This аction may properly be regarded as having been brought by the filing of plaintiffs’ first amended original petition, on June 5, 1937. The record suggests that prior to that time there was an injunction proceeding wherein was first granted, and later dissolved, a temporary injunction against the cоunty commissioners’ court, restraining the canvass of returns and declaration of the result of a prohibition election held in Eastland county on May 1, 1937. The parties to the action, as shown by said amended pleading, are G. Connally and nine other individuals, as plaintiffs, and W. S. Adam-son, cоunty judge, and the other members of the commissioners’ court of Eastland county, and also Earl Conner, Jr., district attorney of said county, as defendants; said district attorney being first made a party by said amended pleading. The purpose of the action, other than to procurе a temporary restraint of official action by the defendants, is well reflected in the prayer that “plaintiffs herein have their judgment declaring said election, held on May 1, 1937, illegal and void and that said Eastland County, Texas remain in its present status until proper election is called,” etc.
The allegations of plaintiffs’ petition designed to show their interest in the subj ect-matter of the action are to the effect that after legalization, by a former election, of the sale of vinous and malt liquors that do not contain alcohol in excess of 14 per cent, by volume “that the plaintiffs with others filed their application with the County Judge of Eastland petitioning for the issuance of a permit or license permitting and authorizing them to sell in Eastland County, Texas, vinous and malt liquors that do not contain alcohol in excess of 14 per cent by volume; that said applications were by the County Judge granted and the plaintiffs herein have their license authorizing them to sell vinous and malt liquors that do not contain alcohol in excess of fourteen per cent by volume; that said license are in full fоrce and effect * * *. Plaintiffs would further represent and show to the court that since the declaring of the results of said election had on May 1, 1937, and entering an order for the prohibition of all liquors in effect in East-land after thirty days from said date, which order being void and based upоn a void election, if permitted to carry out the terms of said void order, would greatly jeopardize their business and mean a loss to them of several thousand dollars and plaintiffs have no remedy to prevent cancellation of their permits under said void order unless this hоnorable court suspends the operation of said void order pending final adjudication of the matters and things herein presented.”
The defendants appeared by filing their original answer on June 11, 1937, wherein they designated themselves as “contestees.”
Upon a non jury trial thе court, referring to the parties as “contestants” and “respondents,” adjudged the election of May 1, 1937, to be null and void and “that the status of Eastland County remain as it was prior to said election of May 1, 1937.” The defendants (“contestees” or “respondents”) have appealed.
This action was evidently regarded by all parties as being a statutory election contest. Upon motion alleging it to be such, it was given an advance submission in this court. The statutory provisions authorizing and governing that kind of action at the time are R.S.1925, arts. 3069 and 3070. Said statutes alsо make applicable by reference and adoption articles 3042, 3044, and 3047, etc.
An election contest of the character authorized by said statutes is a political proceeding, of which the district court had no jurisdiction prior to the 1891 amendment of artiсle 5, section 8, of the Constitution of Texas. Since said amendment by which was added to the jurisdiction of the district court the jurisdiction “of contested elections,” with procedure prescribed in the above statutes, such actions are still none the less special and pоlitical in nature. Odell v. Wharton,
This court must, therefore, determine whether the action is only a statutory contest of an election, and if it be determined to be such, our further jurisdiction will be limited to a reversal of the judgment of the court below solely on account of the want of jurisdiction of the trial court, and a dismissаl of the case for that reason.
