*1 y. BARKER WILSON &'Burleson, Saba, for of San Atty. WILSON, Co. lants. BARKER et al. 5896.) (No. KEY, C. An J. election was held school Appeals (Court Austin. Texas. district No. 22 of San Saba deter- Rehearing, Motion for On Nov. 1917. 1918.) June mine whether or not bonds should be issued in the sum $10,006 purpose for the — <@=>719(1) Funda- Appeal and Error 1. building a schoolhouse. votes There were 102 mental Error —Reversal. court, by cast, of, against, where In an election favor is- and 50 sides, to- evidence law and heard sent both bonds; being majority suance of the a sustaining gen- a gether, entered proposition. in favor of the Thereafter L. demurrer, fundamental there not such eral error as Barker, Hugh Barber, and J. H. Hamlin reversal, com- where a appeal. plained brought this action of on testing and, among things, other <&wkey;97(4)— Districts and School 2. Schools Legal alleged that the officers who conducted the oe Bonds — Voters. Issuance to determine vote at an election permit election refused to three vot- a build school- issued to shall he bonds whether ers property house, in and own must reside permitted, would have voted the school district. against bonds, the issuance of such would have resulted proposition the defeat of the Appeal <S=662(4) upon. and Error 8. —Statement authorized As Facts —Conclusiveness. oe statute, county attorney was made The statement eontestee, and, among pleas, verity. other a special general demurrer, exception, a and a Appeal &wkey;842(2) Finding oe and Error 4. — general denial. Fact. trial, by am ] [1 declaration At the consent seems In an election quali- judgment fied pursued unsatisfactory sides, the court reasons, except certain of law and course the evidence would be a of constitute judgmefat together, and then entered sustain appellants hence conclusion be controlling effect ing general special excep have demurrer and appeal. disposing of the petition; tion to the contestants’ — holding <@=>295(1) Elec- oe the facts failed to sustain cer Contest Elections 5. tion-Setting Aside —Evidence. necessary allegations; tain material and be set an election should Result of merits was render therefore ed appear that the made to until it aside election was in favor contestee and upon the facts. <&wkey;97(4)— Districts School Schools 6. before, procedure As stated method Setting Aside. Bond Elections — determine election to In contest of to the re?- seems issued build bonds parties, irregular spective however per- schoolhouse, sons were that certain complained been, it is not of in unlawfully denied the court, show, and does not constitute such clear contestants to devolved satisfactory testimony, such a reversal. fundamental error necessary qualifications possessed all brought contestants have the case to voters. court, reversed, and seek to have it <&wkey;97(4)— Districts School 7. Schools being, first, the trial court contention Election — Residence oe Bond Contest oe sustaining general demurrer erred Voter. exception petition; and, special to their sec- In contest that one denied insufficient to show ond, committed error the school resided within vote proof failed to show two of the —<@=>29 Law Schools Constitutional appellants’ petition to have voters been denied <&wkey;97(4) and School Districts —Contest vote op Contest. oe Election —Wotice If these contentions be of a school election deter- In a contest issued, es- whether bonds mine sential, the district excep- be affirmed. The demurrer and must county attorney writ- served with a that the ten notice trial court of contest and were sustained tion grounds service the contestant on which original peti- of their attor- of contest appellants county attorney, notice, ney, insufficient: verbal filed, reading the same before was Court, Appeal from District no- Stubbs, Judge. County; T.N. as is tice by L. W. Barker of school Contest prerequisite to the commence- Wilson, county others, which A. B. whether or ment of Judgment ruling eontestee. was correct need not be de- not that cided contestee, and the contestants Af- other firmed. based its See, also, 189 W. S. is sustained the record. Digests topic Key-Numbered cases see same and Indexes in all KEY-NUMBER <©^>Por *2 205 SOUTHWESTERN REPORTER and behalf nothing by and refusing to make demanding ordered not be contested holds precedes ply exceptions 'ers, not sustained tial but therefore be W. S. Reeves voters. statement ment to lived 22, very statement, judge over two signed and in conclusive cannot the here contended Olay the any was pelled eration, trict No. was Ray “And [4-6] The motion This Affirmed. The [3] It is further stated accepted by this court as such. by with Clay Walker, entitled to vote at the election statement witness testified necessary not Walker, portion of Walker and expended.” to adhere to our alleged by contestants, the court is That the case. The statement of motion asserts that property in, motion has been the by judges, court that present was entitled to vote. show that incomplete quotation show, that with the result testimony: On motion for The motion contains the further 22 of San Saba that, proof shown that now affirmed. county. considered the court had to the contestants’ that the record attorneys, but however true judgment unlawfully judge injunction heretofore issued and or owned place quoted cause be two himself to constitute suit, facts, months Olay facts does which was in district the said The motion concedes states, the statement school district incomplete.” to vote. two sustains the submitted, the further not to that either said record, Walker Walker resided above statements are election was held. former pay denied the no qualified voters, were county. persons having the contestors take same be rendered, made persons they Reeves and makes a findings viz. W. S. Reeves advertently this verity, and must polling Olay all costs things dissolved, them effect, finds that It careful we we decision. in which deals by motion that is therefore court erred contestee’s failing Such Walker or of facts it cause of here school dis absolutely alleged legal dismissed, No. But held that sought feel com- failing place trial, the trial and it is