Oxley v. Allen

• Decision Date: 05 February 1908
• Citation: 107 S.W. 945
• Parties: OXLEY v. ALLEN.
• Court: Texas Court of Appeals

107 S.W. 945

OXLEY v. ALLEN.

Court of Civil Appeals of Texas.

February 5, 1908.

Appeal from District Court, Hamilton County; N. R. Lindsey, Judge.

Action by J. C. Oxley against S. R. Allen. From a judgment for defendant, plaintiff appeals. Affirmed.

R. Q. Murphree and Langford & Chesley, for appellant. S. R. Allen and A. R. Eidson, for appellee.

RICE, J.

This suit was brought by appellant against S. R. Allen, county attorney of Hamilton county, for the purpose of contesting the validity of a local option election held in justice precinct No. 3 in said county on the 10th day of March, 1906. It appears from the conclusions of fact as found by the court as well as the facts in evidence that in 1894 a local option election was duly had and held for justice precinct No. 3 of Hamilton county, at which election local option prevailed, and the same was duly carried into effect by the county authorities. Thereafter in 1896, and likewise in 1899, local option elections were properly ordered, had, and held for said justice precinct, each of which elections resulted in favor of local option, and the same was thereby continued in force in said precinct. The county commissioners' court of Hamilton county, at its February term, 1900, diminished the area of said justice precinct to the extent of taking therefrom a strip of territory one mile wide by three miles long, which said strip of land so taken from justice precinct No. 3 was inhabited by qualified voters at the dates of all the elections held in said justice precinct, both before and subsequent to said change therein as made by said commissioners' court. Thereafter, at its February term, 1902, the commissioners' court of Hamilton county ordered a local option election to be held in justice precinct No. 3 of said county on March 15, 1902, which said election was ordered for and held in justice precinct No. 3 as it then existed after the change aforesaid, and not in the territory originally embraced in justice precinct No. 3. The result of said election was never declared and never regarded by the commissioners' court as regular, on the ground that it was ordered for and actually held in a different territory from that which had previously adopted local option. Thereafter, in April, 1902, the commissioners' court of Hamilton county ordered another election to be held on the 10th day of May, 1902, in the territory comprising justice precinct No. 3 as the same existed prior to the change therein, describing said territory in its order by metes and bounds, and being identically the same territory that originally adopted it, and which had continued it in force by the elections of 1896 and 1899, and which last election held on May 10, 1902, resulted in the defeat of local option. On the 17th day of February, 1906, the commissioners' court of Hamilton county ordered another local option election to be held within and for said precinct No. 3 on the 10th day of March, 1906, and the election was ordered for the territory comprising precinct No. 3 as the same stood after the change diminishing same, as aforesaid, which election resulted in favor of local option in said precinct No. 3 as then constituted. Said commissioners' court met on the 22d day of March next thereafter, being the 11th day after said election, canvassed the returns of same, ascertained the fact that said election resulted in favor of local option, but said court failed to enter its order declaring the result of said election, but at said time ordered another local option election to be held on the 14th of April, 1906, in justice precinct No. 3 as the same then existed, which last election was held in accordance with the order of said court, and the result, to wit, that of prohibition duly declared, and an order to that effect was duly published, and prosecutions were instituted thereunder for the selling of liquor in violation of a local option law in said precinct as put in force by said election of April, 1906, which last election the Court of Criminal Appeals held void, on the ground that the commissioners' court of Hamilton county had no authority to order said election. Burks v. State (Tex. Cr. App.) 103 S. W. 850. Thereafter the commissioners' court of Hamilton county, on the 27th day of July, 1907, in obedience to a writ of mandamus, met in special session, and declared the result of the local option election which had been held in precinct No. 3 on March 10, 1906, and which election resulted in favor of local option, and made the necessary orders to put the same into effect.

Besides some questions relating to the pleadings, the principal contention as made by appellant against the validity of the local option election of March 10, 1906, seems to be, in effect, that by reason of the elections of 1894, 1896, and 1899 local option prevailed in precinct No. 3 as originally constituted, and that in February, 1900, the commissioners' court having changed the boundaries and diminished the area of said precinct, the next election in said precinct, which was held March 15, 1902, was in precinct No. 3 as changed by the commissioners' court in 1902, and not in said precinct as it existed when local option was voted in 1894 and reaffirmed in 1896 and 1899; that the commissioners' court wrongfully held that said last election was invalid, and had no power to order the second election in 1902, because he contended that said first election of 1902 was valid until annulled by a proper contest thereof in a court of competent jurisdiction; and that because the election of May 10, 1902, was held within less than two years thereafter, the same was nugatory and without warrant of law, and as a result thereof local option was continued in force as originally voted in 1894, 1896, and 1899, and that as the election of March 10, 1906, was held in the territory of precinct No. 3 as constituted after the change of said precinct in 1900, and not in the territory originally adopting local option, the court should have held the same invalid. Appellant also contended that the commissioners' court at its July term, 1907, was then without power or authority to declare the result of the election of March 10, 1906, because more than one year had elapsed since the holding of said election; the ballots and returns thereof having in the meantime been destroyed by the county clerk, as required by law.

Appellant by his first assignment of error insists that the court erred in sustaining exceptions to his amended original petition, which in effect alleged that said election was illegal because the polls at one of the voting boxes were closed at 6 o'clock and not kept open for the time required by law, to wit, until 7 o'clock p. m., and thereby a large number of voters were deprived of the privilege of voting, which would have changed the result and have rendered the same doubtful. Appellant likewise urged in his second assignment that the court erred in striking out paragraph (d) of his first amended original petition, which was to the effect that the oath administered to the officers of the election was illegal and not binding. These assignments relate to such irregularities as may be discussed together. We do not think that the court erred in sustaining the exceptions above alluded to, because as to the first the number and names of the persons who it is claimed were deprived of voting at said election were not alleged, nor was any excuse offered for failing to so state them; nor is it alleged that the result would have been materially changed by reason thereof, but only that it would have changed the result. This might have been true without really affecting the legal result of the election. We think it was necessary on the part of the pleader to either give the number and the names of the parties who were thus deprived of the privilege of voting, in order that the contestee might be able to meet this issue with proof, or to have alleged some sufficient excuse for failing so to do, which was not done. A general statement, as contained in the petition, in our judgment, is not sufficient. Nor did the court err in sustaining the exception relative to the point raised in the second assignment of error, that the oath administered was not the proper one. It devolved upon the contestant to allege specifically the oath in fact taken, and to show that the same was different from the one required by law, and his failure to do so was sufficient ground for sustaining the exception. The facts relied upon by a contestant to impeach the validity of an election should be set forth specifically and definitely, as shown by the following authorities: Maloney v. Collier, 112 Tenn. 78, 83 S. W. 667; McCreary on Elections, § 437; Edwards v. Logan (Ky.) 69 S. W. 800; Bigham v. Clubb (Tex. Civ. App.) 95 S. W. 674.

We do not think the court erred in refusing to consider the evidence of A. E. Scott, as alleged by appellant in his third assignment of error, because we believe that said testimony was immaterial with reference to the issue then before the court. Said evidence...