Turner v. Allen

• Decision Date: 14 July 1923
• Docket Number: (No. 1027.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 254 S.W. 630
• Parties: TURNER v. ALLEN.
• Court: Texas Court of Appeals

Page 630

254 S.W. 630

TURNER v. ALLEN.

(No. 1027.)^*

Court of Civil Appeals of Texas. Beaumont.

July 14, 1923.

Rehearing Denied October 10, 1923.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Election contest by T. A. Allen against W. O. Turner. Judgment for contestant, and contestee appeals. Reversed.

J. A. Harrison, of Beaumont, for appellant.

E. M. Chester, of Beaumont, for appellee.

PER CURIAM.

This is an appeal from a judgment of the district court of Jefferson county (Fifty-Eighth judicial district), by the terms of which the appellant, W. O. Turner, was ousted from the office of county commissioner of precinct No. 4 of Jefferson county, and the appellee, T. A. Allen, was adjudged to be entitled to said office. The controversy between the parties grew out of the following facts:

At the Democratic primary election heid in Jefferson county in July, 1922, for the nomination of state, county, and precinct officers, appellant, Turner, and appellee, Allen, were opposing candidates for the nomination to the office of county commissioner of precinct No. 4 in said county. The result of the primary election was that Turner got a total of 701 votes and Allen got a total of 910 votes making Allen's majority over Turner 209 votes. Thereafter Allen was duly and legally declared the Democratic nominee for the office of county commissioner of precinct No. 4, and his name was printed on the ticket to be voted at the general election following.

The commissioners' court, at its regular August term, following the primary election, acting upon a resolution offered by Turner, who was then a member of said court, made and caused to be entered of record an order changing and re-establishing the boundaries of commissioners' precincts Nos. 1 and 4, and by such change considerable territory that was theretofore included in commissioner's precinct No. 4 was placed and included in commissioner's precinct No. 1 as re-established, and this territory so placed in commissioner's precinct No. 1 included Allen's residence, thereby excluding his residence from commissioner's precinct No. 4, where it was at the date of his nomination for said office. Also by said order of the commissioners' court the greater portion by far of election precinct No. 4, as to population, was excluded from commissioner's precinct No. 4 as reestablished, and was included in commissioner's precinct No. 1 as re-established. And also by said order other election precincts, which before the order were in commissioner's precinct No. 4, were excluded therefrom and were included in commissioner's precinct No. 1 as re-established, but no point is before us as to the change made by the order touching such other election precincts.

At the general election in November following. Allen's name was printed on the official ballot as the Democratic nominee for county commissioner of commissioner's precinct No. 4 of Jefferson county, and he was voted for as such by some of the voters in all of the election precincts within commissioner's precinct No. 4 as re-established, but some of the voters in such precincts erased his name and wrote instead thereof, as their choice for county commissioner of precinct No. 4, the name of appellant, W. O. Turner, and returns of the results of the election in such election precincts were duly made. But a number of the voters residing in election precinct No. 4 as it was situate and bounded at the date of the primary election voted for Allen in the general election, notwithstanding the order of the commissioners' court which had taken that election precinct out of commissioner's precinct No. 4, and included it in commissioner's precinct No. 1, and all such votes were cast for Allen, and the managers of the election in such precinct counted such votes for Allen and made returns of the result accordingly.

When the commissioners' court met to canvass the result and estimate the returns of the general election, and to declare the result thereof in Jefferson county, it canvassed and estimated the returns made by the managers of the election in the several election precincts situate in commissioner's precinct No. 4, as established by the court's order at the August term preceding, but declined to estimate or consider the returns made by the managers of the election in election precinct No. 4, in so far as such returns related to the office of county commissioner of precinct No. 4, for the reason, as claimed by them, that they knew that the voters who cast the votes shown by such returns did not reside in commissioner's precinct No. 4 as re-established by the court's order in August prior to the general election, and that therefore such votes could not be legally counted in determining the result of the election for commissioner of precinct No. 4, and that the court could not legally estimate and consider such returns in declaring the result of the election for commissioner of precinct No. 4. These rejected returns from such precinct No. 4 showed 205 votes for Allen and none for Turner.

