Mitchell v. Carroll Independent School District, 16975

• Decision Date: 01 November 1968
• Docket Number: No. 16975,16975
• Citation: 435 S.W.2d 280
• Parties: W. P. MITCHELL et al., Appellants, v. CARROLL INDEPENDENT SCHOOL DISTRICT et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 280

435 S.W.2d 280

W. P. MITCHELL et al., Appellants, v. CARROLL INDEPENDENT SCHOOL DISTRICT et al., Appellees.

No. 16975.

Court of Civil Appeals of Texas Fort Worth.

Nov. 1, 1968.

Rehearing Denied Dec. 13, 1968.

Elton M. Hyder, Fort Worth, for appellants.

Spafford, Freedman, Hamlin, Gay & Whitham, and Warran Whitham, Dallas, for appellees.

OPINION

LANGDON, Justice.

This is a school bond election contest.

The District Court held that the written instrument relied upon by the appellants as notice of intention to contest election does not notify appellees that appellants intend to contest the election in the District Court or that suit would be filed. On the basis of such holding and because appellants did not file their contest of the election (i.e., petition) in the District Court within thirty (30) days after the return day of election the court sustained appellees' pleas to the jurisdiction and in abatement and dismissed the election contest and this cause.

The appellants contend that the court erred in holding as it did because actual notice is all that is required by Article 9.03 of the Election Code, V.A.T.S. and that there is no necessity or requirement that the court proceedings contesting said election be actually filed in the District Court within thirty days from the return day.

We affirm.

The written instrument relied upon by the appellants as 'notice' reads as follows:

TO THE BOARD OF TRUSTEES OF THE

CARROLL INDEPENDENT SCHOOL DISTRICT

'AND ANY OTHER INTERESTED PARTY

'GENTLEMEN:

'In accordance with Article 9.03, Election Code of the State of Texas, and related Articles, the undersigned do hereby give you notice, in writing, in accordance with said Article, that they intend to contest the election held Saturday, February 17, 1968, at South Lake, Texas, in regard to issuance of school bonds, as provided on the ballot of said election. The grounds on which the contestants rely to contest said election are for numerous irregularities and illegal actions, including the following: * * *.'

The Election Code, Art. 9.03, 'Notice of contest,' V.A.C.S., provides: 'Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the 'return day' is meant the day on which the votes cast in said election are counted and the official result thereof declared. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 131.'

The Election Code, art. 9.30, 'Other contested elections,' provides that the validity of an election held for any other purpose may be contested in the District Court of such county in the same manner and under the same rules, as far as applicable, as prescribed in this chapter (arts. 9.01--9.38) for contesting the validity of an election for a county office. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 158.

'The writing must contain notice of the contestant's intention to contest the election and the ground on which he relies. The law is mandatory and compliance therewith is necessary to give the court jurisdiction. Failure to comply with the requirement renders the suit dismissible for want of jurisdiction in the trial court to hear and determine the contest.' 21 Tex.Jur.2d 427, § 165 (Notice and Statement of Grounds).

'Since the statutes appear to prescribe no particular form for the notice of contest or the statement of grounds of the contest, except that it is provided that the notice of intention must be in writing, a substantial compliance with the legislative requirements is all that is required. However, it appears that the notice should clearly show an intention to contest the election. Thus, where the petition delivered to the contestee set forth the ground on which it was claimed that the election was illegal, but contained no notice informing the contestee that the contestant had an intention to file the petition in court and use it as a basis of a contest, it was held that the statutory requirements as to notice had not been satisfied. * * *' 21 Tex.Jur.2d 429, § 166 (Form). See also authorities cited under these sections.

In Barker v. Wilson, Tex.Civ.App., 205 S.W. 543 (Austin Civ.App., 1917, no writ hist.), it was held: 'The statute requires that the written document or documents delivered to the contestee shall contain notice of two separate and distinct facts, which are: (1) The contestants' intention to contest the election; and (2) the ground on which such contestant relies to sustain such contest. Notice of both of these facts is essential to invoke the jurisdiction of the court to hear and determine the contest, and proof of one, without proof of the other, is of no avail. It is also required by the very terms of the statute that notice of each fact must be in writing; and therefore verbal notice, though it may be just as satisfactory to the contestee, is not such compliance with the statute as confers power upon the court to hear and determine the contest.' It was further stated in the same opinion concerning the notice: '* * * but it...