Scurlock v. Fairchilds

• Decision Date: 10 June 1913
• Citation: 159 S.W. 1000
• Parties: SCURLOCK, Co. Atty., v. FAIRCHILDS et al.
• Court: Texas Court of Appeals

159 S.W. 1000

SCURLOCK, Co. Atty., v. FAIRCHILDS et al.

Court of Civil Appeals of Texas. Galveston.

June 10, 1913.

Rehearing Denied October 9, 1913.

Appeal from District Court, Jefferson County; John M. Conley, Judge.

Suit by George Fairchilds and others against Marvin Scurlock, County Attorney of Jefferson County, to contest a local option election. Judgment for plaintiffs, and defendant appeals. Affirmed.

Smith & Mothner, of Beaumont, for appellant. E. A. McDowell, of Beaumont, and E. B. Pickett, Jr., of Liberty, for appellees.

McMEANS, J.

On November 11, 1912, there was presented to the commissioners' court of Jefferson county a petition requesting said court to order an election in school districts Nos. 1, 2, 3, and 18 in Jefferson county, to determine whether intoxicating liquors should be sold in the territory comprised of said school districts, usually called a local option election. The commissioners' court on said date granted the petition, and ordered the election to be held on December 21, 1912, which was more than 30 days—in fact 40 days—after the date of making the order. The election was held on the date designated, and a majority of the qualified voters in the territory affected voted in favor of prohibition, and the result of the election was duly declared. George Fairchilds and Charles Fairchilds, claiming that the election was void, brought this suit against Marvin Scurlock, county attorney of Jefferson county, to contest said election, the grounds of contest being: (1) That the commissioners' court was without legal authority to order the election to be held 40 days after the date of the order; and (2) that said court was without lawful authority to direct the holding of such election in more than one existing political subdivision of the county. The case was tried before the court without a jury, and resulted in a judgment for contestants; the court holding that the election was void upon both grounds urged, as will appear from the following copy of a portion of the court's decree: "And it appearing to the court, from the pleadings and exhibits thereto, which were offered as evidence, the testimony adduced before the court, that in this cause, which is a contest of a local option election granted and ordered by the commissioners of Jefferson county, by order of said court, duly made on the 11th day of November, 1912, fixing the territory within which said election should be held as school districts Nos. 1, 2, 3, and 18 in said county, and directing and ordering that the said election be held on the 21st day of December, 1912, and it appearing from the said order of the said commissioners' court that the said election was ordered to be held, and from the evidence that said election was actually held, on the 21st day of December, 1912, 40 days after the date of making of said order, it is the opinion of the court that the said order of the said commissioners' court is void; said court being without power to fix the time for holding said election more than 30 days from and after the date of the order calling the election. It further appearing to the court that the evidence introduced before the court, and the order of the said commissioners' court that this election was ordered to be held, and was held, in territory composed of four separate school districts, and that part of said territory lies in two separate and distinct justice's precincts of said county, to wit, a part in justice's precinct No. 5, and a part in justice's precinct No. 1, it is the opinion of the court that the commissioners' court is without power to create local option territory by combining several school districts comprising a part of two justice's precincts, for the purpose of voting upon the question of sale or nonsale of intoxicating liquors, and the said election is null and void for this reason also. It is therefore ordered and adjudged by the court that the local option election so held on the 21st day of December, 1912, is, and the same is hereby declared to be, null and void and of no effect; and the said election having been ordered and held in territory not permitted by law, this court is without power to order another election." From this judgment the county attorney has appealed.

By his first assignment of error appellant complains of the action of the court in holding that the election was void because the commissioners' court was without authority to order the election to be held at a date 40 days after the date upon which the order was made. Under this assignment appellant contends that article 5717, Revised Statutes 1911, which provides that it shall be the duty of the commissioners' court, when ordering an election for local option purposes, to order the same to be held upon a day not less than 15 nor more than 30 days from the date of such order, although mandatory in the sense that it imposes an imperative duty upon such courts to comply with its letter, is not mandatory in the sense that it renders void an election duly called and held on the date fixed by the court's order, although more than 30 days after the order, and that when such an election has been held, and the result duly declared, the election is valid, unless it appears that the order to hold, and holding of the election, at a date more than 30 days after the date of the order prevented a fair election, or that the result thereof was in some manner or degree affected thereby, or that such action on the part of said court was fraudulent and tainted the election with fraud.

The article of the statute above referred to, in part, reads as follows: "Art. 5717. When the commissioners' court, of their own motion, or upon the petition provided for in article 5715, shall order the election as herein provided for, it shall be the duty of said court to order such election to be held at the regular voting place or places within the proposed limits, upon a day not less than fifteen nor more than thirty days from the date of said order. * * *" Appellant admits that the above requirements are mandatory in the sense that it imposes an imperative duty upon the commissioners' court to comply with their letter, but contends that an election ordered to be held and held at a date later than that prescribed by the statute would be valid unless for some other reason it should be held to be void. We agree with appellant that the statute is mandatory, and are further of the opinion that the commissioners' court had no power or jurisdiction to order a local option election at a date later than the date prescribed by the statute, and that the election so held is absolutely void. This has been the uniform ruling of our Court of Criminal Appeals (Curry v. State, 28 Tex. App. 475, 13 S. W. 753; King v. State, 33 Tex. Cr. R. 547, 28 S. W. 201; Yates v. State, 59 S. W. 275), and the reasons given therefor in the Curry Case seem sound and meet with our approval.

Appellant by his second assignment of error complains of the action of the court in holding the election void on the ground that the commissioners' court in ordering the election combined four school districts, and the election was held in the territory thus designated, and the territory thus designated was composed in part of two justice's precincts. This assignment raises the question, Did the commissioners' court have the power to order a local option election to be held within the limits embraced in two or more political subdivisions of the county? Section 20 of article 16 of the Constitution of 1876 reads as follows: "The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice's precinct, town or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." In 1879 the Legislature in obedience to this constitutional requirement enacted the following (Laws 1879, c. 90): "It shall be the duty of the commissioners' court of each county in the state, upon the written petition of fifty qualified voters of said county, or upon such petition by twenty qualified voters of any justice's precinct, town or city therein, to order an election to be held by the qualified voters of said county, justice's precinct, town or city, as the case may be, to determine whether the sale of intoxicating liquors * * * shall be prohibited in such county, justice's precinct, town or city, or not," etc. It is too clear for argument, we think, that under the quoted provision of the Constitution, and of the legislative enactment adopted in obedience thereto, the commissioners' courts were without lawful authority to order a local option election in any political subdivision of a county other than those expressly named, to wit, justice's precincts, towns, and cities, and equally without authority to order an election in two or more of such subdivisions combined; and an election so held would unquestionably have been void.

Recognizing the fact, doubtless, that there were other subdivisio...