the Supreme Court's limitation or refusal to | Appeals construed the general election conpermit preliminary proceedings to an election test statutes and article 3397, and held that to be the subject of inquiry in election contests rather supports the view that we take of this question than the contention of appellants. Election contests for removal of county seats have been by some courts construed to be in the nature of a contest of a local option election, and are to that extent distinguishable from the contest in question.

In the case of Kilgore v. Jackson, 55 Tex. Civ. App. 106, 118 S. W. 822, the Court of Civil Appeals say:

an election could be contested upon the ground that it had not been legally ordered or held for the purpose or within the territory for which it was held; and a writ of error was dismissed in that case because of want of jurisdiction of the Supreme Court.

In the other case of Oxford v. Frank, supra, the suit was brought to contest a local option election under article 3397 of the Revised Statutes of 1895, and also a bill in equity was sought to restrain the publication of the election results. No application for a

held there that the district court had jurisdiction to try a contest of a local option election on a ground going to its validity, though not specified in article 3397 of the Revised Statutes. But both of those cases seem to be in conflict with the opinion of the Supreme Court in the case of Norman v. Thompson, 96 Tex. 253, 72 S. W. 62, which was rendered after both of them had been finally disposed of. Norman v. Thompson was a contested local option election case, in which the Supreme Court construed article 3397, and held:

"We are not inclined to hold that the proceedings and judgment in the contest proceed-writ of error was made in that case. It was ing brought by parties other than plaintiffs in this case can be urged as a bar to the present proceeding. That was a special proceeding which could only be instituted by residents of the county. Articles 1804t, 1804u, Rev. St. We are inclined to think that the doctrine announced by the Supreme Court in Norman v. Thompson, 96 Tex. 250, 72 S. W. 62, applies to a contest of an election for the location of a county seat. The contest in that case was of a local option election under a statute relating alone to such elections. After quoting the statute (article 3397) the court says: 'As used in the foregoing article, the term "election" means the act of casting and receiving the ballots from the voters, counting the ballots, and making returns thereof. State v. Tucker, 54 Ala. 210. That is the meaning of the word "election" in ordinary usage, and it must be so construed; there being nothing in the law to suggest that the Legislature intended to use it in a different sense. On the contrary, wherever the word "election" appears in the acts of the Legislature upon this subject, it seems to have in view those things to be done on the day of the election in contradistinction to the acts which are to be done preparatory to the election.' It would appear that the word 'election,' as used in the statute under which the contest of this county seat election was instituted, was used in the same sense, and, if so, in such contest nothing could have been properly inquired into except what occurred on the day of election, and there could not properly have been adjudicated in that case the issues presented in the present case."

A writ of error was refused by the Supreme Court in that case, and the doctrine announced conclusively supports our holding in McCall v. Lewis, supra, and Bassel V. Shanklin, supra.

The other two cases cited by appellants as being in conflict with our decision in the McCall-Lewis Case involve contests of local option elections, the grounds of contest of which are provided by separate articles of the statute than the ones appellants are proceeding under here, and for this reason those cases cannot be in conflict. Article 3397 of the 1895 Revised Statutes provides the grounds upon which a local option election may be contested, which is a separate and distinct statute from the statutes under which appellants brought this proceeding. It is true that in

""The contest of an election is a special proceeding authorized by the statute, and the courts are limited in their investigation to such subjects as are specified in the law. Wright v. Fawcett, 42 Tex. 206; Rogers v. Johns, 42 Tex. 340. The following article of the Revised Statutes prescribes the ground of contest: [Article 3397 follows].'

"As used in the foregoing article, the term 'election' means the act of casting and receiving the ballots from the voters, counting the ballots and making returns thereof. State v. Tucker, 54 Ala. 210. That is the meaning of the word 'election' in ordinary usage, and it must be so construed, there being nothing in the law to suggest that the Legislature intended to use it in a different sense. On the contrary, wherever the word 'election' appears in the acts of the Legislature upon this subject it seems to have in view those things to be done on the day of the election, in contradistinction to the acts which are to be done preparatory to the election.

"Article 3397 expresses the policy of the Legislature to be, that a law of this character shall been fairly conducted and resulted in a fair not be put into force, unless the election has expression of the will of the voters. To accomplish this end the statute confines the inquiry to those proceedings which are directly connected with the conducting of the election itself. The posting of the notices of election not being embraced in the terms of the statute, the failure to post one of such notices for twelve days prior to the election constitutes no ground for a contest of election. We answer the first question in the negative."

