Appeal from District Court, Potter County; H. G. Hendricks, Judge.
NEILL, J.
We take from appellants' brief the following statement of the nature and result of the suit:
"This cause is a contest of a local option election held in Potter county, Tex., on the 3d day of December, 1907, for the purpose of determining whether the sale of intoxicating liquors should be prohibited within said county. The statement of the contestants, filed within the statutory period, after due notice, alleges in substance:
"(1) That the election is void for want of constitutional authority to hold same.
"(2) Because the same was ordered on the petition of 302 persons alleged to be qualified voters, whereas but 149 of said persons were duly qualified voters when said petition was presented and the election held.
"(3) Because said order purports to and does affect taxation, and the entire board of commissioners were not present when the same was made.
"(4) That said election is void because the officers chosen to hold the same were all of one political faith, to wit, members of the `Prohibition Party,' and demand had been made by the parties adversely interested for representation, which was refused.
"(5) Because B. T. Ware, one of the presiding judges of election in voting precinct No. 5, was a school trustee in Amarillo independent school district, the same being an office of trust, as contemplated within the law, and at the same voting box R. B. Newcome acted as one of the judges of election, he being also a school trustee for the same district, and likewise disqualified under the law.
"(6) That J. D. Brady, one of the judges of election in voting box No. 3, was a school trustee for school district No. 3 of Potter county, which is an office of trust within the meaning and intent of the law.
"(7) That in voting precinct No. 3 F. M. Hill was presiding judge, and at the same time was a school trustee in school district No. 2, which is an office of trust within the meaning and intent of the law.
"(8) That J. C. McDowell was judge of election in voting precinct No. 4, and at the same time a county commissioner, which is an office of emolument and trust within the meaning and intent of the law.
"(9) That in voting precincts Nos. 1 and 5 a large number of influential citizens coerced and intimidated voters, by announcing that they would prosecute persons who should vote `against prohibition,' and circulated a handbill to that effect; that said persons congregated at or near voting precincts Nos. 1 and 5, and if they had reason to believe that a person would vote `against prohibition' would make remarks calculated to, and which did, deter many timid persons from so voting, which votes, had they been cast, would have reversed the result of the election; that as a part of the scheme of coercion the said persons procured the arrest of one E. C. Jeffries, charged with illegal voting, which charge was fictitious and fraudulent, and which wrongful arrest intimidated many persons who were lawfully entitled to vote from voting `against prohibition,' which persons, had they voted, would have voted `against prohibition,' and would have reversed the result of the election; that large crowds were permitted to congregate in and about said voting boxes, within the 100-foot limit, in open violation of law, and their presence intimidated persons, and prevented them from voting `against prohibition,' which persons and their votes would have materially affected the result and reversed the same, had they been permitted to vote without molestation.
"(10) That in voting precinct No. 5 the poll list shows J. M. Frazier voted ticket 318; and in said box two tickets of said number were found, one of which was counted `for prohibition.'
"(11) That in voting precinct No. 1 one ticket was found which contained two numbers, 3 and 369, and said ticket was counted `for prohibition,' and in said box a ticket was found with two numbers, 25 and 267, which ticket was counted `for prohibition,' and according to the poll list C. F. Blanchard voted ticket 267, which was also counted `for prohibition'; that in voting precinct No. 1 a ticket was found torn in two pieces, which, when placed together, was made to read 332, and which was counted `for prohibition,' and in said voting precinct was found two tickets, each being numbered 87, one of which was counted, and that `for prohibition,' and two tickets were found containing the number 376, one of which was counted `for prohibition' and the other not counted, and allegation is made that the tickets which were not counted were cast `against prohibition.'
"(12) Because in voting precinct No. 3 one ballot was found in the box which contained no number, but the same was counted `for prohibition.'
