necessary in such case considered, and held to be indefinable.

Officers de facto, how constituted: Their acts valid when they concern the public or the rights of persons interested in the thing done; and their title to the office not to be impeached collaterally.

Under the statute (art. 452, O. & W. Dig. 120), a party has a right to take out his commission to take depositions on the fifth day after notice given of the filing of his interrogatories. If the cross interrogatories are not embraced in a commission taken out on that day, it is to be presumed that they were not filed when the commission was issued; and their omission is not a valid objection to the depositions taken under such commission.

If necessary to invest the district court with jurisdiction over the subject matter in controversy in this cause, to wit, the office of district judge, judicial cognizance, as a matter of law, will be taken that the office is lucrative to an extent sufficient to sustain the jurisdiction.

The right in controversy is either a full right to the office, conclusive as between these parties; or it is a prima facie right to the commission, and a present right to exercise the office, not conclusive of the full right should the parties resort to a common law remedy to enforce and obtain the full right. Which of these rights is involved in this litigation is not decided, it not being necessary to the disposition of this cause.

Quære? Whether in proceedings of this character, the right of trial by jury exists? Whether the mode of proof in such proceedings is by depositions alone? Whether the judgment upon such proceedings is conclusive of the full right to the office? Other questions, pertinent to this particular case, but not of general application or interest, raised, but not decided, in the opinion of the court.

The jurisdiction of the district court and that of this court, derivatively by appeal, being called in question: Held, that the district court, as a court of original jurisdiction, and the supreme court, as an appellate court, have a right to hear and determine causes instituted under the statute (art. 659, O. & W. Dig. 157) for the trial of the right to the office of district judge.

See this case for the principles applicable to contests of elections arising out of defective and false returns; and also for the rules of evidence and methods of proof in relation to fictitious or fraudulent voting.

APPEAL from Victoria. Tried below before the Hon. Fielding Jones.

This was a proceeding instituted under the statute by the appellee to contest the right of the appellant to the office of district judge of the fourteenth judicial district, composed of Nueces and other counties, for which office an election was held at the general election in August, 1860.

The facts stated fully in the opinion of the court.

R. Hughes, for appellant, contended that the jurisdiction given by the statute for the adjudication of causes of this character was vested, not in the district court, but in the district judge of the nearest adjoining district, as a special authority. Having cited several sections of the statute (O. & W. Dig. 157, art. 659 et seq.) in support of his position, he proceeds: If it had been the intention to give jurisdiction to the district court instead of authority to the judge, it would have been left upon the general principles applicable to the district courts, and to be tried when the parties were ready for trial, subject to application for delay, or continuances for want of evidence or other causes.

But this is not an ordinary case. The state and the citizens in the district as well as the parties contestant were and are interested in all such contests; and, therefore, this court have determined that it was the policy of the government that “these disputes for office should be summarily and promptly settled.” Lindsey v. Lucket, 20 Tex. 520-1. And consequently the law was so framed as to subject it to the rule as to special jurisdiction.

Again by section 19 it is declared: “The trial of every contested election shall be by the judge; and upon depositions taken in the mode prescribed in the act.” Why necessary to state and restate so often that the trial is to be by the judge? Clearly to show that it was not a case to be tried by the rules of the common law, if upon an issue of fact by a jury, and if upon a question of law by the court. The judge was therefore designated for the performance of a particular duty. And it was clearly not within the range of his ordinary duties of office; for the facts upon which the contest arises, and the parties to such contest, are not subject to his jurisdiction--all being not only in another county, but also of another district. This court say in a case of contested election for the location of a county seat, “As to this election, the statute confided to the officer a personal trust distinct from his ordinary official duties, an independent personal authority, limited to one express object, and to be exercised according to the dictates of his own judgment upon the law. When he had exercised his authority and finally disposed of the subject, his authority was functus officio. By its exercise it was exhausted.” “The authority here conferred was in the nature of a special commission, which was determined by the performance of the act to which it extended; it did not constitute the officer a judicial tribunal, or inferior jurisdiction within the meaning of the constitution (art. 4, sec. 10), that has reference to those inferior tribunals constituted to administer the justice of the country, and whose proceedings are according to the course of the common law.” “That it was the chief justice of the county who was empowered to act in this case, did not change the character of the authority conferred. The duties imposed by the act had no connection with his official duties as chief justice, and might have been required of any private person.” Asbury v. Beavers, 6 Tex. 469.

The application of this is direct.

G. W. Paschal and C. S. West, for appellee.

ROBERTS, J.

In the counties composing the fourteenth judicial district, an election for the office of district judge was holden on the 6th day of August, 1860. By the returns made to the office of the secretary of state, from the respective counties in said district, appellee, O'Connor, received 676 votes, and appellant, McKinney, received 483...