Page 1007
62 S.W.2d 1007
ROBINSON et al. 
v. 
HAYS.
No. 1505.
Court of Civil Appeals of Texas. Waco.
July 20, 1933.
        Appeal from District Court, Freestone County; H. F. Kirby, Judge.
        Suit by R. E. Hays against S. W. Robinson and others. From an order granting a temporary writ of 
injunction, defendants appeal.
        Decree in accordance with opinion.
        French & McCorkle, of Fairfield, for appellants.
        Geppert, Geppert & Victery, of Teague, for appellee.
        ALEXANDER, Justice.
        The city of Teague is a municipal corporation, incorporated under the provisions of title 28 of the 
Revised Statutes of 1925. Its governing body consists of a mayor and five aldermen, all elected from the 
city at large. At the regular election held in said city on the 4th day of April, 1933, two aldermen were to 
be elected. R. E. Hays and H. F. Seale, who were then serving as aldermen, were candidates for re-
election, and R. R. Tuley was also a candidate for said office. Neither of said three candidates was a 
candidate for any particular one of said two seats to be filled. Each candidate in said election was opposing 
all others, and the two receiving the highest number of legal votes were to be elected and entitled to 
serve as such. Immediately after the election had been held it was rumored that Seale had received 93 
votes, Hays 53 votes, and Tuley 53 votes, and that the city council would likely declare Seale elected and 
declare the result a tie as between Hays and Tuley and order a new election as to said two candidates. 
Tuley promptly filed with the city council a contest of said election, in which he asserted that certain illegal 
votes had been cast and counted at said election and that the legal votes had been incorrectly tabulated 
and counted, and contended that if the illegal votes were excluded and the legal votes correctly counted, 
it would be found that he had been elected. Hays filed before the city council an answer and cross-contest 
to said election contest, in which he contended that he had received more votes than either Seale or 
Tuley, and that he, and not Seale, had been elected, and that if he had not been so elected, the entire 
election was void and a new election should be ordered as to all three candidates. Tuley then filed in the 
district court of Freestone county an application for mandamus, naming S. W. Robinson, mayor, R. E. 
Hays, J. F. Baggett, H. F. Seale, J. D. Maupin, and W. H. Lee, as aldermen, defendants, and secured from 
that court
Page 1008
a writ of mandamus, requiring the city council to set down for hearing and to hear and determine said 
election contest before ordering a new election. No appeal was taken from that order. Thereafter, on June 
25, 1933, R. E. Hays, as plaintiff, filed in the same court this suit for injunction against S. W. Robinson 
individually and as mayor of said city, H. F. Seale individually and as alderman of said city, and R. R. Tuley 
individually. The plaintiff alleged, in substance, that the said S. W. Robinson, as such mayor, unless 
restrained from so doing, would prevent the said R. E. Hays from participating as an alderman in the 
hearing on said election contest and would refuse to permit said Hays to cast a vote on the matters 
connected therewith, and would exclude the said Hays as an alderman from said hearing. The plaintiff 
prayed for an injunction restraining the mayor from so proceeding. In the alternative, the plaintiff alleged 
that if the said Hays had no authority to participate as an alderman in said election contest, the said 
defendant Seale, who was also a candidate for re-election at said election, was likewise disqualified to 
participate as an alderman in said contest, and prayed that the said Seale be enjoined from taking part 
therein.
        The district judge, in chambers and on an ex parte hearing, granted a temporary writ of injunction, 
restraining the mayor from preventing the said Hays from taking part as an alderman in the hearing on 
said election contest; the order of the court granting said injunction being in part as follows: "An 
injunction is hereby granted against said S. W. Robinson, as such Mayor, and individually, requiring the 
said defendant, S. W. Robinson, to permit and allow plaintiff, R. E. Hays, to vote in all matters connected 
with said election contest set down for hearing before the City Council on the 28th day of June, A. D. 
