State v. Pease

• Decision Date: 10 April 1912
• Citation: 147 S.W. 649
• Parties: STATE ex rel. SUTHERLAND v. PEASE.
• Court: Texas Court of Appeals

Page 649

147 S.W. 649

STATE ex rel. SUTHERLAND v. PEASE.

Court of Civil Appeals of Texas. San Antonio.

April 10, 1912.

On Motion for Rehearing, May 29, 1912.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Quo warranto by the state, on the relation of H. R. Sutherland, against Clark Pease. From a judgment for defendant, relator appeals. Reversed and remanded.

John I. Kleiber, of Brownsville, Pope & Taylor, D. McNeill Turner, Russell Savage, and H. R. Sutherland, all of Corpus Christi, and Dougherty & Dougherty, of Beeville, for appellant. J. C. Scott, G. R. Scott, and Boone & Pope, all of Corpus Christi, for appellee.

FLY, J.

This is a quo warranto instituted by the state of Texas, through its district attorney, John I. Kleiber, upon the relation of H. R. Sutherland, to oust the appellee, Clark Pease, from the office of mayor of the city of Corpus Christi, and place relator therein. A trial resulted in a judgment in favor of appellee.

The trial judge filed his conclusions of fact, in which he found that the official returns of the election held for city officers on April 4, 1912, showed that Clark Pease received, for the office of mayor, a total of 548 votes, and H. R. Sutherland 338 votes, but that the actual count of the ballots by the judge showed that Pease received 445 votes and Sutherland 420 votes, thereby giving a majority of 25 votes for appellee, and he declared him elected.

The term of the court, at which this cause was tried, adjourned on August 12, 1911, and the findings of fact were filed on August 19th; but on October 7, 1911, nearly two months after the adjournment of the court, a paper, denominated "Additional Findings of Fact," was filed upon the order of the trial judge. There is no warrant of law for filing the additional findings of fact at the time they were filed. The time had expired and the appeal was perfected at that time; and the district judge had no authority to file the findings of fact. They cannot be considered in this case.

The action in this case is for the office of mayor, there being no pleadings attacking the election as being illegal and void; and we fail to see the force and materiality of those parts of appellant's brief attacking the action of appellee; or his officers of election, in refusing to allow supervisors appointed by the city council to serve. The refusal to allow the supervisors to serve might, in a proceeding to set aside the election, have probative force; but we fail to see the pertinency of an attack on the validity of an election in an action brought to recover an office which is alleged to belong to relator by virtue of the same election. The inconsistency of the claim is apparent. This will dispose of all assignments of error attacking the validity of the election. The pleadings do not allege an invalid election, but claim that relator was elected to an office of which he has been unjustly deprived, and which he seeks to recover. In this class of cases, the allegata and probata, as in other cases, must correspond. This would apply, not only to the election over the whole city, but as well to a certain precinct. Under the pleadings in the case, the court had no authority to declare the election void, although it may have been reeking with fraud and corruption.

The following is found in the petition: "Plaintiff further alleges that in voting precinct No. 3 there were two hundred and five (205) and more votes cast for him, said plaintiff, the following qualified voters casting said two hundred and five (205) votes: [Here follow names which are omitted.]—and that twenty-six (26) and more of said votes were by one of the judges of said election falsely and wrongfully scratched by said judge of election, who was, at the time of said wrongful and unlawful action in casting said twenty-six (26) and more votes which he was instructed by illiterate voters to cast for plaintiff, and did, contrary to instructions, cast for defendant, while acting as a judge of said election, openly and notoriously, and in violation of law, electioneering for the defendant, and fraudulently marking ballots of voters for the defendant, when he had been instructed by said voters to mark them for plaintiff, and that twenty-six (26) and more of said bollots in said precinct No. 3 cast for plaintiff were fraudulently counted by said judges of election for the defendant. Plaintiff further alleges that, although the returns of said election show that defendant was elected by a majority of two hundred and ten (210) votes, that in fact and in truth plaintiff was elected by a majority of twelve (12) and more votes, and that by reason of the premeditated design and unlawful misconduct of the officers of said election at said precincts No. 2 and No. 3 of said city of Corpus Christi, Texas, and because of the miscounting of votes, as aforesaid, said returns did not in fact show the actual number of votes cast in said election for the relator or for the defendant, and ought not to be considered in estimating the vote cast in said election."

There was abundant evidence to sustain those allegations; but, without making any finding as to that material issue, the court found that "from an actual count of the ballots cast at said election, as taken from the ballot boxes," the following ballots were cast for relator and respondent in voting precinct No. 3: For the relator, H. R. Sutherland, 179 votes; for the respondent, Clark Pease, 203 votes. After passing upon the qualifications of several voters in precinct No. 3, the court found that relator had received therein 177 votes and respondent 202 votes. No finding was made as to the fraudulent scratching of the ballots of illiterate voters, most of which was shown to have done by one R. P. Blucher, since indicted for his acts in connection with the election now under consideration. There was proof strongly tending to show that a number of the voters were fraudulently deprived of their votes by an officer of the election erasing names, other than those desired by the voters to be erased; and, although this was the main, the most vital, point in the case, the court in his findings ignored it, and appellant has just cause to complain that the judge has found as he did in regard to the votes of precinct No. 3. The only matters passed upon are set out clearly in the findings of fact, and the most material issue is altogether ignored. If the case had been tried by jury, appellant had the right to have every issue submitted, and on a trial by a judge he has the right to have every material issue considered; and where it is apparent that they were not considered a reversal should follow. It is clear from this record that appellant's issues were not all considered. Numbers of voters testified that their votes had not been marked as they desired; and, while the judge of election, who was given, or...