Duncan v. Willis

County Attorney Upshur County Duncan, J. O. Clayton Willis Et Al. No. A-6104. Decided May 15, 1957. Rehearing overruled June (302 627.) Series Fulton, McClain, Hancock all & McClain and Hollie G. Gilmer, petitioner.

Looney Lindsey, E. Power, McDonald Mell and Milton & Mell, Gilmer, respondents. Greer all of opinion delivered Court. Mr. Justice Norvell This is judgments pro an election contest and in such while ceedings ordinarily Appeals, final in the Courts of we Civil jurisdiction by took reason of the admitted conflict between below, Attorney, Duncan, County decision Willis holdings and one the numerous made Linger Balfour, in v. Texas Articles 149 See S.W. 795. 1821, Stats., by 1728 and Ann. Acts Vernon’s Texas as amended argu Leg., Following of (1953) 424, the 53rd p. ch. oral ment we have concluded to in favor of Lin resolve conflict ger having granted v. Balfour. of error to settle a Writ been decisions, jurisdiction properly conflict our extends all presented questions Nimitz, of law in the case. Holland 111 v. 419, 298, Texas 232 In to determine 239 S.W. 185. order proper necessary order to entered in cause it is assignments urged application us to examine the of error in the points for writ of error and the error in the contained brief prevailing party of the Appeals. in the If such Court Civil presents brief matters which would call for an affirmance of judgment Appeals despite efficiently of the Court of Civil application, judgment raised errors contained in the Nimitz, lower court 111 should be affirmed. Holland Texas v. 185; Carlisle, on reh. 239 S.W. v. 111 West 471; Henwood, Texas Texas Vanover 150 S.W. 2d 785. parties

Our examination of the various contentions of disposition pertinent proper which to the of this cause under the rule set leads judg- above out us to the conclusion that Appeals despite ment of the of Civil should Court be affirmed Linger apply its failure to the rule of decision laid down respective points raised Balfour. We shall discuss the parties presented application in the order for writ of Appeals. appellants’ error in the Court of brief Civil Appeals Opinions cited in of the various Courts of Civil opinion part are for the most election contest cases which applications of error filed. will for writ were We indicate by this Court taken action was some in which those cases of error. application for writ relating the consolidation one disputed was County, which Upshur districts school of two common East Moun- District as the refer to Glenwood we shall Commissioners the returns the In its canvass tain District. proposal failed because consolidation that the determined District, vote majority in the Glenwood of a of a want —the Clayton against consolidation. being and 92 votes 92 votes for district court election and contested the and others Willis by a defeated had proposal been the consolidation held the Court reversed This to 90. brings here original case Appeals and the contestee Civil dismiss, petitioner a motion to petitioner. addition to following per- by the application that the votes cast his asserts counted, illegal viz.: and should sons were wife, Craig Floyd four and wife—these B. E. Butler judge. district The Court not counted votes were they counted con- Appeals have been held that should Civil solidation. wife, (or

Clyde Ray wife, Drake and and Jean Roland T. Gene) apparently for consolida- were cast Webb—these voters legal tion and considered the trial court and votes both Appeals. Court of Civil Linger ap Balfour, App., it

In Texas 795 v. Civ. S.W. peared poll had that the employer tax of the Albert been voter Verdón paid by knowledge consent. The his without his and holding illegal upon placed the consti that this vote was was subject poll tax provision “any tutional that who is to a voter paid tax under the shall have said laws of the State of Texas offering any a before receipt showing in this and hold to vote at election State day poll paid that the first tax was before said February preceding of Sec. next such election.” [Art. in the Balfour Vernon’s Anno. of It said Const. was Texas]. opinion (149 808) 1.c. that:

