Cope v. Henderson

PER CURIAM.

Judgment was entered in the District Court of Cass County, “directing and commanding the Defendant, * * * [County Judge of Cass County, Texas], to forthwith proceed with all reasonable dispatch to certify the results of the election held on November 1, 1969, to incorporate the proposed Town of Domino, Texas, and the election of the Mayor and two (2) Commissioners thereof, and to enter an Order upon the Minutes of the Commissioner’s Court of Cass County, Texas, that the inhabitants of the Town of Domino, Texas, are incorporated within the boundaries thereof and that Charles A. Richie be declared to be elected the Mayor of the Town of Domino, Texas, and that L. D. Grundy and John Mayberry be declared to be elected Commissioners of the Town of Domino, Texas, all to serve until the first Saturday of April following, to-wit April 4, 1970, * * An appeal from the trial court judgment has been perfected. The judgment is affirmed.

An unincorporated town or village containing more than 200 and less than 10,000 inhabitants may become an incorporated municipality by one of the methods prescribed in Chapter 11, Title 28, Revised Civil Statutes of Texas, 1925. See Tex. Rev.Civ.Stat.Ann. art. 1133 (1963).¹ In this instance, those initiating the incorporation movement proposed, as authorized by Tex.Rev.Civ.Stat.Ann. art. 1155 (1963),² to incorporate the town of Domino, Texas, under a Commission form of government in conformity with the article mentioned and other articles of the statute pertaining to the Commission form class of municipalities. Compliance with all prerequisites to incorporation, including an election for that purpose and a return of the results thereof by the election judge to the County Judge of Cass County, are conceded. This litigation arose out of the refusal or failure of the County Judge of Cass County to timely canvass the vote, declare the results of the election and enter an order upon the Minutes of the Commissioner’s Court in compliance with Texas Rev.Civ.Stat.Ann. arts. 1157 and 1158 (1963),³ thereby evidencing incorporation of the Town of Domino, Texas, and delineating its boundaries, etc.

The substance of appellant’s first and second points of error is that the appellees were not entitled to the writ of mandamus initially quoted in part, because of the existence of another plain, effective and adequate remedy. In argument, appellant states his position in this language, to-wit:

“The issue of law under these points is whether or not Vernon’s Ann.Civ.St. Election Code Art. 1.02 applies to elections under the Revised Civil Statutes of Texas, 1925, as amended; title 28, chapter 12, codified as Vernon’s Ann. Civ.St. Art. 1155 et seq. in such a manner as to devolve a separate statutory duty upon the County Commissioners and thereby give the appellees another plain, effective and adequate remedy to obtain the relief sought through two (2) or more County Commissioners of Cass County, Texas; after the appellant, as County Judge, failed to perform such duty.

“If, after the appellant failed to act, the duty to act devolved upon the County Commissioners under the Election Code (supra) ; such duty created a plain, effective and adequate remedy by which the appellees could have obtained the relief sought. Before mandamus will issue to compel the appellant to act, appellees must exhaust their alternate remedy by presenting the returns of the election to two (2) or more of such County Commissioners, requesting that such Commissioners perform the duties devolved upon the appellant County Judge by Vernon’s Ann.Civ.St. Art. 1157, and such commissioners must then refuse.

"The appellant contends that the ap-pellees have such alternate statutory remedy, that it is a plain, effective and adequate remedy; and that the appellees have failed to exhaust it. * * * ”

