Rouw v. Harrington

• Decision Date: 22 June 1955
• Docket Number: No. 12904,12904
• Citation: 281 S.W.2d 746
• Court: Texas Court of Appeals
• Parties: H. ROUW et al., Appellants, v. Nix HARRINGTON et al., Appellees.

Page 746

281 S.W.2d 746

H. ROUW et al., Appellants, v. Nix HARRINGTON et al., Appellees.

No. 12904.

Court of Civil Appeals of Texas, San Antonio.

June 22, 1955.

Rehearing Denied Sept. 7, 1955.

Kelley, Looney, McLean & Littleton, Ralph L. Alexander, Sid L. Hardin, Edinburg, for appellants.

Sawnie B. Smith, Felix L. McDonald, Edinburg, for appellees.

W. O. MURRAY, Chief Justice.

This is an election contest proceeding under the provisions of Chapter 9, Vernon's Ann.Tex.Stats., Election Code. The contest was brought by H. Rouw and others against Nix Harrington Mayor of the City of Edinburg, Texas, and others, seeking to have an election held in the City of Edinburg, Texas, on December 4, 1954, at which there was submitted 'the proposition of the issuance of bonds by said city in the amount of approximately $620,000.00 for drainage and paving,' declared to be null and void because of certain irregularities hereinafter discussed. The result of the election, according to the official returns, was 548 votes for the issuance of the bonds and 468 votes against the issuance of the bonds, thus making a majority of 80 votes in favor of the issuance of said bonds. At a trial before the court without a jury, judgment was rendered denying contestants any relief, and this appeal is by contestants from that judgment.

Appellants' first contention is that the court erred in not holding the election to be null and void because some 300 or 400 persons, who were otherwise qualified to vote in the election, were prevented from rendering their personal property for taxes after April 30, 1954, and thus prevented from qualifying to vote in this election. The only evidence that any one appeared at the city tax assessor and collector's office after April 30, 1954, and offered to render personal property for taxation, relates to S. G. Guzman and his daughter. The trial court found as a fact that about one week before the election S. G. Guzman and his daughter, Consuelo Guzman, appeared at the office of the city tax assessor and collector, during his temporary absence, and stated to an attendant that Consuelo Guzman desired to render a wrist watch, and that the attendant, who had previously been deputy tax assessor and collector, but was not then connected with the tax department, told them that she did not think she could accept the rendition for 1954, but suggested that Mr. Guzman and his daugher talk to Mr. Harrison, the tax assessor and collector. Mr. Guzman and his daughter waited for a while but went away without seeing the tax assessor and collector.

It was contended that the reason the other three or four hundred persons, who owned personal property, had not rendered their property for taxes was because there was talk, generally over the city, that the city officials would not accept any renditions of personal property for the year 1954 after April 30th. It is further contended that these three or four hundred otherwise qualified voters did not go to the polls and offer to vote at such election because they knew it would be futile to do so if their names were not on the assessment rolls. S. G. Guzman testified that all of these three or four hundred people would have voted against the issuance of the bonds.

All of this testimony presents a matter which could not be heard in a statutory election contest under the provisions of Chapter 9 of Vernon's Ann.Tex.Stats., Election Code.

It has been held in this State that the jurisdiction of the court in a statutory election contest relates only to matters happening on the day of the election and pertaining strictly to the election, such as the casting and counting of the ballots and the actions and conduct of the officials holding the election. Norman v. Thompson, 96 Tex. 250, 72 S.W. 62; Turner v. Allen, Tex.Civ.App., 254 S.W. 630; Ladd v. Yett, Tex.Civ.App., 273 S.W. 1006; Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871; Border v. Abell, Tex.Civ.App., 111 S.W.2d 1186; Marks v. Jackson, Tex.Civ.App., 130 S.W.2d 925; Shrock v. Hylton, Tex.Civ.App., 133 S.W.2d 175; Roberts v. Hall, Tex.Civ.App., 167 S.W.2d 621.

This rule is somewhat broadened and extended by Dickson v. Strickland, 114 Tex. 176, 285 S.W. 1012; Bickley v. Land, Tex.Civ.App., 288 S.W. 514; Holden v. Phillips, Tex.Civ.App., 132 S.W.2d 419, and Turner v. Lewie, Tex.Civ.App., 210 S.W.2d 86, but even under the extended rule the matter here raised cannot be considered as grounds for holding an election null and void.

Our Constitution, art. 6, § 3a, Vernon's Ann.St. and Vernon's Ann.Tex.Stats., Election Code, art. 5.30, provide as follows (the two provisions are exactly the same):

'When an election is held by any county, or any number of counties, or any political subdivision of the State, or any political subdivision of a county or any defined district now or hereafter to be described and defined within the State, and which may or may not include towns, villages or municipal corporations, or any city, town or village, for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt, only qualified electors who own taxable property in the State, county, political subdivision, district, city, town or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote and all electors shall vote in the election precinct of their...