State v. Clarendon Independent School District

• Decision Date: 06 February 1957
• Docket Number: No. A-5753,A-5753
• Citation: 156 Tex. 542,298 S.W.2d 111
• Parties: The STATE of Texas on the Relation of Cleve O. BENNETT et al., Petitioners, v. CLARENDON INDEPENDENT SCHOOL DISTRICT et al., Respondents.
• Court: Texas Supreme Court

Page 111

298 S.W.2d 111

156 Tex. 542

The STATE of Texas on the Relation of Cleve O. BENNETT et al., Petitioners, v.CLARENDON INDEPENDENT SCHOOL DISTRICT et al., Respondents.

No. A-5753.

Supreme Court of Texas.

Feb. 6, 1957.

R. Y. King, County Atty., Clarendon, S. E. Fish, Amarillo, Smith, Teed, Wade & Waters, Pampa, for petitioners.

Porter & Lowe, Clarendon, for respondents.

GARWOOD, Justice.

Over a contest of our jurisdiction based on the 'election contest'subdivision of Article 1821, Vernon's Tex.Civ.Stats., ¹we granted this writ of error to review the action of the Court of Civil Appeals in affirming the dismissal of the suit by the trial court on the ground that, while the action was one of quo warranto to the name of the State to test the validity of a school district consolidation, the State was, in effect, not validly a party.For the opinion of the court below, see, Tex.Civ.App., 287 S.W.2d 279.The cause was submitted to us without oral argument.

As to the jurisdictional contest, extended consideration thereof following our granting of the writ confirms our original view that the case is not one final in the Court of Civil Appeals, notwithstanding the contention that the consolidation election was void and notwithstanding absence of a dissent below and of any claim that the decision involves 'State officers' or 'the validity of a Statute' or a conflict with any prior holding of a civil appellate court of this State.Our holding is, in brief, that the case, by its nature, does not come within the statutory phrase 'contested elections of every character'.

The suit was filed in the district court of Armstrong County attacking the consolidation of Clarendon Independent School District(of Donley and Briscoe Counties) with Goodnight Independent School District(of Armstrong County) into a 'purported' district called Clarendon Consolidated Independent School District, these districts, their respective trustees and divers other local school authorities being the respondents in the trial court, successful appellees in the appellate court, and accordingly our respondents here.

The relators, Bennett et al., who, in the name of the State, sued below and seek relief here, are qualified voters and taxpayers residing in Goodnight Independent School District above named.The State appears-to such extent as it may or did-through the county attorney of Armstrong County(Goodnight I.S.D.) in the early stages of the case and thereafter (following uncontested transfer to the District Court of Donley County upon plea of privilege) through the county attorney of Donley County.

The alleged grounds of the suit were that the consolidation proceedings, including the successful consolidation election, were unauthorized by law and void in the following respects: that the appropriate consolidation statute, Art. 2806, Vernon's Tex.Civ.Stats., authorized the election and other proceedings only in the event the districts to be consolidated were contiguous; that the two districts in question were contiguous only in the improper sense of having been purportedly made so by the arbitrary and unlawful act of the County School Trustees of Donley County(in which part of Clarendon I.S.D. lay) in purporting to annex to Clarendon I.S.D., under Art. 2742f, Vernon's Tex.Civ.Stats., an area of some 5 miles width, then being part of Ashtola Common School DistrictNo. 17 and separating the two districts to be consolidated; that said area, which was wild, inaccessible, inhabited by but one family and containing no scholastics, was purportedly annexed only a day or two prior to, and for the sole purpose of accomplishing, the purported consolidation, and moreover was annexed to the Charendon district only by the action of the Donley County School Trustees and those of the Ashtola district without the consent of the County Trustees of Briscoe County, such consent being required by Art. 2744 of the statutes, since Clarendon I.S.D. lay in Briscoe County as well as in Donley County.

The prayer for relief included not only the usual one for ouster of the trustees of the purportedly consolidated district and judicial separation of the Goodnight district from the latter, but also 'that the aforesaid elections held on December 12, 1953, in Goodnight Independent School District and in Clarendon Independent School District, respectively, with reference to the consolidation aforesaid, * * * be declared invalid and null and void.'