but it facts is to com- in this consid- dispos agreed made, 22 of proof judg- fact, par- that that vot No. be- “is to they to testee with is sume, near that offered in connection ment of omission, correct is not controverted unlawfully Walkers resided nor is it denied that them to public interest, show clear and qualifications therefore, hold that acter of judgment fore it aside a declared result of the election to volves should not be set aside were otherwise sion of law judge’s were judgment, such declaration would not have failed ever the not hold to show that lants that vote.” ferred to were and we cannot Ray Walker should have been allowed to constituted a were Such quoted given controlling village, vote, except the were not entitled to out in the statement of the other themselves, by majority place did so reside. That contention the motion ,so of the Walkers resided qualified persons possessed in so far as above. But, reason declaration would he testified that he show that In a democratic is not mentioned in the that W. £?. vote, any people facts; properly it is contended that the fact and then the when an election is contested properly called thereof, then but whether all or vote. it “is than omitted the same denied shows that residing even person aof finding circumstances, were so in school agree for the reasons stated in the would not be entitled to have It will qualified made, are authorized to determine proceeds qualified; but, notwithstanding “Cherokee,” virtually No satisfactory testimony of intention to contest the matter voter. This effect the two rehearing be Reeves and result thereon who was not the court had declared with counsel for were the burden rests or more witness counsel but that judgment, legally the three qualified. Ray judgment be noted that but states that the election was held by Reeves Reeves and the contestants had district the voters and entitled so district government, all be more pertaining contestants. The of such that the election persons disposing attempt fact, facts from the at the time he judgment or other char- serve the con- only part a small even Olay courts, rule shows that proceeds No. 22. considered parties concerned, and there- judgment, necessary permitted necessary the trial does referred may be a farm 22, Walker it does conclu- to set Walk- it de- wher- town until And, pre- two law r. WILSON BARKER facts. emption judges had brother, Ray thority affirmatively appear the owner of cured an were twins. XIad his of of property bonds. never voted tion I it for me from the collector when he ment, theOn by paid lived near low mo to vote. and they were member I name was not on the 1, 1916. These cattle were rendered for taxes of to vote. brother siderable vote cate in I to ified voter.’ make an cate and also officers the vote because of the election they anything I to be I said no that I could not ed off. I saw Mr. permitted the voting I vote. and he on He he and X 50 were went down Cherokee ing place. that I owned Ray, “X was “I gave owned. started to paid is within cattle voting, vote; or 60 secure my exemption judges the election were some six or issuance of paid gave I did not the taxes on same for that and some one am a twin brother had voting and told had don’t know whether it was one of the place, I knew him no written instrument or west of the election born Walker’s the door me to any father for Ray. started off I did person, me certificate, taxpayer. collector’s for taxes steps and 2 head nor that was argument, gave affidavit, I had about refused I met he me our and Cherokee exemption officers knew I to the taxes. before. I I met of this door. which was I had not me and that suppose supposed several him, sign sign taxes on Walker. not secure years to the The don’t from the schoolhousewhere him both judges town, but had they spoke it, with me exemption officers, my I asked the bond election voting place, and me. not offer to they me. all I evidence was to let raised tax rolls did said, ‘No, an property I My nor did I went exemption voting place I before became Barber, Thaxton, judges office judges and exemption certificates, and as this was I I told know who all of They brother head would testified: old bonds. of affidavit. affidavit. tax rolls. certificate been allowed nor I the direction father would They I same paid vote turned and walk- said. at the year Hamner, I had they horses they my met not; my exemption my my exemption I refused any and claimed them what my brother election. I to the would certificate for I tax collector they you I Cherokee, Clay Walker, and twin brother any Clay cattle on refused brother to secure September, had rendered said polls refused demand would not me exemption my make an affidavit certificate not let him vote he told After day of obtained When the officershold- schoolhouse, life. one made this myself issuance of the no written on know I did not know I 15 are not my as follows: If I or not. I was would not al- taxes voted I who was year. did not twin let me vote. in Cherokee. school district schoolhouse, else did not when or stated I certificates All of the first vote. eight Don’t re- proved, voter.” some one allow my authority had had con- me January 16 age left the vot- got offer to family, of which he and his twin brother my ex- brother let let let certifi- certifi- let I had and X had I had 1&15. about Gay; I se- qual- head twin gave Clay that feet mony, his. me, au- one my my me me me me me I cured raised twin lowed to ers testified that he lived ed er. One of them was not of Cherokee all of ident make resident. idents not believe that lating to the residence of the two Walkert stead of at or okee all of his life. life. brother did not tion for Cherokee, then within school was our their written therefore if it be tion for contend that ous, ferred writer of this sion of them reside in school district No. 22. One of the at with fixed sufficient reason reverse ants that school what was known as Cherokee was within It will be Counsel for [7] the election aside simply ruling upon Walkers; brother, its boundaries and “I all of another However, his.” All members, an officers district No. at that the whole family only