*1 County Judge. Wingate, & Robinson al. v. W. J. Wingate, et Robinson & Watson County Judge, et al. May 10,
Decided 1904. —Liquor Contest—Publishing Result—Injunc- Dealer—Prohibition—Election 1. tion. Injunction can not be maintained the court canvassing publishing the result from prohibition returns of an election for intoxicating liquors option law, of the traffic in under the local upon grounds rendering void, such election or either such as avail regulating filed to set aside contest under the statutes contested elections. 2.—Same—Contest Under Statute. State, under Elections control provided by (Rev. Stats., April the statutes art. Act 16, 1895) action, contesting for results neither a civil suit nor a criminal general maintainable under law courts, political proceeding Legislature committed to the court tribunal, powers as a junction; jurisdiction can not exercise such a suit for in- injunction nor could it maintained apply provided statutory for case of a remedies con- test. Rights. Private —Same—Protection of appealing merely protection Contestants to the court liquor dealers, for private rights as licensed if entitled to maintain ground on the inal were threatened with numerous unwarranted crim- prosecutions, proceed against charged the officers with the en- against forcement those to whom was committed the mere duty determining announcing result of the election. 4.—Same—Void Election. making void, toAs matters as those furnish- from ing ground ing statutory contest, remedy by injunction declar- the election is too drastic to be an individual invoked protection private rights, protected amply for law without of his which are resorting procedure. to such from Appeal the District Court of Tried below before Orange. Hon. W. P. Wicks. Chester, Hall & Chester, Holland and for appellant. Crawford Bruce, Robertson & Sholars, Hart & Geo. F. Huggins, and Adams & Poole, for appellee. GILL, Associate Justice. was brought by appellants This action retail liquor as dealers and voters in qualified Orange County against Wingate, W. J. and the judge, several members the commissioners to cancel annul a local election held in Orange and to them County May, enjoin the election returns and the result. publishing On May 1903, the
. of an petition presented judge district, who adjoining granted preliminary injunction prayed it remain in and ordered force until the litigation was finally determined. presented
Defendants demurrers special exceptions to latter petition, among things questioning sufficiency Civ.—5 Robinson & Watson on the pleadings general, too *2 and vague indefinite.
At the County October term the District Court of Orange sustained, heard, demurrers demurrer were and plaintiff Turner, leave to file a trial C. A. granted amendment. Thereupon another retail in- county, dealer in that leave liquor court, tervened, and further alleging adopting that he was not a voter. On motion of the defendants qualified out. was stricken intervention which, filed trial amendment in connection
Plaintiffs then their were and the gen- the demurrers renewed original with petition, eral was sustained. demurrer the bill dis- to further was refused and
Plaintiffs’ amend request Plaintiffs and interveners appealed. missed. will be sufficient pleadings
A of the substance of the brief statement and Robinson & firm Watson of this purpose opinion. retail licensed liquor were alleged lawfully they coplaintiffs had they therein. and voters That dealers in Orange County qualified value which would in such business considerable capital, invested in that sale of prohibited liquor lessened greatly commissioners That to an order of the county. pursuant to determine County was held in Orange May election in that should be liquors prohibited whether the sale of intoxicating defendants, That of the local law. under the terms county to canvass court, about county judge work to be done will which if permitted returns and publish they business to which to their capital irreparable injury at law. remedy no adequate the commis- was a because nullity, that the election (1) They allege call such election but expedient did not that it sioners adjudge to be signed by a purporting petition ordered because solely to them re- statute, presented voters, required qualified not all That as matter their part. such action on questing voters, and the they representation were qualified 250 signers such elec- the commissioners such was fraud upon were of the voting Because at (2) many been ordered. tion would not have and clerks who and conducted by judges held boxes the election was voters in Orange County qualified the time qualified were not at capacity. in such to serve unfairly conducted, election was
They allege (1) services were held religious many of the election the day mar- ministers of the gospel, of the town That Orange. churches were, among arrangement little preconceived women and girls ried bells, hold- the church ringing engaged of prohibition, the partisans streets, songs, singing gathering meetings, parading ing prayer with insistence talking about the places, singing polling voting. purpose themselves for the voters who presented different n , Robinson &
That the said ladies and and detained the way misses obstructed the voters and arguments and music and a employed songs many great which were the desire result of zeal and a overwhelming pronounced destroy the business of That these plaintiffs. practices effect of and deter a who opposed prohi- did men were great bition from from the voting them kept away polls. That a voters their State and great many who had paid (2)
county tax to vote because had not poll were denied also tax. Of paid these there more than who poll fifty city would have voted number would have against prohibition and which been sufficient to change the result. the officers various
(3) voting holding did, *3 boxes during the progress ballot, the votes and counting in engage the result from announcing time to time to the of partisans prohi- bition. That Carroll, one C.