Thus, in a sense, the case doubtless is one 'of contested elections of every character'.See footnote 1.It must also be conceded that no distinction may be drawn between quo warranto proceedings as such, and 'election contests' in the narrow sense of a statutory proceeding under Chapter 9 of the Election Code(p. 180, Vol. 9(1952), Vernon's Tex.Civ.Stats.).Cole v. State ex rel. Cobolini, 106 Tex. 472, 170 S.W. 1036;State ex rel. Dunn v. Thompson, 88 Tex. 228, 30 S.W. 1046.While in the former decision our opinion declining jurisdiction discusses largely the contention that the 'election contest' provision of what is now Art. 1821, supra, had been repealed by implication, our own records show that the petitioner vigorously sought to uphold our jurisdiction on the theory that a quo warranto proceeding was not an election contest, although brought to test the result of an election.The earlier decision, expressly rejecting the same distinction, emphasizes the breadth of the statutory words 'of every character'.These decisions might be argued to imply that Art. 1821, supra, applies even to an injunction proceeding under Art. 1.07 of Chap. 1 of the Code, but that precise question we do not now have to decide.

Nor, despite conceivable inferences from the statutory words 'other than for State officers', can we distinguish between elections for offices and those for other purposes, such as a school consolidation.DeShazo v. Webb, 131 Tex. 108, 113 S.W.2d 519.Indeed, Chap. 9 of the Election Code itself expressly contemplates contests of the latter type by its Art. 9.30.

The same chapter, by its Art. 9.15, would also seem to inhibit distinguishing between cases where it is sought merely to change the declared result of an election and those in which the election itself is attacked as a nullity.Moreover, in Kidd v. Rainey, 95 Tex. 556, 68 S.W. 507, on an application for mandamus to require the Court of Civil Appeals to certify questions in a purported statutory election contest proceeding, we expressly treated the main suit, Kidd v. Truett, 28 Tex.Civ.App. 618, 68 S.W. 310, as one of 'contested elections' for purposes of our jurisdiction, although it sought to void the election in question on the ground that it was one to prohibit the sale of intoxicating liquors in a school district, a part of which lay within a precinct, in which there had already been a precinct election resulting in such prohibition.In other words, we held the suit to be an election contest for purposes of our jurisdiction despite the fact that it involved only the contention that no election could be called or held under the circumstances.According to our own records, the Kidd case came to us by means of a document which purported to be an application for writ of error with an alternative request for mandamus to require certification of questions in the event we should decline jurisdiction of the former.We did so decline jurisdiction by the usual type of order to that effect and then acted separately on the matter of mandamus by the opinion above cited.

Kidd v. Rainey, supra, appears to militate also against a distinction between cases involving matters incident to the actual voting and counting of the ballots and cases not involving such matters.Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1018, does likewise.In the latter we considered certified questions incident to an attempted injunction to keep an allegedly unqualified person off of the ballot as a candidate for governor in the general election, the suit being brought pursuant to the statutes corresponding to the present Art. 1.05 and following of the Election Code, although Art. IV, Sec. 3 of the state constitution provided that, as to the offices of Governor and Lieutenant Governor, 'Contested elections for either of said offices, shall be determined by both Houses of the Legislature in joint session'.We held that, notwithstanding the statute, the legislature, rather than the courts, had jurisdiction of the controversy, and, in so holding, said:

'* * * The subject-matter is everything which can be legally embraced in the phrase 'contested elections.'Such a contest may embrace every part of the 'process' of electing a governor, for the reason that the 'election' which may be contested is not merely the acts of voting, but every step regulated by law, from the announcement of the candidate to the declaration of the result.'

While the decision did not, of course, involve Art. 1821, supra, the broad interpretation given the constitutional phrase 'contested elections' seems at variance with a narrower one for the similar but broader language used in Art. 1821.

On the other hand, we have decided in favor of our jurisdiction in two cases that doubtless require comment, to wit, Pease v. State ex rel. Sutherland, Tex.Com.App., 208 S.W. 162;andTrimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070.

The Pease case was one in quo warranto to oust Pease, the purportedly elected mayor of Corpus Christi, and install the relator, Sutherland, who was the opposing candidate, on the ground that, discounting the ballots cast for Pease due to fraudulent practices in his behalf in the election, the relator was the winner.The trial court judgment ousted Pease and installed Sutherland but, apparently due to lack of additional pleadings of the latter, did not award a recovery of the salary received by Pease since assuming the office in dispute.On Appeal by Pease and cross assignment by the...