Bagley v. Holt

• Decision Date: 23 July 1968
• Docket Number: No. 7875,7875
• Citation: 430 S.W.2d 817
• Parties: James BAGLEY et al., Appellants, v. Lowell HOLT, as District Attorney for Upshur County, Texas, Appellee. . Texarkana
• Court: Texas Court of Appeals

Page 817

430 S.W.2d 817

James BAGLEY et al., Appellants, v. Lowell HOLT, as District Attorney for Upshur County, Texas Appellee.

No. 7875.

Court of Civil Appeals of Texas Texarkana.

July 23, 1968.

Rehearing Denied Aug. 20, 1968.

Joe P. Taylor, Jr., Wm. C. Martin, III, DeWitt & Martin, Longview, for appellants.

Welby K. Parish, Gilmer, for appellee.

PER CURIAM.

The appellant's brief contains a statement of the nature of this case that appears so complete, fair and accurate that it is, with slight elision, adopted for the purposes of this opinion and quoted next:

'This is an appeal under Article 9.17 of the Texas Election Code, as amended, from the judgment upon a school consolidation election contest tried without a jury before the 115th Judicial District Court of Upshur County, Texas, and is based in part on the findings of fact filed by the Trial Court at the request of Appellants and in part upon the Statement of Facts filed herein. It alleges three points of error involving four votes originally cast and counted AGAINST CONSOLIDATION and one vote originally cast and counted FOR CONSOLIDATION. All three points of error involve separate, * * * questions concerning the application of art. 815 of the Texas Election Code, as amended, i.e., the 'stubballot law'.

'The contest was brought by four members of the former Board of Trustees of the East Mountain Independent School District, No. 907, as Contestants, against the District Attorney for Upshur County, Texas, as Contestee, to set aside the results of an election held on April 15, 1967 in the East Mountain Independent School District on the proposition of consolidation of that school district with the Gilmer Independent School District. The order of the Upshur County Commissioner's Court declaring results of election and consolidating school districts, entered on April 18, 1967, * * * showed that 760 ballots were cast and counted, of which 381 were cast and counted for consolidation and 379 cast and counted against consolidation. The Trial Court entered judgment on August 1, 1967, reciting that 717 legal votes were cast, of which 359 were cast for consolidation and 358 were cast against consolidation. From that judgment, Appellants have perfected their appeal.

'Since all of Appellants' points of error stem from the actions of the Trial Court after the opening of the stub and ballot boxes, a summary of the procedure followed in the conduct of the contest is necessary to an understanding of the Trial Court's rulings.

'In the discretion of the Trial Court under art. 9.08 of the Texas Election Code, as amended, the contest was conducted in the following manner:

'The Contestants produced evidence on their challenges which involved qualifications of voters and other irregularities discoverable by testimony or by other means than the opening of the stub and ballot boxes.

'Then, Contestee produced evidence on his challenges of the same nature, and Contestants produced rebuttal evidence.

'After the Trial Court entered his order sustaining or overruling the challenges of the Contestants and Contestee, he proceeded to open the stub boxes, check the total number of stubs representing the votes cast against the number of voters whose names were on the poll list, and remove the stubs of those voters to whose votes challenges had been sustained and any stubs on which there was no signature. The trial court then opened the ballot boxes and removed the ballots corresponding to the stubs removed and determined how each ballot was cast so that he could eventually deduct it from the votes counted for or against consolidation, as appropriate.

'In the course of this procedure after the opening of the stub and ballot boxes, the Trial Court discovered nine unsigned stubs, corresponding to one ballot originally cast and counted for consolidation and eight ballots originally cast and counted against consolidation. Three of the voters whose stubs were unmarked had signed their names across the front of the ballot itself. The Trial Court ultimately sustained Contestee's challenges to these three ballots, which are the subject of Point of Error One. The Trial Court also discovered a stub marked with an 'X' and the name of the election judge. The Court ultimately overruled Contestants' challenge to this ballot, which is the subject of Point of Error Two . The Trial Court reserved final decision on the contest pending argument on the challenges made after opening the stub and ballot boxes and recessed so that counsel could prepare their authorities on the questions presented by these ballots.

'Upon reconvening, the Trial Court reopened the stub and ballot boxes and recorded the votes of those voters to whose qualifications the challenges had been overruled so that, in the event of an appeal, the Appellate Court could render judgment. In connection with this process, counsel were allowed to examine the mutilated ballot envelopes in each box; whereupon counsel for Contestee challenged the stub signed by a married woman with her husband's initials and surname. This challenge was ultimately sustained by the Trial Court and is the subject of Point of Error Three.

'Since the judgment of the Trial Court was that the proposition FOR CONSOLIDATION carried by one vote, if this Honorable Court sustains any one or more of Appellants' points of error herein, consolidation will have failed to carry, and the judgment of the Trial Court must be reversed and rendered.'

Electors participating in the election cast ballots 759, 794, and 806 against consolidation. The signature of the voter casting each of these ballots was not affixed to the corresponding ballot stub. Instead, in each instance the voter placed his signature upon the ballot. Ballots could be and were identified by reference to the signatures. The trial court ruled the three ballots void and deducted their total from the total of votes cast against consolidation. The trial court's action is presented for review by appellants' point of error number one.

In Vicars v. Stokely, 296 S.W.2d 599 (Tex.Civ.App.--San Antonio 1956, writ ref'd, n.r.e.), the majority opinion held certain cast ballots invalid when corresponding stubs from the ballots did not bear the signature of the voter. The author stated that the lw, Tex . Election Code Ann. art. 8.15, made it mandatory that a voter sign his ballot stub when he voted in person. This opinion then says:

'* * * This procedure in voting is in keeping with the objectives sought by the Code. Arts. 1 and 6.05, Election Code. A voter must strictly conform to those things which he is required by statute to do. 'The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and on the other of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute where such failure has not prevented a fair election.' McCrary, Elections, (4th Ed.) § 724; Davis v. Walcott, Tex.Civ.App., 96 S.W.2d 817. * * *'

On motion for rehearing a second member of the court concurred with the reasoning in the majority opinion and emphasized an expression by quoting it, to-wit: 'To hold that a voter's signature on the stub is unnecessary would be to repeal the Secret Ballot Law of Texas, which the Legislature has enacted'. The concurring opinion took the occasion to explore another phase of the question by demonstrating that under the circumstances of the case the absence of signed stubs made it impossible to identify the persons casting approximately three hundred ballots found in the ballot boxes. This opinion did not by calling attention to that particular circumstance retreat from or cast doubt upon the position stated in the first majority opinion:

On appeal to the Supreme Court that tribunal in a per curiam opinion (Vicars v. Stokely, 157 Tex. 182, 300 S.W.2d 623--1957) said:

'The Court of Civil Appeals has held in this case that ballots should not be counted when the corresponding stubs do not bear the signature of the voter. 296 S.W.2d 603--604, 605--607. That holding is in conflict with the holding of the El Paso Court of Civil Appeals in Fox v. Nail, 294 S.W.2d 407,...