(4) W. and a county citizen of adjoining man of wealth, immense did of during progress campaign agree and to promise make amount pay and deficit in the good any (cid:127)of taxes received for the years two be due ensuing and adoption enforcement of That this offer was prohibition. in the form of printed handbills to the and generally distributed voters was in- county, comment, of. of and subject newspaper fluenced voters to cast their many ballots who would for prohibition not have otherwise done so..
(5) on They say many information and belief that voters who would have voted of against prohibition sum whose votes and would have changed were accused swearing and falsely threatened with thereby deterred from arrest, and their ballots. casting
(6) voters were for allowed to vote who prohibition had lost or mislaid their tax and this without poll requiring receipts, them to make the required affidavits of and that of these such loss, there were enough number of result. change the that of those who alleging signed the com- application missioners court than 250 less not one is named qualified voters, were or otherwise designated. Of those been excluded alleged they that had not tax not one is named paid city poll nor is it at what shown box it occurred. It voting not at alleged what boxes the status of the ballot was voting prematurely announced, or what officers were of the misconduct of. guilty complained hior any more definite as to the electors permitted vote affidavit of the making loss without tax poll receipts. entire as quite The petition vague as is indicated indefinite by above statement its substance. amendment so-called trial was in effect an amended original as it was restatement its entirety plaintiffs’
petition, cause It add any respect action. did not definiteness re- otherwise, mentioned or above that voter except one is named spects n Robinson
,as offer of prohibition vote having influenced Carroll. however, the further was made objection
In this pleading, all one that it was not commissioners voters’ petition attached together though they consisted four petitions petition, It in addition alleged grounds was been signed separately. notices that the clerk failed the five post in the set first up pleading law no return was showing that made of the order as required by all. notices had been at posted that such session the com- Further, special the order was made notified of one of the commissioners was not missioners court and commissioners were not averred meeting. in fact present. was convened session of Further, 1903, but the recorded proceedings adjourned April nor county judge, over signed term or read during the no notice as clerk required by same attested by'the law such proceedings. given required peti- it is averred that the As an additional ground be harassed arrests and criminal prosecutions tioners fear if the result is announced. permitted was to operation purpose County; to forestall thereunder. Orange dis- this result combine two actions To secure *4 from each other in their'nature to the of both bring tinct aid to enjoin. the court’s power court, of the commissioners
In the order assailing validity matters set be held, which the election was are which would up under a defense instituted the en- available as for the of the election go forcement of law. These matters validity if from its fairness and established render the entire as null and void. proceeding
The other an the election phase clearly case effort to contest than that statute. in a mode other prescribed contend that the to enjoin district court is without Appellees power and if the contention is sound need we further. no inquire it can said that think be court without safely
We power writ on the an election grounds cognizable contest. There grant considerations which tend to support conclusion. was made Legislature Before for the contest of provision no to that could looking elections end be one brought by voter, a the interest of citizen an having indeed only except could be at warranta to contest by quo contested an Each actions was office. of these held to all the elements of a civil suit essential addressed the general courts, whereas the of an mere contest election in- Kobinson & Watson 69 valving a adoption a or a form local policy, government Texas, be Towles, was held 48 these elements. Ex lacking parte Texas, 413; Williamson Texas, 335; 52 59 Lane, Whitlow, Ex parte Gress, Texas, 53 State De
In Davis, of Fort Worth v. City Texas, 225, was intimated in the absence of the statute authorizing (which the contest elections had theretofore been held to be a without citizen would be inoperative) relief against tax voted and held. a an election imposed by unfairly view the evil a out of such sit- grow consequences uation touch- reserved review former decisions ing contested declared it to validity election law and decisions, open question. however, The previous subsequently sustained. Ex parte Whitlow, supra; v. Templeton, Gibson Owens, Texas, 264, 556. This latter make Jennett v. distinction between the contest office and contest such as one under consideration. mention
We Davis’ of the court’s supra, indicating trend time. opinion been held before that and has been Supreme Court
held and indeed since, it is the consensus of that elections opinion, are under control of That political branch our government. has seen fit Legislature intrust to certain tribunals special holding, the result.' returns and the declarations of the done these having the courts things powers authority review the action of the tribunals special constituted. High Injune., sec. 1245.