“* * * support In en- of his contention that voter was this vote, titled to contestee cites us to the case of v. Wil- Wallace al, App. liams et wherein the 50 Texas Civ. opinion by Appeals, First in an rendered Court of Civil Chief Pleasants, right suffrage by held: ‘The of conferred the Justice depend upon payment poll Constitution does not of his tax person” by requires “in the voter. that voter All that it pay poll February preceding shall his tax on next or before 1st election, receipt that and he shall his therefor. have upon subject pay tax statute directs that the voter shall person, give pro- therefor; in or it written order does not but receipt vide that a failure to obtain his directed the manner by the statute will disfranchise the Each the voters voter. by question provision complied had with the of the Constitution paying regular poll obtaining receipt their tax therefor and face; irregularity its or and of the state tax collector making and payment, the voter in the manner of and ob- taining receipt deprive would not the voter of his constitu- right suffrage.’ noted, tional however, It is to that facts case, by court, this as found the trial are different from facts here under consideration. In facts the Wallace Case the show paid that tax was their the voters request money verbal with case furnished them. of the voter here under we consideration find from evidence paid written, his tax was not rquest, at his either verbal or paid money, was not paid by with his was but volunteer money, with his own any authority and without such make payment; perceive opinion and we no conflict with the referred to of the First Appeals here, Civil and ours payment such money, so made a volunteer with his own voter, authority not that of the request and without comply the voter does not requirements with the Constitution to pay the effect that poll voter shall his tax. i’fi i]< ?:<

Reference was made comparatively distinction in the Fugate recent case of Johnston, App., Texas Civ. 251 S.W. 792, 794, pointed in which it was out that code (specifically 5.11 did Code) Article Vernon’s Texas Election provide payment poll tax one other than the voter would consequently render such null prove votes and void and bring necessary allege facts which would within compels case the constitutional “It inhibition. showing (in proof payment poll addition to an- tax other) authority proper purchase poll there was no Linger Balfour, tax. 795.” determining questioned whether or not a vote should counted, wording generally applicable explicit the rule legislative the election code itself. contests and Election Lane, judicial proceedings, 335; not 52 v. Texas Williamson Owens, 261; Webb, State ex rel. v. 63 Texas DeShazo Jennett v.

321 Laughlin, 108, 519; Texas Texas 2d 131 113 S.W. Gonzales v. App. 236, remedy expeditious 2d and 256 and if the Civ. S.W. effective, legislative adhered it is essential directives be encompasses strictly. Obviously, contest election which complicated perhaps the trial remote issues of numerous contest, remedy time is of will afford no all. In an election stranger ex- essence and the moot case is no to our perience. Wilcox, 256, 515; 2d Love 70 v. 119 Texas 28 S.W. Sterling 1484, 753, Ferguson, 122, A.L.R. 2d v. Texas 122 Atkins, 415; 1, Benavides v. 132 Texas 120 2d Oliver v. S.W. Freeland, juris- App., Generally Texas 2d Civ. 74 711. S.W. destroying diction Davidson, develops situation trial Polk court. v. general 145 Texas 196 2d 632. However the S.W. guide, legislative irregular statement vote shall —a rule, Stokely, counted —is not an v. Texas Civ. inflexible Vicars App., n.r.e., 2d wr. S.W. ref. 157 Texas 300 S.W. 2d Linger Balfour, App., and the decision in v. Texas Civ. relating ir- can reconciled decisions with other regular grounds payment poll taxes stated opinion recognized Fugate App., Johnston, Texas Civ. judge’s findings Craigs

The trial as to Butlers and were follows: “That (Floyd Craig B. E. Butler and Mrs. E. Butler B. Floyd Craig) tax,

Mrs. pay poll poll did not their their tax having bought by consent, been Rhodie without Wheeler their they pay money give anything nor did or author- value taxes, ize the said purchase poll Rhodie Wheeler to and were legal qualified voters of the Glenwood Common School April 30, 1955, District on date election.” findings place These squarely such voters the consti- within recognized Linger Balfour, proscription tutional properly 149 S.W. 795 and were therefore excluded judge. the trial opinion judge We are also of trial that the and the Appeals (Gene) of Civil were Jean correct Webb, Clyde Ray and wife and Roland T. Drake and wife were legal disputed voters at election. Petitioner asserts that these voters had not resided in the Glenwood Common School period immediately preceding District for a of six months election. 5.02 of and Article 2 of the

Article Section Constitution The con- practically identical. Texas Election Vernon’s Code stitutional section reads as follows: foregoing disqualifi- subject

“Every person to none of the twenty-one (21) age shall attained the cations who have and who years and shall a citizen of the United States who be preceding year (1) next one shall have resided the State county (6) the district or and the last six within months qualified vote, deemed a person shall in which such offers to be * * elector; Article The italicized words “district or” are omitted 5.02 the Election Code. again assignment the mooted construc

