Ex Parte Anderson
- Reporters:
- , ,
- Before:
- Brooks, Davidson
Upon trial for a violation of the local option law, it was shown that the presiding judge in the local option election was at the time chairman of the democratic executive committee. Held, that this was not an office of profit and trust in law, and he was therefore not disqualified.
2.—Same—Legality of Election—Presiding Judge—Personal Endorsement of Ballots.
Where upon trial for a violation of the local option law, it was shown that the presiding judge at said election did not personally sign his name on each ballot as required by the Terrell Election Law, but authorized another to sign his name on said ballots for him, and that the election fairly expressed the will of the majority at said election. Held, that said election is valid. Davidson, Presiding Judge, dissenting.
3.—Same—Special and General Law—Ballot—Directory Provision.
Where upon trial for a violation of the local option law, it was shown that the ballots were not personally endorsed by the presiding officer of the election as required by the general election law, the local option law with reference to local option elections not requiring such endorsement. Held, that the local option law being a special law controlled the general election law in local option elections; besides such endorsement is only directory and cannot vitiate a fair election for local option.
4.—Same—Contest of Election—Collateral Attack.
In the trial of a contested local option election in a court of competent jurisdiction, the action is direct and the court is authorized to go thoroughly into the validity of said election, etc., but where the attack upon an election was collateral, and it was admitted that the election for local option was fair, the question as to the failure of the presiding officer to endorse the ballots as required by the general election law could not be considered.
5.—Same—Conflict of Decisions—Civil and Criminal Courts—Election Contest.
See opinion as to seeming conflict in the decisions between the Civil Courts of Appeal and the Court of Criminal Appeals, and the suggestion of amending the statutes with reference to the trial of local option elections which may be contested, while prosecutions are pending thereunder.
From Henderson County.
Original application for habeas corpus for release from a commitment upon complaint for violating the local option law; contesting the validity of the local option election.
The opinion states the case.
Miller & Royal and W. R. Bishop, for relator.—On question of invalidity of election: Arnold v. Anderson, 93 S. W. Rep., 692; Ex parte Keith, 83 S. W. Rep., 683; Hanna v. State, 87 S. W. Rep., 702;
BROOKS, JUDGE.—Relator was arrested under proper complaint for violating the local option law in justice‘s precinct number 1 of Henderson County. After said arrest, he sued out a writ of habeas corpus before this court, contesting the validity of said election.
He insists that the local option law is invalid because the presiding judge of the voting precinct number 2 in the local option election, was at the time of the holding of said election an officer of trust under the laws of this State, to wit: was chairman of the democratic executive committee, having been theretofore elected to said office at the primary election held in said county on July 28th. The insistence is that he was thus holding two offices of profit and trust. We do not think there is anything in this contention. To be chairman of the democratic executive committee for the county was not an office of profit and trust within the contemplation of the laws of this State.
He also insists that the law is invalid because J. T. Deen, the presiding officer in voting precinct number 2 of said justice‘s precinct, did not sign his name on each ballot, but authorized Miller (one of the judges of said election) to sign his (Deen‘s) name on said ballot. As we understand the record, this was uniformly done in the presence of J. T. Deen, the presiding judge, by said Miller. It is agreed in the statement of facts that if the ballots upon which the presiding judge Deen authorized his signature to be placed are counted, together with the other ballots cast in said election, the result was properly declared by the commissioners court in favor of prohibition.
Then the question occurs, as to whether or not relator is correct in the proposition that the election is void, because the presiding judge did not sign his name in person upon the ballots. Relator cites Arnold v. Anderson, 93 S. W. Rep., 692, 14 Texas Ct. Rep., 713. Chief Justice Fisher, delivering the opinion for the Court of Civil Appeals, held: (after excluding the ballots that the presiding judge failed to write his name on the back of the ticket the correct result could not be ascertained therefrom) that the election was void because the presiding judge did not sign his name in person on the back of each ballot. This
It will be seen from an inspection of the local option law that there is nothing in the clause designating the character of ticket to be provided, requiring it to be marked “Official Ballot“; nor is there anything in said article requiring the election officer to indorse his name thereon: but it merely provides that the ballot shall be “for prohibition” or “against prohibition.”
