I feel called upon to dissent from my brethren in their disposition of this case. The agreed state of facts show that there was a local option election held in precinct No. 1, Henderson County; that one of the boxes gave nineteen anti majority and the other gave thirty-six pro majority; that the pro majority occurred in election precinct No. 2, the anti majority being in election precinct No. 1. J.T. Deen was the presiding officer of the election held in precinct No. 2, Steve Miller being one of the judges. Miller's evidence shows that Mr. Deen authorized him to endorse his (Deen's) name on all the election ballots handed out to the voters on the day of the election. This is uncontroverted. Under this state of case a writ of habeas corpus was refused by the county judge, and with the case in this condition it was presented to this court, the writ granted, and the case set down for argument. When the case was called, a motion to dismiss the case from the docket was made by the prosecution or respondent. If my brethren had sustained this motion I should not feel called upon to file this dissent, and in fact I should have assented to the disposition of the case.
The local option law provides that after an election has been held, within thirty days after result has been declared any citizen living within the territory, has a right to contest said election. The section with reference to contest of local option election has been construed by our Supreme Court in Norman v. Thompson, 6 Texas Ct. Rep., 641. Under that opinion such contests can alone be predicated upon matters occurring during the day of the election, as to the manner of holding it, etc. That statute has no reference to antecedent matters as to the matter of calling the local option election, posting notices, etc. It was also agreed in this case that there was a contest pending under the statute at the time of the granting of the writ of habeas corpus. If the decision of the Supreme Court is correct, and if the terms of the statute mean anything, then a contest can be carried on only in the district court, in a civil proceeding, so far as the matters occuring on the day of the election are concerned, and under the terms of our statutes, articles 1797 and 3397 of the Revised Statutes, the district court alone has jurisdiction to try contested elections of this character. Such contests cannot, therefore, be tried under a writ of habeas corpus. Prior to the amendment of article 5 of the Constitution, occurring in 1891, there was no court in this State having jurisdiction of such contests. To supply this defect the Constitution was amended by a vote of the people in 1891, and from that time these contests find jurisdiction only in the district court. If I understand the laws of Texas correctly, there has never been a time in the *Page 246 history of this State when the Court of Criminal Appeals could try contested elections; that is, as to matters occurring on the day of the election in local option or any other character of contested elections; nor has it been the law in this State, as I understand it, that under the writ of habeas corpus such contests could be tried. If my brethren had taken this view of it, and sustained the motion to dismiss the writ for want of jurisdiction in this court, I should have assented, but they did not, however, follow this course, but maintained jurisdiction and tried the contest upon its merits, and held the election valid. As I view it, the decision is without authority of law, and, of course, not binding. I, therefore, dissent from their conclusion; first, because this court had no jurisdiction to try this contest; and, second, if the court had such jurisdiction, I would enter my dissent to the conclusion reached holding the election valid.
