Whaley v. Thomason

• Decision Date: 20 January 1906
• Citation: 93 S.W. 212
• Parties: WHALEY et al. v. THOMASON.
• Court: Texas Court of Appeals

93 S.W. 212

WHALEY et al. v. THOMASON.

Court of Civil Appeals of Texas.

January 20, 1906.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Election contest between J. O. A. Whaley and others and R. E. Thomason and others. From a judgment for respondents, contestants appeal. Reversed.

R. V. Bell, Culp & Giddings, Garnett & Eldridge, and Robert E. Cofer, for appellants. W. O. Davis, Potter & Potter, Stuart & Bell, J. T. Adams, A. M. Green, J. E. Hayworth, and T. M. Bosson, for appellees.

STEPHENS, J.

The proposition to determine whether or not the sale of intoxicating liquors should be prohibited in Cooke county, Tex., was submitted to the voters of that county on September 9, 1905, and rejected by a majority of 40 votes, as declared by the commissioners' court on September 20, 1905. In due time thereafter 20 citizens and voters of Cooke county instituted a proceeding to contest the election, which resulted in a judgment against them; the court sustaining a general demurrer to their statement of the grounds of contest, and from that judgment this appeal is prosecuted.

The statement of the grounds of contest, which, for convenience, will be denominated the petition, abounds in redundant and somewhat lurid allegations and contains some that are seemingly even contradictory, but as no objection was made to the form of the allegations every reasonable intendment is to be indulged in favor of the pleading. Northwestern Nat. Ins. Co. v. Woodward (Tex. Civ. App.) 45 S. W. 185 and cases there cited. So treated, the petition made a case, we think, of an election conducted in violation of sections 131 and 133 of what is known as the "Terrell Election Law," adopted in 1903, and re-enacted in the election law of 1905. Gen. Laws 1903, p. 156, c. 101; Gen. Laws 1905, pp. 559, 560, c. 11, §§ 160, 162. The first-named section makes it a felony for any person to lend or contribute or to offer or promise to lend or contribute or pay any money or other valuable thing to any voter to induce him to vote or refrain from voting for or against any person, or for or against any particular proposition submitted to votes, or to induce such voter to come to the polls or remain away from the polls at any election, or to induce such voter or other person to place or cause to be placed his name on the poll tax or certificate of exemption rolls. The other section imposes the same penalty on any one who receives, agrees to receive, or contracts for before or during election to receive, any money, gift, loan, or other valuable thing, place, office, or employment for himself or for any other person, for voting or agreeing to vote, or for going or agreeing to go to the polls on election day, for remaining away or agreeing to remain away from the polls on election day, or for refraining or agreeing to refrain from obtaining his poll tax receipt or certificate of exemption, or for obtaining or agreeing to obtain the same, or for voting or agreeing to vote for or against any particular person or proposition submitted to a vote of the people. The petition charges that out of a fund of about $5,000 raised by certain named persons engaged in the sale of intoxicating liquors and therefore interested in defeating the adoption of prohibition in Cooke county, in anticipation of the election in question, thereafter ordered, the poll taxes of about 500 voters were paid and their tax receipts obtained in pursuance of a combination and conspiracy formed by said persons to prevent the adoption of said measure. The petition further charges that "said combination furnished and advanced and loaned the money with which said poll taxes were paid without any promise or expectation that said money should ever be returned; that they were paid for said citizens with the understanding, express or implied, between said saloon men and their agents on the one side and the said respective citizens on the other side, that the said citizens, in consideration of the payment of their poll taxes, were to vote against prohibition in the event of such election during the year 1905"; that said combination wrongfully obtained possession of said tax receipts and held the same till election day "or a short time before," when they were delivered, respectively, to the voters therein named, who "voted at said election against prohibition without having paid their poll taxes as prescribed and required by the Constitution." The petition further charges that the number of persons so voting, who either exhibited such tax receipts or, in lieu thereof, affidavits of their loss, amounted to 500, and that these votes were received and counted, which resulted in a majority of 40 against prohibition, when but for the illegality and fraud alleged the majority would have been the other way. These allegations, for the purposes of this appeal, must be taken as true, that being the effect of the general demurrer.

The question to be decided, then, is: Has the court trying a contested election case the power to set aside a local option election for bribery where a sufficient number of bribed votes have been cast to affect the result? This question, we think, should receive an affirmative answer. Article 3397 of our Revised Statutes of 1895 empowers any court of competent jurisdiction (which is now the district court) to adjudge a local option election to be void when it is made to "appear from the evidence that the election was illegally or fraudulently conducted." We cannot well conceive of a clearer case of illegality and fraud in the holding of an election than one in which a fair expression of the will of the majority is defeated by conspiracy and bribery. It is by no means necessary, as seems to be contended, in order to make a case of...