When the undertook Legislature of elec- provide contest tions courts the statute construing held that the action uniformly was neither a action, civil suit nor a criminal pro- ceeding cognizable district court as- by because it was named tribunal for its trial, the laws of' prior to the adoption the constitutional amendment conferring jurisdiction district the. court were held unconstitutional for want of in the Legislature' jurisdiction. confer
The law of 1893 was held inoperative Legislature trial, had failed rules of *5 provide for the procedure constitutional Wharton, held not provision being Texas, Odell v. 87 self-executing. 173. to be in mind
The borne here point lacked proceeding a suit elements of necessary and therefore did not come within either the or equity jurisdiction any of our courts. Hnder the in amendment, view of constitutional present passed rules of and the are are in procedure provided proceedings cognizable the dis- it does follow' that trict courts. But proceedings lost have character rather than political proceedings distinctive suits. to the Constitution having The amendment been adopted supply in tribunal which such controversies judicial might want be 70 Robinson v.
heard, and been having and in decisions prepared of 'the adopted view in which classified, had been held to the term must be been used according its accepted adjudicated meaning. and
The action retains its nature as first defined. be in may brought cases where neither an is in office-nor its value issue. The plaintiff need interest than that of The de- greater any voter. fendant be a mere nominal without interest and without may party concern as to result. Thus the be conducted with- proceeding may subject out matter and without in sense of the interest parties usual of those terms. meaning it has thus retained its distinctive character notwithstanding amendment in
the constitutional Court settled Supreme Norman 96 Texas, v. 72 S. W. in which it Thompson, Rep., was held that in an election save matters contest at issue nothing affecting fairness of the result as from matters affect- its It was held have retained as a ing validity. nature Johns, Texas, 206, 42 proceeding, and and v. Wright Fawcett, Rogers Texas, 340, were cited with approval. This doctrine was in which the declared in a local contest option matters thus contro- to be determined excluded versy. It has been be granted settled will not definitely
aid of the Rhodes, a contest McAllen plaintiff for office. 348. contest
We think it follows a suit inevitably and logically statute, of local must be brought elections and that a nature this addressed to the general jurisdiction district court can not be heard. con There considerations this policy strengthen are of public such clusion. absolute determination speedy The for the necessity pro To this end the statute controversies long recognized. days pre vides that the must be instituted within thirty action be filed within scribed character of The answer must service had. has the cause ten denied days. parties jury not lie error will all other Writ of way litigation. over pending only by appeal. as in civil can be reversed cases. can be contest 17 Texas Turbeville, App., Buckler Civ. action the can call into and a plaintiff made of the statute independent can made at time courts, any contests equity powers in limitation, of the law operation statutes within looking all the of the statute arrested, and definitely provisions and set at naught. evaded litigation termination speedy statu Ill., holding after Dickey’s Justice Walker uses the to injunction, the right denying action exclusive tory “If the exercise forceful language: following apt where is no doubt even of doubt or there cases in overscrupulous persons result, a contentious few *6 Bobinson such engendered strife duced, always from the heat and elections* thwart for years and an injunction,
to resort a bill absolute made will the general assembly which people Public policy their government. charter rejecting adopting If it. sanction could even if it such does not a require end? Suppose the jurisdiction were admitted where power enacted, unconstitutionally a law to to conceive person were exe all other persons governor he bill restrain could valid? declared the law it until a could hearing cuting * *” * illustrating instances adds The learned justice the exercise follow which consequences the absurd and dangerous limits. its logical of such a within power case, Ohio, Bynum’s Waddell, is Peck v. To the same effect Reed, 52 St., 9; 28 Pa. Moulton v. C., 412; case, Garrigue’s 101 N. Ala., 320. is of such a doctrine needed than of the vice illustration
Mo better motives of tho reflecting plaintiffs, the upon at bar. Without a vagueness marked indefi- that, remains, upon on what are termed “fishing allegations,” closely bordering niteness which there can be bond nom- upon an injunction sustained by inal liability, nearly been enabled to suspend of an year election the returns the face of upon confessedly favor described. prohibition territory within the issue the writ exists and case well pleaded, must be reversed tardy and the judgment drag remanded cause course the courts through again reach courts perhaps the appellate law still in with the and this of whether there suspension, regardless exists atom of A sustain the proof allegations. supersedeas a nominal bond another involving only liability judgment suspend as it the last. The suspended wisdom and expediency prohibition is a which there question about is much honest difference of to vote but the issue and the result opinion, enforce is not an open question. n this it is that the plain addition maintenance of the actio form would be further subversive in its declared present legisla a contest authorizing tive will. statute the nature prescribes to be rendered. the judgment be made the election would appear
