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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 an election could be contested upon the rather supports the view that we take of this ground that it had not been legally ordered question than the contention of appellants. or held for the purpose or within the terElection contests for removal of county seats ritory for which it was held; and a writ of have been by some courts construed to be in error was dismissed in that case because of the nature of a contest of a local option elec-want of jurisdiction of the Supreme Court. tion, and are to that extent distinguishable In the other case of Oxford v. Frank, sufrom the contest in question.

pra, the suit was brought to contest a local In the case of Kilgore v. Jackson, 55 Tex. option election under article 3397 of the ReCiv. App. 106, 118 S. W. 822, the Court of vised Statutes of 1895, and also a bill in Civil Appeals say:

equity was sought to restrain the publication “We are not inclined to hold that the pro- of the election results. No application for a ceedings and judgment in the contest proceed writ of error was made in that case. It was ing brought by parties other than plaintiffs in held there that the district court had juristhis case can be urged as a bar to the present diction to try a contest of a local option elecproceeding. That was & special proceeding tion on a ground going to its validity, though which could only be instituted by residents of not specified in article 3397 of the Revised the county. Articles 1804t, 1804u, Rev. St. Statutes. But both of those cases seem to be We are inclined to think that the doctrine an

in conflict with the opinion of the Supreme nounced by the Supreme Court in Norman v. Thompson, 96 Tex. 250, 72 S. W. 62, applies Court in the case of Norman v. Thompson, 96 to a contest of an election for the location of Tex. 253, 72 S. W. 62, which was rendered afta county seat. The contest in that case was of er both of them had been finally disposed of. a local option election under a statute relating Norman v. Thompson was a contested local alone to such elections. After quoting the option election case, in which the Supreme statute (article 3397) the court says: 'As used Court construed article 3397, and held : in the foregoing article, the term “election" means the act of casting and receiving the bal

“ 'The contest of an election is a special prolots from the voters, counting the ballots, and ceeding authorized by the statute, and the making returns thereof. State v. Tucker, 54 courts are limited in their investigation to Ala. 210. That is the meaning of the word such subjects as are specified in the law. "election” in ordinary usage, and it must be Wright v. Fawcett, 42 Tex. 206; Rogers v. so construed; there being nothing in the law Johns, 42 Tex. 340. The following article of to suggest that the Legislature intended to use

the Revised Statutes prescribes the ground of it in a different sense. On the contrary, wher- contest: [Article 3397 follows].' ever the word "election" appears in the acts

"As used in the foregoing article, the term of the Legislature upon this subject, it seems

'election' means the act of casting and receiving to have in view those things to be done on the the ballots from the voters, counting the balday of the election in contradistinction to the lots and making returns thereof. State v. acts which are to be done preparatory to the Tucker, 54 Ala. 210. That is the meaning of election.' It would appear that the word 'elec- the word ‘election' in ordinary usage, and it tion,' as used in the statute under which the must be so construed, there being nothing in contest of this county seat election was in the law to suggest that the Legislature intendstituted, was used in the same sense, and, if ed to use it in a different sense. On the con80, in such contest nothing could have been trary, wherever the word 'election' appears in properly inquired into except what occurred the acts of the Legislature upon this subject it on the day of election, and there could not

seems to have in view those things to be done properly have been adjudicated in that case

on the day of the election, in contradistinction the issues presented in the present case.”

to the acts which are to be done preparatory to

the election. ' A writ of error was refused by the Su “Article 3397 expresses the policy of the Legpreme Court in that case, and the doctrine islature to be, that a law of this character shall announced conclusively supports our holding not be put into force, unless the election has in McCall v. Lewis, supra, ånd Basselv. expression of the will of the voters. To ac

been fairly conducted and resulted in a fair Shanklin, supra.

