State ex rel. Jennett v. Owens

• Decision Date: 03 February 1885
• Docket Number: Case No. 1984.
• Citation: 63 Tex. 261
• Parties: THE STATE EX REL. R. C. JENNETT v. WM. P. OWENS.
• Court: Texas Supreme Court

63 Tex. 261

THE STATE EX REL. R. C. JENNETT

v.WM. P. OWENS.

Case No. 1984.

Supreme Court of Texas.

Feb. 3, 1885.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

The opinion states the case.Finlay & Rose, for relator, on the proposition that a direct proceeding to recover the office, and to try the right to the same, was a “““suit, complaint or plea” of which the district court had jurisdiction, cited: Const. of Tex., sec. 8, art. 5; sec. 13, art. 1; Const. 1845, sec. 10, art. 4; Const. 1869, sec. 7, art. 5; Quo Warranto Act of 1879, R. S. Appendix, 47; Wright v. Allen, 2 Tex., 158;Banton v. Wilson, 4 Tex., 400;McKinney v. O'Connor, 26 Tex., 22;State v. De Gress, 53 Tex., 387;State v. Cocke, 54 Tex., 482;Flatan v. State, 56 Tex., 93;Williamson v. Lane, 52 Tex., 335;Gibson v. Templeton, Tyler Term, 1884 ; Const. California, sec. 6, art. 6 (Const. of 1862; Desty, p. 100); Ex parte Whitlow, 59 Tex., 275;Ex parte Towles, 48 Tex., 433.

That quo warranto was the proper mode of procedure, they cited: Act of 1879, R. S., Appendix, 47; State v. De Gress, 53 Tex., 387;State v. Cocke, 54 Tex., 482;Flatan v. State, 56 Tex., 93;Watts v. State, 61 Tex., 184;Wright v. Allen, 2 Tex., 158; High on Ex. Remedies, secs. 49, 53, 623, 624, 619, 638, 639, 641, 603; Cooley on Const. Lim., “Contesting Elections,” *625 (4th ed.), p. 789; McCrary on Elections, secs. 265, 266, 322, 324, 326, 264, and authorities; Wicks v. Jones, 20 Cal., 50;Stone v. Elkins, 24 Cal., 127;People ex rel. Budd v. Holden, 28 Cal., 123;State v. Lawrence, 38 Mo., 535;State v. Fitzgerald, 44 Mo., 425;Anthony v. Halderman, 7 Kan., 65; Lindsay v. Att'y Gen'l, 33 Miss., 508; Newsom v. Cocke, 44 Miss., 352; Bosmer v. State, 7 Ga., 473;Fulgham v. Johnson, 40 Ga., 165;Taylor v. Hand, 31 Ala., 383; State v. Burnett, 2 Ala., 140; Cal. Code Civ. Proc., Quo Warranto, § 802; State v. Stem, 13 Neb., 529; People v. De Bevoir, 27 Hunton (N. Y.), 596.

That the returns of the managers were not conclusive of the right to the office, they cited: McKinney v. O'Connor, 26 Tex., 5; Cooley on Const. Lim., “Contesting Elections” (4th ed.), p. 789, and authorities; McCrary on Elections, secs. 280, 281, 291, 379, 388, 389; High on Ex. Rem., secs. 624, 638, 639; The People ex rel. Wicks v. Jones, 20 Cal., 50;Magee v. Supervisors, 10 Cal., 377; The People v. Holden, 28 Cal., 123; The State v. Steers, 44 Mo., 223; State v. Wright, 10 Heisk. (Tenn.), 237; Hudson v. Solomon, 19 Kan., 177;Reid v. Moulton, 51 Ala., 255;State v. Fagan, 42 Conn., 33;Newsom v. Cocke, 44 Miss., 352; Rev. Stats., 2245, 3128.

McLamore & Campbell, for respondent, on their proposition that the refusal of the district court to permit the relator to proceed by quo warranto is not subject to revision, cited: Quo Warranto act 1879, R. S., sec. 1 of act in appendix.

The district court had no power to grant the relief sought, citing: Const., art. 5, sec. 8; R. S., art. 1693 et seq.;Guadalupe Co. v. Wilson Co., 58 Tex., 230;Rogers v. State, 43 Tex., 406.

That the determination of the result of an election was a political question, to be regulated by the political authorities in the state, they cited: Wright v. Fawcett, 42 Tex., 203;Williamson v. Lane, 52 Tex., 335;McKinney v. O'Connor, 26 Tex., 22;Gibson v. Templeton, Tyler Term, A. D. 1884 .

WILLIE, CHIEF JUSTICE.

