Duncan v. Willis

• Citation: 302 S.W.2d 627,157 Tex. 316
• Decision Date: 15 May 1957
• Docket Number: No. A-6104,A-6104
• Parties: J. O. DUNCAN, County Attorney Upshur County, Petitioner, v. Clayton WILLIS et al., Respondents.
• Court: Supreme Court of Texas

Page 627

302 S.W.2d 627

157 Tex. 316

J. O. DUNCAN, County Attorney Upshur County, Petitioner, v. Clayton WILLIS et al., Respondents.

No. A-6104.

Supreme Court of Texas.

May 15, 1957.

Rehearing Denied June 19, 1957.

Fulton, Hancock & McClain, Gilmer, for petitioner.

Looney Lindsey, Power, McDonald & Mell, Gilmer, for respondent.

NORVELL, Justice.

This is an election contest and while judgments in such proceedings are ordinarily final in the Courts of Civil Appeals, we took jurisdiction by reason of the admitted conflict between the decision below, Willis v. Duncan, Tex.Civ.App., 294 S.W.2d 914, and one of the numerous holdings made in Linger v. Balfour, Tex.Civ.App., 149 S.W. 795. See Articles 1728 and 1821, Vernon's Ann.Tex.Civ.Stats., as amended by Acts of the 53rd Leg., (1953) ch. 424, p. 1026. Following oral argument we have concluded to resolve the conflict in favor of Linger v. Balfour. Writ of error having been granted to settle a conflict of decisions, our jurisdiction extends to all properly presented questions of law in the case. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185. In order to determine the proper order to be entered in the cause it is ncessary for us to examine the assignments of error urged in the application for writ of error and the points of error contained in the brief of the prevailing party in the Court of Civil Appeals. If such brief presents matters which would call for an affirmance of the judgment of the Court of Civil Appeals despite efficiently raised errors contained in the application, the judgment of the lower court should be affirmed. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, on rehearing 239 S.W. 185; West v. Carlisle, 111 Tex. 529, 241 S.W. 471; Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785.

Our examination of the various contentions of the parties which are pertinent to the proper disposition of this cause under the rule above set out leads us to the conclusion that the judgment of the Court of Civil Appeals should be affirmed despite its failure to apply the rule of decision laid down in Linger v. Balfour. We shall discuss the points raised by the respective parties in the order presented in the application for writ of error and the appellants' brief in the Court of Civil Appeals. Opinions of the various Courts of Civil Appeals cited in this opinion are for the most part election contest cases in which applications for writ of error were not filed. We will indicate those cases in which some action was taken by this Court upon an application for writ of error.

The disputed election was one relating to the consolidation of two common school districts in Upshur County, Texas which we shall refer to as the Glenwood District and the East Mountain District. In its canvass of the returns the Commissioners Court determined that the consolidation proposal failed bacause of a want of a majority in the Glenwood District,-the vote being 92 votes for and 92 votes against consolidation. Clayton Willis and others contested the election and the district court held that the consolidation proposal had been defeated by a vote of 91 to 90. This holding was reversed by the Court of Civil Appeals and the original contestee brings the case here as petitioner. In addition to a motion to dismiss, petitioner in his application asserts that the votes cast by the following persons were illegal and should not be counted, viz:

B. E. Butler and wife, Floyd Craig and wife-these four votes were not counted by the district judge. The Court of Civil Appeals held that they should have been counted for consolidation.

Clyde Ray and wife, Roland T. Drake and wife, and Jean (or Gene) Webb-these votes were apparently cast for consolidation and considered legal votes by both the trial court and the Court of Civil Appeals.

In Linger v. Balfour, Tex.Civ.App., 149 S.W. 795 it appeared that the poll tax of the voter Albert Verdon had been paid by his employer without his knowledge and consent. The holding that this vote was illegal was placed upon the constitutional provision that 'any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax before offering to vote at any election in this State and hold a receipt showing that said poll tax was paid before the first day of February next preceding such election.' Vernon's Ann.St.Const. art. 6, § 2. It was said in the Balfour opinion, 149 S.W. loc. cit. 808, that:

