De Shazo v. Webb

• Citation: 109 S.W.2d 264
• Decision Date: 09 July 1937
• Docket Number: No. 1724.,1724.
• Parties: DE SHAZO et al. v. WEBB, Co. Atty.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

109 S.W.2d 264

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

No. 1724.

Court of Civil Apeals of Texas. Eastland.

July 9, 1937.

Appeal from District Court, Scurry County; A. S. Mauzey, Judge.

Suit by E. D. De Shazo and others against R. W. Webb, County Attorney, to contest an election held in the Camp Springs Common School District No. 4 of Scurry County, to determine whether that District should be consolidated with the Hobbs Independent School District of Fisher County. From a judgment of dismissal after a plea to the jurisdiction was sustained, the contestants appeal.

Reversed, with directions.

C. F. Sentell, of Snyder, for appellants.

E. T. Brooks, of Abilene, for appellee.

FUNDERBURK, Justice.

This action is an election contest. It was brought by E. D. De Shazo, Martin Reep, and E. P. Simpson, in the capacity of trustees of Camp Springs Common School District No. 4 of Scurry County, and by said parties, together with six others in the further capacity of "resident citizens, property tax payers and qualified voters of Scurry County, Texas, and Camp Springs Common School District No. 4 of said Scurry County." (Italics ours.) R. W. Webb, county attorney of Scurry county, is contestee.

The election held in said school district was to determine whether that district should be consolidated with Hobbs Independent School District of Fisher County. Certain illegalities in the election were alleged, which it was claimed resulted in a certification or declaration of the result of the election different from the true result. There were allegations to the effect that the result of consolidation would be to subject contestants' property to increased and changed taxing powers and increased taxes; that said Camp Springs District owed about $20 indebtedness, while the Hobbs District owed $15,000.

The trial court sustained a plea to the jurisdiction on the ground that "neither the pleadings nor evidence showed that the contestants had any justiciable interest in said cause in their personal capacity, or in any representative capacity." In accordance with that conclusion, the action was dismissed. The contestants have appealed.

The plea to the jurisdiction sustained by the court prayed judgment of the court whether it had jurisdiction to "hear and determine the alleged matters set out in plaintiffs' petition." (Italics ours.) The order sustaining the plea was the judgment thus prayed for. Although the court had heard evidence and the judge filed conclusions of fact and law, such, we think, became immaterial and should be disregarded as having no bearing upon the question of the correctness of the judgment. The court adjudged that contestants by their pleadings showed no justiciable interest, for which reason the action was dismissed. The only question is: Did the contestants by the allegations in their pleadings show a right within the jurisdiction of the court to contest the election?

By the allegations of their pleadings and (if that were material) by the undisputed evidence, contestants did have such right, unless R.S.1925, arts. 3069 and 3070 are unconstitutional, and therefore void.

This statement is supported by the fact that said statutes clearly and certainly purport to authorize such action by the contestants as residents of the school district.

Said statutes are as follows:

"Art. 3069. 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." (Italics ours.)

"Art. 3070. 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."

These articles, unchanged, 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.

Questions concerning these provisions which necessarily presupposed their validity have been before the Supreme Court and the other appellate courts of this state many, many times, without any question ever having been raised, so far as we can find, of the constitutional power of the Legislature to authorize "any resident" or "any number of * * * residents" to contest the character of elections as provided in said statutes.

In the three divisions of the powers and functions of government, election contests belong to the legislative department, and not to the judicial department, unless by the 1891 amendment of article 5, § 8 of the Constitution, adding to the jurisdiction of the district court the subject of "contested elections," the nature of such actions was thereby converted from legislative to judicial. Prior to said amendment of the Constitution the proposition was thoroughly settled by the decisions, that the subject of election contests pertained to the legislative and not the judicial department of the Government. It was established that an election contest was not "a suit, complaint or plea." State ex rel. Jennett v. Owens, 63 Tex. 261; Gibson v. Templeton, 62 Tex. 555; Ex Parte Towles, 48 Tex. 413; Williamson v. Lane, 52 Tex. 335; Ex Parte v. Whitlow, 59 Tex. 273; Wright v. Fawcett, 42 Tex. 203; Walker v. Tarrant County, 20 Tex. 16; Rogers v. Johns, 42 Tex. 339; Seay v. Hunt, 55 Tex. 545. An election contest was not "a civil case." Williamson v. Lane, supra.

The question naturally suggests itself: Was the nature of an election contest changed by the 1891 amendment of the Constitution? However valid the argument would seem to be that a change was thus effected, the most emphatic answer of the decisions is to the effect that there was no change. Odell v. Wharton, 87 Tex. 173, 27 S.W. 123; Robinson & Watson v. Wingate, 36 Tex.Civ.App. 65, 80 S.W. 1067, 1070; Norman v. Thompson, 96 Tex. 250, 72 S.W. 62; Buckler v. Turbeville, 17 Tex.Civ.App. 120, 43 S.W. 810; Bassel v. Shanklin (Tex. Civ.App.) 183 S.W. 105; Turner v. Allen (Tex.Civ.App.) 254 S.W. 630; McCall v. Lewis (Tex.Civ.App.) 263 S.W. 325; Ladd v. Yett (Tex.Civ.App.) 273 S.W. 1006; Thurston v. Thomas (Tex.Civ.App.) 7 S.W. (2d) 105; Calverley v. Shank, 28 Tex.Civ. App. 473, 67 S.W. 434. In the first case cited, the Supreme Court having before it the amendment of 1891, reaffirmed that "a contested election is not a civil suit or cause, and therefore cannot be tried by the proceedings had in such cases." This and the other decisions cited undoubtedly establish, and remove from the field of controversy, the proposition that actions or proceedings to contest elections are not suits, complaints or pleas, or civil cases of which district courts had jurisdiction under article 5, section 8, of the Constitution, both before and after said 1891 amendment.

It is our understanding that the Legislature has the power to enact any law not in conflict with the Constitution of the state, or of the United States, or of valid laws enacted under authority of the latter. If so, we think we may assume, it not being contended otherwise, that there is no conflict between articles 3069 and 3070 and the Constitution of the United States, or any federal statute.

Since counsel for the contestee cite only article 5, § 21, and article 4, § 22, of the Constitution of Texas, we think we may confine our inquiry to a consideration of whether there is any conflict between the statutes in question and one or both of said constitutional provisions. As to the cited constitutional provisions, the one provides that: "county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties." (Italics ours.) The other, 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." (Italics ours.)

There would seem to be at least two good reasons why there can be no conflict between the statutes in question and either of these provisions of the Constitution. In the first place, the Legislature, by the provisions in question, having assumed to declare who may contest elections and who shall, or may be, contestee (limiting consideration to the character of elections to which said statutes purport to apply), has not provided that the state shall be a party, either contestant or contestee. In the second place, said constitutional provisions prescribing the duties of the county attorney and Attorney General can have no application to election contests, since they are not cases, suits, or pleas within the meaning of said constitutional provisions.

In the City of Goose Creek v. Hunnicutt, 120 Tex. 471, 39 S.W.(2d) 617, 618 (see, also, City of Goose Creek v. Hunnicutt, 118 Tex. 326, 15 S.W.(2d) 227), the court, answering a certified question whether Hunnicutt, "because of his being a resident voter of the city, and a property taxpayer therein, can maintain the suit brought by him" (a contest of election to determine whether the city would adopt the home rule provisions of the Constitution and statutes), declared...