Short v. Gouger

• Citation: 130 S.W. 267
• Parties: SHORT v. GOUGER, County Judge, et al.
• Decision Date: 01 June 1910
• Court: Court of Appeals of Texas

130 S.W. 267

SHORT v. GOUGER, County Judge, et al.

Court of Civil Appeals of Texas.

June 1, 1910.

Rehearing Denied June 29, 1910.

Appeal from District Court, Wilson County; J. F. Mullalley, Judge.

Local option election contest by T. J. Short against H. B. Gouger, County Judge, and others. From a judgment, contestant appeals. Affirmed.

Onion & Henry and B. F. Ballard, for appellant. Canfield & King, L. B. Wiseman, and Dibrell & Mosheim, for appellees.

NEILL, J.

On September 9, 1909, in pursuance of an order of the commissioners' court of Wilson county, an election was held in the city of Floresville, the county seat of said county, to determine whether or not the sale of spirituous, vinous, and malt liquors should be prohibited in said city. At the election 218 votes were cast; 120 being for, and 98 against, prohibition. The returns of the election, showing such result, having been duly made to the commissioners' court, thereafter on September 20, 1909, said court canvassed such returns and counted the votes and entered an order on its minutes declaring that prohibition had carried by a majority of 22 votes, and that spirituous, vinous, and malt liquors should not be sold in the corporate limits of the city of Floresville. H. B. Gouger, county judge of Wilson county, then ordered and directed that said order declaring the result of said election and prohibiting the sale of such liquors should be published for four successive weeks in the Floresville Advertiser, a weekly newspaper published in the city of Floresville. After such order had been published in one issue of said newspaper, the appellant, T. J. Short, a qualified voter of the city of Floresville, filed in the district court of Wilson county his petition of contest of said election in which H. B. Gouger, the county judge, W. L. Wright, the sheriff, and C. A. Cone, the county attorney, of said county, were named as the contestees, as was also Claude Easterling, the editor and publisher of the Floresville Advertiser. And on October 2, 1909, the contestant procured from the district judge a temporary writ of injunction prohibiting further publication of the order showing the result of the election. The contestees having answered the contestant's petition, the case was, on December 21, 1909, tried before the court without a jury, and a decree rendered in which it was ordered and adjudged: "That the election held in the city of Floresville, on the 9th day of September, 1909, for the purpose of determining whether or not the sale of intoxicating liquors shall be prohibited within the corporate limits of the city of Floresville, and as declared `carried' by the county commissioners' court of Wilson county, on the 20th day of September, 1909, be and the same is hereby declared in all things regular and valid. It is further ordered, adjudged, and decreed by the court that contestee Claude Easterling be and he is hereby authorized and directed to proceed with the publication of the order declaring the result of said prohibition election; but, in view of the order hereinafter made, said publication will be suspended until the termination of contestant's appeal." From this judgment the contestant has appealed.

We deem it unnecessary to state the pleading of either party. Suffice to say here that the contestant relies upon three grounds to sustain his contest, which, briefly stated, are: (1) That the city of Floresville, as embracing the territory claimed when the election was held, has no legal existence; it never having been incorporated as a city according to law. (2) That if said city has any legal existence, its boundaries are so indefinite and uncertain that it cannot be determined with any degree of certainty what territory is embraced within its limits. (3) That none of the ballots voted at said election was an "official ballot," it not having been printed or written on "clear white paper of sufficient thickness to prevent the marks thereon to be seen through the paper," and for that reason should not have been counted. These grounds of contest are presented and insisted upon by the contestant's brief under numerous assignments, which need not be stated, for our decision of the questions they involve will dispose of them all. They will be considered in the order we have stated them.

First. Floresville was incorporated as a town or village of less than 1,000 inhabitants prior to December 5, 1894. On that day two separate tracts of land, each contiguous to the boundaries of the town as laid off when originally incorporated were, by an ordinance passed by the town council at a regular meeting. added to the territory originally incorporated and the town changed to and incorporated as a city. The ordinance recites that this change, incorporating the town, with the added territory, as a city was done by accepting the provisions of title 17 of the Revised Statutes of 1879, respecting cities and towns. Upon these facts the contestant predicates the proposition that until the act of March 31, 1903 (Acts 28th Leg. p. 116), adding article 580a to chapter 11, tit. 18, Rev. St. 1895, went into effect, villages and towns in this state could not legally add to their corporate limits, and, hence, the attempt of the village of Floresville to add to its corporate limits in December, 1894, was wholly illegal, void, and there was no such legal subdivision or corporation as the city of Floresville, and that therefore "the corporate limits of the city of Floresville" does not describe any given territory. As corollaries to this proposition, he then asserts that the description of metes and bounds contained in an order for a local option election and an order declaring the result of said election must be definite and specific, and that "If territory is illegally embraced in the order of election or in the order declaring the result of the election, or if voters participate in the election in territory not described in the order of the election, the election is void."

The term "municipal corporation" implies the organization of a certain geographical...