Waters v. Gunn

218 S.W.2d 235, 1949 Tex. App. LEXIS 1572
Court of Appeals of Texas·Decided January 31, 1949·No. No. 5944·Published·Cited by 17 cases

Opinion

STOKES, Justice.

On May 25, 1948, an election was held in the Brownfield Consolidated Independent School District to determine the question of whether or not bonds in the sum of $750,-000 should be issued by the district, the proceeds to be used for the erection of a school building, gymnasium and athletic field. The returns showed that the proposition to issue the bonds carried by a majority of thirty-four votes. Appellants, C. W. Waters, R. L. Stallings and J. W. Couch, immediately filed with the appellees, the school district, Gene Gunn and others, trustees, and the county attorney of 0Terry County, their contest of the election which was followed in due order by the institution of this suit.' In their contest and their petition they alleged the election was illegal and void upon numerous grounds which we do not deem it necessary to repeat in detail since there is no controversy concerning any of the pleadings. The case was submitted to the court without the intervention of a jury and resulted in a judgment denying the contest and all of the relief prayed for by the contestants. They duly excepted, gave notice of appeal and have brought the case before this court' for review.

The trial court found that seven of the votes cast in the election were illegal and that the election resulted in favor of the issuance of the bonds by a majority of twenty-eight votes.

The record shows that Brownfield Consolidated Independent School District was established in 1941. It comprises a number of former school districts located in Terry County, including the town of Brownfield, the county seat, and also some territory in Yoakum County, its entire area consisting of approximately 380 square miles. The distance from the western boundary of the district to Brownfield is approximately twenty-two miles. The order for the election established only one voting box in the entire school district and it was located in Brownfield. Appellants assign error of the court in holding and adjudging that, under the circumstances revealed by the testimony, the one voting place for so large a territory was sufficient to comply with the provisions of the law and that an election held Under such circumstances is valid. They also assign error of the court in holding and adjudging that the notice of the election given by the officials of the district was sufficient and, further, they contend the election was void because it was called and held only seventeen days after the order calling it was entered.

The testimony shows that, while there are a number of election precincts in which voting boxes are maintained in the district, outside of the town of Brownfield, the electors have voted at those polling places only in regular, general and primary elections involving the entire county. It shows further that, since the Brownfield Consolidated Independent School District was created in 1941, a number of school elections have been held in the school district and in all of them only one voting box has been used and it was located in the town of Brownfield. Appellants-’- alleged that, if voting boxes had been provided in the election precincts of the district so that the electors could have voted in the elec[237] tion precincts of their respective residences, as provided by Art. 2955a, Vernon’s Revised Civil Statutes, there would have been a sufficient number of additional votes cast against the bond issue to have defeated the proposition. However, they failed to establish this allegation by the evidence. We have carefully examined the entire statement of facts and, out of the twenty-two witnesses produced by appellants who testified concerning that matter, only four of them testified that they did not vote at the election because of the distance from their homes to Brownfield and, that, if they had voted, they would have voted against the issuance of the bonds. It is well established by many decisions of the courts of this state that failures and irregularities in the observance of provisions of the statutes concerning such matters as this will not invalidate an election unless they have affected or' changed the result from that which the returns show it to have been. Hill v. Smithville Independent School Dist., Tex.Com.App., 251 S.W. 209; Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362.

As we have said, the returns of the election showed the proposition to issue the bonds carried by a majority of thirty-four votes. Some of the votes discarded by the court were for the bonds and some were against them, leaving a majority of twenty-eight votes in favor of issuing the bonds. When the four votes that would have been cast against the bonds, but were not on account of the extra distance, are taken from the majority found by the court, it still leaves twenty-four votes in favor of the bond issue. This would, of course, not have changed or affected the result of the election and, under the above authorities, and many others that could be cited, appellants’ first contention is untenable and must be overruled.

Appellants next contend that the election was void because the notice given was insufficient and did not comply with the law. Only three notices were posted and all of them were posted within the town of Brownfield and only a few hundred feet apart. Ordinarily notice's of an election are, and should be, posted in public places in the various sections of the district. The purpose of publishing the notices is to inform the voters of the district that the election will be held and the time and places where the votes will be cast. As far as the record in this case shows, every voter in the district knew of the election and no one testified he was deprived of notice or of voting in the election on account of failure to post the notices over the district. It is obvious therefore that failure to post the notices in a different manner from that in which they were posted did not affect the election.

Free access — add to your briefcase to read the full text and ask questions with AI

Waters v. Gunn, 218 S.W.2d 235, 1949 Tex. App. LEXIS 1572 (Tex. Ct. App. 1949).

218 S.W.2d 235 (Waters v. Gunn) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Opinion No.
Texas Attorney General Reports, 2004
Untitled Texas Attorney General Opinion
Texas Attorney General Reports, 2004
Honts v. Shaw
975 S.W.2d 816 (Court of Appeals of Texas, 1998)
PRC Kentron, Inc. v. First City Center Associates
762 S.W.2d 279 (Court of Appeals of Texas, 1988)
Bryant v. Metropolitan Transit Authority
722 S.W.2d 738 (Court of Appeals of Texas, 1986)
Setliff v. Gorrell
466 S.W.2d 74 (Court of Appeals of Texas, 1971)
Sawyer v. Bd. of Regents of Claredon Junior College
393 S.W.2d 391 (Court of Appeals of Texas, 1965)
Shrader v. Ritchey
306 S.W.2d 808 (Court of Appeals of Texas, 1957)
Baker v. Scranton Independent School District
287 S.W.2d 210 (Court of Appeals of Texas, 1956)
Anderson v. Crow
260 S.W.2d 227 (Court of Appeals of Texas, 1953)
Awalt v. Beeville Independent School Dist.
226 S.W.2d 913 (Court of Appeals of Texas, 1949)
Fairfield Independent School Dist. v. Streetman Independent School Dist.
222 S.W.2d 651 (Court of Appeals of Texas, 1949)