
    Ex Parte Whitlow.
    (Case No. 4754.)
    1. Jurisdiction.— The legislature has no power to add to or withdraw from the jurisdiction of district courts, except when expressly conferred by the constitution, as in sec. 22, art. V, of that instrument.
    2. Cases cited and followed.— Ex parte Towles, 48 Tex., 414, and Williamson v. Lane, 52 Tex., 343, cited and approved.
    3. Contested election.— The district court has no jurisdiction to consider and revise on the protest of a citizen against the action of the county judge in declaring the result of an election to locate the county seat on the organization of anew county.
    Appeal from Wichita. Tried below before the Hon. B. F. Williams.
    An ex parte proceeding begun by A. G-. Whitlow in the district court on the 30th of December, 1882, under section 10, chapter 76, acts 1879, regulating the removal and location of county seats; protesting against the result of an election, held in Wichita county on'
    7th ¡November, 1882, as declared by the county judge in his official count on the 22d of December, 1882. The declaration of the result of the election, as certified by the county judge, showed no place in nomination and voted for, as the permanent location of county seat, to have received a majority of votes cast.
    The object of the protest was to contest the validity of certain votes cast, in. certain precincts, on the ground of illegality, and to exclude the same in the counting of votes, as against one of the places in nomination, for county seat, and to add one other vote claimed to have been illegally excluded by the managers of the-election in precinct ¡No. 4, as having been voted for “ state school-section ¡No. 2,” one of the places in nomination for county seat.
    The court dismissed the protest for want of jurisdiction.
    
      
      Wm. W. Flood, for appellant,
    cited Const., art. IX, sec. 2; Acts 1879, ch. 76, p. 84, sec. 10; 42 Tex., 349. Dissenting opinion of Justice Gould in Ex parte Towles, 48 Tex., 414.
   Stayton, Associate Justice. —

In the case of Ex parte Towles, 48 Tex., 414, it was in effect decided that the constitution did not confer jurisdiction upon the district court in cases of this character, and that the legislature had no power to change the jurisdiction given by the constitution, unless the power to make such change was given to the legislature by the constitution itself.

In that case the matter was sought to be tried in the district court upon appeal from a county court, and although the act of the legislature then in force provided for such appeal, yet it was held that an appeal would not lie.

If the legislature had no power to confer such an appellate jurisdiction upon the district court, the constitution not having confided such appellate jurisdiction to some other tribunal, the legislature would be equally impotent to confer an original jurisdiction over the matter upon that court.

The constitution does not expressly prohibit the legislature from conferring either appellate or original jurisdiction upon the district courts, which is not given by the constitution itself; but it must be presumed that the constitution conferred upon each 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, as in sec. 22, art. V.

If any such general power had been conceived to exist in the legislature, the section of the constitution referred to would have been wholly unnecessary.

In the more recent case of Williamson v. Lane, 52 Tex., 343, which was a case arising under the act of July 29, 1876, by which in terms original jurisdiction was attempted to be conferred upon the district courts to entertain proceedings to contest the result of an election, it was again held that jurisdiction did not exist in this court to revise upon appeal the judgment of the district court.

The act attempted to confer jurisdiction upon this court in such cases as well as upon the district courts, and whether it was held that this court had no jurisdiction because the district court had none, under the constitution, or because it was not within the power of the legislature to confer upon this court an appellate jurisdiction which the constitution had not conferred, is unimportant-; for the power of the legislature, if such power could exist, would be just as ample to confer upon this court a jurisdiction which the constitution had not conferred as to confer such jurisdiction upon the district courts.

The difference between an action to contest the result of an election (which the present is purely) and an action by a person to recover an office which has value sufficient to confer jurisdiction upon the courts, under the grants of power contained in the constitution, has been clearly- pointed out in the cases referred to, and in others, and we desire to be understood as expressing an opinion upon the case before us, which is of the first class, and upon none other.

It is not believed that by section 2, art. IX, of the constitution, it was intended to empower the legislature to change the jurisdiction of such courts as the constitution created, and of which it clearly defined the jurisdiction; but if this were not so, it could not change the result of this case; for that section relates to the removal of county seats once established, and not to the location of a county seat upon the organization of a new county.

Following the cases. referred to, and others, the court below did not err in dismissing the potest for want of jurisdiction, and the judgment is affirmed.

Affirmed.

[Opinion delivered April 20, 1883.]  