complish this end the statute confines the The other two cases cited by appellants as inquiry to those proceedings which are directly being in conflict with our decision in the Mc- connected with the conducting, of the election Call-Lewis Case involve contests of local op- itself. The posting of the notices of election tion elections, the grounds of contest of which not being embraced in the terms of the statare provided by separate articles of the stat. ute, the failure to post one of such notices for ute than the ones appellants are proceeding twelve days prior to the election constitutes no under here, and for this reason those cases the first question in the negative.”

ground for a contest of election. We answer cannot be in conflict. Article 3397 of the 1895 Revised Statutes provides the grounds upon If the general enabling statutes putting in which a local option election may be contest-force the constitutional amendment authored, which is a separate and distinct statute izing district courts to assume jurisdiction from the statutes under which appellants of election contests had been applicable to lobrought this proceeding. It is true that in cal option election contests, the Supreme the case of Kidd v. Truett, the Court of Civil Court in discussing that case most likely

(273 S.W.) would have adverted to those statutes. , than such 'majority of the qualified voters votTherefore we can safely conclude that local | ing at said election.'' option election contests were controlled by a specific statute on that subject. A decision

This question can be properly determined of a contest under that statute would not in an election contest proceeding, since it be in conflict with a decision of a contest

was a part of the duties of the election of. 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 whethtions may be contested on the specific er or not the election officials properly, legrounds that the Supreme Court held in Nor- sally, 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

[7] It appears from the record in this case the part of the Legislature that they intend that a total of 4,939 qualified voters voted at ed to add to the previous statutes other the election in question, and that no one of grounds upon which a local option election the amendments voted on received a majority could be contested. So we submit that these of 4,939 votes; but that each amendment recases do not present any conflict with the ceived more votes in its favor than were cast rule announced in the first three cases cited. against it. The trial court held that it was

{5} This being our view of the law, we only necessary for each amendment submithave concluded that the following proposi- ted to receive more affirmative than negative tions or questions urged by appellants can

votes. The appellants contend that article not be considered, since the district court had 1096b, Vernon's Sayles' Ann. Civ. St. 1914, no jurisdiction to determine them in this, putting into effect the home rule amendment an election contest:

to the Constitution, requires that any pro

posed amendment to a city charter must be "(2) That the 22 propositions, being submit- "approved by a majority of the qualified rotted without the initiation of a charter com-ers, voting at said election," before being de mission, violate the statute, and are illegal and clared adopted. Intervener contends that void. "(3) That the statute does not permit a city relation to the context, contemplate that at

the statutes in question, when construed with council of its own initiative without a charter commission to submit propositions to repeal vi- | an election held for the purpose of determintal and fundamental parts of a charter; the ing whether or not several separate and disright to submit 'amendments' not including tinct amendments to a city charter shall be more than mere amendments.

adopted the result on each amendment shall "(4) That the essential propositions, as fully be determined by the vote cast for and shown hereinbefore, violate the statute in sub-against such amendment, irrespective of the mitting in single propositions more than one number of voters participating in the elecsubject.

tion on all the amendments. “(5) That the 22 propositions are void because they do not refer to or identify the pub- tion cite the following authorities from oth

The appellants in support of this proposilic statute proposed to be repealed, changed, and amended.

er states: Stebbins v. Judge Sup. Ct., 108 “(6) That certain propositions, fully pointed Mich, 693, 66 N. W. 594; State v. Hugo, 84 out hereinbefore, violate the Constitution, art. Minn, 81, 86 N. W. 784; High School y. Com3, $ 36, in undertaking to revive and amend mission, 61 Kan, 800, 60 P. 1057; People v. sections of a statute without re-enacting and Wiant, 48 Ill. 263; Hogg v. Baker (Ky.) 31 S. publishing same at length."

W. 726; City of Santa Rosa v. Bower, 142

Cal. 299, 75 P. 829; 10 Am. & Eng. Enc, of These propositions represent appellants' Law, 756 ; Armour Bros. Banking Co. V. propositions 3 to 8, both inclusive, as set board of County Com’rs of Finney County (C. forth in their brief.