Petitioners’ raised appearing sec in the constitutional tion of the word “district” Parsell, tion. In Little v. ex rel. 75 Texas State meaning poli “district” as construed the term one embracing tical referring1 one or more counties and not subdivision district county to subdivisions of such as the school here involved. This construction discussed Cramer Graham, App., stated Texas Civ. 2d 135 wherein was rightly wrongly, [by the that “whether or it has been decided Supreme phrase, the word ‘district’ as used in the Court] meaningless,” disjunctively ‘county’ with and that the word support resi the authorities rule that “an elector must year, county six dent of the for one resident for State months, county a resident of the subdivision of the [such votes, necessarily a school he not for six wherein but district] Application months.” writ of error was refused regard Graham case and we the construction of the constitu Graham, phrase supra, tional as settled. and au See Cramer v. undoubtedly This accounts thorities cited therein. construction for the deletion of the words “district from Article 5.02 or” of the Election the rule above set forth the courts Code. Under persons men below were correct in the five above although tiond were entitled to vote the election they may resided in the District have Glenwood School period prior six months date of election. finally contends that the election contest should

Petitioner Judge County have been dismissed because the order supported by calling properly petitions the election was not authority requesting that such election held. The relied Rodriguez Richmond, Texas Civ. urged point fact that the ref. The seems on the wr. based sought petition whether an election to determine Glenwood the East consolidated Glenwood District should with District, petition Mountain School while circulated that such put proposal the East Mountain District forward The District. district should consolidated with the Glenwood proposition actually or not in substance submitted was whether majority legally qualified the districts of each of the voters motion dis- desired districts. The to consolidation the two being by petitioner “actually a new miss characterized as independent proceeding.” may be, that However that it seems petitions presented there is to no fatal variance the between County Judge calling his election order the consolidation to properly and therefore trial motion court overruled the dismiss. foregoing disposes by petitioner.

The points raised concerned, sustaining application Insofar itself is assignments relating contained therein to the votes of Mr. Craig and Mrs. Mr. Butler and and Mrs. result would judge’s holding proposed affirmance of trial that con- against proposal. solidation failed vote of 90 for and pass party an prevailing We to examination of the of the brief Appeals points any Court of Civil to determine if present support contained af- therein which matter would firmance judgment Appeals. of the of the of Civil

The counting action of the trial court in of Mrs. the ballots Thomas, Lillar Woodbury Delbert Gunn Elbert as votes against vigorously respondents consolidation was assailed appellants determining judge the court below. The trial before against whether the ballots should be cast for or consolidation heard evidence theory from voters the bal ambiguous. lots judge themselves were The trial found: Thomas, “The the ballots of Lillar Delbert and Elbert Gunn Woodbury, ballots, ambiguous, as shown the Court being way unable to ascertain from the the ballots are marked how the voters necessary intended to vote. That was in- parol testimony troduce to determine how intended the voters vote. It was found the evidence that the three voters last against mentioned intended consolidation. The Court further finds that Lillar Thomas marked her ballot the man- aged ner it was Woodbury marked and that Elbert is an Negro hardly man requested and can see and that he Al- B. M. fred, one of the election officials and an advocate consoli-

dation, marking Elbert him his ballot. That the said assist against Woodbury he told the election official that wanted to vote official marked the said consolidation. That said election as- Woodbury’s manner it cannot Elbert ballot in such intended to certained the face of the how the voter part That action was fraudulent on the of said vote. said testimony said Elbert official and finds from the the Court against Woodbury intended consolidation.” that he to vote judge The trial also concluded as a matter of law ambiguous parties their face ballots named “were necessary testify and that it for the voters to to determine they judge’s election.” trial how intended to vote in said rulings Ap- upheld by the and conclusions were Court of Civil peals. 6.06, provisions

In with the accordance Article Vernon’s Code, the at the fol- Texas Election ballots used election had the lowing printed directions them: proposition hereby

“You vote on submitted expression placing square your choice, an X in the beside the expressions, you may or or mark out one said thus scratch leaving indicating your as vote.” other X

