Odell v. Wharton

27 S.W. 123, 87 Tex. 173, 1894 Tex. LEXIS 361

• Court: Texas Supreme Court
• Decided: June 21, 1894
• Docket: No. 178.
• Status: Published

Opinion

BROWN, Associate Justice.

The Court of Civil Appeals certified to this court five questions in the above cause, but it is unnecessary to answer any except the first, which is as follows:

“ Question 1. Under the Constitution as amended in 1891, giving the District Court jurisdiction to try cases of contested elections, and under the act of the Legislature approved March 29, 1893 (Acts 1893, pages 48 to 52, inclusive), known as the Local Option Act, which provides, that any qualified voter may contest the said election in any court of competent jurisdiction, in such manner as has been or may hereafter be pre scribed, can a local option election be contested in the District Court, without other legislation than that now in force upon the subject?”

Article 5, section 8, of the Constitution, as amended in 1891, conferring jurisdiction upon the District Courts to try “ contested elections,” is not self-executing, because it prescribes no rules by which the jurisdiction may be enforced. Cool. Const. Lira., 100.

A contested election is not a civil suit or cause, and therefore can not be tried by the proceedings had in such cases. Williamson v. Lane, 52 Texas, 335.

Under the Constitution as it was prior to the amendment of 1891, the District Court had no jurisdiction to try contested elections, and the Legislature could not confer that jurisdiction. Chapter 6, title 34, of the Revised Statutes was in conflict with the Constitution when it was enacted, and therefore null and void. Ex Parte Towles, 48 Texas, 413; Williamson v. Lane, 52 Texas, 335; Ex Parte Whitlow, 59 Texas, 273.

The amendment of the Constitution of 1891 did not vitalize and render valid chapter 6, title 34, Revised Statutes. It authorized legislation in the future, prescribing rules of procedure by which the jurisdiction might be exercised. The Act of March 29, 1893, known as the Local Option Law, which amended article 3239, Revised Statutes, referred to any valid, laws then in force or that might be thereafter enacted upon the subject; it did not purport to revive chapter 6, title 34; and if it had attempted to do so by referring to laws existing, it would have been in conflict with article 3, section 36, of the Constitution, and void to that extent.

There is no law in force prescribing the rules by which a contested election may be tried in the District Court. The proceedings prescribed for trying suits, pleas, etc., do not apply thereto, and the District Court has no jurisdiction of this proceeding.

Delivered June 21, 1894.