Williamson v. Lane
| Decision Date | 19 December 1879 |
| Parties | J. B. WILLIAMSON v. GEORGE LANE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Harrison. Tried below before the Hon. A. J. Booty.
Suit instituted in the District Court of Harrison county, by George Lane, appellee, to contest the election of J. B. Williamson, appellant, to the office of county judge of Harrison county, at a general election held therein for State and county officers, November 5, 1878.
Amongst other matters, Lane claimed that all the votes cast at what is called Roy's box, in the city of Marshall, were illegal and void, and that by reason thereof they should not be counted; that if those votes claimed by appellee to be illegal be not counted, he was elected by a majority of 334 votes.
Appellant joined issue, and, among other matters, denied the illegality of the votes, and that to count the same he was elected by 158 votes.
The court adjudged the votes cast at Roy's box illegal, and that appellee was entitled by election to the office.
Motion setting up various grounds for new trial was filed by appellant and overruled by the court.
Appellee filed a motion to dismiss the appeal on the following grounds, viz.:
1st. Because no appeal lies from the judgment in this case, inasmuch as the case was tried before the judge of the District Court of Harrison county, Texas, in chambers, while the Constitution confers appellate jurisdiction on this court only in cases of appeal from judgments of the District Court. (Const. of 1876, art. 5, sec. 3; Ordinances of the Const. Conv., prescribing terms of the District Courts of the several judicial districts, sec. 2.)
2d. No appeal lies in cases of contested elections, the right of appeal not having been expressly conferred by law. (O'Docherty v. Archer, 9 Tex., 295;Rogers v. Johns, 42 Tex., 339;Wright v. Fawcett, 42 Tex., 203; Acts of 1876, sec. 2, p. 70.)
3d. Because even if the statute confers the right of appeal in cases of contested elections, still the right cannot be made available to litigants, inasmuch as there is no form or mode of perfecting the appeal prescribed. (Ward v. Ward, 37 Tex., 389.)
4th. Because the brief of appellant is not prepared in accordance with the rules of the Supreme Court regulating the manner in which causes shall be prepared for submission, in this: that each ground of error is not separately presented, but the assignments are conjointly presented, without separation. (Rules 29, 30.)
5th. Because since November 5, 1878, the appellant has accepted an office inconsistent with the one which he insists on being adjudged to him, to wit, the office of commissioner of the Circuit Court of the United States of America for the Eastern District of Texas, at Marshall, in the county of Harrison, in said district, as is shown by the certified copies, under the hand and seal of the clerk of said Circuit Court, of the order of appointment of said Williamson as said commissioner, of the oath of office of said Williamson as said commissioner, and of the commission issued by the clerk of said Circuit Court to said Williamson as said commissioner, hereto annexed, marked “Exhibit A,” ““Exhibit B,” and “Exhibit C,” respectively, and made a part of this motion, said appointment having been made October 18, 1879. (Stubbs v. Lee, 18 Am. R., 251.)
Exhibits were filed with the motion, certified to by the clerk of the Circuit Court of the United States for the Eastern District of Texas, sustaining the facts set forth in the fifth ground of the motion. The proceeding was brought up on an agreed statement of facts.
The notice of contest states that appellant, as returning officer, had issued to himself a certificate of election certifying that he had been elected county judge of Harrison county, and that in doing so he had estimated illegal votes for himself, specifying the same as follows:
1st. That in making the count in favor of appellant, he, as such returning officer, estimated and counted the votes cast at a box located at William Roy's office, in the corporate limits of the city of Marshall, W. L. Sloan being managing officer and M. R. Geer and J. D. Adair judges of the election at that box, and alleging that the votes cast at said box were illegal and void.
2d. That said box was situated without the limits of the election precinct where the persons voting then resided, and that no person voting in said box resided within the election precinct where said box was located.
3d. That said box was situated in ward No. 3 in the city of Marshall, said ward being a separate election precinct; and no one voting at said precinct box resided in ward No. 3, but they all resided without the limits of said ward and outside of the corporation of the city of Marshall.