rehearing, testify, had do precinct it was allowed rehearing, offered schoolhouse in the town or *3 Cherokee, held. Hence we decline concession that schoolhouse fair Walkers testified that boundaries, and, so, noted place may election. While it is sufficient to show unsatisfactory, and while Walker stated lived while his twin brother testified testified did ground, that because the unsatisfactory, not shown to be his neither of the Walkers that branch he was conceded, though judges territory that neither that he had lived at Cher testified near Cherokee all of Clay I have reached the life. Two of the officers vote, 22. While the resided near and not in village while vote, were twins.” And he that he still of the trial 22, which is the first rea- this court village get not have been numer we, therefore, have been indefinite. knew at frankly and and that in school district mine when he was a that that it seems to the the election as a 'matter of appellants’ they knew he was had of Cherokee is he refused to testimony Cherokee; but still were not polls me, he was such - incorporated he horn and Walker, still, the came to the to his testi he was born regarded Mr. Reeves time a to waá concede, should lived near it was not comprises near, case. and that they furnish- affirmed taxpay- inhabit assume not al- change conclu village Walk- he se* they res- res mo- mo did his my re in 205 S.W.—35 REPORTER SOUTHWESTERN deciding assigned to contest of notice of intention son the case cause was contest the is, appellants; be- the prescribes notice to< The statute not shown that shall, ap- tending within an election election was served on the give pellee the con- after the return to’ time law. within writing regulating testee such intention to elections The statute contested attorney contest, him, agent or at- and deliver his makes this character torney, requires a written who desire which such contestant relies sustain such to contest the the return mandatory, and, un- him contest. This statute is complied stated, time deliv- less such contest agent him, has entertain er statement of the contest. con- the The statute which said *4 contest, written document or documents delivered to etc. testant relies to sustain sep- Although eontestee shall contain notice amended has been Constitution upon (1) jurisdiction arate and distinct which are: so as to confer election; contestants’ intention to contest the to hear and determine court (2) ground law, tests, and relies to sustain such contest. both of these facts is such contestant been so and has is settled provision of the Notice ruled invoke the self-execut- essential to to is not Constitution jurisdiction ing, of the court to hear and deter- confer one, mine the proof required by sub- without to must be the statute above referred other, stantially complied written of the is of. no avail. It is also with as very ground terms of the statute notice of writing; and the time that of each fact must be on which the contestant may notice, though giving prescribed v. Bassel therefore verbal the same. just eontestee, Shanklin, W. That and other 183 S. compliance not such fers termine the contest. rul- with the statute as con- to follow the therein referred decisions power upon Lindsey Supreme hear the court to and de- our Court Luckett, Tex. where was v. Applying bar, case at that: grounds held, we think it must be as was of the done “The and statement party contest the on which a tion, ed intends learned this to, the contestants * * serv- to be which are ? upon, case serve or deliver days after return latter within ten power the eontestee written notice of their upon predicate day, are the motion, with- is set of out intention contest the election. It prescribed, which, the time petition, conceded that setting him of investigate va- court lidity upon forth which it was election.” effectsof illegal, consti- claimed that the undisputed proof instant case In the compliance with of the tuted following subject upon discloses notifying statute; but it contained no notice days after the re- than 30 less facts: Within it was the intention of the the eontestee that contestants Leigh Burle- Hon. turn son, of the petition in court and to file that attorney delivered to It is no an- use as a basis of a contest. Wilson, of San Saba A. B. proposition say that the con- swer to that original petition county, eontestee Mr. from what Burleson told testee knew case, time had at that it was the intention of the filed, expiration after the filed until and was not testants to contest the election. Such day. days return of 30 formation it not in and therefore read the that Mr. Wilson shows compliance with the petition, thereaft- next or soon and the statute. Burleson, Mr. Wil- point Our decision is not con him; petition Mr. Burle- son returned son mail to Cross, App. flict with Messer v. 26 Tex. Civ. going send it 63 S. W. Galveston Stubbs, Judge was the District Appeals. peti Court In that ease coun- Saba San filed; cita election was ty. Mr. Wilson At tion was issued thereon and served waiver of issuance written eontestee, together copy pe with a of the pe- filed with the process, which waiver tition, expiration less than after the re of 30 tition the return Burleson tially Both Mr. turn of the and the court copy citation, testified substan- and Mr. Wilson that the which was de eontestee, regard, livered constituted substan same effect in that to üie compliance provision tial indicates that it was con- requiring purpose, verbally statute written notice of intention and Mr. Burleson
testants’ contest; Wilson, that the to contest the elec- so informed tion, delivered to con he intended file compliance purpose. similar stituted with the other for that There nowas Tes.) WILSON BARKER v. cited, refer to addition the eases requiring
provision, Wright 203; Fawcett, Tex. Cauthron v. contest relied the contestant. Murphy, App. 462, v. the cor- 61 Tex. 130 S. Civ. not controvert We do 671; Sayers, decision, Dunne 173 S. W. rectness of that that was Hence we conclude that the citation ease the intention constituted notice of court must be contestee to red sustained just nothing occur- reason stated. of that sort overruled. this case.