If the general enabling statutes putting in force the constitutional amendment authorizing district courts to assume jurisdiction of election contests had been applicable to local option election contests, the Supreme

(273 S.W.)

than such 'majority of the qualified voters voting at said election.'"

would have adverted to those statutes. Therefore we can safely conclude that local option election contests were controlled by a This question can be properly determined specific statute on that subject. A decision of a contest under that statute would not in an election contest proceeding, since it was a part of the duties of the election ofbe in conflict with a decision of a contest of an election under the statutes here in- ficers on the day of the election and as a volved. Our conclusion in this matter is fur- part of the election procedure to determine ther strengthened by the fact that the Legis- what vote the statutes required each amendlature in 1907 amended article 3397 of the ment to receive before it should be declared Revised Statutes of 1895, by what is now carried, in order that a proper return of the article 5728 of V. S. C. S. 1914, in which it is results might be made. The question therespecifically provided that local option elec-fore resolves itself into an inquiry of whether or not the election officials properly, letions may be contested on the specific grounds that the Supreme Court held in Nor-gally, and fairly made true returns of the reman v. Thompson, supra, they could not be sults of the election held. contested on, thus evidencing conclusively on the part of the Legislature that they intended to add to the previous statutes other grounds upon which a local option election could be contested. So we submit that these cases do not present any conflict with the rule announced in the first three cases cited. [5] This being our view of the law, we have concluded that the following propositions or questions urged by appellants cannot be considered, since the district court had no jurisdiction to determine them in this, an election contest:

"(2) That the 22 propositions, being submitted without the initiation of a charter commission, violate the statute, and are illegal and

void.

(3) That the statute does not permit a city

council of its own initiative without a charter commission to submit propositions to repeal vital and fundamental parts of a charter; the right to submit amendments' not including more than mere amendments.

"(4) That the essential propositions, as fully shown hereinbefore, violate the statute in submitting in single propositions more than one subject.

"(5) That the 22 propositions are void because they do not refer to or identify the public statute proposed to be repealed, changed, and amended.

"(6) That certain propositions, fully pointed out hereinbefore, violate the Constitution, art. 3, § 36, in undertaking to revive and amend sections of a statute without re-enacting and publishing same at length."

These propositions represent appellants' propositions 3 to 8, both inclusive, as set forth in their brief.

[6] Appellants' ninth proposition reads:

"Under the statute (article 1096b) putting the home rule amendment to the Constitution into effect before any proposed amendment shall become a part of the charter of a city, such proposed amendment must be approved by the majority of the qualified voters voting at

said election.

"The phrase 'majority of the qualified voters voting at said election,' being susceptible of but one construction, according to its plain words, forbids an amendment from being declared adopted upon a less number of votes

[7] It appears from the record in this case that a total of 4,939 qualified voters voted at the election in question, and that no one of the amendments voted on received a majority of 4,939 votes; but that each amendment received more votes in its favor than were cast against it. The trial court held that it was only necessary for each amendment submitted to receive more affirmative than negative votes. The appellants contend that article 1096b, Vernon's Sayles' Ann. Civ. St. 1914, putting into effect the home rule amendment to the Constitution, requires that any proposed amendment to a city charter must be "approved by a majority of the qualified voters, voting at said election," before being declared adopted. Intervener contends that the statutes in question, when construed with relation to the context, contemplate that at an election held for the purpose of determining whether or not several separate and distinct amendments to a city charter shall be adopted the result on each amendment shall be determined by the vote cast for and against such amendment, irrespective of the number of voters participating in the election on all the amendments.

The appellants in support of this proposition cite the following authorities from other states: Stebbins v. Judge Sup. Ct., 108 Mich. 693, 66 N. W. 594; State v. Hugo, 84 Minn. 81, 86 N. W. 784; High School v. Commission, 61 Kan. 800, 60 P. 1057; People v. Wiant, 48 Ill. 263; Hogg v. Baker (Ky.) 31 S. W. 726; City of Santa Rosa v. Bower, 142 Cal. 299, 75 P. 829; 10 Am. & Eng. Enc. of Law, 756; Armour Bros. Banking Co. v. board of County Com'rs of Finney County (C. C.) 41 F. 321. It is contended by appellants that these cases construe somewhat similar constitutional and statutory provisions to the ones here involved, and assert that there is no conflict in other jurisdictions concerning the correctness of their contention on the question here presented. An examination of these authorities reveals that they are not in harmony on the question, because the phraseology of the various constitutional and statutory provisions construed differ, and therefore furnishes no authority for each other, or for the question here raised, because none of them construe a statute worded like ours.

