Roper v. Scurlock

• Decision Date: 31 May 1902
• Citation: 69 S.W. 456
• Parties: ROPER et al. v. SCURLOCK et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 456

69 S.W. 456

ROPER et al. v. SCURLOCK et al.¹

Court of Civil Appeals of Texas.

May 31, 1902.

Appeal from district court, Johnson county; Wm. Poindexter, Judge.

Action by Ward Roper and others against A. C. Scurlock and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

This is a suit instituted by Ward Roper and others, appellants herein, as plaintiffs, against A. C. Scurlock, publisher of the Cleburne Chronicle, and W. D. McKoy, county judge of Johnson county, to enjoin the publication of, and carrying into effect of, an order of the commissioners' court of Johnson county declaring the result of a local option election held in said county on the 13th day of September, 1901. The petition set up various grounds attacking the legality of said election, and sought to have the election declared null and void. A trial before the court resulted in a judgment for the defendants, and plaintiffs have appealed. The facts sufficiently appear in the opinion.

S. C. Padelford, H. P. Brown, and W. H. Bledsoe, for appellants. W. B. Featherstone, O. T. Plummer, W. D. McKoy, and Goldsmith & Walker, for appellees.

BOOKHOUT, J.

1. It is contended that, where the precincts in which it is proposed to hold a local option election embrace within their limits an incorporated town or city, such local option election can only be ordered when the petition for same is signed by qualified voters,—not less than one-tenth of the number of the total vote cast for governor at the last preceding general election held in said precincts in which said incorporated towns or cities are situated. It was admitted on the trial of the case that within the limits of Johnson county at the date of said local option election there were situated the city of Cleburne, the city of Alvarado, and the town of Grandview, each of which is a municipal corporation. It was further admitted that the petition which was presented to the commissioners' court, and upon which said local option election was ordered, was not signed by one-tenth of the qualified voters voting at the last general election in the precincts in which said towns and cities were situated. The contention is that, when a local option election is ordered in a county, if there be one or more municipal corporations in said county the petition must be signed by one-tenth of the qualified voters of the precinct in which such municipal corporation is situated, in order to authorize the commissioners' court to order an election upon said petition. The contention is without merit. The statute which provides that, "if the precinct or precincts designated embrace within their limits an incorporated town or city then such election shall only be ordered when the petition for the same is signed by qualified voters not less than one tenth in number of the total vote cast for governor at the next preceding general election in such incorporated town or city" (Sayles' Ann. Civ. St. 1897, art. 3384), only applies where the election is called to determine whether local option shall prevail in the precinct or precincts in which such municipal corporation is located, and not where the election is called to determine whether local option shall prevail throughout the county.

2. It is insisted that, in each election precinct which shall have cast more than 100 votes at the last preceding general election, the presiding officer of such precinct shall on or before the day of the election select from the qualified voters of the precinct three judges and four clerks to act in conducting said election, and that two ballot boxes shall be used in holding said election. It was admitted on the trial that at the local option election held in a majority of the precincts, in each of which more than 100 votes were cast at the last general election, said local option election was held by two judges, two clerks, and one presiding officer, and that but one ballot box was used in each of said precincts. It is insisted that for this reason the election was void. Upon inspection of the record, it appears that the election in the several precincts to which the above contention applies was a full, free, and fair expression of the qualified electors of the respective precincts. There is no intimation whatever that fraud was practiced, or that the result of the election was in any way affected by the fact that the election was held by five officers instead of seven, and that there was only one ballot box used instead of two. The contention insisted upon is without merit.

3. Complaint is made that the trial court erred in holding that the judgment of the commissioners' court declaring that said election had gone in favor of prohibition was legal and correct, because the commissioners' court did not open the ballots and count the votes, but merely ran up the returns made by the persons pretending to hold said election, and arrived at an illegal result by said method. The evidence shows that the commissioners' court, in arriving at the result of the election, took the returns, and estimated the result therefrom. The returns were made on blanks furnished by the county clerk. The commissioners' court did not open the boxes and count the ballots. We think it was the duty of the judges holding the election to count the ballots, and make report of their count to the commissioners' court, and to certify to the same. The commissioners' court was authorized to presume that the certificates to the returns made by the election officers were correct. The failure of the commissioners' court to open the ballot boxes and count the votes presents no ground for holding the election void, in the absence of fraud or of such irregularity as would show that the proper result had not been reached. It was shown that the commissioners' court pursued the same method in arriving at the result that is pursued in ascertaining the result in general elections. Chapman v. State (Tex. Cr. App.) 39 S. W. 113; Hunnicutt v. State, 75 Tex. 233, 12 S. W. 106; Fowler v. State, 68 Tex. 35, 3 S. W. 255. There was evidence showing a slight discrepancy between the tally sheets and the poll lists in one or two of the precincts. This discrepancy was trivial, and did not in any way affect the result.

4. It is insisted that the court erred in holding the election valid for the reason that the judgment of the commissioners' court ordering said election was not signed by the county judge, and was not attested by the clerk of the commissioners' court, and, further, that the minutes of said court were not signed until after the term had closed and the election had been held. The term of the commissioners' court at which the election was ordered commenced on the second Monday in August. The next term began the second Monday in November. The election was held September 13th. The minutes for the August term were not signed until after the election was held. The evidence clearly shows that the order calling the election was passed by the commissioners' court on August 15, 1901. A pencil copy of the order was prepared, and, after having been passed, was signed by the county judge and left with the clerk of the court, to be entered on the minutes. The clerk entered the order in the minutes. In doing so he did not copy the signature of the county judge. The order appears duly entered in the minutes of the court for that term. The minutes for the term began on page 75, but this order appears on page 79 of the minutes. The order having been duly passed and entered in the minutes of the court, the fact that the minutes were not signed until after the election did not affect the validity of the order for the election held thereunder. Ewing v. Duncan, 81 Tex. 232, 16 S. W. 1000; Lockhart v. State, 32 Tex. Cr. R. 149, 22 S. W. 413; Lillard v. State (Tex. Cr. App.) 53 S. W. 125; Waggoner v. Wise Co. (Tex. Civ. App.) 43 S. W. 836; Ex parte Williams, 35 Tex. Cr. R. 75, 31 S. W. 653.

5. It is contended that the court erred in holding that proper and legal notice of said election held on the 13th of September, 1901, was given, because the uncontradicted evidence shows that no regular legal notice of said election was given in accordance with article 1728, Sayles' Ann. Civ. St. 1897, and that the evidence further shows that certified copies, under the seal of the commissioners' court, by the clerk, were not posted in five places, as required by law. The contention is that the failure to give notice as required by article...