133 S.W.2d 175 | Tex. App. | 1939
This suit is an election contest. T. M. Schrock, A. M. Irwin, W. W. Evers, and A. J. Smith contested the election of B. F. Hylton, R. E. Curtis, Ben Prevatil, and R. E. Prine, as supervisors, and H. C. McDonald contested the election of C. J. Traquair, as assessor and collector of taxes, in and for Dallas County Lakeland Terrace Fresh Water Supply District No. 12. The contestants were incumbents, seeking re-election at an election held January 3, 1939, for five supervisors and an assessor and collector of taxes for the district. The results declared were as follows: In favor of L. C. Brooks, as supervisor, the validity of whose election is not involved; also, in favor of contestees, Hylton, Prine, Prevatil and Curtis, as supervisors, and Traquair, as assessor and collector of taxes.
In the trial court, contestants were defeated and appealed to this Court. On original submission, we held the election void, because the same was conducted without a certified poll list of the qualified voters of the Water District, as required by general statute (Art. 2975), therefore, set aside the judgment of the trial court and rendered judgment for contestants, nullifying and holding the election for naught.
Our decision was largely based upon the case of Yett v. Cook,
An opinion by Mr. BOND, Chief Justice, presented to our conference, and concurred in by other members, sets forth our unanimous opinion on the decisive questions involved. His opinion reads:
"The statute creating the district expressly provides for the manner of its creation, the holding of elections (Art. 7889), the form of ballots (Art. 7890), and the necessary prerequisites for a person who offers to vote (Art. 7891, and Art. 7930 — 1, Vernon's Ann.Civ.St.). Article 7891 provides: `Every person who offers to vote in any election held under the provisions of this chapter shall take the following oath before the presiding judge of the polling place where he offers to vote, and such judge is authorized to administer same: "I do solemnly swear that I am a qualified voter of _____ County and that I am a resident property taxpayer of the proposed Fresh Water Supply District voted on at this election, and have not voted before in this election."'; and Art. 7930 — 1, § 7, provides: `Every person offering to vote at any election held under the provisions of this Act shall take the following oath before the presiding judge at the polling place where he offers to vote, and such judge is authorized to administer the same: "I do solemnly swear that I am a qualified voter of the _____ County Fresh Water Supply District No. _____ (inserting the name and number of the District) and have not voted before in this election."' Thus it will be seen that the Legislature has provided effective means of preventing repeating at elections, qualifying every voter offering to vote at any election held under the provisions of the Act, in that, the voter must be qualified under Sec. 2, Art. 6 of the Constitution, Vernon's Ann.St. (article on suffrage), that he is a resident taxpayer of the district, and that he had not voted before in the election in which he offers to vote. The right to vote is expressly granted by statute to any person possessing the qualifications prescribed, and who shall subscribe to the oath designed to insure a fair election in such district. There is no provision of the statute requiring a poll list of the qualified voters of the district, as is required in the General Election Statute; therefore, presiding officers of such elections are without authority to deprive a qualified voter, who has subscribed to the prescribed oath affecting elections in Fresh Water Supply Districts, of the right to vote, merely because of the absence of a poll list at the place of voting.
"The election in question was held under and governed by the provisions of the special statute relating to Fresh Water Districts, and not under the General Election Statute. General election law does not apply to a special election held under a special law. Wallis v. Williams,
"The case of Yett v. Cook,
"Furthermore, this being a contest of an election suit, same must be determined under the express provisions of the *178 statute relating to the subject of election-contests (article 3041 et seq., R.S. 1925). Art. 3054, supra, provides: `If it appears on the trial of any contest provided for in article 3045 [county office] that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach, or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office; which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the State.'
"So, for the purpose of this opinion, assuming that the election was held under and governed by the provisions of the general election laws of the State of Texas, which evidently was not the case, by virtue of the above statute, Art. 3054, supra, the burden of proof rested upon contestants to show that a poll list at the polling place would have materially changed the result of the election, or that the absence of such list did materially change the result; thus, in the absence of such showing, the failure of the election officers to have a certified list at the polling place at the time the election was held, becomes immaterial.
"In State ex rel. Paggi v. Fletcher, Tex. Civ. App.
"In Buchanan v. Graham,
"In Border et al. v. Abell, County Atty., Tex. Civ. App.
