Norman v. Thompson

• Decision Date: 16 February 1903
• Citation: 72 S.W. 62
• Parties: NORMAN v. THOMPSON et al.
• Court: Texas Supreme Court

72 S.W. 62

NORMAN v. THOMPSON et al.

Supreme Court of Texas.

February 16, 1903.

Certified questions from court of civil appeals, Fifth supreme judicial district.

Petition of W. F. Norman and others to contest an election held under the liquor law; R. D. Johnson, contestee. From a judgment for the contestee, contestants appealed to the court of civil appeals, which affirmed the judgment (72 S. W. 64), and which certifies questions.

Looney & Clark, for appellants. C. E. Meade, for appellee.

BROWN, J.

Certified questions from the court of civil appeals for the Fifth supreme judicial district, as follows:

"An election was held throughout Hunt county on May 3, 1902, to determine whether or not the sale of intoxicating liquor should be prohibited in said county. The election resulted in favor of prohibition. On May 29, 1902, W. F. Norman, J. A. Brown, and Jim Beckham filed in the district court of Hunt county their petition to contest said election; R. D. Thompson, the county judge of the county, being made contestee. It was alleged in the petition that the contestants were resident citizens, qualified voters, and property owners of said county, and that they were engaged in business in said county as retail liquor dealers, and had procured licenses to carry on such business, as required by law, which licenses had not expired. As ground of contest, it was charged that only four copies of the order of election were posted for twelve days prior to the day of election. The contestee replied that, if such was the case, the fact did not affect the result of the election, and that the voters of the county had actual notice of the election, and participated therein. The contestants demurred to this plea of the contestee on the ground that the posting of statutory notices for the time and in the manner required by law is a jurisdictional fact, without which, under our law, no legal local option or prohibition election can be held. The demurrer was overruled, and exception duly reserved. The case was tried before the court without a jury, and judgment was rendered in favor of the contestee, from which judgment the contestants have prosecuted an appeal to this court. There is no statement of facts in the record. At the request of the parties, the trial judge filed conclusions of fact, wherein he found that four copies of the order for the election were posted for more than twelve days prior to the day of election, and that one copy thereof was posted for only nine days prior to the day of the election, and that these were the only copies of said order that were ever posted; that the voters of the county had actual notice of the election, and participated therein, and that the result of the election was not affected by the failure to post the fifth copy of the order for the full twelve days. In the brief of appellants, three assignments of error are presented. They read as follows: `(1) The court erred in overruling contestants' special exception to that part of contestee's first amended answer wherein it is alleged that, if there was a failure to post the notices required by law, it did not affect the result of the election; that the voters of Hunt county were informed of the election, its purpose, and the day on which it was to be held, and had full notice thereof; that the full voting strength of Hunt county was obtained in said election. (2) The court erred in admitting the evidence shown in bill of exceptions number one. (3) Having found as a fact that but four copies of the order for, and the statutory notice of, said election, were posted twelve days prior to the election, the court erred, in his conclusion of law, in holding that the election was not void, and in rendering judgment in favor of contestee.' These assignments are grouped, and under them three propositions are urged. They read as follows: `(1) The local option law, being for a particular locality only, is a quasi local or special law, and depends for its validity upon its adoption in strict conformity with the law permitting its adoption. (2) The posting of at least five copies of the order for at least twelve days prior to the election in the places required by law is a jurisdictional fact, without which the people have no authority to assemble and vote, and the election is void. (3) The local option law can only be enforced by the criminal courts. The court of criminal appeals being a court of last resort in criminal cases, the construction placed...