C.) 41 F, 321. It is contended by appellants [6] Appellants' ninth proposition reads: that these cases construe somewhat similar

constitutional and statutory provisions to the “Under the statute (article 1096b) putting ones here involved, and assert that there is the home rule amendment to the Constitution no conflict in other jurisdictions concerning into effect before any proposed amendment the correctness of their contention on the shall become a part of the charter of a city, question here presented. An examination of such proposed amendment must be approved by these authorities reveals that they are not in the majority of the qualified voters voting at harmony on the question, because the phrasesaid election.

“The phrase 'majority of the qualified voters ology of the various constitutional and statFoting at said election, being susceptible of utory provisions construed differ, and there but one construction, according to its plain fore furnishes no authority for each other, words, forbids an amendment from being de- or for the question here raised, because none clared adopted upon a less number of votes 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: Appellants also cite in this connection the

"Each and every amendment or amendments case of School District v. McElroy, 103 Tex. submitted must contain only one subject, and 64, 123 S. W. 117. This authority merely in preparing the ballot for such amendment or holds that it is the first duty of courts in de- amendments, it shall be done in such manner termining the proposition here raised to ex- that the voters may vote 'Yes' or 'No' on any amine the Constitution and the statute and one amendment or amendments, without voting determine therefrom the legislative intent, / 'Yes' or 'No' on all of said amendments.” for every decision on this question must at

The Supreme Court in School District v. last depend upon the language of the particu- McElroy, supra, employs the following methlar statutory provisions being construed. od in arriving at its decision in that case: The Supreme Court in that case pretermitted, as useless, a discussion of the decisions of

"The entire provision satisfied us that the other states on the proposition here present-vails in elections, which is that the result as

rule has been adopted which ordinarily preed, for the reason that the constitutional and to a question or proposition submitted is destatutory provisions construed by them were termined by the vote given upon it, and not by not worded like ours, stating that a “discus- that upon others." sion of the decisions of other states would therefore simply bé the discussion of ques. ed from the language used in the statutes as

Applying the rule here, we have concludtions different from that before us.

So we have determined to follow the rule of the above quoted that it was the intention of the Supreme Court in that case and decide this Legislature that each proposed amendment case from a construction of the statutory should be by the voters considered separateprovisions here involved.

ly, and the result as to each is to be deterArticle 1096b, Vernon's Sayles' Ann. Civ. mined from the votes cast for or against it, St. 1914, is a part of the enabling act putting irrespective of the total number of votes in effect the home rule amendment to the that may be cast at an election submitting Constitution. It deals with the subject of several separate and distinct amendments to adoption and amendment of municipal char- a city charter. By construing the entire ters, and provides the procedure therefor. provisions of the statutes in the light of The first part of the article provides for what has been adopted as the rule ordinarily the submission to the voters whether or not prevailing in elections where constitutional a commission shall be chosen to frame a new amendments were submitted at elections charter, and the question is declared adopt- where other matters were being voted upon, ed, “provided, that a majority of the qual. and in school district elections where several ified voters, voting on such question shall separate and distinct propositions were behave voted in the affirmative." There is ing voted upon, which is that the result as to nothing complicated or difficult about the a question or proposition submitted is deter. language nor the subject with which it deals, mined by the vote given upon it and not by for it only authorizes the submission of one the vote upon other questions, we have reachproposition to be voted upon at one election ed the conclusion and are satisfied that the held for that purpose, and, of course, it was Legislature in passing these statutes intenda simple thing to say that a majority of the ed that each amendment to a city charter "qualitied voters voting

in the af- should be considered separately and its adopfirmative” on the one question submitted tion controlled by the votes cast for and should determine it.

