Perkins v. Ingalsbe, A-8121

• Decision Date: 14 June 1961
• Docket Number: No. A-8121,A-8121
• Parties: Dallas G. PERKINS, Petitioner, v. Reed INGALSBE, Respondent.
• Court: Texas Supreme Court

Page 926

347 S.W.2d 926

162 Tex. 456

Dallas G. PERKINS, Petitioner, v. Reed INGALSBE, Respondent.

No. A-8121.

Supreme Court of Texas.

June 14, 1961.

Rehearing Denied July 19, 1961.

Cofer & Cofer, Austin, Dan T. Sorrells, Abilene, for petitioner.

Eplen, Daniel & Hooper, Abilene, for respondent.

GRIFFIN, Justice.

We are met at the threshold of this cause by respondent's motion to affirm the judgment of the Court of Civil Appeals without consideration of the points of error raised by petitioner Perkins, on the ground that the three points of error contained in the application all have to do with the respondent's power to revoke the election ordered, and were not assigned as error in the Court of Civil Appeals.

Petitioner, as appellant in the Court of Civil Appeals, assigned only one point of error, as follows (339 S.W.2d 344):

'The Court erred in finding that Plaintiff alleged no acts or conduct on the part of Respondent sufficient in law to constitute such fraud or other ground as would authorize the Court to grant the Petition for Mandamus. The District Court clearly has such power under the facts alleged.'

This point was stated in the language of the judgment of the trial court sustaining the respondent's plea in abatement and dismissing his suit. However, in his argument under this one point, petitioner raises and argues at length the County Judge's lack of power to revoke his order. Under our previous holdings these arguments were sufficient to raise in the Court of Civil Appeals the points assigned in this Court. Fambrough v. Wagley, 1943, 140 Tex. 577, 169 S.W.2d 478.

We have examined petitioner's motion for rehearing filed in the Court of Civil Appeals and find these points are raised therein.

We overrule respondent's motion to affirm the judgment of the Court of Civil Appeals without consideration of points assigned in petitioner's application.

This is an action for mandamus brought by petitioner against respondent in the District Court of Taylor County, Texas. The factual background is as follows: In compliance with the requirements of Art. 1134, Vernon's Texas Civil Statutes, more than twenty duly qualified residents of the area to be incorporated as the town of Impact on February 1, 1960, filed their petition asking that an incorporation election be called by respondent, the County Judge of Taylor County, Texas. The boundaries of the proposed town were set out in the petition and it was accompanied by a plat showing the area proposed to be incorporated. On that same date respondent made and entered his order of election, and finding all the statutory requirements to have been met, set February 13, 1960, as the date of the election, fixed a place for holding the election, appointed a presiding judge, ordered notices posted, and complied with such other statutory requirements regarding such incorporation elections. The notices of election were in due form and posted on February 2, 1960, in the area of Impact, as provided by law. On February 11, 1960, respondent entered an order revoking the order of February 1, 1960, which ordered the election, and ordered that the election not be held.

Petitioner sought the mandamus to require the respondent to accept the returns, canvass the votes, and declare the results of the election held on February 13, 1960, to determine whether or not an area described as the town of Impact should be incorporated. Petitioner alleged that the election had carried favorably to the incorporation, and that respondent be required to accept, canvass the votes and declare the results of the election, and place an order of incorporation on the minutes of the Commissioners' Court of Taylor County, Texas. Respondent filed a plea in abatement and a motion to dismiss petitioner's cause. The trial court sustained both motions and dismissed the cause at petitioner's cost. On appeal, the Court of Civil Appeals affirmed. 339 S.W.2d 343.

In his answer to the petition for mandamus the respondent sets out the facts which he relies on to prevent the issuance of the writ. On February 11, 1960, he had another hearing on the petition. Respondent there pled that on the original hearing of the petition for election, and at the time of the granting of the election order, he did not realize that the area sought to be incorporated was 'such a small part of what is generally considered 'North Park' community in the metropolitan area of the city of Abilene; that the area of Impact was not so conditioned as to be subjected to municipal government,' nor used for strictly town purposes; that the attempt to incorporate, as shown by the facts of which he took judicial knowledge and of his own personal knowledge, was not actually a bonafide attempt to incorporate for town purposes, but was planned with the intent to bring about a local option election in the town of Impact, should the incorporation election pass.