We therefore hold that the ticket in local option elections is not under the control, so to speak, of the provisions of the Terrell Election Law. Certainly to omit the word “Official Ballot” from the local option election ticket, would not vitiate the election, as required by the Terrell Election Law: it would be equally true, that it would not vitiate it to omit from the ticket the signature of the presiding officer. We note with care and concern the insistence made by Chief Justice
Furthermore, if the provisions of the Terrell Election Law, which requires that the name of the presiding judge should be placed upon the ballot, also applied to the local option election, yet, we are constrained to conclude that this would be merely a directory provision and could not and should not vitiate the election. It is the province of the courts, wherein the contest of an election is before them for decision and mere irregularities are insisted upon to defeat the election, that the courts should not as above stated, declare said election invalid, where the result is readily ascertained, and there is no dispute about the fairness of the election. It is conceded in the statement of facts before us, that the election was in all things fair; that all parties who voted were qualified to vote; that no ballots were cast that were not legal ballots; and no one was permitted to vote who was not a legal voter in that precinct. There is no question made in this record but that the election fairly expressed the will of the majority of the people of the precinct, where said election was held. Then we think it would be amiss for us in the first instance, to hold that the Terrell Election Law applied to a local option election; or in the second instance to hold, even if it did, that the sheer fact or failure to place the name of the presiding judge upon the back of the ticket by the presiding officer would vitiate the entire election. Under the Constitution and laws of this State, the voters have rights in the premises that should not be frittered away, defeated or destroyed by laches of the officers, upon matters that do not affect and go to the genuineness, sincerity and honesty of the election. So believing we hold, that the election is in all things valid. The relator is hereby remanded to the custody of the officers, with all costs of this court taxed against him.
Relator remanded.
Davidson, Presiding Judge, dissents.
HENDERSON, JUDGE.—I agree to the result, and may express my views.
ON MOTION FOR REHEARING.
March 22, 1907.
HENDERSON, JUDGE.—This is a proceeding on a habeas corpus before this court, and the relator was remanded, and comes before us
Relator insists that the local option law in justice precinct No. 1 of Henderson County is invalid, because the presiding judge of election precinct No. 2 failed to endorse his name in person on all the ballots voted in said precinct, the endorsement being made at his instance by one of the judges of the election. His contention is that these votes, under the Terrell Election Law, should not be counted, and that there were a sufficient number of votes in said box which were counted improperly, which, if thrown out, would change the result of said election. The question thus presented is whether or not relator is correct in the proposition that the election is absolutely void because the presiding judge did not sign his name in person upon the ballots. To sustain his contention, relator cites us to Arnold v. Anderson, 14 Texas Ct. Rep., 713; Clark v. Hardison, 14 Texas Ct. Rep., 227, and other cases. It has been held that as to local option elections wherever the local option law speaks on the subject, that it furnishes the rule regulating local option elections, and the general election law, commonly known as the Terrell Election Law, only applies where the local option election law is silent and the Terrell Election Law is not inconsistent but harmonizes with the local option election law. See
Here, however, we have a habeas corpus proceeding which does not involve a direct but a collateral attack on the election, and we are only authorized to act when the local option election for some cause is absolutely void. As this question comes before us, it is admitted that the election was fair and that prohibition carried in the precinct, counting the votes which were not personally endorsed by the presiding judge of the election. Now, can we hold that this failure to endorse the ballots rendered said election absolutely void? To so hold would be equivalent to saying that notwithstanding the election was fair, it was rendered void simply because one of the safeguards securing the fairness of the election was not observed. This is not the law, and to so hold would violate all the rules regulating elections, and which are intended merely to guarantee the will of the people as expressed in a fair ballot. It may be, in thus holding, there is a conflict between our views and those of the Courts of Civil Appeals on this subject. If such be the case, relator may be placed in a peculiar predicament. The civil courts may hold that there was no election and order a new one, while by our holding the law is in force and he is held amenable to the law.
In this connection we do not believe it amiss to suggest to the Legislature that it would be advisable to further amend our statutes
Overruled.
DAVIDSON, PRESIDING JUDGE (dissenting).—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 occurring on the day of the election are concerned, and under the terms of our statutes,
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 Texas, 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.
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 passed 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
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,
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.]