Altgelt v. Callaghan

• Decision Date: 31 January 1912
• Citation: 144 S.W. 1166
• Parties: ALTGELT et al. v. CALLAGHAN.
• Court: Texas Court of Appeals

144 S.W. 1166

ALTGELT et al. v. CALLAGHAN.

Court of Civil Appeals of Texas. San Antonio.

January 31, 1912.

On Motion for Rehearing, March 6, 1912.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Election contest by E. J. Altgelt and others against Bryan Callaghan. From a judgment for contestee, contestants appeal. Affirmed in part; reversed and remanded in part.

Wm. Aubrey, Geo. R. Gillette, C. C. Cresson, J. Ira Kercheville, Selig Deutschman, F. H. Booth, and Clinton G. Brown, for appellants. Houston, Boyle, Storey & Davis, for appellee.

FLY, J.

This is an action to contest an election held in the city of San Antonio, Tex., by virtue of an act of the Legislature approved by the Governor of Texas, on August 19, 1910 (Acts 31st Leg. [3d Ex. Sess.] c. 6), to determine whether the charter set forth in the legislative enactment should be adopted by the people, which was instituted by E. J. Altgelt and 49 other duly qualified voters, citizens, residents, and taxpayers of said city, against Bryan Callaghan as mayor of the city of San Antonio, who it was alleged had been a resident in and mayor of the city for more than six months, and a member of the city council which examines the returns and announces the results of all elections held in the city. It was alleged that the election was held on February 4, 1911, and the returns as announced by the council showed that 7,070 votes were cast for the new charter, and 7,250 were cast against it, that divers illegal votes were embraced in the count sufficient in number to have changed the result of the election, and the names of the disqualified voters, the precincts where they voted, and the causes of their disqualification were set forth in a schedule attached to the pleading. It was further alleged that at and before the election the mayor and council were members of a political organization or party opposed to the new charter; that under the legislative enactment providing for the election and other laws of Texas the election should have been held in conformity with the law known as the "Terrell Election Law," but was held in violation of that law and of the provisions of article 6, sections 4 and 5, Constitution of the state of Texas, which direct that all elections by the people shall be by ballot and that voters, except in cases of treason, felony, and breach of the peace, shall be privileged from arrest while attending elections and going to and returning from the polls, by reason of the fact that the ballots provided by the council for the election did not consist of one piece of paper on which were printed "For the New Charter," and "Against the New Charter," but consisted of two separate pieces of paper on one of which was printed "For the New Charter," and on the other "Against the New Charter;" that the ballots were not stamped official, nor were they printed on paper of uniform style and of sufficient thickness that marks could not be seen through them; that the presiding judges in the precincts did not write their signatures on the blank sides of the ballots, which were not numbered or marked "voted" when they were voted; that the officers of the election in certain precincts refused to entertain challenges of voters and permitted various violations of law in regard to preparing ballots and voting; that a large number of special policemen were appointed for election purposes, who arrested citizens and intimidated voters, and prevented large numbers from voting; that the ballots cast were not fairly counted tallied, and returned, and were returned as showing 7,230 votes against the charter when the votes did not exceed 6,830, and returned the votes for the charter as 7,070, when in truth and fact more than 7,470 qualified votes were cast for the new charter. Appellants prayed that the returns from certain precincts be thrown out and quashed, that a recount take place, and that the ballot boxes containing the votes be brought into court and placed in possession of the clerk.