1933, or at any other time that said election contest may be set and requiring the said defendant, 
Robinson, to receive, announce and have recorded any vote or votes that plaintiff, R. E. Hays, may cast in 
said contest, and requiring that plaintiff, R. E. Hays, shall not be excluded from said contest `hearing and 
determination', and requiring that said S. W. Robinson, shall give said plaintiff, R. E. Hays, equal rights in 
said contest, and requiring the defendant, S. W. Robinson, shall not declare out of order any motion or 
motions, or resolution, or resolutions, that might be made by any member of said City Council pertaining 
to said election contest, and the said defendant Robinson is hereby enjoined from casting any vote unless 
there is a tie and is hereby prohibited and enjoined from vetoing any action taken by said Council in said 
election contest." Robinson, Seale, and Tuley duly appealed from said order.
        The appellants assert that the order of the court requiring the mayor to permit Hays to vote on all 
matters connected with said election contest is illegal, because Hays is directly and personally interested 
in the outcome of said election contest and is disqualified to take part therein, and that the order of the 
court restraining the mayor from ruling out of order any motion, etc., made by any member of the council 
pertaining to said election contest, is an unlawful interference with the mayor's discretionary authority as 
the presiding officer of the city council.
        The Legislature has provided, in substance, that the city council shall be the judge of the election 
and qualification of its own members. R. S. art. 1008. Such provision seems to be a valid exercise of 
legislative authority. 43 C. J. 494; 20 C. J. 215; Seay v. Hunt, 55 Tex. 545; State v. De Gress, 72 Tex. 
242, 11 S. W. 1029. However, the mere fact that the Legislature has provided that the city council shall 
be the judge of the election and qualification of its members does not confer upon a member of the 
council who is a candidate for re-election, the right to sit in judgment on his own case. Hays was a 
candidate for re-election at the election which has been called in question by the contest. He is named as 
the contestee, and the outcome of said contest will affect his right to continue in office. He therefore has a 
direct and personal interest in said election contest. The matter of determining an election contest is a 
quasi judicial matter requiring the exercise of judicial discretion on the part of those who are to determine 
such contest. 43 C. J. 496; 19 R. C. L. 897; Hobbs v. Upington, 121 Ky. 170, 89 S. W. 128. It is a well-
established principle of law that one who is a candidate for re-election at an election held to select his 
successor, and who is a party to a contest to determine the validity or outcome of such election, cannot sit 
in judgment and participate in his official capacity in determining the validity or result of such election. 43 
C. J. 508; 19 R. C. L. 897; Rollins v. Connor, 74 N. H. 456, 69 A. 777, 778, 124 Am. St. Rep. 983, 13 
Ann. Cas. 334; Security National Bank v. Bagley, 202 Iowa, 701, 210 N. W. 947, par. 6, 49 A. L. R. 705; 
Hobbs v. Upington, 121 Ky. 170, 89 S. W. 128; Scholl v. Bell, 125 Ky. 750, 102 S. W. 248, 255; City of 
Springfield v. Haydon, 216 Ky. 483, 288 S. W. 337, par. 14; Meyers v. Walker (Tex. Civ. App.) 276 S. W. 
305. In the case of Rollins v. Connor, supra, it was said: "`The rule is very plain that no man can be 
plaintiff or prosecutor in any action and at the same time sit in judgment to decide in that particular case, 
either in his own case, or in any case, where he brings forward the accusation or complaint on which the 
order is made.' Leeson v. Medical Education, etc., 43 Ch. D. (Eng.) 366, 379. It is equally plain that a man 
cannot sit in judgment to decide upon the validity of a claim against himself, or in a proceeding in which 
he is the defendant. `The first idea in the administration of justice is that a judge must necessarily be free
Page 1009
from all bias and partiality. He cannot be judge and party, arbiter and advocate, in the same cause. 