against the specific amendment. To hold This provision is followed by another for that each amendment must be adopted by a the submission to the voters the work of the majority of all the votes cast at an election charter commission, that is, the charter it- where several amendments are being voted self, for adoption, and it is further provided upon would be nothing less than declaring that, "if such proposed charter is approved that each voter voting at such election must by a majority of the qualified voters, voting vote on each of the amendments submitted, at said election, it shall become the charter and, failing to so vote, his vote would be of said city,

provided that in pre-counted as a negative vote on the amendparing the charter the commission shall, ment not voted upon. This, of course, would as far as possible, segregate each subject so be in direct conflict with that portion of the that the voters may vote 'yes' or 'no' on statute which requires that “in preparing the same.”

ballot for such amendment or amendments Following the provision for submitting the it shall be done in such a manner that the complete charter of the commission for adop- voters may vote 'Yes' or 'No' on any one



(273 S.W.) 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 con- cluded that the remaining propositions prestrue this language to mean that, although sented by appellants are without merit, and the Legislature provided that voters, at an are overruled, and the judgment of the trial election where several amendments to a city court is affirmed. charter were being submitted, do not have to Affirmed 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. BRAZILE et ux, V. SCOTT, Commissioner of This would result if the majority rule con

Insurance. (No. 7365.) tended for by appellants was enforced in this

(Court of Civil Appeals of Texas. San Antonio.

May 27, 1925. Rehearing Denied June 13, [8] It is a well-established rule in Texas

1925.) that a construction leading to absurd re sults and invalidity will not be applied, if Husband and wife w 105–Husband not liable the language is susceptible of another ap for wife's tort directly indu contract. plication which will preserve all of the law Husband held not liable for wife's tort in obintact. Fenet v. McCuiston, 105 Tex. 290, taining loan by forging his name to note and 147 S. W. 867; Staples v. State, 112 Tex. mortgage, since, the contract and tort induc61, 245 S. W. 639; Witherspoon v. Jernigan, ing it being inseparable, liability for tort would 97 Tex. 98, 106, 76 S. W. 415; Shipley v.

evade fact that wife's contract was void under

Vernon's Sayles' Ann. Ciy, St. 1914, art. 4624. Floydada Independent School District (Tex. Com. App.) 250 S. W. 159.

Appeal from District Court, Tarrant CounApplying that rule here, it is not a far

ty; Bruce Young, Judge. fetched construction to say that the Legislature intended by the use of the language

Suit by M. D. Brazile against the United "that the voters may vote 'Yes' or 'No' on Home Builders of Ar ica, G. G. Wright, any one amendment or amendments, without its receiver, and John M. Scott, Commissionvoting 'Yes' or 'No' on all of said amend- er of Insurance, for cancellation of a note ments,” to mean that each amendment should and mortgage, with cross-action by two debe considered separately and should stand or fendants last named. Judgment on instructfall upon the votes cast for and against it. ed verdict for plaintiff removing clouds on

The Dallas court of Civil Appeals, in the title and in favor of the commissioner, but case of Shaw v. Lindsley, 195 S. W. 338, adverse to the receiver, and plaintiff and his reached the same conclusion that we have wife, who was joined as defendant, appeal. reached in regard to a construction of these Affirmed in part, and reversed in part and statutes on the identical question before us, rendered. from which opinion we quote the following:

Ocie Speer, of Fort Worth, and Hamp P. “We conclude from the authorities that each Abney, of Sherman, for appellants. amendment is separate, and the result as to

Dan Moody, of Georgetown, Riley Strickeach is to be determined from the votes cast land, of Sugar Land, and Phillips, Trammell for or against it."

