Voss v. Terrell
| Decision Date | 14 February 1896 |
| Citation | 34 S.W. 170 |
| Parties | VOSS v. TERRELL, County Attorney. |
| Court | Texas Court of Appeals |
Appeal from district court, Wise county; J. W. Patterson, Judge.
Proceeding by R. N. Voss to contest a local option election in Wise county, in which C. V. Terrell, county attorney, was made contestee. A judgment in favor of the contestee was affirmed on appeal by the contestant, in an oral opinion, and the contestant moves for a rehearing. Motion overruled.
R. E. Carswell and Bullock & Tankersley, for appellant. McMurray & Gose and Slaton & Wharton, for appellee.
On Motion for Rehearing.
The judgment in this proceeding, which was instituted to contest a local option election in Wise county, was affirmed on the original hearing in an oral opinion; Hunter, J., filing a written dissent. By both written and oral argument in support of this motion, counsel for appellant persists in the contention that that election should be set aside. On account of this persistent and earnest insistence on the part of able counsel, and the dissent of Justice Hunter, we have concluded in this instance to depart from the practice adopted soon after the organization of this court, in order to relieve the congestion of our docket and avoid an unnecessary multiplication of published decisions, that of writing opinions only in those cases where the statute made it obligatory. We proceed, then, to state, briefly, our conclusions in writing.
The election in question was held after the posting for 12 days of the requisite number of copies of the order of election, as provided in the local option statute (article 3230, Rev. Civ. St.); but without giving the 20 days' notice as provided in the general election law (article 1685). The article last cited is found in a chapter of the general election statute succeeding articles which provide for the election of various state and county officers. This chapter also contemplates other elections, but makes no mention of local option elections, which were elsewhere expressly provided for, under title 63 of the Revised Civil Statutes, but not under title 34, which embraces the several chapters on the subject of elections generally. According to all the rules of construction, the language in article 1685, "Where any election is ordered, at least 20 days' notice," etc., should be interpreted with reference to the various elections provided for in that chapter and under that title, and not to elections provided for and regulated under a different title. But we are not left to rules of construction merely. The very last article (1759) of the general election title itself declares the applicability of the provisions under that title (including article 1685), as follows: "The provisions of this title shall apply to all elections, whether for officers or for other purposes, where not otherwise provided by law." Thus, by the express terms of the general election statute itself, the provisions under that title (34) only have application to elections not otherwise (as in title 63) provided for.
The question, then, is: Did the local option statute, in providing for elections of that class, prescribe what notice should be given? If so, there can be no escape from the conclusion that the general election statute, by its very terms and provisions, is excluded, except in so far as its provisions were expressly adopted by the local option law. The local option statute has always provided the kind and length of notice to be given of elections thereunder. Originally, it required copies of the order of election to be posted 20 days before the election, though authorizing the election to be held as early as 15 days after it was ordered. This conflict was considered and declared by the court of appeals, and soon thereafter the change was made by the legislature from 20 to 12 days. Obviously, the purpose of the change was to eliminate this conflict. To hold now that a local option election may be ordered and held 15 days after the order is made, as the statute (article 3229, as amended in 1893) provides, but that 20 days' previous notice thereof must be given, is to hold that the legislature re-enacted an absurdity after their attention had been called thereto. The more reasonable construction would be that they reduced the time from 20 to 12 days, to avoid such absurdity, seeing that 20 into 15 will not go. The only possible escape from this conclusion is through the still more unreasonable one that it was not the purpose of article 3230 to give notice to the voters in requiring the clerk to "post or cause to be posted at least five copies of said order [provided for in preceding section] at different places within the proposed limits, for at least 12 days prior to the day of election." True, it is not there called "notice," though in other parts of the act, where it is evidently referred to, the term "notice" is used. Articles 3227, 3229. The copies of the order are required to be "posted." The verb "post" is defined in Webster's Dictionary as follows: "To attach to a signpost or other usual place of affixing public notices; to advertise; as, to post a notice." That such posting was intended to be notice or nothing is so plain, we think, that he who runs may read. Should this requirement of the statute not be properly complied with, the remedy is given in article 3239a, under which this proceeding is had.
