Robinson & Watson v. Wingate

• Decision Date: 10 May 1904
• Citation: 80 S.W. 1067
• Parties: ROBINSON & WATSON et al. v. WINGATE, County Judge, et al.
• Court: Texas Court of Appeals

80 S.W. 1067

ROBINSON & WATSON et al. v. WINGATE, County Judge, et al.

Court of Civil Appeals of Texas.

May 10, 1904.

Appeal from District Court, Orange County; W. P. Nicks, Judge.

Action by Robinson & Watson and C. A. Turner, intervener, against W. J. Wingate, county judge, and others, as members of the commissioners' court. From a judgment for defendants, plaintiffs and intervener appeal. Affirmed.

Holland & Holland and Chester, Crawford & Chester, for appellants. Robertson & Bruce, Hart & Sholars, Adams & Huggins, and Geo. F. Poole, for appellees.

GILL, J.

This action was brought by appellants, as retail liquor dealers and qualified voters in Orange county, against W. J. Wingate, judge, and the several members of the commissioners' court, to cancel and annul a local option election held in Orange county, in May, 1903, and to enjoin them from canvassing the election returns and publishing the result. On May 31, 1903, the petition was presented to the judge of an adjoining district, who granted the preliminary injunction as prayed for, and ordered that it remain in force until the litigation was finally determined. Defendants presented general demurrers and special exceptions to the petition, the latter, among other things, questioning the sufficiency of the pleadings on the ground that the allegations were too general, vague, and indefinite. At the October term of the district court of Orange county the demurrers were heard, the general demurrer sustained, and plaintiff granted leave to file a trial amendment. Thereupon C. A. Turner, another retail liquor dealer in that county, by leave of the court intervened, adopting the allegations of the plaintiffs, and alleging further that he was not a qualified voter. On motion of the defendants the intervention was stricken out. Plaintiffs then filed their trial amendment, to which, in connection with the original petition, the demurrers were renewed, and the general demurrer was sustained. Plaintiffs' request to further amend was refused, and the bill dismissed. Plaintiffs and intervener have appealed.

A brief statement of the substance of the pleadings will be sufficient for the purposes of this opinion. The firm of Robinson & Watson and their coplaintiffs alleged that they were lawfully licensed retail liquor dealers in Orange county, and qualified voters therein. That they had invested in such business considerable capital, the value of which would be greatly lessened if the sale of liquor should be prohibited in that county. That, pursuant to an order of the commissioners' court, an election was held in Orange county on May 20, 1903, to determine whether the sale of intoxicating liquors should be prohibited in that county under the terms of the local option law. That the defendants, the county judge and commissioners' court, are about to canvass the returns and publish the result, which, if permitted to be done, will work irreparable injury to their capital and business, to prevent which they have no adequate remedy at law.

They allege that the election was a nullity: First. Because the commissioners did not adjudge that it was expedient to call such election, but ordered it solely because a petition purporting to be signed by 250 qualified voters, as required by the statute, was presented to them requesting such action on their part. That, as a matter of fact, not all the 250 signers were qualified voters, and the representation that they were such was a fraud upon the commissioners, but for which such election would not have been ordered. Second. Because at many of the voting boxes the election was held and conducted by judges and clerks who were not at the time qualified voters in Orange county, and qualified to serve in such capacity.

