De Shazo v. Webb

• Decision Date: 23 February 1938
• Docket Number: No. 7337.,7337.
• Citation: 113 S.W.2d 519
• Parties: DE SHAZO et al. v. WEBB, Co. Atty.
• Court: Texas Supreme Court

113 S.W.2d 519

DE SHAZO et al. v. WEBB, Co. Atty.

No. 7337.

Supreme Court of Texas.

February 23, 1938.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by E. D. De Shazo and others against R. W. Webb, County Attorney, to contest an election consolidating two school districts. From a judgment of dismissal the contestants appealed, and on motion for rehearing filed by the contestee in the Court of Civil Appeals, 109 S.W.2d 264, that court certified questions to the Supreme Court.

Questions answered.

C. F. Sentell and John E. Sentell, both of Snyder, for appellants.

Stinson, Hair, Brooks & Duke, of Abilene, for appellee.

CRITZ, Justice.

This case is before us on certified questions from the Court of Civil Appeals for the Eleventh District, at Eastland. The following facts are shown by the certificate and the record which accompanies it:

That proper proceedings were had to consolidate Hobbs independent school district in Fisher county, Tex., and Camp Springs common school district in Scurry county, Tex., the two districts being contiguous county line districts; that pursuant to such proceedings an election was ordered and held in Camp Springs common school district as part of the procedure required by law for such consolidation; that the result of such election was duly declared; and that, as shown by the declared result, 48 votes were cast in favor of consolidation and 46 votes against.

After the declaration of the result of the above election, and in due time, E. D. De Shazo, Martin Reep, and E. P. Simpson, the three trustees of the Camp Springs district, in their capacity as such, together with six other persons in the further capacity of resident citizens, property taxpayers, and qualified voters of Scurry county, Tex., and Camp Springs common school district of said county, brought this suit in the district court of Scurry county, Tex., against R. W. Webb, County Attorney of such county, as contestee, to contest such election. As grounds for contesting the above election, the contestants, generally speaking, alleged facts which, if true, showed them entitled to have the declared result thereof set aside. In this regard the contestants' petition, in effect, charges that, if the election had been properly and lawfully conducted and all tendered legal votes allowed to vote, and all illegal votes rejected, the result would have been against consolidation. The prayer asks the court to go behind the declared result, to ascertain the true result, which is alleged to be against consolidation, and to so declare.

The County Attorney of Scurry county, as contestee, filed general and special exceptions to the contestants' petition. The special exceptions, in effect, attacked the sufficiency of such petition on the ground that it showed on its face that the contestants, and each of them, were, and are, without lawful capacity to maintain this suit. Of course, the general exception, in effect, raises the same law question.

On the hearing in the district court the general and special exceptions filed by contestee were sustained, and the cause dismissed. On appeal by the contestants, the Court of Civil Appeals at Eastland, on original hearing, rendered an opinion and judgment remanding the cause to the district court with instructions to reinstate it. 109 S.W.2d 264, 266. On motion for rehearing filed by contestee in the Court of Civil Appeals that court has certified to this court the following questions of law:

"Question No. 1: Is an election contest as purportedly authorized by R.S.1925, arts. 3069 and 3070, a civil case within the meaning of Constitution, art. 5, § 21, providing that `county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties' and/or a suit or plea within the meaning of Constitution, art. 4, § 22, providing that `The Attorney General * * * shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party?'

"Question No. 2: When under authority of law an election is a prerequisite step or condition upon which a municipality, or quasi-municipality may come into existence, or have increased or diminished powers as such, is an action to contest such an election as provided in said articles 3069 and 3070 an attack upon such municipality or quasi-municipality within the meaning of the numerous decisions of the Supreme Court, well exemplified by the decision in the City of El Paso v. Ruckman, 92 Tex. 86, 46 S.W. 25, 26, to the effect that `the validity of the incorporation can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by the existence of the corporation'?

"Question No. 3: If, contrary to our view, the answers to questions Nos. 1 and 2 are not completely determinative of the question of the constitutionality of the said statutes, then are said statutes unconstitutional insofar as they purport to authorize a resident, or number of residents, to contest the character of election therein provided in an action to which the county attorney of a county or the district attorney of the district is required to be the contestee?"

The above questions are accompanied by copy of the opinion of the Court of Civil Appeals above mentioned, and the certificate is in all respects in conformity with the rules of this court and applicable statutes.

Contestants contend that they have capacity to contest this election under section 8 of article 5 of our Constitution, as such constitutional provision is effectuated by articles 3069 and 3070 of our 1925 Revised Civil Statutes. Before proceeding further, we deem it proper to quote the above constitutional statutory provisions.

Section 8 of article 5 of our Constitution, so far as applicable here, reads as follows: "The District Court shall have original jurisdiction * * * of contested elections."

Articles 3069 and 3070, R.C.S., supra, read as follows:

"Art. 3069. Other contested elections.— If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town or village, any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office."

"Art. 3070. Parties defendant.—In any case provided for in the preceding article, the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town or village which they may represent, nor shall such contestee be required to give any bond upon an appeal."

As shown by the opinion of the Court of Civil Appeals, which accompanies this certificate, the above articles of our present civil statutes were, "respectively, articles 3077 and 3078, R.S.1911, articles 1804t and 1804u, R.S.1895, and articles 1752 and 1753, R.S.1879. They have, therefore, purported to be the law for at least 58 years."

An examination of section 8 of article 5 of our Constitution, as it existed prior to 1891, will disclose that it contained no express provision giving the district court jurisdiction of contested elections. Such jurisdiction, however, was expressly conferred by amendment adopted in that year. An examination of the decisions of this court will disclose that, though the statutes above quoted were first enacted long prior to the adoption of the 1891 constitutional amendment just mentioned, it was uniformly held by this court prior to such adoption that the district court was without jurisdiction, generally speaking, to try contested election cases. State ex rel. Jennett v. Owens, 63 Tex. 261; Ex parte Towles, 48 Tex. 413; Williamson v. Lane, 52 Tex. 335; Ex parte Whitlow, 59 Tex. 273. In spite of this rule, however, which existed prior to 1891, it was held by this court that the district court did have jurisdiction to hear and determine a suit for the title and possession of an office. This holding was based upon the further holding that an office of profit is not only a franchise, but is property. In this connection, it was held that, if in a direct proceeding to recover an office it became necessary for the plaintiff to trace his right or title thereto through an election, the court had jurisdiction to go behind the returns and ascertain who was, in fact, lawfully elected. State ex rel. Jennett v. Owens, supra.

The holding that the district court did not have jurisdiction to try contested election cases, not involving title to and possession of an office, prior to the adoption of the 1891 amendment to section 8 of article 5 of our Constitution was based on the holding that such article did not cover or apply to such cases. Generally speaking, it was held that: "These decisions proceed mainly upon the common ground that such a proceeding is not a suit, complaint or plea wherein the matter in controversy is valued at or amounts to $500 exclusive of interest." State ex rel. Jennett v. Owens, supra. As to the jurisdiction of district courts to hear election contests which did not involve the title and possession of an office prior to 1891, we quote further from the opinion in the Jennett Case:

"These were determined...