If it shall have resulted of, for the such result practices complained shall differently the result If it is shown that is a tie or can not be declared. ascertained or that influences certainty improper have been with reasonable exer- in their as to preclude cised so nature ascertainment of shall so declare and the exact effect, commanded to hold another election. It manifest that no court in of its general powers independent exercise statute could So, such a in this judgment. render and enforce the plaintiffs the defendants uncertainty on the or that prevail *7 County Judge. Wingate, Eobinson of the part electorate they of theoretically represent deprived be this an privilege and would be driven to original proceeding secure resubmisssion of the the voters. question to considerations, But these can appellants contend that not prevail over private which are averred to be threatened property rights with destruction. The is proposition advanced that not sued in a representative but for the of their own capacity protection the case invokes holdings, of of application general principles ' . equity. It occurs to us that this of the case furnishes but another aspect reason in of our support conclusion. For the enforcement of an indi vidual and private seek to right plaintiffs perpetually suspend oper ation of as to is the law all men. This be accomplished f which, a suit in if plaintiffs fail, the will not conclude others. Other dealers with like may threatened institute liquor like injury A series of such suits proceeding. might deprive victors altogether them accorded law. But this rights contention be may last upon ground. another local en option answered be prosecutions. forced Its effect on is property rights It incidental. is true courts of merely generally that will not equity with the conduct of criminal enjoin charged prosecution on is that the law seek to enforce void. Injunc., secs. High 5, Commissioners, Hading 3 Texas Ct. Rep., in Justice intimates if the Key of this plaintiff sort proceeding void, should aver that the local law is he threatened with unlawful bond, unable prosecutions, give him. But aid declared citizen justice the learned that no expressly otherwise to an entitled to restrain criminal injunction prosecution. an right of the restraining publication was denied. a citizen could restrain any by injunction case void enforcement criminal law it would be certainly necessary his direct action principle with those its enforce .charged ment, and the in this do defendants with nothing prosecu measure of tions. The duty is to premises perform acts of ministerial the returns and publishing duty this the statute imposes terms. unequivocal In disposing phase this case the contest of involving not been controlled by election we have rule that injunctions where has denied an complainant adequate remedy at law. to the right In this State the writ statute an enlarged by extent courts. Summer v. clearly defined yet Crawford, art. 2989. "Webase conclusion Stats., upon Rev. the propo can election of bind sition contested in a under the statute and otherwise. brought a retail dealer liquor with The attitude respect enforce- is not different from materially ment local option that of any him territory. other citizen denies right further con- Robinson & Watson business, his
duct denies to all others the thereto- equally existent such an engage enterprise. dispose fore The power his is not taken within included property away except territory alike, within law. In a it acts prohibitory upon sense hence his do not take out him class.
We have discussed the contest fully this case feature much been said with force to point applies equal the broader re- questions enjoin *8 sult on the of the of ground invalidity the order under which elec- the tion held if grounds established, was render the which, would ' of local an absolute attempted adoption nullity. We are of for reasons the writ will not opinion cogent that equally . lie these grounds. the first
In Justice Walker’s in place reasoning Dickey’s powerful force to this case, with feature case at supra, applies equal It is hand. further apparent that in also an injunction respect restraining the of is and far publication reaching the result too drastic to an to individual in the If granted rights. of his protection private Justice is Key’s opinion, interfere supra, sound, rightly equity may a later in stage a suit to restrain the county attorney causeless instituting void law. tinder the prosecutions statute the to enlarging issue the writ of we are injunction in hold such a prepared to that case the would not notwith- writ lie the standing established rule the equity contrary.
