Norton v. Alexander

• Decision Date: 22 March 1902
• Citation: 67 S.W. 787
• Parties: NORTON et al. v. ALEXANDER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 787

67 S.W. 787

NORTON et al. v. ALEXANDER et al.¹

Court of Civil Appeals of Texas.

March 22, 1902.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Suit by R. J. Norton and another against D. M. Alexander and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Martin & Martin, A. H. Culwell, and Harry W. Kuteman, for appellants. McCall & McCall and F. O. McKinsey, for appellees.

STEPHENS, J.

June 15, 1901, an election was held in Parker county to determine whether or not the sale of intoxicating liquors should be prohibited in said county. June 26, 1901, the commissioners' court entered an order on its minutes declaring the result of the election to be for prohibition by a majority of 18 votes, and proceeded to have it published by the Herald Publishing Company in a newspaper published in that county. July 8, 1901, just before the last publication was made, this proceeding was instituted against the county judge by R. J. Norton and J. S. Young, resident citizens and retail liquor dealers of said county, to restrain the further and final publication of the order. The preliminary injunction was at once granted, and remained in force till October 17, 1901, when the court on final hearing sustained exceptions to the petition, dissolved the injunction, and dismissed the suit. From that judgment this appeal was prosecuted, and is submitted upon two assignments of error.

The first is as follows: "The court erred in sustaining defendants' fifth special exception to plaintiffs' original petition, to the effect that said petition fails to show and allege that plaintiffs had given the statutory notice, and delivered a statement in writing of the grounds of plaintiffs' contest to the contestees, as provided by law, thereby holding that the court had not obtained and did not have jurisdiction of this suit, and in dismissing same for said reason." In proceedings to contest elections, as provided in title 36, c. 7, Rev. St., we understand the rule of construction to be that unless, within 30 days after return day of election, the contestee receives from the contestant notice in writing or a written statement of the ground on which the latter relies to sustain the contest, the court is not authorized to hear it. See cases cited in Roach v. Malotte (Tex. Civ. App.) 56 S. W. 701, and in Calverley v. Shank (decided by us 15th inst.) 67 S. W. 434. As no such notice was given in this case, the first proposition under this assignment—that none was required—must be overruled, unless, as further and mainly contended by appellants, the proceeding was maintainable as a suit in equity independent of the statute regulating election contests. The petition showed that each petitioner had obtained license by payment of occupation and internal revenue tax to pursue the occupation in which he was engaged from October 5, 1900, to October 5, 1901, and alleged in general terms that by the promulgation of the result of the election, as ordered, the right thus acquired would be interfered with; that the rental value of the houses leased to be occupied by them, respectively, as places of business during that time, would be a total or partial loss; that the business of each would itself be destroyed, with the stock in trade, furniture, and fixtures left on hand greatly depreciated in value; and that they would be "subjected to criminal prosecution and harassment." The petition charged that neither the county judge nor commissioners' court had issued writs of election specifying the question to be voted on or naming the day of election, and alleged a failure to post notice of the election at each...