6th. That W. L. Sloan, the managing officer, and J. D. Adair, one of the judges of said election, resided without the limits of the election precinct where said box was located, and resided in other precincts of Harrison county.
7th. That the managing officer and judges resided in different precincts, and no two of them in the same precinct.
8th. That no legal notice was given of an election to be held in the election precinct.
9th. That no legal order of the Commissioners' Court of Harrison county was ever made fixing the location of said box in said ward No. 3 for voters residing outside of said ward.
10th. That no legal order of said Commissioners' Court was made by which W. L. Sloan was managing officer of the election.
11th. That at said box more than 500 illegal votes were polled for appellant by persons who were minors, convicts, and persons not residing in Harrison county for the requisite time.
12th. That at said election appellee received a majority of all the legal votes cast in said county for county judge of that county.
14th. That the judges at said box did not count the vote as required by law; that said box was moved out of said precinct, and that the said judges did not remain to count the vote until all were counted.
The notice further stated that appellee will contest appellant's right to said certificate of election for the reasons aforesaid; and because said certificate was issued in defiance of the injunction of the District Court of Harrison county; and because said certificate was issued without the impress of the seal of the County Court of Harrison county; and that if the Commissioners' Court ever made any order establishing Roy's office as a voting place for voters outside of the corporate limits of the city of Marshall, the same was made without authority of law, and therefore void; that the votes polled at the box at said Roy's office were illegal for the reasons aforesaid; that more than 700 votes were polled there, which were counted by appellant for himself, and that appellant issued to himself said certificate of election based on said votes; that at the election held at the several election precincts of said county, excluding said box at Roy's office, appellee received a majority of more than 500 votes for said office of county judge.
The notice was filed on the 12th day of December, 1878, and the original was served on appellant by the sheriff on the 12th or 13th day of December.
On the 17th day of December, 1878, appellant filed his answer, which contained a general demurrer, special exceptions, general denial, and a special answer, setting up, among other things, that at the election appellant received of the votes cast by the qualified electors who voted at said election a majority of 158 votes; that he received a certificate of election to said office from the proper returning officer of said county; that the votes polled at said Roy's box were all legal and valid; that the said box at Roy's office was established as a voting place by the Commissioners' Court of Harrison county on the 3d day of April, 1878, which was published according to law; that at precinct No. 1, 500 legal and qualified voters were illegally prohibited from voting for appellant for said office; that at precinct No. 5, appellant was illegally and fraudulently deprived of 525 votes which were deposited and voted for appellant; that appellee issued to himself a certificate of election to said office after he had violently and forcibly taken possession thereof; that on the 18th day of November, 1878, three unauthorized persons pretended to count the votes cast at said election and declare the appellee elected county judge of said county; that appellee and others acting with him illegally and fraudulently took possession of the seal of said County Court, so that the proper returning officer could not attach the same to appellant's certificate of election; that appellant has taken the oath of office as county judge according to law; that appellee, with other persons acting with him and for him, on the 18th day of November, 1878, forcibly and illegally entered the office of appellant, as county judge of said county, and ejected and expelled appellant therefrom, and took possession of all the records, books, and papers belonging to said office, together with said seal, and still holds and possesses the same. The original of this answer was served on appellee on the 23d day of December, 1878.
On the 27th day of December, 1878, appellee moved to strike out appellant's original answer, because the same was not served upon him within ten days after appellee's notice of contest was filed and served.
On the 30th day of December, 1878, the appellee filed a supplemental contest and exceptions to answer of appellant, which contained certain special exceptions to appellant's answer, a general denial thereof, and a special denial respecting the exclusion of voters at precinct No. 1.
On the 31st day of December, 1878, appellant filed a supplemental answer, setting forth that the return of the sheriff of the time of the service of appellee's notice of contest was vague, ambiguous, and uncertain, and that, in fact, the service of appellee's notice of contest was had upon...
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