#### GIBSON ET AL. VS. M. B. TEMPLETON.

IN SUPREME COURT,

TYLER TERM, 1884.

*iJonaUtiiUoual Lam*— .lurisdkthn.—The legislature eaimot confer upon the district court a jurisdiction not granted by the constitution, nor authorize such court to talco cognizance of any proceeding, not a suit., plea or complaint contemplated by the constitution.

*Ehctimi (Wildest:*— A proceeding to contest, the result of an election under th* *436local option law is not a suit, plea or complaint within the meaning oí the constitution, and the district court has no jurisdiction of such proceeding.

Appeal from Ellis county.

This proceeding was brought under title xxxiv. R. S., to contest and set_ aside an election^ held for the purpose of determining ^whether or not the sale of intoxicating liquors should be prohibited in Ellis county. The county attorney of Ellis county was made contestee, and upon a plea filed by him to the jurisdiction of the court, the proceeding was dismissed. * "......

| The* appeal taken from this decision questions the correctness of the ruling.of *the*district judge refusinp to tpka-jurisdiotion of such a contest, It further questions his right to dismiss the proceeding when the equity powers of the court were invoked to prevent a. wrong about to be committed in prohibiting the sale of intoxicating liquors-"as a result of the election, and in prosecuting the contestants, should 'tKey~coirEmueT0^eirno^ithstanding the illegal prohibition.

In declining to take jurisdiction of the proceeding the district judge has followed the previous decisions of this court upon kindred subjects. His opin,on filed in the case is olear and and conclusive, and it will be necessary Tor üsTo acld' Buf littTe' tb'bis'' argTimentj'Tjñt merely to restate some of the reasons upon wnich his decision is founded. The opinion of this court rendered previous to that in ex parte Whitlow (59 Tex.", 273) established clearly the following principles :

1. A district judge has, under our constitution, no jurisdiction of any civil proceeding which is not a suit, complaint or plea, wherein "fEematter in controversy is valued at or amounts to $500, exclusive of interest^ (ex parte Towles, 48 Tex., 413; Williamson vs. Lane, 52 TexT, 344,) except it be a proceeding coining under its general power to issue injunction^mandamus, certiorari and writs necessary to enforce its jurisdiction. (County of Anderson vs. Kennedy, 58 Tex., 616.)

3. The legislature has no power to confer upon the district court a jurisdiction. not granted by thegonstitution, hence it cannot authorise it to take cognizance of any proceeding,jiot a suit, complaint or plea of the character aboveliescribed. ■ (Same authority.)

3 ’ That a proceeding to contest an election is not a suit, complaint or plea within the meaning of the constitution. That there *437is a difference between the contest of an election and a suit for an office, the latter being a suit within the letter and meaning of the constitution; the former involving a politicalorrather extra-j udicial question, to be regulated under the consttiution by the political authority of the state. (Same authorities ; also Wright vs. Fawcett, 42 Tex., 203; Rogers vs. Johns, idem 339.)

The logical deduction from these settled principles is, that under the constitution of 1876, the district court can not entertain jurisdiction of a proceeding the object [of which is merely to contest an election, and which is not a suit between claimants to an office' for therecoyeiw..pf.theqffice..itself.._

In Williamson vs. Lane these principles were applied to a contest for county judge, and it was held that the declared result of an election by the officer intrusted with the duty of makSg tlire declaration, and th^congqjqugntjighLto^h^^Eiffigale^pX^lection, could not be contested in this manner in the district court.

In ex parte Towles they were applied to a contest about the location of a couuty seat, and it was held that it did not have the elements of a suit between parties of which the district court had jurisdiction either original or appellate. It is true that to the proposition that the legislature can not confer upon the district court a jurisdiction not granted by the constitution Mr. Justice Gould dissented, and in the susequent case of Fort Worth vs. Davis, (57 Texas, 236) announced it as an open question, notwithstanding the decisions in ex parte Towles and Williamson vs. Lane.

But in the subsequent case of ex parte Whitlow, (59 Texas, 273) the same question again came under consideration, and was decided in accordance with the views of a majority of the court as above stated. It was then said that “it must be presumed that the constitution conferred upon such court created by it, all the jurisdiction which it may have intended it should exercise, and that the legislature has no power to add to or withdraw therefrom, except as such power is expressly conferred by the* constitution upon the legislature in section 22, article v.”

There is no such difference between the provisions of our Revised Statutes and those of the acts under which the foregoing cases were decided as excludes the present case from coming within the scope of those dicisions. Revised statutes provide that the county attorney may be made party contestee', but he is a mere nominal party. *438The statute did not contemplate that relief would be sought against him.

In this case, however, it is as^iiLtííjtyráiJhiig^.frpjn^p^i^cutyng^ thereon testante criminally, if they sqldNiquors, notwithstanding the prohibition brought about by an illegal electiou. ThisjreUef^f. course, _the .court could not.,, grant imder. any..-circumstances... “Although the couuty attorney was made a. party, the court was at last called on to decide an extra judicial question reljtingTmer£.lyJ:CL. the convenience and morals of the residents of Ellis county. This was not a proper subject of controversy between the contestants and the county attorney. By providing a nominal party contestee, the legislature cannot make that a suit which lacks the important element of a subject matter.,,such as may be litigated between parties.

To the case of Williamson vs. Lane there were parties contestant and contestee. The subject matter was an election which, if legal in every respect, elected the appellant to a valuable office, but if the ballot box objected to was thrown out, the contestee was entitled to the office. Both parties had a direct interest in the subject matter of controversy, yet the court held it not ajsuit, because it was jjot brought t.o re.cover_an.pffioe _withheld by the defendant from the plaintiff. Mwch stronger should the reasoning of the court apply to the present case, which, with' the exception of parties, has no_ characteristic of a suit either at law or in equby^apd between these parties there is In ¿“controversy in which one seeks a judgment or relief against the other.

Nor does the statute make the district judge a special tribunal for the trial of the contest. While the proceeding may be commenced before him, it is to be tried in Jhe district court in jgm^ijne, in the same manner as other causes, except that tKere”can be no jury nor continuance allowed in the cause. (Art. 1728,1752.)

If the constitution prohibits the district court from taking cognizance of the proceeding,Jt^cgn not be selected as a special tribunal to which they may be submitted. This wouhd be _to do indirectly' what the constitution forbids to be done directly. If allowed it would open the door to confer jurisdiction upon the district court In cases withheld from it by ¡the constitution — -a jurisdiction unlimited except by the will of’the legislature.

“Even admitting that the district judge is the special tribunal ap*439pointed by the law to decide such contests, no appeal from the decision could be had to this court, as its appellate jurisdiction extends to such cases only as are within the original or appellate jurisdiction of the district courts. It does not extend to such decisions of the judge as are made when not acting in the capacity of presiding officer of a court whose judgments are subject to the review of the supreme court.

The contestants were not entitled to the injunction asked in their petition. They could not, as we have seen, have the county attorney enjoined from instituting a criminal action against them. They could not certainly in a proceding against him alone have the county commissioners and others enjoined from enforcing the result of the election.

The statute names the county attorney as a proper party to be made contestee, but did not thereby authorize an injunction to be granted against other persons without making them parties. It left that subject to be regulated as in other cases. The prayer for injuction is closely connected with the main object of the proceeding, viz., the setting aside of an election. That being illegal, the injunction necessarily fell with it. If claimed as a proceeding in chambers to obtain an injuction under the title li, Revised Statutes, then the refusal to grant it in chambers did not admit of an appeal to this court.

We are of the opinion that this court has no jurisdiction of the present appeal, and it is therefore dismissed.

Willie, 0. J.