Tate v. Farmer, 13655.

• Decision Date: 21 January 1938
• Docket Number: No. 13655.,13655.
• Citation: 112 S.W.2d 782
• Parties: TATE et al. v. FARMER, Co. Atty., et al.
• Court: Texas Court of Appeals

112 S.W.2d 782

TATE et al. v. FARMER, Co. Atty., et al.

No. 13655.

Court of Civil Appeals of Texas. Fort Worth.

January 21, 1938.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Election contest by L. L. Tate and others against W. W. Farmer, Jr., County Attorney, and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

John Lee Smith, of Throckmorton, for appellants.

E. G. Thornton, of Olney, for appellees.

DUNKLIN, Chief Justice.

An election was held to determine whether or not Boggy Valley school district No. 32 should be consolidated with Profit school district No. 46; both of which are located in Young county. The election returns showed on their face that a majority of votes cast were in favor of the consolidation, and the commissioners' court of the county passed an order declaring the result of the election and decreeing the consolidation sought, all in accordance with the provisions of articles 2806, 2806a, Vernon's Tex.Civ.Statutes.

This suit was instituted by L. L. Tate and W. D. Riggins, as trustees of the Boggy Valley school district, joined by E. D. Riggins and Willis Riggins, taxpaying voters in that district, to contest that election and the action of the court in consolidating the two districts in decreeing the consolidation.

The plaintiffs have appealed.

The case was tried before the court on an agreed statement of facts, reading:

"It is agreed by and through all the parties to this suit that an election was duly and legally ordered to be held on October 1, 1936, in Boggy Valley School District No. 32, in Young County, Texas, to determine whether or not such district should be consolidated with Profit School District No. 46, Young County, Texas. That such election was held on that date and J. B. Hulse was the presiding judge of such election in the Boggy Valley School District; that at the time of holding such election the ballots issued to the voters and used in such election were not numbered in any way by the presiding judge or any of his assistants.

"That after the votes were all in, the judge of such election on its tabulation, showed 28 votes for the consolidation and 24 votes against the consolidation; the votes were thereupon returned to the Commissioners Court and in the canvass of the election the Commissioner's Court found that 28 voters voted for consolidation of the two above districts, while twenty-four voters voted against such consolidation, and thereupon proper orders were entered consolidating said two school districts by the Commissioners Court.

"It is agreed between all parties that the above statement of facts raises every issue to be contained in this case, and constitutes a complete statement of facts herein, and the introduction of evidence is waived by both parties.

"It is further agreed as part of such statement of facts in this case that L. L. Tate and W. D. Riggins were trustees of Boggy Valley School District No. 32, at the time of said election, and are still such trustees, unless their office has been abolished as a result of such election."

Failure to number the ballots was one of the grounds upon which the contest was based. In support of that ground, appellants cite article 3012 and article 3018 of the Statutes pertaining to general elections, the first of which specifically requires the numbering of ballots by the election judges before being placed in the ballot box, and the latter forbidding the counting of ballots not so numbered. Also article 6, § 4, of the Constitution, which reads: "In all elections by the people the vote shall be by ballot and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box."

State ex rel. Barry v. Connor, 86 Tex. 133, 23 S.W. 1103, was a contest of election by two opposing candidates for office in the city of Dallas. Our Supreme Court held that the two statutes noted above as 3012 and 3018 were controlling, and, by reason of which, ballots that were not numbered, as therein required, could not be counted.

Of like effect were several other decisions cited by appellants, such as Johnson v. Peters, Tex.Civ.App., 260 S.W. 911; Kartes v. Fritter, Tex.Civ.App., 63 S.W. 2d 389, 390; Arnold v. Anderson, 41 Tex. Civ.App. 508, 93 S.W. 692; Gray v. State, 92 Tex. 396, 49 S.W. 217, 219; McFarlane v. Westley, Tex.Civ.App., 186 S.W. 261; and Brigance et al. v. Horlock, 44 Tex. Civ.App. 277, 97 S.W. 1060. However, those cases did not involve special elections, as does the case now before us.

Wallis v. Williams, 101 Tex. 395, 108 S.W. 153, involved a contest of election held to remove the county seat of Chambers county. One of the grounds of the contest was the use of illegal ballots, and the Court of Civil Appeals...