J. P. Compton v. I. R. Holmes, 94 Tex. 578

WILLIAMS, Associate Justice. Certified question from the Court of Civil Appeals of the First District, as follows: “This is a statutory proceeding brought under title 36,

chapter 7, of the Revised Statutes of 1895, to contest an election for mayor of the town of La Porte, held on the 2d day of April, 1901. The town of La Porte is a municipal corporation organized under the general laws of this State. All of the provisions of said statute relating to the manner in which such contest shall be commenced and conducted were strictly complied with. The appellee in the court below excepted to the jurisdiction of the court on the ground that the statute providing for the contest of elections does not apply to the election of officers in incorporated cities, towns, or villages.

This exception was sustained and the proceedings dismissed, and the case is before us on appeal from said judgment of dismissal. “Upon this statement of facts, we respectfully certify for your decision the following question: “Does the act of the Legislature contained in title 36,

chapter 7, of the Revised Statutes of 1895, providing for the contest of elections, apply to elections for officers of incorporated cities, towns, or villages ?” By

article 1810, Revised Statutes, it is provided: “The provisions of this title shall apply to all elections, whether for officers or other purposes, where not otherwise provided by law.” As

chapter 7, referred to in the question, is, in the published volume containing the Revised Statutes, a part of the same title with the

article quoted, the provisions of such

chapter concerning contested elections would appear to be made applicable to municipal elections. But when the Revised Statutes containing

article 1810 were adopted by the Legislature,

chapter 7 was not as it now appears in the volume, but was composed of provisions regulating only contests of elections for members of the Legislature. At the same session of the Legislature (1895) which adopted the Revised Statutes, the present law regulating contests of elections was passed, not in the form of an amendment of any provision of the Revised Statutes, but as an independent act.

Article 1810, by the phrase, “the provisions of this title,” does not refer to the provisions of the Act of 1895, because that act was not then, and was never afterwards made by anjr act of the Legislature, a part „of the title referred to. The provisions of such act were properly included in the Revised Statutes by the codifier afterwards appointed (Acts 1895, page 110); but the inclusion of them by him as a part of the saíne title with

article 1810 can .not enlarge the operation of that article. The question certified must, therefore, • be answered under the provisions of the Act of 1895. It is to be observed that the act does not contain any provisions specifically including contests of elections for municipal offices, or so broad as to embrace contests for all offices. On the contrary, the provision seems to be for contests as to specified offices, not including municipal ones.

The first, second, third, fourth, and fifth sections define the tribunals before which and the places at which contests of election for the offices of district attorney, district judge, chief justice and associate justice of the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals, county officers, and for other purposes than for offices, may be conducted. Sections 24 to 31, inclusive, regulate contests before the Legislature of elections for Governor, Lieutenant-Governor, Comptroller, Treasurer, Commissioner of the Land Office, and Attorney-General, and members of the Legislature.

Section 6 provides: “Any person intending to contest the election of anyone holding a certificate of election as a member of the Legislature or for any office mentioned in this act” shall give notice, etc.; and proceeds to prescribe rules to govern the contest. Among the offices named are no municipal ones, and such offices- are nowhere referred to in the act except in

section 32, which will be noticed further on. Sections 12-16 provide, in substance, that “When the validity of an election for an office other than for members of the Legislature is contested,” the contestee shall give bond, and upon his failure to do so, the contestant may give such bond and become entitled to the possession of the office pending the contest, and the Governor is required to issue commission to the one making bond. Sections 6 and 12 approach nearer to general provisions for contests of all offices than any in the act, but it appears that'the}'- have reference to State and county offices, for the reason that

section 6 refers to offices “mentioned in this act,” and sections 12-16, by their provisions with reference to commissions, show that only State and County offices are meant; for

article 1809, Bevised Statutes, specifies the officers whom the Governor is to commission and excepts municipal officers. The only reference in the whole statute to municipal officers is in

section 32, as follows: “If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town, or village, any resident of such county, precinct, city, town, or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this

chapter for contesting the validity of an election for a county office.” There is here no provision for contests for municipal offices, but they are simply mentioned as an exception to the rule prescribed, and the last words of the

section refer to the preceding provisions as being made for contesting elections for county offices. It is clear to our minds that the Legislature has failed to include in this statute contests for municipal offices. The language can not be extended by construction so as to embrace them. We answer the question in the negative.