The of Lillar Thomas shows an to the ballot the box the left and the word of the word “For” “consolidation” on underlined, the same the word “For” is line with viz: The ballot of Delbert Gunn shows an X in the box obliterating markings left of word “For” with several following “For,” word “consolidation” the word viz: Woodbury of Elbert an X in the box to shows “Against” left of through approximately the word lines drawn three “Against.” the word laws were amended allow so as

voter a expressing choice of two methods in his choice candi- (as case) dates propositions. or in this He either make could opposite an X he proposition the name of the candidate or the “scratching” constructively or favored he could erase names propositions or candidates that he did not favor against. wished to vote

Sooner later the in- bound to arise to the terpretation way by of ballots voted one the use the X “scratching.” way box and another such Are ballots ambiguous merely parol testimony in the sense that in- can be explain them, troduced to they or should be considered void particular to propositions candidates or involved? The bal- hardly lot of Lillar presents question despite Thomas this opposite by view opposite taken In courts below. the box proposition appears “For Consolidation” there an X. This awas consolidation. While the word “consolidation” phrase underlined, “For consolidation” was neither the phrase word nor the was “scratched” or marked accord- out provisions ance with the of the election code or the directions upon specific contained the ballot. In view of the as directions known, to how a voter should his make intention this under- lining cannot out” be considered as a “scratch or mark of the proposal. pointed Jurispru- consolidation is in /(cid:127) It out merican “Formerly, voting systematic dence that when was done in a less present, than at fashion was the rule the intent the voter controlling generally was more adhered to. But under sta- adopting ballot, (as tutes official does Article 6.06 code) judicial many consideration is in instances con-

326 complies with the determining marking to fined whether Elections, Jur., 310, statutory mandatory requirements.” Am. 18 410, App. Bailey Fly, S.W. 35 Texas Section 194. 675, underlining was 677, a name it was held that 1.c. statutory In view of the erasure of such name. constructive “For annexation” the words directions it cannot said Thomas. constructively Lillar erased from the ballot were ambiguous. evidence extrinsic marked The The ballot as was ambiguity. parol evi makes the As received and not ballot showing that the “may purpose of dence received for the not be plain any way what intention the voter was in different from * * 310, ly appears ballot, 18 Am. Jur. face of the 893, 194; Savage Umphries, 1.c. Elections, Section disregarded 903, should be and ballot such evidence Lillar Thomas counted as vote for consolidation. is, however, squarely presented

The stated above self-contradictory. by If the the ballot of Delbert which Gunn given effect, X in the then is one consolida box be the vote through If, however, tion. the constructive erasure —lines given controlling effect, word “consolidation”-—be the vote against Although testimony it one consolidation. from Gunn’s gathered were could be that some of the marks adopted placed by person, theory some there other was not by counting trial court as one the basis for the vote against advantages accruing to consolidation.1 One findings sions is im the avoidance of that would otherwise be 296, plied support judgment. Rule Texas Rules of Civil Procedure, Bucklin, 2d Bostwick v. Texas Civ. McDonald, 818; affirmed 144 findings 16.05, express Texas Civil Practice Section judge by implication made trial “extended cannot be independent Jur., cover further 41B Texas issuable facts.” Cases, Section Trial —Civil receiving testimony

The voter as his inten from the adopted supported upon theory tion cannot the trial memory” “slippery perhaps documentary 1The of man is illustrated testimony relating evidence oral Delbert ballot of Gunn. Gunn’s ballot corresponding signed by its stub him received in were evidence. trial judge necessarily actually Gunn held this ballot the one cast for he ambiguous parol testimony found in it was and admitted to the voter’s deposition sought directly tention. In Ms Gunn to contradict ballot. He testi the placing opposite fied that of an X in the box the “For consolida instead words consolidation,” tion,” “Against placed opposite he X box the the the words placed and that no other marks oil the ballot. In view of itself and he the signed stub, apparent judge’s findings its it is from trial that he believed placed which Gunn mistaken as to the box in he an X. ambiguous wholly void. merely but court. Gunn’s ballot was judge say It an election would to that a vote which be anomalous legal necessarily reject accepted could as a vote must say and judge trying upon so an election contest district afterthought perhaps cast the defective and of voter who contradictory general application it is a rule ballot. While spe- prevail, that election the will of the should code voter cifically provides whereby shall the voter make the means provided ways intention known and code one is testify to over. how he intended to the election vote —after is dangers warnings prac- repeated The books reflect this 957, Wren, 420, tice. In Davis v. ex State rel. 75 Texas discussing policy Mr. public Justice Gaines considera- tions procedure to this relative said: Payne