& Chizum, of Fort Worth, for appellee. [9] It is the policy of the law to uphold the declared results of elections where it is

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 way 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 conmmissioner 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


Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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 ef- ted a tort in deceiving and defrauding the fect, decided that the commissioner was enti-party from whom she obtained the loan, tled to the money and the receiver should but it is equally certain that the fraud en. not recover for any sum. This appeal was tered into, induced, and consummated the perfected by M. D. Brazile and Annie Bra- fraudulent contract. The fraud and deceit zile. M. D. Brazile, by his attorneys, has fil. was the machinery through which the moned a brief herein, and the brief is copied ey was obtained, and obtained on a converbatim et literatim and signed by Mrs. tract which Annie Brazile, a feme covert, Annie Brazile, in propria persona, and filed was incapable of making. herein. The reason for the separate briefs Infants and married women in cases of is not apparent. It in no way aids in the this character have applied to them the same decision of the case.

principles of law, and while great differThe facts show that Annie Brazile, the wife ences of judicial opinion have been expressof M. D. Brazile, without his knowledge ored on the question of whether an infant or consent applied for and obtained loans from married woman is liable in tort for falsely the United Home Builders of America in representing himself or herself capable of the sum of $11,000, and as security for the contracting, still the better opinion in Eng. same executed a mortgage to said society on land and America seems to be that he or the S. 12 of the N. W. 14 of lot No. 2, in D. she is not liable. In the case of Slayton v. S. Ross subdivision of block No. 26, of Field Barry, 175 Mass. 513, 56 N. E. 574, 49 Ļ. R. Welch addition to the city of Fort Worth, A. 560, 78 Am. St. Rep. 510, it was held: Тех. She forged the name of her husband, M. D. Brazile, to the note and mortgage or

"The general rule is, of course, that infants deed of trust. He did not ratify or in any rule is not an unlimited one.

are liable for their torts.

But the

It is to be apmanner approve of her acts in borrowing the plied with due regard to the other equally well money or in executing the note and mort settled rule, that, with certain exceptions, they gage.

are not liable on their contracts; and the domM. D. Brazile was not liable on the note inant consideration is not that of liability for or the mortgage with the execution and de- their torts, but of protection from their conlivery of which he had no connection in any tracts. The true rule seems to us to be as statway, and this is conceded by the appellee ed in Association v. Fairhurst, 9 Exch. 422, 429, herein, John M. Scott, and it is sought to where it was sought to hold a married woman

for a fraudulent misrepresentation, namely: If fix liability on him for the tort committed the fraud 'is directly connected with the conby the wife in fraudulently obtaining the tract,

and is the means of effecting money through the forgery of his name to it, and parcel of the same transaction,' then the note and mortgage. The note and mortthe infant will not be liable in tort." gage being executed by a married woman were utterly null and void. That proposition

Undoubtedly in the present case the fraud is not assailed or brought in question. Ar on which the commissioner relies to fix the ticle 4624, Vernon's Sayles' Civ. Stats. That liability of the husband and wife was part article is explicit that,

and parcel of the contract and directly con

nected with it. The commissioner nor the "Neither the separate property of the husband nor the community property other than receiver can maintain an action without the personal earnings of the wife, and the in- showing a contract, which is invalid and not come, rents and revenues from her separate binding, but they seek to evade the law by property shall be subject to the payments of making the husband liable for a tort which debts contracted by the wife, except those con- depends for its existence on the invalid contracted for necessaries furnished her or her tract. The action on the contract could not children; provided, the wife shall never be the stand, and neither can the action on the joint maker of a note or a surety on any bond tort stand. They are inseparable and must or obligation of another without the joinder of her husband with her in making such con

stand or fall together. Speaking of the tract."

liability of a married woman for her torts,

Judge Cooley says: Undoubtedly Annie Brazile was guilty of

“But the element of contract is as important fraud, deceit, and misrepresentation in in- here as in the law of infancy. The same readucing the Home Builders' Association to sons which would preclude the indirect reenter into a contract whereby she obtained dress of the infant's breach of contract, by money from it. It was fraudulent for her treating it as a tort, will preclude the like reto present a promissory note with her hus- dress in the case of the contract of a married band's name signed with her own appended woman.” Cooley on Torts, p. 195. to it, and to do the same criminal act in connection with the mortgage. Through the This is not an open question in this state, fraud, forgery, and misrepresentation she but the rule as enunciated in Ruling Case obtained thousands of dollars from the or- Law, vol. 13, pp. 1225–1227, that "a married

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