Mankind are so agreed in this principle that any departure from it shocks their common sense and 
sentiment of justice.' Oakley v. Aspinwall, 3 N. Y. 547, 549, 550. Whatever right a member of a legislative 
body may have to vote upon questions in which he may be interested, when the question under 
consideration is purely legislative, he cannot do so when the body is acting judicially. Rider v. Portsmouth, 
67 N. H. 298, 38 A. 385; Dorchester v. Youngman, 60 N. H. 385; Com. v. McCloskey, 2 Rawle (Pa.) 369; 
s. c., Br. Elec. Cas. 196." Since the appellee Hays was disqualified to take part in his official capacity in 
said election contest, it is apparent that the trial court exceeded its authority in requiring the mayor to 
allow said alderman to so participate.
        The court likewise exceeded its authority in restraining the mayor from ruling out of order any 
motion, etc., that might be made by any alderman in the hearing of said contest. The mayor is the 
presiding officer of the council. It is made his duty to rule on such motions as may be presented. In ruling 
on motions the mayor exercises the discretion invested in him by law. The courts may compel an inferior 
officer to proceed to exercise his discretion, but cannot control or direct the manner in which such 
discretion shall be exercised. 38 C. J. 689; 16 Tex. Jur. 211, 212; 22 R. C. L. 494; Arberry v. Beavers, 6 
Tex. 457, 55 Am. Dec. 791; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505; Aycock v. 
Clark, 94 Tex. 375, 60 S. W. 665; Black v. Coons (Tex. Civ. App.) 244 S. W. 1080; Brown v. City of 
Houston (Tex. Civ. App.) 48 S. W. 760.
        The mayor has a right to vote on matters such as are here under consideration only in the event of a 
tie vote by the aldermen. Revised Statutes, art. 1007; 43 C. J. 509; 19 R. C. L. 891. His right of approval 
or disapproval of the acts of the council, or the exercise of the so-called "veto" power, is limited and 
regulated by the provisions of Revised Statutes, art. 997. Such right is there limited to ordinances and 
resolutions adopted by the council, 43 C. J. 532, 535, and does not apply to the act of the council when 
the council sits as a judicial body in the determination of an election contest. 19 R. C. L. 892; 43 C. J. 
533; Cate v. Martin, 70 N. H. 135, 46 A. 54, 48 L. R. A. 613.
        The appellees contend that notwithstanding Hays was disqualified to sit in judgment in determining 
the validity and result of said election, yet, since the appellant Tuley secured from the district court a writ 
of mandamus against appellee Hays and the mayor and all other members of the city council, requiring 
them to set down for hearing and to determine said election contest, the appellant Tuley is now estopped 
to deny Hays the right to participate in his official capacity in said hearing. It is ordinarily true that a party 
may be estopped by a judgment against him when such judgment has become final, and that when a valid 
judgment has become final, it is binding in all subsequent suits between the same parties involving the 
same subject-matter. Whether or not this rule would apply where the public interest is involved and the 
prior judgment was clearly contrary to law is a doubtful question. Certainly, the right of the citizens to 
have their votes correctly counted and the result of the election fairly determined by a legally qualified 
tribunal ought not to be jeopardized by a prior judgment of the court, unless such judgment, when fairly 
construed, necessarily requires such result. The question as to whether or not the election in question was 
legally conducted, and whether the votes cast by the qualified electors at said election have been properly 
tabulated and counted, is a matter of public concern, and we doubt the right of Tuley by proceeding as he 
did, either purposely or unintentionally, to thus thwart the will of the voters and defeat an impartial 
hearing of the election contest. Even if the judgment in the mandamus proceeding is subject to such 
construction, we would hesitate to hold that merely because the court had entered an erroneous decree 
requiring a procedure contrary to public policy, we should perpetuate such procedure and compound the 
error by compelling obedience thereto. But be that as it may, the judgment of the court in the mandamus 
proceeding ought not to be given the construction contended for by appellee unless it is fairly susceptible 
of no other legitimate construction. To construe the judgment as contended for by appellee would be to 
hold that the trial court had intentionally entered a judgment requiring the doing of a thing clearly 
contrary to public policy. A judgment when subject to two constructions, from one of which it follows that 
the law has been correctly applied to the facts and from the other that there has been an incorrect 