“The the election, declarations of voters Albert S. and Lewis Jackson, Upon properly made after the were excluded. * * * we no have doubt. Besides we think the ad testimony mission of such public would contravene sound policy. open permit voter, It would a door to fraud who to may changed candidates, have his mind as and to his choice of may result, who have become dissatisfied as to the to declared affect the determination of a contest his declarations.” upon supporting ruling Davis is case relied as trial judge in this case public policy it seems that but considera preclude testifying tions which would from one to own his disqualifications as a preclude voter would likewise him explaining contradictory meaningless and ballot so as vote speak.2 after the election so to The facts of the Davis dis- case jurisdictions point danger 2Authorities from other likewise allow- out ing testify an elector to after the election over as he is to how to vote intended permitted Young Deming, or how he would have voted had he been to do so. Supreme 9 Utah Pac. of Utah said: experience usually “We know from common those who un- do willing public, character their votes made and that whenever there investigation is prevarication bring as to actual it is vote cast almost certain to about uncertainty is; and as to be- what the truth and while in this case special casting fore us no reasons exist reflections the truth of those participated election, yet accuracy any who it is deemed down unwise to lav rule certainty jeopardized by which the of an election the reliance upon any proof affecting such results not of the most clear and conclusive character. temptation corruption part “The fraud actual on the of the candidates political supporters great precisely and their never known how so as when it is many change result, willing their votes it will take to and men who are to sell readily afterwards, quite testimony especially votes before will their sell detecting perjury always as the means the will of after falsehood is not at hand until wrong accomplished by successful, sought has honest it become people has thwarted.” been Hare, Similarly Pennington 116, 117, 60 Minn. was said: N.W. necessary case, do, “All that it would be for them to in such a decide the name of pencil of “a erasure distinct that there was closed Davis.” name of pencil across the very faint mark and a Wren name. ambiguous nothing the erasure of Wren’s about There was of the name across uncertainty faint mark arose as to the The received so, testimony the was of voter Even the Davis. testi- proffered meaning faint mark. The explain the of to mony made out who had that of one excluded which was was effect that to the request and the- of the voter was ballot intentionally Davis was line across the name of the faint holding of The as an erasure. that it not intended was made clearly having been of that “the name Wren the court was being so name Davis erased, pencil mark across ac- may result of appeared it have faint that that been out the testimony witness who made cident, we think unintentional, ad- ticket, should have it was been to the effect holding cry us in the case before is a far from the mitted.” This his intention was parol meaning in which witness direct evidence a dead and unintel- into allowed to breathe life ligible ballot.3 Cooley quoted with

In the Davis case Mr. Justice Gaines approval as follows: may Cooley says: such facts as

