Walker v. Thetford, 11480

• Decision Date: 21 June 1967
• Docket Number: No. 11480,11480
• Citation: 418 S.W.2d 276
• Parties: J. B. WALKER, Jr., et al., Appellants, v. W. W. THETFORD et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 276

418 S.W.2d 276

J. B. WALKER, Jr., et al., Appellants, v. W. W. THETFORD et al., Appellees.

No. 11480.

Court of Civil Appeals of Texas Austin.

June 21, 1967.

Rehearing Denied Sept. 13, 1967.

Dell Barber, Frank Ginzel, Perry O. Barber, Sr., Colorado City, for appellants.

Frank Dickey, Sr., County Atty. Robert Lee, Blanks, Thigpin, Logan, Steib & Lewis, Curt F. Steib, Glenn W. Lewis, San Angelo, for appellees.

O'QUINN, Justice.

This lawsuit contests an election called on the proposition of consolidating two school districts in Coke County. Both the canvass of the returns of election and a later recount of the ballots in district court showed the election carried by a majority of two votes, although each finding was based on different totals.

Petitions were presented to the County Judge of Coke County January 27 and January 31, 1966, seeking elections in each of two school districts on consolidation of Robert Lee Independent School District and Silver Peak Common School District (Coke County District No. 28). The county judge on February 1 called the two elections for February 26, 1966. This case involves the results of the election held in Silver Peak.

Between the time the county judge called the election and the date the election was held several events, unrelated to the facts of this case, but of significance in declaring the law of the case, occurred in the courts and in the legislature.

A three-judge federal district court, sitting at Austin, in an opinion handed down February 9, 1966, held unconstitutional the requirement of payment of a poll tax in this state as a precondition to voting. United States of America v. State of Texas et al., 252 F .Supp. 234, affirmed 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434. The district court granted a stay of the injunctive features of its decree until February 23.

The Governor called a special session of the legislature, convened February 14, for the purpose of enacting a voter registration law. S.B. No. 1 was enacted by the legislature and the Governor signed the bill into law February 24, 1966, two days before the Silver Peak election.

S.B. No. 1 provided that for the current voting year holders of poll tax receipts would not be required to reregister, and provided a 15-day supplemental registration period, beginning seven days after effective date of the law. This period began March 3 and ended March 18.

A justice of the Supreme Court of the United States, on February 23, denied a stay of execution of the judgment in the case decided February 9, but the district court granted an extension of its stay on February 26, the day of the election. The stay was made effective until March 26, 1966.

At the Silver Peak election two ballot boxes were used for the voters, who were divided into two groups: (1) persons having paid a poll tax or having a right of exemption and (2) persons without poll tax receipts or exemptions, but otherwise qualified voters, who presented themselves at the polls to vote.

The Commissioners' Court of Coke County canvassed the Silver Peak returns February 28 and declared the results showing that in the first group 65 voted for and 62 against consolidation, and in the second group the vote was 11 for consolidation and 12 against. The net result declared was that the voters in Silver Peak approved consolidation by a vote of 76 to 74.

Suit was brought in district court contesting the election and attacking its validity on a number of grounds. The trial judge in open court caused the ballots of all voters to be re-counted. After declaring certain ballots illegal for various irregularities, the court found that the election carried by a majority or two votes, there being 73 votes for consolidation and 71 against. In group 1 the vote was 63 to 61 for consolidation, and in group 2 the vote was 10 to 10.

Contestants have perfected their appeal from the judgment of the district court, entered June 9, 1966. The appeal presents the question of residence and the right to vote at the election of three married couples and contests validity of the election for reasons related to the holding of the federal court and subsequent enactment of the registration act by the legislature. Appellees by counter-point present a jurisdictional question based on claim of non-compliance with statutory requirements of notice of the election contest, a point the trial court overruled.

The trial court upon request made and filed findings of fact and conclusions of law. Appellants assign twenty points of error.

We will consider all points of error under three designated headings and in this order: (1) jurisdictional point asserted by appellees, (2) appellants' challenge of the eligibility of six voters, and (3) error assigned by appellants asserting invalidity of the election held after the decision of the federal district court and prior to the close of the 15-day supplemental registration period.

