69 Tex. 368 | Tex. | 1887
This was an information in the nature of a quo warranto instituted by the State upon the relation of E. H. Vasmer, its object being to oust the appellant frorr. the office of district clerk of Harris county, and to place the re • lator therein. That this is the appropriate proceeding in such a, case has been settled by this court; and, like any other proceeding in the nature of a quo warranto, it is governed in every respect by the statute on that subject. It is, therefore, properly return ■ able to the Supreme Court now in session at Tyler, having been tried in the court below on the seventeenth of November, 1887. (State v. Owens, 63 Texas, 261; Owens v. State, 64 Texas, 500 Fowler v. State, 68 Texas, 30.)
The appellant and the relator were opposing candidates for the office of district clerk of Harris county at an election held on the second day of November, 1886, and according to the result as announced by the officers who counted the returns of the votes cast in the election, the appellant received three thousand and seventy-eight and the relator three thousand and seventy-six votes, whereupon the certificate of election was given to the appellant, and he qualified, gave bond, and has since been in possession of the office. It was, however, alleged in the information that at precinct No. 5 of Harris county eighty-six legal votes cast for the relator were not counted for him by the officers in charge of the election, and did not enter into the general estimate of the vote of the county. It was further alleged that the box of precinct
The appellant pleaded a general denial; denied the statements of the information as to the count in the third and fourth wards, and asserted that the eighty-six ballots claimed to have been rejected in the fifth precinct were illegal. He also pleaded that there were one hundred or more illegal ballots cast for the relator at said election by persons who did not live in Harris county and specified by name nine or ten of such ballots. The case was tried by the court without a jury and a judgment rendered ousting the appellant from the office and placing the defendant therein. From this judgment Williams has appealed to this court.
When the case was called for trial the appellant moved for a continuance, his affidavit being in compliance with the statute regulating motions for a second continuance, on account of the absence of material witnesses. The affidavit stated that the affiant expected to prove by the absent witnesses that eight illegal voters, giving their names, had cast their ballots for the relator. It further stated that he expected to prove by one of the absent witnesses that the character of tickets rejected in the fifth precinct were gotten up to deceive voters into believing that it was a democratic ticket, and that it did deceive many of the ignorant and heedless voters, and that the witness saw a colored man vote one ¿f the tickets, believing that he was voting the opposite ticket, which was the democratic ticket; and that the witness procured the vote of a colored man for Yasmer who desired to vote for the appellant by exhibiting to him at the head of said ticket the words ‘1 Democratic Ticket;” and that said voter voted the said ballot, believing that he had voted for Williams. In answer to this motion the appellee admitted all the facts stated in it except that the character of ticket rejected in the fifth precinct was gotten up to deceive voters into believing that it was a democratic ticket, and that it did deceive many of the ignorant and heedless voters; and that the witness saw a colored man vote one of those tickets, believing that he was voting the democratic ticket. The court thereupon overruled the motion to continue, and a bill of exceptions to the ruling was saved and error is assigned thereon.
Upon the trial the relator, after properly identifying the
Our statute provides that “all ballots shall be written or printed on plain white paper without any picture, sign, vignette, device or stamp mark, except the writing or printing in black ink or black pencil, of the names of the candidates and the several offices to be filled, and except the name of the political party whose candidates are on the ticket.” It then provides that tickets not in conformity with these and others of its requirement shall not be counted. This provision has twice undergone adjudication in this court. In one case the device claimed was the peculiar shape given to the ticket, by which it could be distinguished from all others. It was then said that the exceptions which exclude the ballot must be restricted rather than extended, and that it must be admitted if the spirit and intention of the law is not violated, though a literal construction would vitiate it, and that the will of the people as expressed at the ballot box must be respected and the result must not be set aside except for causes plainly within the purview of the law. We held in that case that the statute not having prescribed the shape of the ballot, the fact that these were not in the usual shape did not render them illegal. (State v. Phillips, 63 Texas, 390.)
In the other case, the words “election ticket” were printed at the head of the ballot; and the names of the candidates for President and "Vice President, though not voted for, were placed
The statute does not say. that the ticket shall in its entirety be the ticket of one party alone; that the name of no person shall appear upon it who does not belong to the political party designated upon the ballot. It leaves every voter free to support the candidates of his choice, though some may belong to one party and some to another. The name of the party is not required to appear at the head of the ticket, and the words “People’sparty” near the center of those under decision is as legally placed there as are the words “Democratic ticket” at its head.
As there is nothing in the letter of the law to forbid the use of just such tickets as the eighty-five cast for the relator at box six, upon what construction of its reason and intent should they be rejected, admitting that we can resort to these in such a case to
What we have said affirms the ruling below upon the motion to continue. If the tickets were not calculated to deceive, or defraud the voter out of his choice in the election, it made no •difference that they were intended to have that effect. It was not their reasonable effect. They were gotten up in exact accordance with law, and that is all that is required. If by pursuing the requirements of the statute a voter is intended to be entrapped, and is actually entrapped, it is the fault of the law, which is perverted to an improper use. It should certainly not deprive a party of an office who has received enough votes to •elect him without counting those thus obtained through fraud. The affidavit did not pretend that the votes thus obtained were sufficient in number to defeat the relator, if those fairly voted gave him a majority.
As to the objection to receiving the book of the commissioners court in evidence, it has been held by this court that the books
Affirmed.
Opinion delivered December 25, 1887.