They allege that the election was unfairly conducted: First. Because on the day of the election religious services were held in many of the churches in the town of Orange. That ministers of the gospel, married women, and little girls were, by a preconceived arrangement among the partisans of prohibition, engaged in ringing the church bells, holding prayer meetings, parading the streets, singing songs, in gathering about the polling places, in talking and singing with insistence to the different voters who presented themselves for the purpose of voting. That the said ladies and misses obstructed the way and detained the voters, and employed songs and music and a great many arguments which were the result of overwhelming zeal and a pronounced desire to destroy the business of plaintiff. That these practices had the effect of and did deter a great many men who were opposed to prohibition from voting, and kept them away from the polls. Second. That a great many voters who had paid their state and county poll tax were denied the right to vote because they had not also paid their city poll tax. Of these there were more than 50 who would have voted against prohibition, and which number would have been sufficient to change the result. Third. That the officers holding the election did, at various voting boxes during the progress of the ballot, engage in counting the votes, announcing the result from time to time to the partisans of prohibition. Fourth. That one G. W. Carroll, a citizen of an adjoining county and a man of immense wealth, did, during the progress of the campaign, agree and promise to pay and make good any deficit in the amount of the taxes received for the ensuing two years which might be due to the adoption and enforcement of prohibition. That this offer was printed in the form of handbills, and distributed generally to the voters of the county, was the subject of newspaper comment, and influenced many voters to cast their ballots for prohibition who would not have otherwise done so. Fifth. They say, on information and belief, that many voters who would have voted against prohibition, and the sum of whose votes would have changed the result, were accused of swearing falsely and threatened with arrest, and thereby deterred from casting their ballots. Sixth. That many voters were allowed to vote for prohibition who had lost or mislaid their poll-tax receipts, and this without requiring them to make the required affidavits of such loss, and that of these there were enough in number to change the result.

In alleging that, of those who signed the application to the commissioners' court, less than 250 were qualified voters, not one is named or otherwise designated. Of those alleged to have been excluded on the ground that they had not paid their city poll tax, not one is named, nor is it shown at what voting box it occurred. It is not alleged at what voting boxes the status of the ballot was prematurely announced, or what officers were guilty of the misconduct complained of. Nor are the allegations any more definite as to the electors permitted to vote without making affidavit of the loss of their poll-tax receipts. The entire petition is quite as vague and indefinite as is indicated by the above statement of its substance.

The so-called trial amendment was in effect an amended original petition, as it was a restatement in its entirety of plaintiffs' cause of action. It did not in any respect add to its definiteness in the respects above mentioned, or otherwise, except that one voter is named as having been influenced to vote for prohibition by the offer of Carroll. In this pleading, however, the further objection was made to the voters' petition to the commissioners' court that it was not all one petition, but consisted of four petitions attached together, though they had been signed separately. It was alleged, in addition to the grounds set up in the first pleading, that the clerk failed to post the five notices of the order as required by law, and that no return was made showing that such notices had been posted at all. Further, that the order was made at a special session of the commissioners' court, and that one of the commissioners was not notified of the meeting. It is not averred that all the commissioners were not in fact present. Further, that the special session of the commissioners was convened and adjourned on April 20, 1903, but the proceedings were not recorded during the term, or read over and signed by the county judge, nor was the same attested by the clerk as required by law, and no notice was given, as required by law, of such proceedings. As an additional ground for injunction, it is averred that the petitioners fear they will be harassed by arrests and criminal prosecutions if the result is permitted to be announced.

The general purpose of the suit was to prevent the operation of the law in Orange county, to forestall criminal prosecutions thereunder. To secure this result, plaintiffs have sought to combine two actions distinct from each other in their nature, and to bring to the aid of both the court's power to enjoin. In assailing the validity of the order of the commissioners' court under which the election was held, matters are set up which would be available as a defense in criminal prosecutions instituted for the enforcement of the law. These matters go to the validity of the election as distinguished from its fairness, and, if established, render the entire proceeding null and void.

The other phase of the case is clearly an effort to contest the election in a mode other than that prescribed by the statute. Appellees contend that the district court is without power to enjoin the publication of the result, and, if the contention is sound, we need inquire no further. We think it can be safely said that the court is without power to grant the writ on the grounds cognizable in an election contest. There are many considerations which tend to support this conclusion. Before provision was made by the Legislature for the contest of elections, no proceeding looking to that end could be brought by one having only the interest of a citizen and voter, if, indeed, an election could be...