The difficult question in each of those cases, tion is that portion of the statute providing like the one here presented, was to determine for the submission of an amendment or from the specific language used the clear in-amendments to the voters for adoption or retention of the Legislature. We think that no jection, and the statute declares the amendgood purpose can be served here by entering ment or amendments adopted, "if approved into a discussion of these authorities, since by the majority of the qualified voters voting none of them construe statutes worded like at said election," and in this connection the ours. statute further provides:

(273 S.W.)

cluded that the remaining propositions pre-
sented by appellants are without merit, and
are overruled, and the judgment of the trial
court is affirmed.
Affirmed

amendment or amendments, without voting | the results declared has been decided in fa'Yes' or 'No' on all of said amendments." vor of the results as declared, we have conWe think it would be without reason to construe this language to mean that, although the Legislature provided that voters, at an election where several amendments to a city charter were being submitted, do not have to vote upon all the amendments submitted, yet if they do not so vote, their ballot cast on other amendments will be counted as a negative vote on each amendment not voted upon. This would result if the majority rule contended for by appellants was enforced in this

case.

[8] It is a well-established rule in Texas that a construction leading to absurd results and invalidity will not be applied, if the language is susceptible of another application which will preserve all of the law intact. Fenet v. McCuiston, 105 Tex. 299, 147 S. W. 867; Staples v. State, 112 Tex. 61, 245 S. W. 639; Witherspoon v. Jernigan, 97 Tex. 98, 106, 76 S. W. 445; Shipley v. Floydada Independent School District (Tex. Com. App.) 250 S. W. 159.

BRAZILE et ux. v. SCOTT, Commissioner of
Insurance. (No. 7365.)

(Court of Civil Appeals of Texas. San Antonio.
May 27, 1925. Rehearing Denied June 13,
1925.)

Husband and wife 105-Husband not liable for wife's tort directly inducing contract.

Husband held not liable for wife's tort in obtaining loan by forging his name to note and mortgage, since, the contract and tort inducing it being inseparable, liability for tort would evade fact that wife's contract was void under Vernon's Sayles' Ann. Civ. St. 1914, art. 4624.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by M. D. Brazile against the United Home Builders of America, G. G. Wright, its receiver, and John M. Scott, Commission

Applying that rule here, it is not a farfetched construction to say that the Legislature intended by the use of the language "that the voters may vote 'Yes' or 'No' on any one amendment or amendments, without voting 'Yes' or 'No' on all of said amend-er of Insurance, for cancellation of a note ments," to mean that each amendment should be considered separately and should stand or fall upon the votes cast for and against it.

The Dallas court of Civil Appeals, in the case of Shaw v. Lindsley, 195 S. W. 338, reached the same conclusion that we have reached in regard to a construction of these statutes on the identical question before us, from which opinion we quote the following:

"We conclude from the authorities that each amendment is separate, and the result as to each is to be determined from the votes cast for or against it."

[9] It is the policy of the law to uphold the declared results of elections where it is

and mortgage, with cross-action by two defendants last named. Judgment on instructed verdict for plaintiff removing clouds on title and in favor of the commissioner, but adverse to the receiver, and plaintiff and his wife, who was joined as defendant, appeal. Affirmed in part, and reversed in part and rendered.

Ocie Speer, of Fort Worth, and Hamp P. Abney, of Sherman, for appellants.

Dan Moody, of Georgetown, Riley Strickland, of Sugar Land, and Phillips, Trammell & Chizum, of Fort Worth, for appellee.