This is an information in the nature of a quo warranto filed by the state of Texas upon the relation of Russell C. Jennett, against W. P. Owens, for the purpose of ousting the latter from the office of sheriff of Galveston county, and placing the relator in possession of the same.

The ground upon which the information is based is, that at an election held in Galveston county, on the 4th day of November, 1884, the relator was elected to the office by receiving a plurality of the popular vote, but that Owens had obtained the certificate of election, and had usurped, and was holding and executing the office without authority of law. The information charges fraud in the returns of election made from several of the precincts of the county, in that the vote of these precincts was not properly counted by the presiding officers. It alleges that had the vote been properly counted and returned at these precincts, the returns would have shown that Jennett had received a plurality of all the votes cast for sheriff, giving the precise number claimed to have been given to each of these candidates. It charges, also, that those who presided at one of the precincts named were guilty of gross misconduct in being drunk and unable to perform their duties, and in allowing unauthorized parties to tamper with the ballot-box, and in other respects, set forth in the information. The information prays for judgment of ouster, and that Jennett have possession of the sheriffalty of Galveston county, and be quieted in his title thereto. The office was alleged to be worth $5,000 per annum.

To this information the respondent filed a demurrer, objecting principally to the jurisdiction of the court to entertain the suit and try the right to the office in the manner prayed for in the petition. The court below held that it had no jurisdiction of the proceeding, because its object was to contest an election; and that it could not ascertain and adjudge the result of the polls other than as appears by the returns of the several managers of the election; and as the information showed that these returns elected the respondent, the suit was dismissed.

From this judgment an appeal is taken to this court.

The previous decisions of this court, made under our present constitution, have established this principle: That the district court has no jurisdiction to try the contest of an election such as is provided for in the acts of May 8, 1873, July 20, 1876, and in our Revised Statutes, ch. 6, title 34. Ex parte Towles, 48 Tex., 413;Williamson v. Lane, 52 Tex., 335;Ex parte Whitlow, 59 Tex., 273; Gibson v. Templeton, 5 Tex. Law Rev., 18.

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.

In all the cases cited above except that of Williamson v. Lane, the contest was not between parties claiming to have been elected to an office, or claiming any other right as against each other. The matter submitted for the determination of the court in the Towles and Whitlow cases was whether one locality or another had been chosen as the county seat of a county; and in Gibson v. Templeton the question was as to the legality of an election held for the purpose of determining whether spirituous liquors should or should not be sold within the limits of one of the counties of our state.

These were determined not to be suits or controversies between parties involving any particular amount or value. The judgment would not have determined, in favor of the one party as against the other, any matter of private right; but only a matter of public policy, which, without an express grant of authority by the constitution vesting jurisdiction in the judiciary, belonged to the legislative branch of the government.

The constitution gives the legislature the power to regulate the manner of removing county seats. It also requires the legislature to enact laws for determining whether the sale of intoxicating liquors shall be prohibited within prescribed limits.

It is part of the public policy of the state that county seats shall be located to best suit the convenience of the people of the county.

It pertains to the police powers of the legislature to have the sale of spirituous liquors prohibited in any locality where the people think it would subserve the interests of morality and good government that this should be done.

When an election is held under the authority of the legislature for either of these purposes, its indirect result may be to depreciate the value of the property of a private citizen by placing the county seat further from it, or to destroy a profitable business in the sale of ardent spirits. But every citizen holds his property subject to the constitutional right of the legislature to enact laws of this kind. That it is depreciated in value by a change of county seat is a natural result contemplated by the organic law, and is but one of the sacrifices that the individual must suffer for the public good. That a trade which the constitution contemplates may be so injurious to good morals and public order that the people may wish to suppress it in a particular locality is embarked in by a citizen gives him no right in it that cannot be taken from him for the better police regulation of the vicinity. The question, therefore, as to whether such an election was legally or illegally conducted, relates only to the convenience, morals or good order of the particular community. When determined, no more is decided than that the people voted to have their seat of justice at one place rather than another; or that spirituous liquors should or should not be sold within certain limits. This is not a judicial question over which a contest may be made in the district court. It is not a case between parties in which a judgment can be rendered in favor of one as against the other, such as the district courts have authority to enter up. The judgment would only amount to a declaration that the result of an election was different from what the authorities having it in charge had pronounced it to be. This might result incidentally in benefit or damage to some citizen, but it is not rendered upon that ground, or for the sake of restoring a right to the injured party; nor is it enforced by any process issued from the court where the judgment is pronounced.

We come to consider now the case of a contest between parties as to the result of an election for which they were opposing candidates before the people. It is clearly a political question as to whether or not the...