"(13) Because in voting precinct No. 5 J. N. Browning voted ticket 127 `for prohibition,' but the county commissioners, in counting the ballots, counted said ballot as `against prohibition,' by reason of which glaring irregularity and inaccuracy a recount of the ballots is necessary to arrive at the true result of the count.
"(14) Because in voting precinct No. 4 the polls were not opened until 11 a. m. and were closed at 4 p. m., and there were polled but 7 for and 3 against prohibition; that there were 20 legally qualified voters at said precinct and entitled to vote therein, and that a large majority thereof would have voted `against prohibition,' had the polls been opened during the hours required by law, by reason of which a sufficient number of electors had been deprived of the privilege of voting in such number as, had they voted, would have materially changed the result of the election.
"(15) Because in voting precincts Nos. 1, 2, 3, 4, and 5 a large number of persons voted illegally for prohibition, in that they owed and had not paid a poll tax to the county of Potter for the year 1906, an itemized statement and list of which persons so illegally voting was attached as an exhibit.
"(16) Because the 9 persons named on Exhibits D and E each voted for prohibition, and their votes were so counted, and that each of said persons owed a poll tax to Potter county, Tex., for the year 1906, and had not paid same.
"(17) Because 114 persons named in Exhibit F voted for prohibition in voting precinct No. 5, a majority of which, if, indeed, not all, owed a poll tax to Potter county for the year 1906, and had not paid same.
"(18) Because the 5 persons whose names appear on Exhibit G owed a poll tax to Potter county, Tex., for the year 1906, and each voted for prohibition.
"(19) Because the 33 persons named on Exhibit H voted for prohibition, in precincts Nos. 1 and 5, and they and each of them owed a city poll tax to the city of Amarillo, lawfully levied and assessed, and did not pay the same; allegation being made that a large number of other persons also voted in said city of Amarillo in said election, and their votes were cast `for prohibition,' who owed a city poll tax for the year 1906, but contestants were unable to give names of the voters so voting, except as named in Exhibit H.
"(20) Because the persons named in Exhibit I, 19 in number, each voted for prohibition, each arrived at the age of 21 years after January 1, 1906, and prior to election day, and that said persons failed to procure a certificate of exemption from the tax collector of Potter county, or from any other collector within the state, within the time required by law.
"(21) Because the persons whose names appear on Exhibit J each voted against prohibition, and their votes were erroneously or otherwise, counted by the commissioners' court as `for prohibition,' each of said persons being duly qualified voters in their respective precincts.
"(22) Because the persons named on Exhibit K, 7 in number, each voted `for prohibition,' and their votes were so counted, and none of said persons had resided in the state of Texas for 12 months next preceding the day of said election.
"(23) Because the persons named on Exhibit L, being 4 in number, each voted for prohibition, and none of said persons were entitled to vote, for the reason that they were not residents of Potter county, Tex., for 6 months next preceding the date of the election.
"(24) Because D. E. Morris and J. E. Moore, legal voters in precinct No. 1, cast their votes against prohibition, yet no votes were found in the voting box as being cast by them; that both W. W. White and J. A. Dunavan each voted against prohibition in precinct No. 5, being tickets 300 and 319, respectively, yet no ticket 300 or 319 was found in the said voting box, and said ballots were not counted against prohibition as cast.
"(25) Because W. W. Watkins, who voted ticket 377 `for prohibition' in precinct No. 5, was an alien, and not a qualified voter, and Horace Gooch, who voted `for prohibition' in precinct No. 1, was at the time of casting his ballot a resident and voter in precinct No. 5, in Potter county."
By trial amendments to the fifth ground of contest were added the allegations therein that one Shaughnessy, who acted as the judge of the election in precinct No. 5, was at the time an alderman of the city of
Amarillo, a position of emolument, etc.; to the ninth ground, that certain Mexicans were coerced, intimidated, and prevented from voting by Jeffries' arrest; to the tenth number 318, were cast and deposited in the ground, that two votes, each bearing the ballot box, one of which was counted for prohibition and the...