application, that construction will be adopted which upholds the validity judgment. 25 Tex. Jur. 460. The 
mandamus proceeding was brought by Tuley against the mayor and the aldermen in their official capacity 
to require the council as such to set down for hearing and determination said election contest. The order 
of the court directed that S. W. Robinson, as mayor, and the five aldermen, "as and constituting the City 
Council or Board of Aldermen of said City of Teague, be and they are hereby commanded * * * to set 
down for hearing * * * and that they proceed to hear and determine said contest * * *." This judgment 
must be construed in the light of the issues then before
Page 1010
the court, and when so construed, it will be found that its object was to merely adjudge that the contest 
should be heard—and not ignored—by the tribunal provided by law for that purpose. It was not intended 
that the judgment should be an adjudication of the question as to which of such aldermen were qualified 
to sit as judges in such contest. The mere fact that the court had previously entered such a judgment in 
the mandamus proceeding was not sufficient in itself to require the court, in a subsequent proceeding, to 
enter a judgment requiring one, who was disqualified, to sit in judgment in the trial of his own case. We 
overrule this contention.
        The appellee Hays presents a proposition in which he contends that if by reason of his interest he is 
disqualified to participate as an alderman in the hearing of the election contest, the appellant Seale is 
likewise disqualified to participate therein, and that the trial court should have granted appellee's 
alternative plea for injunction restraining Seale from taking part in said proceedings. As before stated, it is 
alleged that Hays filed with the city council a cross-action or contest of said election and contended that 
he and Tuley each received more votes than Seale and that by reason thereof they were elected and Seale 
defeated, and that if he was not so elected, the entire election was void on account of certain irregularities 
in the manner of the holding of the election and that a new election should be ordered as to all three 
candidates. Under such allegations the cross-contest would be sufficient to call in question the validity and 
result of said election as to all three candidates and to challenge the council's right to declare Seale 
elected. Seale, therefore, would be a party to, and directly and personally interested in, the outcome of 
said contest and would be disqualified to act as an alderman in the determination thereof. Craft v. 
Davidson, 189 Ky. 378, 224 S. W. 1082, par. 4.
        It appears that when the two aldermen, who are alleged to be parties to said election contest, are 
excluded, there will yet remain a quorum of the council, duly qualified to hear and determine the merits of 
said contest. There is therefore no apparent reason, if the allegations are true, why either Hays or Seale 
should be permitted to take part in his official capacity as an alderman in the determination of said 
election contest.
        From what has been said, it is apparent that the injunction as granted by the trial court, in so far as 
it limited the mayor in his right to vote only in case of a tie and denied him the right to "veto" the decision 
of the council as to the result of the election contest, was correct, but that in all other respects the 
injunction as granted was incorrect. If Seale's election was called in question by the contest proceedings 
pending before the city council, then he was disqualified to participate in his official capacity in such 
hearing, and, upon a proper showing, Hays would be entitled to an injunction restraining Seale from so 
taking part in such contest. Since the court granted the injunction on the primary allegations of appellee's 
petition, it is very probable that the court did not judicially pass on the question as to whether appellee 
was entitled to an injunction on ex parte hearing on the alternative plea. It is further apparent that a 
restatement of the restraint imposed and to be imposed by the court upon the respective parties hereto 
will be necessary. Should further restraint be invoked, we are of the opinion the trial court is in better 
position to adapt the same to the exigencies of the situation than we are. We have therefore concluded 
merely to dissolve the injunction granted by the trial court herein. Such dissolution is effective at once. 
Duncan v. Boyd (Tex. Civ. App.) 288 S. W. 281, par. 1. Such action, however, shall not be construed to 
prevent the trial court from granting, upon showing satisfactory to him, injunctive relief to either of the 
parties, as the exigencies of the case may require, provided the same is not inconsistent with the rights of 
the parties as declared in this opinion.