Orth v. Benavides, 10607.

• Decision Date: 21 February 1939
• Docket Number: No. 10607.,10607.
• Citation: 125 S.W.2d 1081
• Parties: ORTH v. BENAVIDES.
• Court: Texas Court of Appeals

125 S.W.2d 1081

ORTH v. BENAVIDES.

No. 10607.

Court of Civil Appeals of Texas. San Antonio.

February 21, 1939.

Rehearing Denied March 15, 1939.

Appeal from District Court, Brooks County; L. Broeter, Judge.

Election contest by I. J. Benavides against M. F. Orth for the office of county and district clerk of Brooks county. From a judgment for the contestant, the contestee appeals.

Affirmed.

J. W. Wilson, of Falfurrias, and E. G. Lloyd, Jr., of Alice, for appellant.

Kennedy Smith, of Raymondville, and F. G. Garza, of Falfurrias, for appellee.

MURRAY, Justice.

This is an election contest between I. J. Benavides, contestant, and M. F. Orth, contestee, for the office of County and District Clerk of Brooks County.

There are four voting precincts in Brooks County. The Commissioners' Court of Brooks County, acting as a canvassing board of the general election held on November 8, 1938, refused to consider the purported election returns from Precinct No. 3, because the same were not signed and certified by the election officers of that precinct, and declared M. F. Orth elected County and District Clerk. Benavides filed this contest and upon a hearing the court, in effect, found that the purported election returns from precinct No. 3 should be considered, and declared Benavides elected to the office of County and District Clerk. Orth has appealed.

Appellant's first contention is that this election contest was prematurely filed and should therefore be dismissed because he had not been issued a certificate of election at the time the notice of contest was served upon him and filed in court.

The evidence shows that the notice of intention to contest the election was served upon Orth after the return day of the election, but before a certificate of election had been signed by the County Judge or mailed to him.

The provisions of the statutes which bear on this matter are as follows:

Article 3032, Revised Civil Statutes, provides, in part, thus: "After an estimate of the result of an election has been made as provided for in this title, the county judge shall deliver to the candidate or candidates for whom the greatest number of votes have been polled for county and precinct officers a certificate of election, naming therein the office to which such candidate has been elected, the number of votes polled for him and the day on which such election was held and shall sign the same and cause the seal of the county court to be thereon impressed. * * *"

Article 3042 is as follows: "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 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."

When these provisions of the statutes are construed together and consideration given to each provision therein contained it becomes plain that the time to institute the contest of an election is not before the return day of that election and not later than thirty days after such return day. It is true that in Gates v. Hays, 95 S.W.2d 1020, this Court held that a contest instituted before return day was prematurely begun, but there is nothing in that opinion which would indicate that we would hold that a contest begun before a certificate of election was issued would be prematurely brought.

It is important to wait until the return day of the election so that the canvassing board may have an opportunity to canvass the votes and declare the result of the election, but after the result has been declared the issuing of the certificate of election is a ministerial duty and a mere matter of form. If the date of the issuing of the certificate was the determining factor as to when a contest could be properly instituted then a county judge, by merely delaying the issuing of a certificate of election for thirty days after the return day, could defeat, altogether, a candidate's right to contest the election. Such was never intended by the Legislature. Dean v. State ex rel. Bailey, 88 Tex. 290, 30 S.W. 1047, 31 S.W. 185.

Appellant next contends that in view of the fact that appellee is in fact complaining of the action of the canvassing board in not considering the alleged returns from Precinct No. 3, and not complaining of something that happened on election day, he should have pursued some other remedy, and that the statutory remedy of election contest, as provided in Art. 3041 et seq., R.C.S.1925, is not a proper method of raising such questions. We overrule this contention. The canvass of the returns is a part of the election. Leslie v. Griffin, Tex.Com.App., 25 S.W.2d 820; Ladd v. Yett, Tex.Civ.App., 273 S.W. 1006; Treaccar v. City of Galveston, Tex.Civ.App., 28 S.W.2d 276; Winder v. King, Tex.Com.App., 1 S.W.2d 587; Kincannon v. Mills, Tex.Civ.App., 275 S.W. 1083; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012. The failure of a Commissioners' Court, or any other canvassing board, to properly declare the result of an election is a matter which may be raised in a statutory election contest.

The election returns from Precinct No. 3 were not certified to and signed by the election officers. The trial judge permitted these officers to identify the election returns from Precinct No. 3, and to testify that they were true and correctly reflected the votes cast at the election for the office of County and District Clerk....