After having declined to estimate and consider the returns from election precinct No. 4, as above stated, in so far as the same related to the office of county commissioner of precinct No. 4, the court proceeded to estimate and consider the returns from all other election precincts situate in commissioner's precinct No. 4 as re-established, and declared the total result as between Turner and Allen to be 74 votes for Turner and 38 votes for Allen. Thereafter the county judge of Jefferson county issued to Turner a certificate of election to the office of county commissioner of precinct No. 4, Jefferson county, and he duly qualified as such officer.

Allen never at any time between the date of the commissioners' court order re-establishing commissioners' precincts Nos. 1 and 4 and the day of the general election took any steps of any character whatsoever to prevent that order from being given effect, nor was the order attacked by any one at any time by any character of action or suit or proceeding, legal or equitable, until after the general election, and the result thereof was declared, as above stated. Within 30 days after the commissioners' court had declared the result of the election for county commissioner of precinct No. 4, as above shown, Allen caused to be prepared and served upon Turner a written notice that Allen would contest the result of the election as declared by the commissioners' court, and this written notice contained a full and complete statement of the grounds upon which Allen intended to contest the election as against Turner. This notice and grounds of contest complied fully with the statutory provisions relating to contested elections in this state, and its sufficiency was not attacked or questioned in any respect by Turner. Thereafter, and within the time prescribed by article 3057, Revised Statutes of Texas, the contestee, Turner, filed his bond as contestee in the sum of $7,200 in favor of the contestant, Allen. Thereafter, on March 24, 1923, Allen, following up the notice of contest, filed his petition of contest in the district court of Jefferson county, and on the same day the same was presented to Hon. George C. O'Brien, judge of said court, who made an order setting such contest for hearing and trial on April 16th following, directing in such order that a copy of same be served on contestee, Turner.

In view of the fact that one of the principal legal questions involved on this appeal relates to the character of this proceeding, we deem it best to let this opinion reflect in full the contestant's pleading on which the judgment in this case is based. The original petition of contest, which was filed March 24, 1923, after giving the style of the case and the court in which pending, was as follows:

"Your petitioner, T. A. Allen, hereinafter called contestant, complains of W. O. Turner, hereinafter called contestee, and shows to the court the following, to wit:

"(1) Contestant and contestee both reside in Jefferson county, Tex.

"(2) That heretofore, on, to wit, the 13th day of September, 1920, the commissioners' court of Jefferson county, by an order duly made and entered of record, established the boundary lines of the commissioners' precincts of said county, and that precinct No. 4, as established by said order, included within its boundaries all that portion of the city of Beaumont known as South Park, which includes voting precinct No. 4, in which voting precinct said Allen now lives and lived at the times hereinafter mentioned. That, in pursuance of the laws of the state of Texas, a Democratic primary election was held on the 22d day of July, 1922, to nominate a candidate for said party for the office of county commissioner for said precinct No. 4 as the same was then bounded and established. That the said W. O. Turner and the said T. A. Allen were both candidates, and the only candidates, voted on at said primary for said nomination, and both took the pledge to support, in the general election, the nominees of said primary. That in said primary election the said T. A. Allen received a majority of all the votes polled, and was duly nominated according to law, and his name was properly certified to the county clerk of Jefferson county as the Democratic candidate for commissioner from precinct 4 as the said precinct then existed, and that the county clerk, in accordance with the statutes of Texas, caused the said T. A. Allen's name to be printed upon the official ballot for the general election held November 7, 1922, as the Democratic candidate for commissioner of precinct No. 4. That the said primary election was provided for by the statutes of Texas and was duly ordered and held in accordance with said statutes, and that the said T. A. Allen's rights became fixed by law, when he received the nomination in said primary election, to have his name printed upon the official ballot as the Democratic...