I understand the legal proposition to be sound, and sustained by all the authorities coming under my observation, that where an officer is charged with a duty pertaining to him as such officer only, and without conferred authority authorizing him to delegate that authority to a clerk or an assistant, that the duties devolving upon him can only be done by himself in person; that it is beyond his power to either authorize some other person to do the act confided to and incumbent upon him, or to ratify the act of another when done in the premises. This question has repeatedly been before the Supreme Court of this State, and was before this court at its Austin sitting in 1906. See Chenowith v. State, 16 Texas Ct. Rep., 695, for collated authorities. Therefore, I will say, in regard to this, that Mr. Deen, the presiding officer, was without authority to authorize Mr. Miller, one of the judges, to endorse his name upon the election tickets, as was done under the facts of this case. This view of the question is supported by an unbroken line of authorities in this State as well as in other States where the question has arisen. See Arnold v. Anderson, 14 Texas Ct. Rep., 713; Clark v. Hardison, 14 Texas Ct. Rep., 227; Brigance v. Harlock, 17 Texas Ct. Rep., 62; State v. Connor, 86 Tex. 133; Rhodes v. Driver, 64 S.W. Rep., 272; Robinson v. Wingate, 80 S.W. Rep., 1067; Lipscomb v. Perry, 15 Texas Ct. Rep., 751, and Kirkpatrick v. Deegans, 53 W. Va. 275. These authorities are conclusive, it occurs to me, of the question that the presiding officer has no authority to delegate his duty to write his name upon the ballots to another to do that duty or perform that office. For the reasonings in support of this proposition I refer to these authorities without repeating the reasonings upon which they are predicated. Nor does this interfere with the doctrine laid down in Ex parte Keith, 83 S.W. Rep., 683, and Hanna v. State, 87 S.W. Rep., 702, that the provisions of the local option law, in regard to holding elections to put that law in force, are superior to the provisions of the Terrell Election Law if in conflict. I have agreed, and do now assent to the doctrine laid down in the Hanna and Keith cases, supra, as being correct. *Page 247 We have also held that in regard to local option election ballots, it was not necessary to write upon them "official ballot," the local option election law having provided that they shall have written on them "for prohibition" and "against prohibition." There seems to be a sufficient conflict between the local option election law and the Terrell Election Law in regard to the heading of the ticket for us to maintain the proposition that in that respect the local option law controls instead of the terms of the Terrell Election Law. I have also agreed to those decisions holding that notices of the election in local option elections shall be in accordance with the terms of the local option law, and shall be posted under its terms instead of published in a paper as provided for special elections under terms of the Terrell Election Law. But here the real or apparent antagonism between the two laws ceases, and local option laws do not provide on the face of them how the election shall be carried on, on the day of the election, but do provide that such election shall be carried on under the terms of the general law as to the manner of receiving and counting the ballots, making returns, etc. It is, therefore, a self-evident proposition, under these statements, that the terms and requirements of the Terrell Election Law controls the manner of holding the election, counting ballots, and making returns, etc. Norman v. Thompson, supra. In these matters of contested elections, in regard to matters occurring on the day of election, the Terrell Election Law controls. Such I understand to be the unquestioned law.
I am further of the opinion that as these contests are civil proceedings, that this court should or would conform to the decisions of the Courts of Civil Appeals, and the Supreme Court, where they have pasesd upon and decided these questions, even if this court has jurisdiction to review matters occurring on the day of the election. I am also of the opinion that in those matters provided under article 3397 of the Revised Statutes, that the decisions of the courts having jurisdiction and authority to pass upon those questions, would or ought to be, in a general way, binding upon this court. We have gone beyond our jurisdiction and authority, as I view this case, in as far as a majority opinion can go, in overturning the well settled law of the State enunciated by courts having jurisdiction to settle the questions involved, and have assumed jurisdiction of matters not within our jurisdiction in order to reach that conclusion.
I do not propose to discuss the fairness or the unfairness of the election. Our Courts of Civil Appeals have held, in well matured opinions, that where the name of the presiding judge has been written upon the ballots to be cast by the electors by another than himself, even under his authority and command or request, they shall not be counted; that the votes thus cast are illegal, and they have further held that the provisions of the Terrell Election Law requiring said presiding judge in person to write his name on the ballots is mandatory, and all votes cast with his name written upon them by some person other than himself are illegal, and shall not be counted in counting out the votes, and making returns, *Page 248 etc. The illegality of these votes do not necessarily render the election void, nor has it been so held, as I understand the opinions. These decisions have held, however, that if a sufficient number of these illegal votes have been cast, which being rejected, would change the result, that under article 3397 the court will issue an order to call another local option election, but it has not held that where these illegal votes do not amount to a sufficient number to change the result, that the election would be void or that it should be set aside. It is only where a sufficient number of such illegal votes have been cast, which being disregarded can change the result of the election, that the election should be set aside.
For the reasons indicated, without going more elaborately into the question, I express the above why the opinion in this case was erroneous, and from which I, with the utmost deference to the opinion of my brethren, most respectfully enter my dissent.
[This case was omitted under Dallas Term 1907, and is therefore reported here. — Reporter.]