FLY, C. J. This suit was instituted by M. shown that they have been properly and fair- D. Brazile against the United Home Buildly conducted. Johnston v. Peters (Tex. Civ. ers of America, an association or society, its App.) 260 S. W. 911. The trial court in this receiver, G. G. Wright, and John M. Scott, case upon the motion of appellants, after due commissioner of insurance, for the cancellaand proper proceedings, caused the ballot tion of a promissory note and a certain boxes to be opened, and again carefully mortgage on a tract or parcel of land situatcounted the votes cast in all wards where ed in Fort Worth, claimed by him to be his any question had been raised which in any homestead. The receiver filed a cross-acway reflected doubt upon the correctness or tion, as also did the commissioner of insurfairness of the results declared, and in each ance. Mrs. Annie Brazile, wife of M. D. instance the election officials' declaration of Brazile, was made a defendant in the cause. the results was sustained by the ballots them- The court instructed a verdict to remove all selves, and in most instances a net gain was clouds from the title to the property of M. recorded on each amendment voted upon D. Brazile, and a verdict in favor of either from the results declared by the returning the commissioner of insurance and banking officials. The fairness of the recount of the or the receiver, as against M. D. Brazile and ballots by the trial court is in no way at- his wife, Annie Brazile, for the money paid tacked, and, since by that recount any ques- by the Home Builders of America to Annie tion as to the fairness of the election and of Brazile. The jury left unnamed the party For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ted a tort in deceiving and defrauding the party from whom she obtained the loan, but it is equally certain that the fraud entered into, induced, and consummated the fraudulent contract. The fraud and deceit was the machinery through which the money was obtained, and obtained on a contract which Annie Brazile, a feme covert, was incapable of making.

to whom the money judgment was to be |ganization and appropriated it to her own given but found the amount. Afterwards use and benefit. She undoubtedly committhe court, under an agreement to that effect, decided that the commissioner was entitled to the money and the receiver should not recover for any sum. This appeal was perfected by M. D. Brazile and Annie Brazile. M. D. Brazile, by his attorneys, has filed a brief herein, and the brief is copied verbatim et literatim and signed by Mrs. Annie Brazile, in propria persona, and filed herein. The reason for the separate briefs is not apparent. It in no way aids in the decision of the case.

The facts show that Annie Brazile, the wife of M. D. Brazile, without his knowledge or consent applied for and obtained loans from the United Home Builders of America in the sum of $11,000, and as security for the same executed a mortgage to said society on the S. 1⁄2 of the N. W. 4 of lot No. 2, in D. S. Ross subdivision of block No. 26, of Field Welch addition to the city of Fort Worth, Tex. She forged the name of her husband, M. D. Brazile, to the note and mortgage or deed of trust. He did not ratify or in any manner approve of her acts in borrowing the money or in executing the note and mortgage.

M. D. Brazile was not liable on the note or the mortgage with the execution and delivery of which he had no connection in any way, and this is conceded by the appellee herein, John M. Scott, and it is sought to fix liability on him for the tort committed by the wife in fraudulently obtaining the money through the forgery of his name to the note and mortgage. The note and mortgage being executed by a married woman were utterly null and void. That proposition is not assailed or brought in question. ticle 4624, Vernon's Sayles' Civ. Stats. That article is explicit that—

Ar

"Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children; provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract."

Undoubtedly Annie Brazile was guilty of fraud, deceit, and misrepresentation in inducing the Home Builders' Association to enter into a contract whereby she obtained money from it. It was fraudulent for her to present a promissory note with her husband's name signed with her own appended to it, and to do the same criminal act in connection with the mortgage. Through the fraud, forgery, and misrepresentation she

Infants and married women in cases of this character have applied to them the same principles of law, and while great differences of judicial opinion have been expressed on the question of whether an infant or married woman is liable in tort for falsely representing himself or herself capable of contracting, still the better opinion in England and America seems to be that he or she is not liable. In the case of Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510, it was held:

*

"The general rule is, of course, that infants are liable for their torts. rule is not an unlimited one. * But the It is to be applied with due regard to the other equally well settled rule, that, with certain exceptions, they are not liable on their contracts; and the dominant consideration is not that of liability for their torts, but of protection from their contracts. The true rule seems to us to be as stated in Association v. Fairhurst, 9 Exch. 422, 429, for a fraudulent misrepresentation, namely: If where it was sought to hold a married woman the fraud is directly connected with the contract, * and is the means of effecting it, and parcel of the same transaction,' then the infant will not be liable in tort."

* *

Undoubtedly in the present case the fraud on which the commissioner relies to fix the liability of the husband and wife was part and parcel of the contract and directly connected with it. The commissioner nor the receiver can maintain an action without

showing a contract, which is invalid and not binding, but they seek to evade the law by making the husband liable for a tort which depends for its existence on the invalid contract. The action on the contract could not stand, and neither can the action on the tort stand. They are inseparable and must stand or fall together. Speaking of the liability of a married woman for her torts, Judge Cooley says:

"But the element of contract is as important here as in the law of infancy. The same reasons which would preclude the indirect redress of the infant's breach of contract, by treating it as a tort, will preclude the like redress in the case of the contract of a married woman." Cooley on Torts, p. 195.

This is not an open question in this state, but the rule as enunciated in Ruling Case