“Mr. think evidence of ‘We surrounding called circumstances the election —such be * * * imper- candidates; printed who were the if ballot strongly ing Moursund without tion testify that a vertical not and cannot with clearly marked take that he was respectively. lots admission described as another holdings Davis the will of the voter face 3Stubbs that a ballot involved indicated State parol in both out ballots, Moursund, inquiry attempting parol ex rel. Wren in that resort testimony “faint safety be further line the Davis and Moursund evidence horizontal then arises as to whether could to extrinsic ballots crossing contradicted line” case. It does illustrate Texas Civ. to erase it when his erasure the voters to not have explain may themselves. Neither Moursund’s name was lines. This case carries be admitted evidence. The two by parol extended. intended a ballot the court properly cases it evidence. to its From the to make certain counted permitted an election vote for Davis and permissible authority appears placed broke. cases extension the votes for Davis description the rule judge in ascertain may there may Stubbs’ fairly voter himself for limit. of the be considered through allowing of the bal clear name was Moursund It should which is properly proposi mis or to intended candidate. they particular be to declare that for election, would offering highest price them to sell the office to the candidate It would enable for their until a contest not be called declaration it, they for because would effect of their counted, precise actual ballots had been arose, afer their without They falsely past intentions, could swear as to known. statement their statement as to disprove how would it be possible punishment, fear if had acted? act, perchance they with reference to a supposed intentions their * * Const. Lim. 781. Cooley, printed, fectly, it came to so and the like —is how admissible showing imperfect purpose that an was meant for the ballot candidate, particular unless the name is different that so itself, apply contradict unless to thus it would ballot any it fails intention is so defective to show whatever, it is not admissible. And we also think which cases explana- any testify, by way that in case voter to 0M010 a to of fatally defective, tion a ballot otherwise that he voted of particular particular is ballot and intended it a candidate for corruption ought exceedingly dangerous, fraud, invites Lim., McCrary Cooley 768; not to be on Const. see also suffered.’ Elec., 411.” Secs. McCrary “imperfect quotes his treatment of ballots” length Congressional from the contest of McKenzie v. Braxton testimony it wherein Braxton,” was held that that votes cast for “E. M. “Elliott M. for Braxton” for “Elliott Braxton” and Congress for “Braxton” should counted be for the candidate for variously through- with the surname Braxton as he was known Braxton, Braxton, the district as out E. M. Elliott etc. This case type ambiguity is may of illustrative and uncertainties which dispelled by parol However, report be spe- evidence. cifically states that “It is true that no evidence aliunde can ballot, give received to contradict be nor meaning to it where expresses meaning itself, it but, ambiguous no if it be or of import, surrounding doubtful circumstances the election given may explain passage Cooley evidence to it. The appearing report of Davis v. State ex rel. Wren is then through appellant request express findings a and conclu- quoted approval parol with wherein it is stated that evidence cannot in aid a be received that “is ballot so defetive that any fails McCrary intention show whatever.” on Elections (3rd Ed.) seq. Section 493 et ambiguous

This distinction between an ballot and one that by McCrary is is further void reiterated in Section 507 as fol- lows :

“Section 507. it is true that may While evidence aliunde explain imperfect ambiguous received to or ballot, it does by any may means follow that such evidence be received give meaning a ballot or effect hostile to what it ex- presses on its The intention face. of the voter can proven not be ballot, opposed to contradict when it paper or bal- deposited lot which he has in the ballot box. Thus when ballot persons has it the names cast which of two for the same office, show that the voter intended to proof offered to both, rejected. them, must be and not for or the other the one void, ambiguous, there- it is not but Such ballot helped by parol proof.” can not be fore Jurisprudence pointed it is out likewise In American explain voter’s cannot be received to extrinsic evidence express any in- too defective to intention “when ballot is 310, Elections, Jur., Am. tention whatever.” 18 Section considerations discussed in the authorities Because mentioned, policy permit it is not the law to elec- above meaningless by self-contradictory determined bal- tions to be testimony. plus parol Delbert lots Gunn was void against should not counted either for or the consolida- Code; 8.16, proposal. Article Texas Election tion Cf. Vernon’s dism.; Westley, App. Texas McFarlane v. Civ. wr. 298; Duffield, Murray Huff v. Waite, 485, 943, 1918A, 1128; Ann. 113 Me. 94 Atl. Cas. Fitz- 56, Wilks, App. 142 Pac. 892. simmons v. 25 Cal. finding judge trial in his treated the

While the ballots Woodbury paragraph “am Lillar Thomas and Elbert in one biguous” ballots, readily apparent it is that the of Elbert ballot category Woodbury in a different stands from the others. While legal presumed it is manner that election officials have acted in duty, Savage 893, performed Umphries, their v. judge finding presump contrary trial made a direct to the proponent tion and to the effect that an election official and fraudulently Woodbury’s marked ballot as to consolidation so impossible make it to ascertain how he intended to vote. When by the trier it is determined of facts on sufficient evidence that fraudulently a ballot has been spurious marked another or that a voter, for ballot has been substituted that of the may rule is that testimony voter state how he intended to vote. Sfich recognized potential danger, while as a is source of accepted necessity prevent greater as a matter of nevertheless to surely Savage evils that would result from its exclusion. In 893, 903, Umphries, Texas Civ. 118 1.c. it was said: testify way, “A voter cannot be allowed to that he voted one ballot, that he cast a he admits which has not when since been showing changed, way. testimony that he voted another But they measure, voted for certain candidate or voters purported cast that the ballots have been them have been for, changed from, actually cast, or those substituted is admis- fraudulent substitution that a for, sible; it is contended where or for what whom made, asked for the elector be has been cases, contests, all other as in he measure voted. modify contradict, vary, or excluding rule, parol evidence alleged. instruments, fraud is much relaxed when written ‘Stuffing boxes,’ or the fraudulent sub- 419, Cyc. 420. actually elec- those cast of different votes stitution testimony ever, those rarely, shown if tion can necessity, fraud, must, almost perperated the who testimony circumstances, parol of the voters proved by they actually cast or measure what candidates themselves as to * * * false, it If such evidence at the election. vote for their perjury it would than procure the evidence of is easier to fraudulent substitution of ballots procure evidence actually at the election.” those voted for ruling as the vote error in the trial court’s

