Nueces County Water Control and Imp. Dist. No. 4 v. State ex rel. Wilson, 12675

• Decision Date: 14 April 1954
• Docket Number: No. 12675,12675
• Citation: 270 S.W.2d 672
• Parties: NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 4, et al., Appellants, v. The STATE of Texas, ex rel. Sam E. WILSON, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 672

270 S.W.2d 672

NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 4,

et al., Appellants,

v.

The STATE of Texas, ex rel. Sam E. WILSON, Jr., et al., Appellees.

No. 12675.

Court of Civil Appeals of Texas, San Antonio.

April 14, 1954.

Rehearing Denied July 7, 1954.

Second Rehearing Denied Sept. 8, 1954.

Fischer, Wood, Burney & Nesbitt, Corpus Christi, Dumas, Huguenin & Boothman, Dallas, George Prowse, Corpus Christi, for appellants.

John Ben Shepperd, Atty. Gen., Robert S. Trotti, Burnell Waldrep, Asst. Attys. Gen., B. D. Tarlton, Neel & Seaman, Corpus Christi, R. H. Whilden, W. G. Winters, Jr., Houston, Chas. B. Ellard, W. Leo Austin, Dallas, Paul A. McDermott, Fort Worth, James M. Easterling, Frank Chilson, Corpus Christi, for appellees.

POPE, Justice.

This is a quo warranto proceeding brought by the State and others, which attacks the validity of the creation and challenges the existence of the Nueces County Water Control and Improvement District No. 4. The trial court granted the relators' prayer and held that the election to confirm the district was void, and nullified the organization proceedings. The grounds for the holding were that the Commissioners' Court declared the entire district as a single election precinct and provided a single polling place for the election. Relators asserted that the procedure was in violation of Art. 7880-115, which states certain conditions precedent to an organization of a water district. The polling place was located at the Community Center in Port Aransas. Port Aransas is a municipal corporation, and its territory, as well as much other territory outside the bounds of the city, constituted the proposed district.

Article 7880-115, Vernon's Ann.Civ.Stats., presents the point for decision. It provides that no city shall be included within any district unless the proposition for the organization is adopted by a majority of its voters participating in such election. It provides further: 'Any such municipal corporation included within a district shall be a separate voting district and the ballots cast therein shall be counted and canvassed to show the result of such election therein. No district hereafter organized embracing a town, city or municipal corporation shall include lands outside of such municipal corporation unless the election held therein to confirm and ratify the formation of such district shall be adopted thereby independent of the vote in such municipal corporation.'

The trial court held that the single polling place for voters within and without the city of Port Aransas resulted in a void election. The trial developed certain additional undisputed facts. At the election, 118 votes were cast. Every vote was in favor of the formation of the district. There was not a single dissent. Of that group of voters, it was further proved that 97 voters lived within the geographical limits of Port Aransas and 21 voters lived outside Port Aransas, but within the district. It was still further proved that all elegible voters within the limits of Port Aransas voted, except 49 persons. All the eligible voters outside Port Aransas voted, except 10 persons. The problem presented is whether the election was invalid as a necessary condition precedent to the organization of the district by reason of the failure to provide a separate voting box outside of Port Aransas. To determine that point, we must bear in mind that 21 out of 31 elegible voters outside the City of Port Aransas voted, and that all 21 voted favoring the district. The unusual circumstances of unanimity made apparent how each person voted, both as to persons who reside within and outside the City of Port Aransas. Had all other eligible persons voted, it could not possibly have changed the result.

This case is controlled by State ex rel. Miller v. Troell, Tex.Civ.App., 207 S.W. 610, by this Court. In that case this Court decided that an irregularity, if harmless, in the creation of a municipal corporation, would not work an ouster under quo warranto. It was there pointed out that 102 persons out of a possible 115 qualified voters, cast their vote favoring incorporation. The Court held that the failure to give proper notice of the election was rendered immaterial by reason of the fact that the results could not possibly have been different, had the notices been given in strict conformity with the law. We are unable to distinguish that case from this one. Perhaps the most complete collection of cases pertaining to compliance with conditions precedent to the creation of municipal and quasi-public corporations is the opinion in Witham v. McNutt, 186 Or. 668, 208 P.2d 459, 472. The Court there concluded that substantial compliance with the conditions precedent was all that is required when there is 'no evidence that the ultimate result would have been affected had compliance been strict.' See also, State ex inf. v. Parkey, 96 Or. 499, 190 P. 319; Kittery Water Dist. v. Agamenticus Water Co., 103 Me. 25, 67 A. 631.

The creation of municipal and public corporations usually is conditioned upon compliance with several conditions precedent. Those conditions sometimes require an election as one of several other conditions. While a quo warranto proceeding compels a close scrutiny of the steps necessary for compliance, the usual rule is that an election, when considered as one of the conditions precedent, will be upheld where, 'despite irregularities, the result was not affected thereby and there was no fraud or unfairness.' 62 C.J.S., Municipal Corporations, § 21. In the matter of creation and organization of public and quasipublic corporations, this Court has followed the rule that there must be substantial compliance with the conditions precedent required by statute. Amberson v. Henderson, Tex.Civ.App., 127 S.W.2d 553; State ex rel. Miller v. Troell, Tex.Civ.App., 207 S.W. 610. See, 67 C.J., Waters, § 877, and 23 Tex.Jur., Improvements-Public, § 16. With reference to the creation of school districts, as an analogy, it is said: 'In some decisions a statute requiring the judges of election to provide separate ballot boxes for the votes of persons residing within and without a town, in an election on a proposal affecting both territories has been regarded as mandatory, and in other cases has been regarded as merely directory; but the basis of the holdings appears to be that, where a further provision of the statute requires the proposal to carry in both territories in order that action thereon may be taken, the question whether failure to comply with the requirement of separate ballot boxes is prejudicial and invalidates subsequent proceedings depends on whether or not the proposal carries both within and without the city or town.' 78 C.J.S., Schools and School Districts, § 41d.

Relators forcefully urge that the rules applicable to a quo warranto proceeding require a stricter compliance than is true in election contests. They urge that respondents can not rely upon such cases as Hill v. Smithville Independent School District, Tex.Com.App., 251 S.W. 209; Awalt v. Beeville Independent School District, Tex.Civ.App., 226 S.W.2d 913; Waters v. Gunn, Tex.Civ.App., 218 S.W.2d 235; State ex rel. Wilkinson v. Self, Tex.Civ.App., 191 S.W.2d 756; Orth v. Benavides, Tex.Civ.App., 125 S.W.2d 1081; Leslie v. Griffin, Tex.Civ.App., 23 S.W.2d 535; Turner v. Teller, Tex.Civ.App., 275 S.W. 115, and others, because they are election contests which apply a more liberal rule. It is true that this is not an election contest; however, one of the conditions precedent to the creation of a district is a correct election. The question then arises, whether an election will have one set of rules for a quo warranto proceeding and another different set of rules in an ordinary election contest.

Before district courts were granted jurisdiction over election contests, it was settled that such courts could hear and determine suits for title and possession of an office. It was also settled that quo warranto was a proper proceeding to litigate the title and possession of an office, and that though the court had no jurisdiction over elections, in a quo warranto proceeding to recover an office, 'it became necessary for the plaintiff to trace his right or title thereto through an election'. For that reason it was settled further, that 'the court had jurisdiction to go behind the returns and ascertain who was, in fact, lawfully elected.' De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519, 521; State ex rel. Jennett v. Owens, 63 Tex. 261, 268, 270. 'But in a suit for an office where the...