Shipman v. Jones

• Decision Date: 08 November 1917
• Docket Number: (No. 819.),(No. 820.)
• Citation: 199 S.W. 329
• Parties: SHIPMAN v. JONES. SAME v. CROW.
• Court: Texas Court of Appeals

199 S.W. 329

SHIPMAN v. JONES.

SAME v. CROW.

(No. 819.)

(No. 820.)

Court of Civil Appeals of Texas. El Paso.

November 8, 1917.

Rehearing Denied December 13, 1917.

Appeal from District Court, Jeff Davis County; Jos. Jones, Judge.

Suits by O. L. Shipman against W. T. Jones and W. S. Crow. From judgments of dismissal, plaintiff appeals; the appeals being consolidated on motion. Reversed and remanded.

J. R. Hill, of Alpine, for appellant. C. C. Belcher, of Del Rio, and C. R. Sutton, of Marfa, for appellees.

HIGGINS, J.

In the case of Shipman v. Jones, appellant filed his first original petition in the district court of Jeff Davis county on January 22, 1917. This was superseded by a first amended original petition, filed July 10, 1917, the substance of its allegations being as follows: That a general election was held on November 7, 1916, in Jeff Davis county, for the election of county officers, and the plaintiff was duly and legally elected to the office of treasurer of that county and by reason thereof was entitled to the office for the term of two years and to the emoluments and fees thereof, which would amount to the sum of $3,000 for the term, and that the office for the term was worth said sum; that on November 15, 1916, Jones, illegally claiming the office, usurped and intruded himself into the same and excluded plaintiff therefrom and illegally held the office and exercised the powers and performed the duties thereof until May, 1917, when he pretended to resign, and that during the time Jones held the office he appropriated the emoluments thereof, amounting to the sum of $1,500; that Jones claimed the office under a certificate of election delivered to him by the county judge certifying that he had received 181 votes, that being the greatest number polled for any person at said election for that office; that said certificate was not true; that Jones did not receive 181 legal votes, but that a large number of illegal votes were cast, counted, and returned at said election for Jones, and that such number of illegal votes were sufficient to change the result of the election, and that plaintiff received 159 legal votes cast at the election, and that by reason thereof plaintiff was entitled to the office; that in election precinct No. 5, nine votes (the voters being named and ballot number given) were cast for Jones and counted for him, and that the same should not have been counted for him because the ballots did not have the name of the presiding judge of the election precinct written on the blank side thereof, as required by law; that in election precinct No. 6 a number of persons named in the petition (aggregating 41) voted for Jones (ballot numbers being given), and their ballots were counted and returned for him and included in the number of votes shown by said election certificate to have been received by Jones, but that said ballots were illegal and should not have been counted and returned for him because the name of the presiding officer of such election precinct was not written on the blank side of the ballot as required by law; that when they were counted the presiding officer did not write his name thereon until the same had been counted and the returns made and sealed up, after which had been done, the presiding judge of the election opened the ballot box and took the ballots therefrom and wrote his name on the blank side thereof and redeposited them in the box, and that the ballot of one of the voters in said election precinct should not be counted for the further reason that, after the voter had voted and the ballot deposited in the ballot box, the voter opened the box and took his ballot therefrom and changed the same and wrote upon it and then redeposited it in the ballot box; that by reason of the premises plaintiff was entitled to receive the election certificate to the office, but that the certificate of election was delivered to Jones, who, on November 15, 1916, qualified and entered upon the discharge of the duties of treasurer and since that time, up to the ____ day of May, 1917, had received and appropriated the emoluments of the office to his own use and benefit, to plaintiff's damage in the sum of $1,500. Plaintiff prayed that the ballot box be brought into court and the ballots cast in such precincts recounted, and the ballots, the legality of which was questioned as above indicated, be not counted for Jones, and that the number of illegal votes determined by recount be deducted from the total vote of Jones, and that plaintiff have judgment that defendant was not entitled to the office, but that the plaintiff was, and that plaintiff be permitted to qualify within 20 days after final judgment and to enter upon the discharge of the duties of the office, and that the defendant be commanded to surrender the office to plaintiff upon his qualification, and, further, that he have judgment for all fees and emoluments received by the defendant from November 15, 1916, and for general and special relief.

The petition in the case of Shipman v. Crow was filed on June 4, 1917, and was superseded by his first amended petition filed July 12, 1917. The amended petition in this case contains the same allegations as are contained in the Jones Case, and in addition thereto it was averred that Jones pretended to resign the office in May, 1917, and that Crow from that date was claiming the office under certificate of appointment delivered to him by the county judge, certifying that Crow, in the month of May, 1917, was appointed to such office by the commissioners' court; that the action of the commissioners' court in thus appointing Crow was without warrant of law and unauthorized and void for the reason that no vacancy existed at said time in the office, as the plaintiff had been duly elected thereto by a majority of the qualified voters of the county at the election named, but had been excluded from the office by the unlawful acts of Jones and Crow; that on or about the ____ day of May, 1917, the defendant Crow qualified and entered upon the discharge of the duties of the office and since that time had received the emoluments thereof to plaintiff's damage in the sum of $1,500; that at the term of the commissioners' court at which Crow was appointed treasurer, plaintiff filed his application with the court, requesting it to appoint him treasurer of the county, showing to the court that he had been duly elected thereto and had been excluded therefrom as above set out; that Jeff Davis county has no county attorney; that the plaintiff had applied to the district attorney and the Attorney General of the state for permission to bring quo warranto proceedings in their names, but that the same in both instances was refused. The prayer was of the same nature as in the petition in the Jones Case. General and special exceptions were interposed by the defendants in the two cases, which were sustained by the court and the suits dismissed. Plaintiff thereupon prosecuted these appeals, and such appeals in this court have been consolidated upon motion.

The controlling question in these appeals relates to the jurisdiction of the district court over the proceedings brought by appellant. The solution to the question depends upon a determination of whether the proceedings are to be considered as an election contest or a suit for an office.

Our courts have recognized a clear distinction between an election contest and a suit to recover an office unlawfully withheld from another. Williamson v. Lane, 52 Tex 335; State ex rel. Jennett v. Owens, 63 Tex. 261. The distinction was made with respect to the jurisdiction of the courts over such controversies. It proceeds upon the theory that an election contest is not a matter pertaining to the ordinary administration of the law in courts of justice, but in its nature is a political question to be regulated by the political authority; that to decide the result of an election was a "part of the process of political organization" and "not a question of private right." Rogers v. Johns, 42 Tex. 339; Wright v. Fawcett, 42 Tex. 203.

Accordingly, in the last-cited cases, it was held, under the Constitution of 1869, that the district court had no jurisdiction of a contested election proceeding between private individuals, because such a contest was not a "suit, complaint, or plea," within the meaning of the Constitution conferring jurisdiction upon the district court—

"of all suits, complaints, and pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at, or amount to, one hundred dollars, exclusive of interest."

In Odell v. Wharton, 87 Tex. 173, 27 S. W. 123, and State v. Thompson, 88 Tex. 228, 30 S. W. 1046, Judge Brown again announced the rule that a contested election was not a civil suit, cause, or complaint, and that under the Constitution of 1876, as it was prior to the amendment of 1891, the district court had no jurisdiction to try contested elections. To the same effect is Ashford v. Goodwin, 103...