There was no Jennett, Woodbury. rel. 64 Texas of 500; Owens v. State ex Elbert Miller, 820; 783, Miss. Kreitz v. Hutson v. 114 So. 349; Rep. Behrensmeyer, Am. 125 Ill. 17 N.E. St. Bredesen, Laleman 377 Ill. 36 N.E. 2d 29 C.J.S. 399, Elections, Section vote Lillar should deducted from the num- Thomas against of votes consolidation and counted as a vote

ber cast consolidation. The of Delbert should de- Gunn also be against ducted from the number votes cast consolidation self-contradictory count ballot was and void. The election against then would be 91 votes consolidation 89 votes judg- This would result in an affirmance of consolidation. Appeals accordingly ment of the and it is so or- Civil dered.

Judgment Appeals the Court of Civil affirmed.

Opinion May delivered Garwood, joined by Mr. Justice Griffin, Justice concur- ring. practice submitting proposed

Pursuant to our opinions (in rotation) prior case, to actual decision of the I submitted reaching instance, one in this the same conclusion we now reach granted point error, on the on we ap- which writ of but angle. proaching point it from somewhat different That was involving Linger Balfour, the one v. Texas Civ. 795, 807, App., to the effect S.W. that where the voter’s poll paid by authority, tax has previous been another without corresponding point respondent is void. As to the seeking uphold Appeals decision of the Court of Civil on theory “ambiguous” wrongfully that certain ballots were against consolidation, counted trial court as votes I contrary reached a conclusion to that now reached the Court. This latter just conclusion I still believe to at least as sound adopted Court, although as obviously that now are there arguments good ways. But, point as both on which granted, concluded, thought I writ was considering have after further opinion, wrong probably Court’s that I was point wrong. that about and the Court is also poll matter, my original On this tax theory that, al though neither the Constitution nor the Election Code declares the vote to they void or disqualified, yet the voter to be neither do regard express

so declare in terms with cast a vote poll paid all, one whose tax has since, not been latter situation it is held that the (Ramsay vote is void v. Wil helm, 761), refused, wr. of er. general there no inferring obstacle to our that votes void though express even no statutory provision constitutional or so states. Thus I felt free to reason further where statutes it a party make crime for a procure third pay poll voter, for the tax aof it para would at least be somewhat corresponding vote, doxical to count the accordingly and that it reason, however, should be counted. I did not as the Court do, seems to now and as the Appeals Court of Civil did in Lin ger Balfour, supra, unspecified in some manner Constitution, alone, compels and it the conclusion that the vote I say is void. Linger could not and did (and the instant case distinguished Balfour) upholding from cases votes, validity Williams, such as Wallis v. 50 Texas Civ. App. ground in the former the matter, distinguished is what controls Constitution the statutes. reasoning appears

The latter logically indefensible. The con provision question (Art. VI, stitutional 2) may, indeed, Sec. requiring construed as the voter to furnish money for his although poll tax, nearly specific own is not to this effect (see- Chap. as are the statutes 5 of Code, the Election particu larly many corresponding Art. 5.11also the' penal provisions, 199, 201, such as Arts. 203 and Vernon’s C.). Texas P. But situation, in such a in only even one which statutory pro Constitution, dowe that of the identical with were vision Constitution, as only is because the vote void reason were statutes, says If there it does. distinguished what from the Legislature premises, in the power question of the some important, as suck provision would the constitutional question The before question here involved. is but no such judicial a a inference draw is we shall us whether say it nor statutes void, neither the where Constitution is only say that the Constitution many How can we in words. so not, inference, when and that the statutes do justifies that provision the consti only a identical with contain statutes 5.02, Code) (see Election question but provision in Sec. tional which come provisions additional also the above-mentioned vague the rather the inference than does justifying much nearer specifically Certainly statutes provision? if the constitutional counted, while the Consti should not be that such votes stated says, only attribute the void it now we would tution said what statutes and not to the Constitution the vote to the character of alone. the instant case I did and do believe we cannot set