Respondent says he put none of these reasons in his order of revocation, which he placed of record, but that he actually took all these facts and circumstances into consideration in his decision revoking the election. There was no evidence heard by the trial court. He sustained the plea in abatement and dismissed petitioner's cause of action.

The order revoking the election recites six reasons for the order. None of these, however, are that the petition did not comply, in every respect, with Art. 1134, V.T. C.S.

The first question to be answered is: Did the County Judge have the power to revoke his election order and thus stop the election, so as to prevent those residents of Impact from expressing their preferences as to whether or not the area should be incorporated? We hold that because the petition was in due and legal form in compliance with the statutory requirements, and because the respondent had a hearing on the petition and found the statutory requisites present, and ordered the election and posted notices as required by law, it follows that the election process was lawfully put in motion and the County Judge could not prevent its being carried to its conclusion.

No contention is made that the petition for election did not contain the requisite number of qualified electors resident in the territory. Respondent contends that the action of the county judge in revoking the election order is final and conclusive. He relies on those cases holding that the original action of the county judge, either calling or refusing to call an election on the presentation of a petition, is final and not reviewable in the absence of allegations of fraud. State ex rel. Burkett v. Town of Clyde, 1929, 18 S.W.2d 202, 203, wr. ref., is a quo warranto proceeding attacking the finding of the county judge in 1907 as to population. It was not a case involving an attempted revocation of an election order legally promulgated. The case was tried some 20 years after the election. The Town of Clyde case, speaking of the fraud necessary to permit an attack on the findings of the county judge, says:

'* * * Unquestionably the law will relieve from the effects of fraud. But even in such case the fraud sufficient to invalidate his (county judge's) action must be such as is chargeable to the officer and not merely fraud of others by which the officer is led into error. Word v. Schow, 29 Tex.Civ.App. 120, 68 S.W. 192.'

In the case of Arberry v. Beavers, 1851, 6 Tex. 457, a Mandamus was sought to compel the county judge to canvass the returns from two voting boxes and declare the result of an election to determine whether Jefferson or Linden should be the county seat of Cass County, Texas. In discussing the power and authority of the county judge with regard to the election, the court said, 'when he (the county judge) had exercised his judgment and finally disposed of the subject, his authority was functus officio. By its exercise it was exhausted.'

A case directly in point, except it is a school case rather than a city or town case, is the case of Cameron v. Baker, Tex.Civ.App.1929, 13 S.W.2d 119, 120, no writ history. The school statutes applicable provided that an election should be called by a county judge, upon presentation of a proper petition, to determine whether or not a common school district should be incorporated as an independent school district. Upon such petition being presented to Cameron, as County Judge, he called an election for a certain day, ordered notices posted, and complied with other requisites of the statutes in holding such election. Three days before the time for holding the election, Cameron entered an order revoking his election order. This revocation order was not served until the election was in progress. The election was held, the proper returns made to the county judge and he refused to canvass the returns, declare the results and take proper steps to put the election into effect-as is the situation in our case. The trial court granted the mandamus requiring the county judge to canvass the returns, declare the results of the election and enter the proper order. On appeal the Court of Civil Appeals affirmed, saying:

'It would be a dangerous power lodged in the hands of a county judge to issue an ex parte order to election judges, while they are holding an election, to desist further action and proceed no further in the election, and no statute has ever granted such power to a county judge. The trial judge found that the law was fully complied with by the county judge, and that law provides for no authority to the county judge other than to call the election, canvass the returns of the election officers, and declare the results. (Citing school statutes 2757 and 2758 (1925)) If the election be illegally held, the matter can be inquired into and settled by proper judicial tribunal on application of any tax-paying resident of the district. The authorities cited by appellant do not sustain his propositions, but the case cited of Ewing v. State ex rel. Pollard, 81 Tex. 172, 16...