Davis v. Blakeley, 2801.

• Decision Date: 04 March 1948
• Docket Number: No. 2801.,2801.
• Citation: 208 S.W.2d 908
• Parties: DAVIS v. BLAKELEY.
• Court: Texas Court of Appeals

208 S.W.2d 908

DAVIS v. BLAKELEY.

No. 2801.

Court of Civil Appeals of Texas. Tenth District. Waco.

March 4, 1948.

Appeal from District Court, Freestone County; H. F. Kirby, Judge.

Suit by Addison Blakeley against Raymond Davis to have nomination of defendant as Democratic nominee for office of city marshal of City of Teague vacated and to have election declared void. From a judgment for plaintiff, defendant appeals.

Judgment reversed and rendered.

Williford & Williford, of Fairfield, and Ellen Victery, of Teague, for appellant.

W. W. Mason, of Mexia, for appellee.

HALE, Justice.

This suit arose out of a Democratic primary election held in the City of Teague on February 7, 1948. At the election so held, Raymond Davis received 538 votes, Addison Blakeley received 450 votes and B F. Brannon received 78 votes, respectively, as nominee for the office of city marshal. On February 9th the Democratic Executive Committee of said city met, canvassed the returns of said election, declared the results thereof and certified the name of Davis as nominee of the Democratic party for the office of city marshal in the general election to be held on April 6, 1948. Blakeley instituted this suit against Davis, praying that such nomination be vacated and held for naught and that such election be declared void. The case was tried before the court below without a jury on February 26th, and resulted in judgment granting Blakeley the relief prayed for by him. Davis has perfected his appeal to this court.

The record of the proceedings in the court below was filed in this court on March 1, 1948 and the cause was submitted here the next day on the written briefs and oral arguments of the respective parties. Unless the cause is to become moot, it must be finally disposed of in this court on or before March 6, 1948.

The evidence adduced at the trial shows that the official primary ballot was not printed and delivered for use in connection with absentee voting until on or about February 1st. It was also shown that no poll tax list of the qualified voters in the City of Teague was prepared and furnished to the primary election judges. However, there was no evidence showing that any person who desired to cast an absentee vote was denied the privilege of doing so, or that any vote was cast in said election by any person who was not a qualified voter, as shown by the tax rolls of the county in which the election was held. On the contrary, the evidence shows that a proper ballot was furnished to each qualified elector who desired to cast an absentee vote, and that the election was fairly and honestly held.

Under the foregoing record facts, appellant says the trial court erred in rendering judgment vacating his nomination and declaring the election to be void. In support of such contention he cites, among others, the following authorities: Fowler v. State, 68 Tex. 30, 3 S.W. 255; Bass v. Lawrence, Tex.Civ.App., 300 S.W. 207 (er. dis.); State ex rel. Pace v. Logan, Tex.Civ.App., 5 S.W. 2d 247 (er. dis.); Gillaspie v. McKinney, Tex.Civ.App., 24 S.W.2d 764 (er. dis.); State ex rel. Paggi v. Fletcher, Tex.Civ. App., 50 S.W.2d 450 (er. den.); Border v. Abell, Tex.Civ.App., 111 S.W.2d 1186; Schrock v. Hylton, Tex.Civ.App., 133 S.W. 2d 175.

On the other hand, appellee says the requirements that poll tax lists be furnished to the election judges and that the official ballot be printed and delivered for use in connection with absentee voting for a minimum of 20 days prior to the date of the election are mandatory requirements and that non-compliance therewith rendered the election void, and relieved him of any duty to show that the results of said election would have been different had such requirements been met. In support of such contention he cites, among others, the following cases: Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Yett et al. v. Cook, 115 Tex. 205, 281 S.W. 837; Holden v. Phillips, Tex.Civ.App., 132 S.W.2d 419; Schrock v. Hylton, Tex.Civ.App., 133 S.W.2d 175; Austin et al. v. City of Alice, Tex.Civ.App., 193 S.W.2d 290; Polk v. Davidson, Tex. Sup., 196 S.W.2d 632; Turner v. Lewie, Tex.Civ.App., 201 S.W.2d 86.

The dominant...