Bell v. Faulkner

COLLARD, Judge, Section A. — The first question in this case is, Was this a proceeding to contest an election, or a suit for the office? Judging from the form of the petition, the allegations, and the prayer, we think it was the latter. The petition is addressed to the district judge. It alleges, that the petitioner, who is styled relator, was elected to the office of sheriff for the county of Waller- at the general election held in the county November 4,1890; that the certificate of election was issued to his competitor, K. H. Faulkner, who unlawfully holds the office and enjoys its emoluments and honors, to relator’s great damage; that the value of the office for the term of two years from the 10th day of November is $3000; and the prayer is, that the respondent “be ousted of said office of sheriff of Waller County and the relator installed therein.” The record does not show that the proceeding was begun by notice from the contestant to the contestee, with.a statement of the grounds relied on, as required in the statute relating to the mode of contesting an election (Sayles’ Civ. Stats., art. 1724); nor does it appear that the reply thereto was delivered to the contestant in the manner directed by the statute *189 (Id., art. 1725); but the proceeding was begun and replied to by demurrer and answer in the District Court, filed as in an ordinary suit. The case was heard in term time, and determined by the presiding judge upon the general and special demurrer sustaining the same. There is nothing in the record to show that the proceeding was one to contest the election; besides, all necessary allegations were made to give the court jurisdiction to try the right to the office and oust the intruder, if he should be found to be such. The suit was for the office and not an election contest. That the District Court may entertain a suit for an office the value of which is within the court’s jurisdiction is not an open question. It has always been recognized that quo warranto is only a cumulative remedy. State v. Owens, 63 Texas, 261; Williamson v. Lane, 52 Texas, 335; McAllen v. Rhodes, 65 Texas, 351. But the question still remains, Did the court err in sustaining the demurrer? The contention of the plaintiff below was and is, that the election in the city of Hempstead was illegal for the following reasons: The city was incorporated under the general laws of the State, and consisted of four wards, which are by statute made voting precincts, but that the election was held at only two places in the city — at the court house and at Kempner’s drugstore; that there were “no legal orders made by the Commissioners Court or county judge by which Amcler or Crook (the acting managers of the election) were managers of the aforesaid election, and that the election at said boxes was illegal and void;” that if the votes so cast at these boxes were thrown out, he would be elected by the majority vote. And further, that there were never any “legal orders of the Commissioners Court of Waller County designating the place or places at which an election for State and county officers should be held in the corporate limits of the city of Hempstead aforesaid, and such attempted or pretended orders appearing upon the minutes of the proceedings of said court are null and void, because of the attempt in the said pretended orders to direct and permit voters who resided beyond and outside the limits of the corporation to vote within the said limits in said pretended orders specified, to-wit, the court house and market house.” It seems from the foregoing, that the Commissioners Court of Waller County had passed orders establishing two voting precincts in the city of Hempstead, including portions of the county outside the city limits, disregarding the wards which by law are made election precincts. Sayles’ Civ. Stats., art. 1664; Gen. Laws 1889, p. 10. In the appellant’s brief, filed May 18,1891, at Austin, and filed again at this term February 13, 1892, the statements under propositions show that the city was divided into four wards, each an election precinct, and that “the Commissioners Court divided the justice precinct in which Hempstead is situated into two voting precincts, Eos. 1 and 8, causing parties who lived in the country to vote in the corporation, and parties who lived *190 in one ward of the corporation to vote in another and different ward or voting precinct, and the managers, judges, and clerks who held said election lived in other and different wards or voting precincts from that in which they voted and held the election, one of said clerks being a minor under 21 years of age, and not entitled to vote;” and hence it is stated that none of the officers who held the election were legal voters at the polls where they held the election. These facts it is contended rendered the election at such polling places void. Conceding that such orders were made as stated and alleged, it does not follow that the-poll was void. This question is fully discussed by Justice Gaines in Davis v. The State, 75 Texas, 424, where the evidence showed, that the city of “San Marcos was incorporated and divided into four wards, and that but two election precincts had been established in the city by the commissioners, and that these were established without reference to the wards, and that they included parts of the surrounding country;” and it was held, that the votes cast at such voting precincts should be counted, or more definitely, that “where the Commissioners Courts have fixed the precincts and the election has been held, it ought not to be set aside because they have failed to make each ward of a city an election precinct, unless it be shown that they have acted with a fraudulent purpose.” Id., p. 433. The opinion discusses all the statutes bearing upon the question. Article 1664 of the Revised Statutes, requiring each ward in an incorporated city to be an election precinct, has been amended by certain restrictions and provisos; but there is no change in it in regard to the question before the court in Davis v. The State, or the question before us. Gen. Laws 1889, p. 10. All the irregularities of the election complained of in the petition except one are explained by the act of the commissioners in establishing the. two precincts for election in the one justice precinct. We have seen that the election was not invalidated for these causes. Another complaint is, that at the Kempner drug store box, where respondent received 38 majority over relator, one of the acting clerks was under voting age, was not qualified to vote or act as such officer, and therefore that poll should be excluded. It is not shown that the exclusion of the votes at this poll would change the result; but if it did, it would be immaterial. He was a de facto officer, and the will of the majority of voters could not be so defeated, especially in a collateral proceeding, as this is. Hunnicutt v. The State, 75 Texas, 239. We have noticed all objections to the election referred to in appellant’s briefs and arguments, and consider any other that may be mentioned in the petition as waived; but if they should require consideration, they could not be sustained in this suit. They are mere irregularities and informalities that can not be invoked for the purpose of excluding the vote cast. The election, so far as is disclosed by the petition, was *191 fairly held; the declaration of the result granting the certificate of election to Faulkner represented the choice of the voters in the county at an election held on the day required by law, and such choice should not be defeated by technical objections such as are found in the petition. Fowler v. The State, 68 Texas, 30, et seq. The petition in a general allegation declares plaintiff was elected to the office by the legal vote cast; that he is entitled to the office, of value sufficient to give the District Court jurisdiction to try the case; but the definite allegations relied on to establish the main fact of election to the office fall short of doing so. We conclude that the general demurrer was correctly sustained, and that there was no error in dismissing the case, and that the judgment should be affirmed. Affirmed. Adopted March 26, 1892.