Proper construction of the several relevant statutory provisions compels the conclusion that Election Code Art. 1.02 is not applicable in this instance. It follows that neither the County Commissioners as a body nor any of them in combination had a duty by reason of Art. 1.02 to take any action with respect to canvassing the vote, declaring the result of the election, and entering an order upon the Minutes of the Commissioner’s Court with respect to the incorporation of the Town of Domino, Texas. Therefore, "the Election Code article did not afford the appellees a remedy that is plain, effective and adequate. This court, in Miller v. Bostick, 411 S.W.2d 759 (Tex.Civ.App. Texarkana 1967, no writ), after considering Williams v. Glover, 259 S.W. 957 (Tex.Civ.App. Waco 1924, no writ) and Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961), decided that Tex.Rev. Civ.Stat.Ann. art. 1139 (1963)⁴ placed a ministerial duty upon a county judge to accept election returns, canvass the vote, and declare the results of an incorporation election authorized by Tex.Rev.Civ.Stat. Ann. art. 1134 (1963),⁵ et seq., for the incorporation of towns under an Alder-manic form of government. Since language in Articles 1157 and 1158 pertaining to canvassing Commission form of government election returns, declaring the result and entering an incorporation order is so similar to the language in Article 1139 governing Aldermanic form election, the construction made in Miller v. Bostick is appropriate here and should be followed. That is to say, Articles 1157 and 1158 impose a duty upon the County Judge to accept election returns, canvass the vote, and declare the result, and if a majority of the votes are cast for incorporation, the judge is duty bound to enter an order effectuating incorporation, and attendant statutory organizational preclusion, upon the Minutes of the Commissioner’s Court.

The instant incorporation election was held in accordance with the procedure set out in Chapter 11, Title 28. The Acts of the 1951, 52nd Leg., Chap. 492 designated the Election Code as “AN ACT to adopt and establish an election code for the State of Texas, to revise and recodify Title 50 of the Revised Civil Statutes of 1925 of Texas,” etc. Election Code Art. 1.02⁶ is revised Tex.Rev.Civ.Stat.Ann. art. 2924 (1939) unchanged and before recodification was a part of Title 50. The wording of Article 2924 restricted and confined the articles’ operation to duties imposed upon a County Judge by Title 50 as it formerly existed and goes no further. Recodification as Election Code Art. 1.02 did not change the articles’ operation except to make it applicable to the operation of statutes gathered into the Election Code. The reach and scope of the article is specifically stated in its first few words; there it is said: “Whenever, by this title, any duty is devolved upon a county judge,” etc. This specific limitation on the operation of Art. 1.02 to this title, the title in which the article appears, makes it obvious that the Election Code article was not intended to be a part of or govern procedures in a municipal incorporation election authorized in an entirely different title.

Appellant was denied a jury trial. The record shows a jury was waived, or if consent to a nonjury trial was withdrawn, a jury was not timely requested. In an order dated November 26, 1969, the trial judge recited that: “The attention of the Court was called to the demand of the defendant for a trial by jury, which was made and filed of record on the 25th day of November, 1969. The parties having heretofore agreed on the 17th day of November, 1969, that said cause would be heard before and by the Court on the 26th day of November, 1969”. (Emphasis added) . Although the appellant’s argument that he was wrongfully denied a jury trial has a strong appeal due to the haste in which the appellant was required to defend in the proceeding, no purpose would be served by a minute discussion of the circumstances. The above quoted portion of the order evidencing the agreement of the parties entered on the minutes forecloses complaint on this ground. The order recites the parties agreed to a non jury trial in language that is customarily used by lawyers and courts to distinguish a non jury from a jury trial. The recitation is not contradicted by the record. Consistent with the recitation is the fact that for convenience the hearing was by agreement actually moved from Cass and held in Bowie County. It may be assumed that the consent to a nonjury trial might be withdrawn under proper circumstances, yet, in this case, withdrawal from the agreement did not occur at such time as to make the demand for a jury timely under the requirements of Tex.R.Civ.P. 216. No abuse of the trial court’s discretion is shown.

Appellant’s fourth point of error is that the “trial court ^rred in ordering' the appellant to show cause why mandamus should not issue”. The stress of the argument under the point is that (1) the show cause order wrongly placed the burden of proof on the appellant, (2) that it so limited appellant’s time to respond that he was deprived of reasonable opportunity to present a defense. These objections will be discussed in the order listed.

As trial began, appellant called the burden of proof contention to the attention of the court and opposing counsel. Thereupon, the statement of facts records, counsel for appellant stated, “We accept the burden of proof, Your Honor.” The trial proceeded with that understanding and the record as a whole does not show the appellees were relieved of the burden to prove affirmatively all facts necessary to entitle them to the writ. No point of error challenges the sufficiency of the evidence. Harm is not shown.

