Setliff v. Gorrell

• Citation: 466 S.W.2d 74
• Decision Date: 15 March 1971
• Docket Number: No. 8150,8150
• Parties: Chester SETLIFF et al., Appellants, v. Roger GORRELL et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 74

466 S.W.2d 74

Chester SETLIFF et al., Appellants, v. Roger GORRELL et al., Appellees.

No. 8150.

Court of Civil Appeals of Texas,

Amarillo.

March 15, 1971.

Rehearing Denied April 12, 1971.

Kirby, Ratliff & Sansom, Louis M. Ratliff, Jr., Littlefield, for appellants.

Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellees.

ELLIS, Chief Justice.

This is a statutory election contest. Chester Setliff and some 300 other contestants, appellants herein, brought suit in the 154th District Court in Bailey County, Texas, seeking to set aside an election held on May 16, 1970, pursuant to H.B. No. 97 (Acts 1969, 61st Legislature, p. 253, Ch. 100, Article 4494q, Vernon's Ann.Civ.St.), thereby contesting (1) the creation of the Bailey County Hospital District with authority to levy annual taxes at a rate not to exceed 75 cents on each $100 valuation of taxable property and (2) the issuance by the Bailey County Hospital District of bonds in the amount of $950,000. At this election each of the two propositions submitted, i.e., (1) the creation of the hospital district and (2) authorization for issuance of the bonds, carried by a substantial majority of the voters participating therein. The cause was tried by the court without a jury. The trial court entered judgment upholding the election, and the contestants, as appellants, have brought this appeal.

The appellants have asserted five points of error. The points raised shall be considered in two categories within the limits of the court's jurisdiction in an election contest, including the pertinent inquiries as to whether the election was (1) properly ordered and (2) fairly conducted.

In the category of inquiries as to whether the election was properly ordered, appellants contend that (1) H.B. 97 is unconstitutional in part because the Act designated the original directors and empowered them to levy taxes, but made no provision for ordering the election of such original directors by the qualified voters at the same time as the election on the propositions on the creation of the district and the issuance of the bonds; and (2) the published election order failed to establish election precincts as prescribed by law.

The rule is well established that the constitutionality of the statute cannot be raised in an election contest. Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App.--Austin 1939, no writ); Becraft v. Wright, 118 S.W.2d 630 (Tex.Civ.App.--San Antonio 1938, no writ); Turner v. Allen, 254 S.W. 630 (Tex.Civ.App.--Beaumont 1923, writ dism'd); Border v. Abell, 111 S.W.2d 1186 (Tex.Civ.App.--Galveston 1937, no writ); Duncan v. Cameron, 285 S.W. 1105 (Tex.Civ.App.--Texarkana 1926, no writ).

In the case of Clark v. Stubbs, supra, the court pointed out that the limitations imposed upon the jurisdiction of the court in election contests deal primarily with the election process, including such matters as whether the election was ordered properly or fairly conducted. In the opinion, the court stated:

'* * * This is an election contest. It is not a civil suit, and the constitutionality of the statute cannot be attacked in this sort of proceeding.'

In the recent case of Hodges v. Cofer, 449 S.W.2d 836 (Tex.Civ.App .--Houston, 1st District, 1970, writ ref'd n.r.e.) involving an election contest, after citing and discussing various leading cases dealing with the limitations upon the jurisdiction of the district court in statutory election contests, the court stated:

'All courts have required that the matters of which complaint is made in the election contest relate directly to the election process . The cases cited will not allow a collateral attack on an order excluding land from the water district, nor on a legislative act pertaining to the powers of the district. Harrison v. Jay, 280 S.W.2d 636 (Tex.Civ.App.--Eastland 1953, no writ history); Brown v. Meeks, 96 S.W.2d 839 (Tex.Civ.App.--San Antonio 1936, error dism.); Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App.--Austin 1939, no writ history).'