Appellee filed a general demurrer and 13 special exceptions, a general denial, and specially set up countercharges of misconduct on the part of appellants and members of their organization, and specifically denied all the charges, accusations, and complaints made against the city council, election officers, and police force, and alleged that many legal voters who desired to vote against the charter were prevented from so doing by threats "of the emissaries, agents, and boosters of the commission government league and by the contestants, or some of them, and by other members of said organization." The answer was met by a paper denominated "reply of contestants to reply of contestee," and this was followed by "contestants' supplemental statement or petition," contestants' trial amendment, and several more supplemental petitions amounting in all to eight, and "contestees' first supplemental answer." The court sustained exceptions to sections 6 and 7 in the original petition, then permitted a trial amendment to be filed containing practically the same allegations that were contained in the rejected sections, and then again sustained the exceptions to them. A jury was demanded by appellee, but was denied by the court, and after a trial of about twelve weeks, and the examination of about 1,100 witnesses, the court found that 151 votes which were returned as cast against the charter were illegal, which being deducted from the total vote of 7,230 returned as against the charter left 7,079 legal votes cast against the charter; that the official returns showed 7,070 votes for the charter to which was added one vote not allowed to be cast, and from which was subtracted 57 illegal votes, as total legal votes leaves 7,014, giving a majority of 65 against the charter. The court found that the retired soldiers, whose names were given, were legal voters, and that four crippled persons were legal voters. He also found that eight votes, the names of the voters being given, were alleged to be illegal by appellants and admitted to be such by the appellee, but no testimony was introduced in regard to them and they were held to be legal voters and cast their ballots for the charter.

The following conclusions of fact and law were also found by the trial judge:

"1. I find that on February 4, 1911, under and by virtue of an act of the 31st Legislature of the state of Texas, chapter 6, approved August 19, 1910, an election was held in the city of San Antonio, Bexar county, Tex., by the people of said city to determine if the new charter provided in said legislative act should be adopted.

"2. I find that the contestants in this suit, and each of them, were at the date of the institution of this suit and at the time of the trial and on February 4, 1911, duly qualified voters, citizens, residents, and taxpayers of the said city.

"3. I find that the contestee was at the time of the trial and at the date this suit was filed, and had been for more than six months before the filing of the petition here, a resident of said city, the duly elected, qualified, and acting mayor thereof, and a member of the city council of said city, whose duty it was to examine, and which in fact examined, the returns and announced the result of the said election.

"4. I find that the following named persons alleged in contestants' pleadings voted at said election, that Geo. T. Tabler, Pat Malory, Henry A. Rappold, Geo. Lough, Robert A. Brown, Henry Dietrich, James Kennedy, E. Moraity, Jno. McMahon, Jos. Starace, Fred Weber, and Sandy Fay voted against the new charter; that John H. Grubb, Sol Black, B. Mulhern, Herman Guenther, Chas. Leonard, Wm. Ritzens, Josia J. Veach, Conrad Westworth, John Faulds, and Jno. Stewart voted for the new charter, and that all the above-named voters were on the date of said election enlisted men of the army of the United States on the retired list:

"5. I find that Crespin Gomez, Rodrijo Hinejosa, Penteleon Gonzales, and Doreteo Perez voted at said election; that the first one named voted for the new charter; that the last three named voted against the new charter; that said persons were at the date of said election 54, 47, 55, and 43 years old, respectively, that they had lost a foot, a foot, a hand, and a foot, respectively, before they had received their exemption certificates; that they were all residing in the state of Texas prior to and on January 1, 1910; that neither one of them had paid his poll tax levied for the year 1910; but had each received an exemption certificate for said year 1910 on account of having lost a hand or a foot and for that reason only.

"Additional Conclusions of Law.

"1. I conclude that the persons named above in section 4 of these additional findings of fact, who were at the date of said election enlisted men of the army of the United States on the retired list thereof, were legal voters at said election, and I counted their votes in tabulating the returns of said election.

"2. I conclude that the persons named above in section 5 of those additional findings of fact, who had not paid their poll taxes but who had received exemption certificates on account of having lost a hand or foot, were legal voters at said election, and I counted their said votes in tabulating said returns."

The first, second, third, fourth, fifth, sixth, and seventh assignments of error assail the action of the court in sustaining the exceptions to certain sections of the trial amendment of appellants. It is revealed by the record that on April 8, 1911, exceptions to appellants' original petition were sustained by the court to sections 6 and 7, which set up misconduct of municipal officers, violations of the Terrell election law, the use of two ballots instead of one, failure of the presiding judge to write his name and the number and that it was voted on certain ballots, etc., and appellants were given leave to amend. On April 15th appellants filed their ...