"`In an election-contest, the burden is on the contestants to allege and prove either that a different result should have been reached by counting or not counting certain specified votes; or that the irregularities in the conduct of it were such as to render it impossible to determine the true will of the majority of the voters participating in the election; and irregularities in the conduct of the election, which cannot be demonstrated to have materially affected the result, are immaterial. Hill v. Smithville, etc., (Tex.Com.App.), 251 S.W. 209; Kincannon v. Mills, (Tex. Civ. App.),
"The decisions cited on the question of whether the provisions of the law, relative to election officers having a properly certified list of the qualified voters or of the polls, are mandatory or directory, are clearly in favor of the rule that, the failure of either the voters or election officers to perform their respective duties at the polls according to the letter of the statute, where such failure has not prevented a fair election, is immaterial and not ground to set aside an election otherwise fairly held. In McCrary on Elections, 4th Ed., § 724, the author says: `The justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the electors are in the interest of pure elections, and should be complied with at least in substance, but to disfranchise the voter because of the mistakes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do.'
"An election-contest for office is not a civil action, but is a special proceeding prescribed by law. Courts are limited in their investigation to such subjects as are specified in the statute. Ladd v. Yett, Tex. Civ. App.
For reasons stated in the opinion by Chief Justice BOND, we sustain contestees' motion for rehearing, set aside our former judgment, and withdraw the original opinion filed in the case, thus presenting for consideration the other grounds alleged, not considered or discussed on original submission, because of the disposition made of the case.
It is contended that three of the candidates, that is, Hylton, Traquair, and *180 Garrett (Hylton and Traquair declared elected) were ineligible, because, neither had resided in the water district six months next preceding the election, and that, if the votes cast for them are disregarded, the result would be different from that declared, in that, in such event, contestants, Schrock and McDonald, would have been declared elected, instead of Hylton and Traquair. This contention is based on the assumption that, to have been eligible candidates for supervisor or assessor and collector, of the water district, they should have had a residence in the water district for at least six months next preceding the election, as required by article 2927 of the general election statute. Although residents, it may be conceded that the persons named had not resided in the water district six months next preceding the election, yet we do not think that fact was a disqualification, because, in our opinion, the statute invoked is not applicable. The applicable statutes, we think, are found in the chapter providing for the establishment and government of "Fresh Water Supply Districts". (Article 7881 et seq.) Article 7895 of that chapter makes provisions for the election of an assessor and collector of taxes and prescribes that "he shall be a resident of the district and a qualified voter in the district". Article 7900, with reference to the qualifications of candidates for supervisor, reads: "No person shall be elected as supervisor for any district unless he is a resident thereof and owns land subject to taxation therein, and unless at the time of such election he shall be more than twenty-one years of age." But it will be observed that in neither instance does the statute require, as an element of eligibility, that the candidate shall have resided in the district any particular length of time next preceding the election. So, we conclude that, as the persons whose eligibility is questioned were eligible under the provisions of the controlling statute, contestants' assignments and propositions relating to that subject should be overruled.
The further contention is made that three illegal votes were cast for the candidates declared elected, and that one legal vote intended for contestants was rejected, but for which, the result would have been different. The controlling statute provides that only resident property taxpayers of the water district are entitled to vote (see article 7891). It is undisputed that, two of the three persons whose votes are challenged, that is, Mr. Armstrong and Mr. Irwin, were not residents of the water district at the time of the election, therefore, being disqualified, should not have been permitted to vote; hence, their votes must be rejected. We also find from undisputed evidence that, J. Edwin Thomas, who offered but was not permitted to vote, was a qualified voter of Dallas County and a resident property taxpayer of the water district at the time, therefore, being qualified, should have been permitted to vote, and, if permitted, would have voted the "Smith" ticket (with one exception), which included Schrock and McDonald, but would also have voted for Curtis, a candidate for supervisor on the opposing ticket.
So, after deducting the two illegal votes and adding the legal vote, as should be done, we have the following results: Prine received 47 votes, Hylton, 47, and Prevatil 46, for supervisors, and were elected; but Curtis and Schrock each having received 42 votes, for supervisor, and Traquair and McDonald each having received 41 votes, for assessor and collector, there was no election.
It follows from these conclusions that, Prine, Hylton, and Prevatil were elected supervisors, and that, owing to the tie between Curtis and Schrock, Traquair and McDonald, no one was elected to these positions. However, Schrock and McDonald, being incumbents, are authorized to continue to perform the duties of their offices until their successors shall be duly elected and qualified, as provided by Section 17 of Article 16 of the Constitution, Vernon's Ann.St. Accordingly, the judgment of the trial court will be and is hereby reformed and, as reformed, is affirmed. The costs incurred in this and in the court below will be taxed, apportioned and adjudged against the litigants, as follows: against A. M. Irwin, W. W. Evers, and A. J. Smith, one-fifth each; against T. M. Schrock, R. E. Curtis, C. J. Traquair, and H. C. McDonald, one-tenth each.
Reformed and, as reformed, affirmed. *181