Thus Linger apart, say that in them the votes Balfour Constitution,” that all other cases of “under the but were void irregularity poll “statutory payment of taxes are cases’ language contrary the same and thus entitled to result. Unless something thing used in a constitution but dif- means one when statute, provision in a the absence of nulli- ferent when used just validity important fying the votes as in If cannot in the one case the other. we infer votes invalidity statutes, infer it identical we cannot from language say vaguer If we the Constitution. are to and even irregular poll payments tax are valid unless on that votes based invalid, express provision declares them what dif- of law irregularity case exists one it make ference can and in another case reason of both reason of statute Linger opinion in The v. Balfour stattute? Constitution does, Constitution, course, rest purport itself on but erroneous, justi- even should the result be it is that extent grounds. other fiable is, adopt the fallacious “constitutional” that we fact largely in order to invalidate ballots here in- distinction on several time not cast doubt decisions volved, yet same at the Williams, supra Appeals, such Wallis v. of Civil the Courts 792) Johnston, Fugate which certain (see also irregularities held not to affect the cor- payment poll tax responding' may distinction votes. Now there be some actual wrong- such cases and instant in that the between the one here poll party paying question of in ful act the third in taxes money authority any his own with and without sort of question type irregularity, in the voters was a more serious irregu- does, directly pointing, as it somewhat more than other might, purpose party larities toward of the third to suborn any votes. But the tion, not that or distinc- Constitution does create all, vague. and if the latter rather exists is On hand, agreed view, other I share what seems to evidenced Williams, involving every irregularity v. Wallis payment poll parties taxes voters third should invali- recognize date ballots. Also one must considerable force in the general emphatic quite thesis —stated in terms in broad and Fugate Johnston, supra, Robinson, v. and v. Texas Civ. Warren party 32 S.W. 2d 872—that assists where third procurement poll receipt thereby in the voter’s tax statute, violates the vote itself should not be avoided unless the statute that it declares should is be. There also obvious possibility Legislature persistent that the failure to make a policy against preference enforcing such declaration its evidences assisting parties third state voters in the matter through poll penal (above cited) which, of their taxes laws incidentally, against parties are directed the third rather than against the voter himself. true, being present question being

All this an en- tirely open one, concerned, so far as this Court is I have now Linger simply concluded that the better answer is to overrule v. Balfour and general thus establish uniform rule in cases of this type question to the effect that shall be counted, notwithstanding party procured third who procuring or assisted in tax enough voter’s certificate have been guilty doing. aof crime in so Often the voter himself will entirely actually innocent the matter or will vote his own any convictions in event. I do think it can be any said with certitude, existing penal provisions, in the face of uphold- ing the votes significantly will irregular increase practices, unhealthy still less foster an state of part mind on the generally. of voters event, any compelling motive, no I see can theoretical or arbitrary

practical, to resort distinctions between cases like Linger Balfour, supra, the instant case and, v. hand, on the one involving other, irregularities cases other kinds of poll payment taxes. If decisions such as Wallis correct; Williams, supra, if the “constitutional” dis- Court’s unsound, is as I consider it tinction be; such decisions between satisfactory, is as I if there no other distinction that be- up- compelling not; if there is reason to there is no lieve Linger supra, not, Balfour, there our which I think hold logical decision, latter sus- to overrule the course seems to be Appeals tain the of Civil four votes valid, uphold judgment its here ground. were Opinion May 15, delivered 1957.

Rehearing overruled June 1957.

L. A. Pich v. A. H. Lankford Et Al. A-6165. Decided 1957. May 15, No.

Rehearing overruled June (302 645.) S.W. 2d Series

Case Details

Case Name: Duncan v. Willis

Court Name: Texas Supreme Court

Date Published: May 15, 1957

Citation: 302 S.W.2d 627

Docket Number: A-6104

Court Abbreviation: Tex.