In further confirmation of the view here maintained, the general election statute prohibits the creation of an election precinct out of parts of two justice precincts, but no such restriction is found in the local option statute in providing for the designation of sub-divisions of the county, and fixing voting places therein. To this feature of the amended local option statute the general election law as to election precincts, and consequently the provisions for notices of elections therein, hardly seem applicable. Furthermore, as the court of criminal appeals is the tribunal that must ultimately determine the validity of local option laws, and as we understand it to have adopted the construction here given, we think its decisions ought to be followed by this court. Winston v. State, 32 Tex. Cr. R. 59, 22 S. W. 138. The law was upheld in the case just cited, though the election was held less than 20 days after it was ordered, precluding thereby the possibility of 20 days' notice. It is urged, however, that the point was not directly raised. True, it does not appear that either the counsel or the court saw fit to discuss it, but it was necessarily involved in the decision. It was too obvious to have escaped attention, and the reasonable construction should be, we think, that it was not then deemed of the magnitude to which it has recently grown. The expressions in the opinion of Chief Justice Lightfoot in Kimberly v. Morris (Tex. Civ. App.) 31 S. W. 810, were dicta, and seem to have been made incidentally merely, without any particular examination of the question.
We adhere to the conclusions heretofore announced orally, and overrule the motion.
(Jan. 18, 1896.)
A majority of the court have concluded to affirm the judgment in this case by an oral opinion, to which I cannot assent, for the reasons following:
The proceeding was instituted on October 16, 1895, by R. N. Voss, a qualified voter of Wise county, in the district court of said county, to contest a local option election held in said county on the 7th day of September, 1895. C. V. Terrell, the county attorney, was made contestee, and answered. The commissioners court, upon canvassing the returns, declared the vote in favor of local option by a plurality of 163 votes. The grounds of contest were that the notice required by article 1685 of the Revised Civil Statutes to be posted in each election precinct for 20 days prior to the election was not given; but that, instead thereof, only five copies of the order of the commissioners' court were posted in different places in the county; and that such notices were only posted 12 days before the election, as provided in article 3230; and that by reason thereof many voters were deprived of the privilege of voting in said election; and that said election was void. I think that the failure to post the notices of election required by article 1685 of Sayles' Civil Statutes renders the election void. I have come to this conclusion with reluctance, because in this case the petition shows on its face that nearly the entire vote of the county, as compared with a previous election held in the same year, was cast; and there is nothing in the record that indicates to me that there was the slightest unfairness or fraud in the election, but that an ordinarily full and fair expression of the will of the people...
To continue reading
Request your trial
-
Texas Co. v. Maloney
... ... should be construed in the case at bar: City of ... Pittsburgh v. Ry. Co., 103 A. 372; Voss v ... Terrell, 34 S.W. 170; Stanford v. State, 268 ... S.W. 161; U. S. v. Miller, et al., 223 U.S. 599; 49 ... C. J. 1120. The notice required ... ...
-
Ex Parte Keith
...provisions of the local option law in reference to notices, etc., Judge Stephens, delivering the opinion of the court in Voss v. Terrell (Tex. Civ. App.) 34 S. W. 170, held that said general election law did not apply to the local option law, and among other things says, reviewing article 1......
-
Norton v. Alexander
...each voting box 20 days prior thereto. Upon these grounds the election was alleged to be void. But we held otherwise in Voss v. Terrell (Tex. Civ. App.) 34 S. W. 170, and a like ruling has more than once been made by our court of appeals. Shields v. State (Tex. Cr. App.) 42 S. W. 398; Hayes......
-
Norman v. Thompson
...in enacting the article under consideration in the case at bar was to insure notice to the voters of the election. Voss v. Terrell (Tex. Civ. App.) 34 S. W. 170. Notice to the voters is essential to the validity of such elections, but, if the voters have actual notice, it is apparent that t......