J. B. Williamson v. George Lane, 52 Tex. 335

Moore, Chief Justice. The proceeding brought before,the court by this appeal was instituted in the District Court, or before the judge thereof, by the appellee, George Lane, to contest the election of appellant, J. B. Williamson, to the office of county judge of Harrison county, at a general election for State and county officers held Hovember 5, 1878.

By the present Constitution of the State, the jurisdiction of this court is limited “to civil cases of which the District Courts have original or appellate jurisdiction.” (Const. art. 5, sec. 3.) To justify, then, this court in taking jurisdiction of this appeal, it must appear that this proceeding involves the determination of one of the enumerated subjects of which the Constitution gives the District Court j urisdiction; for it is to this constitutional jurisdiction of the District Court to which the clause of the Constitution quoted above must be referred. An examination of the

article of the Constitution enumerating the different subjects of which the District Courts are given jurisdiction, plainly shows that unless this proceeding can be held to be a suit, complaint, or plea, wherein the matter in controversy is valued at or amounts to $500, exclusive of interest, the District Court of Harrison county had no jurisdiction of the matter presented by this appeal, unless it was conferred upon it otherwise than by the Constitution.. (Const., art. 5, sec. 8.) This leads us to the inquiry, whether the contest of an election authorized by the act of May 8,1873, regulating contested elections, and the act to amend the same, approved July 20, 1876, (Gen.

Laws, 13th Leg., p. 67; Gen. Laws, 15th Leg., p. 70,) under and by virtue of which this proceeding was instituted and conducted, can be held to be either a suit, complaint, or plea in the sense in which these words are evidently used in the Constitution ? These acts themselves, in my opinion, plainly answer this question in the negative.

That the right to an office may be, and has often been, the subject of a suit, cannot be questioned; but that the declared result of an election by the officer to whom this duty is intrusted, and the resultant right to the certificate of election, may be contested otherwise than by an action, or suit, or proceeding before a judicial officer or tribunal, is certainly as equally well established.

The right to an elective office, as every one will admit, results from the legally-expressed choice of a majority of the electors; but how this choice is to be legally expressed and ascertained is a matter of legislative discretion and determination.

If the Legislature should see fit to do so, unless restrained -by some constitutional provision, it may make the declared •result by the officer by whom the election is conducted final and conclusive upon all parties, or may authorize a review of the action of this officer, by. some other executive officer or commission, or intrust its determination to an existing judicial tribunal, if its constitutional jurisdiction will warrant its taking cognizance of it, and if not, it may, under our present Constitution, create one for this purpose. (Const., art. 5, sec. 1.) There is, however, a broad, well-established distinction between a suit for an office and a mere contest of the result of the election as declared by the officer to whom the duty of certifying the fact is primarily intrusted.

In one case, the immediate right of the plaintiff- to the office and its fees and emoluments is the purpose and direct subject-matter of the suit; while in the other, the right to the office may result as a consequence from the contest, but is not its primary object, and may not follow from it although the contestant may prove successful. The primary and direct purpose and effect of the contest is to pass upon and determine the legality and fairness of the election, and, if it should not be set aside altogether, to determine whether the contestant xvas in fact justly entitled to the certificate of election.

The power of the officer or tribunal before whom the contest is conducted, is limited to the mere award of the certificate of election to the successful contestant, or of ordering another election. While the certificate may be conclusive evidence of his light to the office, still neither the officer nor tribunal before whom the contest is had gives him a judgment for it, or for the fees and emoluments of it, but leaves him, if not voluntarily surrendered by the contestee, to assert his title on the certificate.

It is, we think, plain upon the very face of these acts that they contemplate and authorize a contest of an election, and not a suit for the office. The character of proceeding authorized by them is precisely the same whether the contest is prosecuted before the judge in chambers or before the court; and whether it shall be before the one or the other, is dependent, it seems, upon its probable most speedy determination.

Though heard before the court, it is to be determined without a jury; while if it was a suit, a trial by a jury could not be denied if demanded. (Const, art. 5, sec. 10.) Contests áre authorized by these laws in the District Courts for all district and county offices, irrespective of their value; while to maintain a suit, the office sued for must be of the value of at least $500. In the case of Wright v.

Fawcett, 42 Tex., 203, which was brought under the act of 1873 to. contest an election of a justice of the peace, the distinction between the contest of an election and a suit for the office is aptly and clearly presented. The court says: “It is contended by appellant, however, that the District Court, under the Constitution, having jurisdiction of all6 suits,’ complaints, and pleas whatever, when the matter in controversy shall be valued at or amount to $100, exclusive of interest, has jurisdiction to try a case of contested election, independent of the statute.

It is true that the District Court has jurisdiction, as has often been held, to try the right to an office. (4 Tex., 402; Dallam, 504.) To try the result of an election is a question of a different character—part of the process of political organization, and not a question of private right.” In the case of Rogers v. Johns, 42 Tex., 339, the court again held that the determination of the result of an election is not a matter pertaining to the ordinary jurisdiction of the law in courts of justice.

It is in the nature of a political question, to be regulated, under the Constitution, by the political authority of the State. The judge by whom the opinion of the court in these cases was pronounced (and this view of the matter, it must be inferred, I presume, was sanctioned by a majority of the court) entertained the opinion that although the District Court had no constitutional jurisdiction to try a contested election, such jurisdiction had been given it by statute, and if the statute had also given an appeal from its decision to this court, it might also entertain jurisdiction.

While I did not concur in these conclusions of the majority of the court, if the constitutional provisions by which our action must be governed were the same as when they were decided, I might possibly feel myself constrained to give them controling weight in this case. But such is not the fact. By the seventh

section of the fifth

article of the Constitution of 1869, the District Courtis given “a general superintendence and control over inferior tribunals.” Ro provision of similar import is to be found in our present Constitution.

In the Constitution of 1869, while the Supreme Court had appellate jurisdiction only, which in civil cases was coextensive with the limits of the State, (art. 5, sec. 3,) its jurisdiction was: not in express terms, as by the present Constitution, limited “ to civil cases of which the District Courts have original or appellate jurisdiction.” (Const. of 1876, art. 5, sec. 3.) [Opinion delivered December 19, 1879.] The court having decided in these cases (Wright v. Fawcett, 42 Tex., 203; Rogers v.

Johns, 42 Tex., 339) that a contest of an election in the District Court is not a civil case, it necessarily follows that jurisdiction of it cannot be conferred upon this court without disregarding the express and positive restriction imposed upon its jurisdiction by the Constitution. And so, in effect, it has been heretofore held in the case of ex-parte Towles, 48 Tex., 413. The court having no jurisdiction of this appeal, it is dismissed. Dismissed.