Appellees pleaded that the contestants failed to comply with the provisions of Article 9.03, V.A.T.S. Election Code, prescribing the time and manner of giving notice of intention to contest an election . The trial court overruled the plea to the jurisdiction and appellees have preserved the asserted error.

Article 9.03 requires notice in writing, within 30 days after canvass of the election returns, stating intention to contest an election and the grounds relied upon to make the contest. It is well-settled that the written notice is mandatory and, being jurisdictional, may not be waived. 21 Tex.Jur.2d, Elections, secs. 165--168, pp. 427--434, and cases cited.

Following canvass of the Silver Peak returns February 28, the contestants on March 26, acting through their attorney, delivered a signed copy of the original petition of contest filed in this cause to the county attorney. Noted in writing on the petition handed the county attorney appeared the following paragraph, also signed by attorney for the contestants:

'A copy of this petition has this the 26th day of March, 1966, been delivered to Frank C. Dickey, Sr., County Attorney of Coke County, Texas, notifying him that this election is being contested and the grounds upon which such contest is based. / s/ Dell Barber.'

It appears that at the time Barber delivered the petition to Dickey, the county attorney at Barber's request called a deputy district clerk to open the clerk's office so Barber could file the original of the petition in court. Mildred A. Wallace, a deputy clerk, opened the office, and 'some thirty minutes or an hour' after signed copy of the petition had been handed Dickey the original was filed with the district clerk. It does not appear whether the county attorney actually witnessed the filing, but he did arrange for it by calling the deputy clerk.

Contestants named as defendants in the petition the county judge, the four members of the commissioners' court, and the county attorney. Citation was not issued and none was served on any of the defendants.

On April 5, 1966, following filing of the petition on March 26, the county attorney, joined by other counsel, filed in behalf of all defendants a plea to the jurisdiction, special exceptions to the original petition, and an original answer, indicating on each that copies had been served by mail on Dell Barber, attorney for contestants, on April 4. The trial court on April 7 set the jurisdiction plea for hearing on May 4, at which time the court overruled the plea, and the case went to trial May 25, 1966.

Under Article 9.31, V.A.T.S., Election Code, the county attorney was properly made a contestee of the election and was the proper person to be served with the notice and statement required under Article 9.03. Jordan v. Overstreet, Tex.Civ.App., Beaumont, 352 S.W .2d 296 (no writ). Article 9.31 also provides that the county attorney 'shall file his reply thereto as in the case of a contest for office.' (Acts 1951, 52nd Leg., ch. 492, p. 1097, art. 159).

Appellees rely upon the holding in Barker v. Wilson, Tex.Civ.App., Austin (1918), 205 S.W. 543 (no writ) in urging that the trial court was without jurisdiction to hear the suit. In that case the attorney for contestants, within less than thirty days after the return day of the election, delivered to the county attorney the original petition in the suit which at that time had not been filed. The county attorney read the petition and next day, or soon thereafter, returned it to attorney for contestants at the attorney's express request, who explained that he was going to mail the petition to the district judge. The county attorney at the same time signed a written waiver of issuance and service of process. Suit was not actually filed 'until long after the expiration of 30 days from the return day.' The waiver by the county attorney was filed with the petition.

At the trial of Barker v. Wilson, both the county attorney and attorney for contestants testified that the attorney had informed the county attorney orally it was his intention to contest the election and would file the petition for that purpose. No other proof of notice of intention to contest the election was made in the suit.

In Barker v. Wilson the court held that the requirements of the statute as to notice of intention had not been met. The court said, 'It may be conceded that delivery to (the county attorney) of the petition, setting forth the ground upon which it was claimed the election was illegal, constituted compliance with one portion of the statute; but it contained no notice notifying the contestee that it was the intention of the contestants to file that petition in court and use it as a basis of a contest.' 205 S.W. 543, 546, col. 2. The court held that to comply with the statute the notice must be in writing and state two separate and distinct facts: (1) the contestants' intention to contest the election and (2) the ground relied upon the sustain the contest.

The court decided that the 'verbal notice, though...