If in addition right the the the law a interpose invalidity defense to thereunder the above remedy named to, becomes may be resorted dear that consideration reason every is in of a the favor denial of restrain public policy the of the result. The will not publication publication render the valid it be invalid, law otherwise so remedy the the officers is prosecuting way restricted the denial of In this writ. such event the private rights are complainant until the fully the law is protected validity and in the adjudicated, meantime officers may proceed with the general enforcement of the the law. Roach, Texas
In Hill v. Civ. 959, S. W. the App., Rep., seems to the that proceeded upon theory court the writ but should case not be awarded to the granted proper prevent for the the reason that no injury complainant therefrom. The is dictum but holding could follow is not without is in election nullity prosecuting force. not to undertake enforcement To
conclude law. say grant injunction against it is premature least act void ground promulgating of a others use it detriment interest. private impel of a more immi- danger require showing Ordinarily made to than here threatening appear. nent Bobinson & Watson In Justice Simkins ex State, McDaniel 32 Texas Crim. Rep., lie that the would not restrain pressed opinion publica writ Ex with tion óf the result. The is referred to approval expression 4 Texas Alexander, 39 Texas Crim. 36. Norton v. parte Mayes, Rep., Ct. is to the same effect. Rep., The common law much
Hading’s very point. supra, on the unanimous upon ground authorities almost point, with the it is an unwarranted interference' on the court part of the validity and that the government, branch of the question when under- can reach the courts its enforcement is taken and resisted as from its passage publication. of which Fort The distinction is illustrated in that class of cases Davis, supra, city Worth v. representative. after the result sought a school tax. a vote impose well as its to contest the fairness the election as had been declared denied, but writ ground first validity. urge that the to restrain the of the tax on was allowed collection as held was a nullity. in no authority proposition Such cases are sense election, or holding writ will lie *9 result. The returns, declaration and of the or the arise when prop- writ even tax cases seems to right to the threatened by attempt is touched or immediately erty complainant to collect the tax. infer from have discussed the we question length
We obtained in with which this been the frequency remedy trial of the bar and our trial courts that a large portion com- and that believe the allowed judges may properly relief The of the law. not enforcement need await plainant attempted Bar the last State was the of a read before subject Asso- question paper bar, F. Greenwood, ciation the Hon. C. Hillsboro So we of the question. have received material in the investigation aid our far as we know the directly passed upon question has Supreme Court. lie can
On be held we authority whatever side the weight ourselves to believe of the inhabitants bring or to our adopt prohibition subdivisions State reject force, or to forms of local or adopt municipal annul where already vote, We believe mercy has been left to the litigants. government means are protect individual from invalid ample probably that this end can law, and be conserved without resorting can validity before suspension upon determined facts. the bill both and intervention were opinion
We are of bad the trial court is demurrer. affirmed.
Affirmed. Robinson & Watson MOTIONFOE BEHEADING.
ON Appellants insist that our conclusion GILL, Associate Justice. is in conflict with the Court Supreme Harding opinion Commissioners, 66 S. W. 44. On Rep., original that the court had de- our attention was not called to hearing livered a written the writ in that case. We find refusing opinion the court reserved the it was one of expressly question, stating The writ was refused another There difficulty. ground. great upon conflict, nor is therefore can we see what conclu- sion conflicts with the cases of 73 S. W. Lowery Briggs, Rep., Texas, 250, or Norman v. 72 S. W. cited Thompson, Rep., the main unnecessary as contended dis- opinion, appellant. cuss those cases. are still unable to if our statute why, We perceive court of should stickle at enlarges injunction, equity relief to enforce by granting against prosecuting seeking a void law and behind the yet enjoin prosecution go the enactment of the law itself. We still believe that if interfere at all be at a point it would nearer the threatened injury with the those the law if valid. charged duty enforcing motion is overruled.
Overruled. 27, 1904. Filed May refused. error
ofWrit