In appellants' first point they have challenged the legislative designation of all the original directors of the district and the failure to make provisions in the Act for the electorate to elect its own slate of original directors at the same time as the election on the propositions relating to the creation of the district and the authorization of the issuance of bonds. It is here noted that the constitutional provision regarded as basic in considering matters pertaining to hospital districts is set out in Article IX, Section 9, of the Texas Constitution, in the following language:

'The Legislature may by law provide for the creation, establishment, maintenance and operation of hospital districts.'

In 1969 the Texas Legislature enacted H.B. 97 which provides for the 'creation, establishment and operation' of the Bailey County Hospital District. Section 4 of the Act provides for the designation of the original directors who are divided into two classes and for annual elections of the members of each of the classes of directors on alternate years. The four directors of class one are to serve until the first of the prescribed annual elections to be held on the first Saturday in April next after the approval of the District by the voters, and the five directors of class two are to serve until the next annual election to be held in April of the following year.

We find no constitutional or statutory provision requiring, expressly or by implication, the election of the directors or other officials of a hospital district. Also, it is clear that legislative enactments are controlling regarding the necessity for or conduct of an election in any particular case, and that the right to hold an election such as the one in question, rather than being inherent in the people, is dependent upon statutory authorization. Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.1968); Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770 (1931). Also, see 21 Tex.Jur., 2d, 'Elections', § 52. In short, the conduct of elections is primarily a matter for legislative regulation and control. State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832 (1960).

Thus, Article IX, Section 9 of the Texas Constitution, Vernon's Ann.St. the constitutional provision pertinent to the matters herein involved, specifically authorizes the legislature to provide by law for the creation, establishment and operation of the hospital district. Pursuant to such authority, the legislature has enacted H .B. 97 with respect to the creation and the administration of the affairs of the Bailey County Hospital District, including the designation of the original directors and a schedule of prescribed elections for each of the two classes of subsequent directors for the district. In view of the foregoing, we overrule appellants' first point of error.

Appellants further contend that the published election order failed to establish election precincts as required by law. The applicable provisions of the Texas Election Code regarding election precincts and polling places are:

Article 2.06, which provides:

'All voters shall vote in the election precinct in which they reside.'

Article 2.02(c), which provides:

'* * * The governing body of the political subdivision shall establish the election precincts and designate the polling places for elections held by such subdivision.'

Article 2.02(h), which provides:

'All election precincts, by whatever authority established, shall be described by natural or artificial boundaries or survey lines, and shall be designated by name or number. There shall be one polling place, and no more, for each election precinct, and the notice of the election shall state the location of the polling place in each precinct.'

H.B. 97 makes this specific provision regarding the election:

'* * * The election order may provide that the entire district shall constitute one election precinct or the county election precincts may be combined for elections.'

In Anderson v. Crow, 260 S.W.2d 227 (Tex.Civ.App.--Austin 1953, mandamus overruled), the court sets out the following definition of an election precinct:

'* * * An election precinct is nothing more than a division of a town, county or other political or public entities for election purposes.'

For this election, the temporary directors established two election precincts, one consisting of a combination of County Precincts 1, 1--A, 2 and 3, with the polling place at the City Hall in Muleshoe, Texas, and the other election precinct consisting of a combination of County Precincts 4, 5 and 6, with the polling place in the Needmore Community House in Needmore, Texas. There is no showing that the two sets of numbered County Precincts, each comprising an election precinct for this specific election, with a specifically designated polling place in such designated precinct for the purpose of this election, was not in substantial compliance with all statutory requirements applicable to this election. The temporary board of directors in its order and notices of the election established two election precincts and specifically designated therein a polling place. Each of the two precincts was given a name or number which, on this occasion corresponded with the description of the precinct, with each precinct being specifically described by artificial boundaries by reference to the boundaries of the designated County Precincts which comprised each of the two election precincts established for this particular election.

The appellants point out in their brief that a voter may reside in several different election precincts depending on the type of election and that a voter is required to vote in the election precinct in which he resides for each particular type of election. In this connection appellants cite the case of Harrison v. Jay, 280 S.W.2d 636 (Tex.Civ.App.--Eastland 1953, no writ) which holds that all voters must vote in the election precinct in which they reside and that a vote...