Winder v. King

• Decision Date: 11 January 1928
• Docket Number: (Nos. 1041-4957.)
• Citation: 1 S.W.2d 587
• Parties: WINDER v. KING, County Judge, et al.
• Court: Texas Supreme Court

Page 587

1 S.W.2d 587

WINDER v. KING, County Judge, et al.

(Nos. 1041-4957.)

Commission of Appeals of Texas, Section A.

January 11, 1928.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. P. Winder against C. W. King, County Judge of Hansford County, and others, to enjoin the holding of an election on the question of removing the county seat. Judgment for defendants was affirmed by the Court of Civil Appeals (297 S. W. 689), and plaintiff brings error. Affirmed without prejudice to pending suit to prevent removal of the county seat.

Fischer & Fischer, of Wichita Falls, for plaintiff in error.

Hoover & Hoover, of Canadian, Tatum & Strong, of Dalhart, and Underwood, Johnson, Dooley & Simpson, of Amarillo, for defendants in error.

CRITZ, J.

On March 5, 1927, an election was held in Hansford county, Tex., for the purpose of determining whether the county seat of Hansford county should remain in the town of Hansford, which now is and has been for a long time the county seat of Hansford county, or be removed from the town of Hansford to the town of Spearman, or the town of Gruver. At said election it was determined that the county seat of Hansford county should remain in the town of Hansford.

On July 1, 1927, the plaintiff, J. P. Winder, filed suit in the district court of Hansford county, Tex., against C. W. King, county judge, and the four commissioners of said county, alleging, in substance, that said commissioners' court was threatening to call and hold another election in the immediate future and before the time had expired as required by law from the date of the last election, for the purpose of removing the county seat of said county from the town of Hansford to the town of Spearman, alleging that said election, if held, would be void and a great expense to the taxpayers, etc., and praying an injunction restraining the defendants from taking any steps whatever towards calling and holding said election until two years have expired from March 5, 1927, and also praying that the court adjudge and decree that, when said election is held, said county seat shall not be removed from the town of Hansford to the town of Spearman, and also praying for general relief. The Honorable W. R. Ewing, district judge, entered a temporary order restraining the defendants in error from taking any steps whatever toward the calling or holding of said election until further orders of said court. Before this injunction was served, C. W. King, county judge, as aforesaid, called an election in Hansford county to be held on August 6, 1927, for the purpose of determining whether the county seat of Hansford county should remain at Hansford or be removed to the town of Spearman.

On July 6, 1927, plaintiff in error filed his first amended petition, alleging that since filing his original petition the defendants in error had called an election to be held on August 6, 1927, for the purpose of removing the county seat from Hansford to Spearman, and prayed that the defendants be enjoined from holding said election or canvassing the returns thereof, or declaring the result, and further prayed that they be enjoined from taking any steps whatever towards the removal of the county seat of Hansford county from the town of Hansford to the town of Spearman, in the event the town of Spearman was successful in said election, and alleging, as a reason for the issuance of such injunction, that said election would be illegal and void because called before the time had expired as required by article 1601, Revised Civil Statutes of Texas 1925, as amended by the Fortieth Legislature of Texas. The plaintiff in error also alleged that, if said election should result successfully for the town of Spearman, defendants in error would immediately undertake to remove the courthouse, jail, county offices, and records, from the town of Hansford to the town of Spearman, and by so doing incur great expense to the county of Hansford and its citizens and taxpayers, and that said defendants in error would immediately undertake to call and hold an election for the purpose of voting bonds for the erection of a new courthouse and jail in the town of Spearman, all of which it was alleged would cost the county of Hansford and its taxpayers great sums of money, notwithstanding the illegality of said election.

Upon a hearing had on July 6, 1927, on plaintiff's amended petition and the answer of the defendants in error, the district judge dissolved the temporary restraining order and entered an order denying plaintiff in error the relief prayed for in said amended petition. From this judgment plaintiff in error prosecuted an appeal to the Court of Civil Appeals for the Seventh District in Amarillo, and said court affirmed the judgment of the district court. 297 S. W. 689. The case is now before this court on writ of error granted to the plaintiff, J. P. Winder.

After the writ of error was granted by this court, the plaintiff in error presented his application to this court for an injunction praying this court to issue an injunction enjoining the defendants in error from holding the election ordered to be held on August 6, 1927, or canvassing and declaring the result of the ballots cast or taking any steps whatever towards the removal of the county seat of Hansford county until further orders of this court.

On August 3, 1927, this court issued a temporary injunction to the extent only that the defendants in error were enjoined from taking any steps or doing any act whatever to carry or attempt to carry into effect the election complained of in the event same should result in the removal of the county seat of Hansford county from the town of Hansford, and enjoining the removal from said town of any books, records, papers, files, instruments, etc., or properties whatever belonging to the county of Hansford until the further orders of this court. Said order, however, expressly stated that the defendants in error were not restrained from holding said election or declaring the result thereof, but that they were restrained from taking any steps whatever to carry into effect the result of such election in the event it should result in favor of removal until the further orders of this court.

The district court found as a fact that there had been held in Hansford county on March 5, 1927, for the purpose of determining whether the county seat of Hansford county should remain in the town of Hansford or be removed to the town of Spearman or the town of Gruver, and that at said election, it was settled and determined that the county seat of said county should remain in the town of Hansford, and that the defendants in error had called another election to be held in Hansford county on August 6, 1927, for the purpose of determining whether the county seat of Hansford county should remain in the town of Hansford or be removed to the town of Spearman.

After a careful consideration of the issues of this case, we are of the opinion that this court should not grant the relief prayed for herein by the plaintiff in error, for two reasons: First, because the right to call, to hold, to canvass the returns, and to declare the result of elections is a political power, beyond judicial control; and, second, because the law does not, and this court will not, assume that sworn officials will attempt the enforcement of a void election.

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