'* * * In support of his contention that this voter was entitled to vote, contestee cites us to the case of Wallace v. Williams, 50 Tex.Civ.App. 623, 110 S.W. 785, wherein the First Court of Civil Appeals, in an opinion rendered by Chief Justice Pleasants, held: 'The right of suffrage conferred by the Constitution does not depend upon the payment of his poll tax 'in person' by the voter. All that it requires is that the voter shall pay his poll tax on or before February 1st next preceding the election, and that he shall have his receipt therefor. The statute upon the subject directs that the voter shall pay the tax in person, or give a written order therefor; but it does not provide that a failure to obtain his receipt in the manner directed by the statute will disfranchise the voter. Each of the voters in question had complied with the provision of the Constitution by paying their poll tax and obtaining a receipt therefor regular upon its face; and the irregularity of the state or tax collector and the voter in the manner of making the payment and obtaining the receipt would not deprive the voter of his constitutional right of suffrage.' It is to be noted, however, that the facts in this case, as found by the trial court, are different from the facts here under consideration. In the Wallace case the facts show that the tax was paid for the voters in question on their verbal request and with money furnished by them. In the case of the voter here under consideration we find from the evidence that his tax was not paid at his request, either verbal or written, and was not paid with his money, but was paid by a volunteer with his own money, and without any authority to make such payment; and we perceive no conflict with the opinion referred to of the First Court of Civil Appeals and ours here, holding that such payment so made by a volunteer with his own money, and not that of the voter, and without request or authority from the votor does not comply with the requirements of the Constitution to the effect that the voter shall pay his poll tax. * * *.'

Reference was made to this distinction in the comparatively recent case of Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792, 794, in which it was pointed out that the election code (specifically Article 5.11, Vernon's Tex. Election Code, V.A.T.S.) did not provide that payment of poll tax by one other than the voter would render such votes null and void and consequently it was necessary to allege and prove facts which would bring the case within the constitutional inhibition. 'It compels a showing (in addition to proof of payment of poll tax by another) that there was no proper authority to purchase the poll tax. Linger v. Balfour, Tex.Civ.App., 149 S.W. 795.'

In determining whether or not a questioned vote should be counted, the rule generally applicable is the explicit wording of the election code itself. Election contests are legislative and not judicial proceedings, Williamson v. Lane, 52 Tex. 335; State ex rel. Jennett v. Owens, 63 Tex. 261; DeShazo v. Webb, 131 Tex. 108, 113 S.W.2d 519; Gonzales v. Laughlin, Tex.Civ.App., 256 S.W.2d 236, and if the remedy be expeditious and effective, it is essential that the legislative directives be adhered to strictly. Obviously, an election contest which encompasses the trial of numerous complicated and perhaps remote issues will afford no remedy at all. In an election contest, time is of the essence and the moot case is no stranger to our election experience. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484; Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753; Benavides v. Atkins, 132 Tex. 1, 120 S.W.2d 415; Oliver v. Freeland, Tex.Civ.App., 74 S.W.2d 711. Generally this jurisdiction destroying situation develops in the trial court. Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632. However the general guide,-a legislative statement that the irregular vote shall not be counted-is not an inflexible rule, Vicars v. Stokely, Tex.Civ.App., 296 S.W.2d 599, wr. ref. n.r.e. 300 S.W.2d 623, and the decision in Linger v. Balfour, Tex.Civ.App., 149 S.W. 795 can be reconciled with other decisions relating to irregular payment of poll taxes upon the grounds stated in the opinion and recoganized in Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792.

The trial judge's findings as to the Butlers and the Craigs were as follows:

'That B. E. Butler and Mrs. B. E. Butler (Floyd Craig and Mrs. Floyd Craig) did not pay their poll tax, their poll tax having been bought by Rhodie Wheeler without their consent, nor did they pay the money or give anything of value or authorize the said Rhodie Wheeler to purchase the poll taxes, and were not legal and qualified voters of the Glenwood Common School District on April 30, 1955, the date of the election.'

These findings place such voters squarely within the constitutional proscription recognized in Linger v. Balfour, Tex.Civ.App., 149 S.W. 795 and were therefore properly excluded by the trial judge.

We are also of the opinion that the trial judge and the Court of Civil Appeals were correct in holding that Jean (Gene) Webb, Clyde Ray and wife and Roland T. Drake and wife were legal voters at the disputed election. Petitioner asserts that these voters had not resided in the Glenwood Common School District for a period of six months immediately preceding the election.

Article 6, § 2 of the Constitution, Vernon's Ann.St. and Article 5.02 of Vernon's Tex. Election Code are practically identical. The...