Was the action, although apparently regarded by all parties as an election contest, maintainable by the so-called “contestants” as a civil
suit
invoking the jurisdiction of the court as to a matter within its regular judicial functions? Bеfore the district court, by the 1891 amendment of the Constitution, art. 5, § 8, was given jurisdiction “of contested elections,” it did have jurisdiction over actions of quo warranto, or informations in the nature of quo war-ranto, as included in its jurisdiction “of all suits, complaints or pleas * * * when the matter in controversy shall be valued at or amount to $500 exclusive of interest.” An action of quo warranto, or information in the nature of quo warranto, is a
suit
to which the state is a party plaintiff. R.S.1925, art. 6253. Such an action must be brought by the Attorney General or the district or county attorney of the county or district. Const, art. 4, § 22; Id. art. 5, § 21. The Legislature would have no constitutional power to authorize such an action to be brought by any other person without one of the officers named. Staples v. State ex rel. King,
It is
unnecessary to consider whether plaintiffs could under any circumstances have a right of action other than a statutory election contest, or an action of quо warranto or information in the nature of quo warranto; for, if so, it is quite certain no such cause of action was attempted to be alleged. The election, the invalidity of which the suit seeks to have adjudicated, was a political proceeding. As said in Leslie v. Griffin, Tex.Com.App.,
The conclusions already expressed will require, a dismissal of the case. It may be a matter of questionable propriety for us to express any opinion as to the validity of the election. Upon what we regard as a remote contingency that our conclusions may be wrong, we are perhaps justified in saying that if they are, then in our opinion the ap-pellees will not be prejudiced thereby, because we think it was not shown that the election was void. The grounds of invalidity relied upon were two, namely: (1) That the form of the prescribed official ballot was not that required by law for the character of election held; and (2) that the notices of election were not posted as required by law.
The Texas Liquor Control Act, Acts 1935, 2d Called Sess., c. 467, being Vernon’s Annotated Penal Statutes, arts. 666 — 1 to 667 — 22, is the applicable statute. Article 666 — 40, Vernon’s Ann.P.C., Acts 1935, 2d Called Sess., c. 467, art. 1, § 40, prescribed the official ballots for all kinds of elections authorized by said act to be held. Under said act as applied to the undisputed facts, Eastland county was a dry area with respect to the sale of all liquors having an alcoholic content over 14 per cent, by volume. It was a wet area as to the sale of vinous and malt liquors having an alcoholic content not exceeding 14 per сent, by volume. Although the act manifested a general plan or purpose that in dry areas elections to legalize should be held and in wet areas elections to prohibit should be held, yet it was provided that, “In areas where the issue or issues to be submitted pertain to the prohibition of the sale of liquor of any type or types onе or more of the following issues may be submitted.” Then followed three provisions designated (a), (b), and (c). Subdivision (a) could not have been applicable since it excepted vinous and malt liquors that do not contain alcohol in excess of 4 per cent, by weight, the purpose of the election being to determine whether or not the sale o'f all vinous and malt liquors having an alcoholic content not exceeding 14 per cent, by weight should be prohibited. Subdivision (b) could not have been applicable, since it excepts vinous and malt liquors that do not contain alcohol in excess of 14 per cent, by volume; or, in other words, an express exception of the very proposition to be voted upon. Subdivision (c) is: “For prohibiting the sale of all liquors,” and, “Against prohibiting the sale of all liquors.” These three рrescribed forms, by express provision of the act, cover all prohibition, as distinguished from legalization elections. Of the three prescribed forms the latter only can be applicable. Although the ballot thus prescribed is more suitable for an election in an area entirely wеt, yet the Legislature has unmistakably declared that it shall be employed in the yery situation presented. So far as we can see the Legislature had the power to prescribe any character of ballot it should deem suitable. The fact that it prescribed the form оf ballot not entirely logical or consistent with other purposes manifested in the act would not, we think, authorize a court to hold such an election void for that reason.
We are further of the opinion that there was no evidence to show that the required notices were not caused to be posted by the county clerk. The law required copies of the order of the election to be posted as notices. Article 666 — 34. Plaintiffs having attacked the validity of the election had the burden of showing that it was void. The county clerk testifiеd that he sent copies of the order to each of the election judges to be posted. If copies of the order were posted that was sufficient. Realty Trust Co. v. Lindsey, Tex.Com.App.,
It is our conclusion that the judgment of the court below should be reversed and the cause dismissed, which is accordingly so ordered.