Underlying the argument on restriction of time is knowledge that appellant would have been allowed substantially more time for preparation of his defense if service had been by conventional citation rather than a show cause order. The argument assumes that the time allowed for answer when service is by citation is the standard that should be observed. Examination of the record discloses a very expeditious trial. However, on application appellant was granted a continuance from November 17, to November 26, 1969, and at the latter date proceeded to trial without requesting further postponement. If the time element were hindering the presentation of an adequate defense, objection to continuation of the trial and a request for delay should have been made. Though it has been characterized as an informal mode of service, a show cause order is sufficient, particularly in this instance, as the appellant appeared and answered. Texas Mexican R. Co. v. Locke, 63 Tex. 623 (1885); 37 Tex.Jur.2d, Mandamus, § 82.

All of the appellant’s points are respectfully overruled. The trial court judgment is affirmed.

1 . Art. 1133. When a town or village contains more than two hundred (200) and less than ten thousand (10,000) inhabitants, it may be incorporated as a town or village in the manner prescribed in Chapter 11, Title 28, of the Revised Civil Statutes of Texas, 1925, and all amendments thereto.

2 . Art. 1155. If any unincorporated city or town in this State, having a population of over five hundred and less than five thousand inhabitants, or any unincorporated town or village in this State having a population of more than two hundred and less than one thousand inhabitants, shall desire to be incorporated under the commission form of government as herein provided, an election to determine whether such incorporation may be had shall be called by the county judge of the county under the provisions herein governing incorporated cities and towns, and incorporated towns and villages, and notice of such election shall be given as herein provided, and if satisfactory proof is made that the city or town or village contains the requisite member of inhabitants, the county judge shall make an order for holding an election on a day therein stated, and at a place designated within the city or town or village for the purpose of submitting the question to a vote of the people.

3 . Art. 1157. The mayor or county judge, as the case may be, shall appoint two judges of election, one of which shall be designated as the presiding judge, and two clerks, to hold said election. The election shall be held and governed by the general laws of this State except as herein otherwise provided, and the returns shall be made to the mayor or the county judge, as the case may be within five days after said election shall have been held. If a majority of the votes cast are ‘For Commission,’ then the mayor or county judge shall enter an order to that effect upon the minutes of the city council, or board of aldermen, or of the commissioners court, and after the entry of said order said incorporated city or town or village shall be under the commission form of government, and said unincorporated city or town, or unincorporated town or village, shall be incorporated and under the commission form of government.

Art. 1158. At such election there shall be elected two commissioners, who shall serve until the first Tuesday in April following, and in said unincorporated cities and towns, and unincorporated towns and villages, there shall at such elections be elected a mayor and two commissioners, who shall serve until the first Tuesday in April following. The mayor of the incorporated cities and towns, and incorporated towns and villages, adopting the commission form of government shall continue to hold his office for the term for which he was elected. The term of office of the mayor and commissioners, except the first elected under the provisions hereof, shall be two years and they shall be elected on the first Tuesday in April every two years.

4 . Art. 1139. If a majority of the votes are cast in favor of incorporation the officers holding the election shall make return thereof to the county judge within ten days after the same was held. The county judge shall, within twenty days after the receipt thereof make an entry upon the records of the commissioners court that the inhabitants of the town or village are incorporated within the boundaries thereof; which boundaries shall also be designated in the entry. A certified copy of such entry, together with the plat of the town or village, shall thereupon be recorded in the proper record of deeds of such county.

5 . Art. 1134. If the inhabitants of such town or village desire to be so incorporated, at least twenty residents thereof, who would be qualified voters under the provisions of this chapter, shall file an application for that purpose in the office of the county judge of the county in which the town or village is situated, stating the boundaries of the proposed town or village, the name by which it is to be known when incorporated, and accompany the same with a plat of the proposed town or village including therein no territory except that which is intended to be used for strictly town purposes. If any town or village be situated on both sides of a line dividing two counties, application may be made to the county judge of either county in which a portion of said town or village is located, in manner and form as herein provided. A new election shall not be ordered in less than one year.

6 . Art. 1.02. Whenever, by this title, any duty is devolved upon a county judge, and that office is vacant, or such officer from any cause fails to perform such duty, any two (2) or more of the county commissioners of the county may and shall perform such duty.