Guerra v. Ramirez
| Decision Date | 27 September 1961 |
| Docket Number | No. 13894,13894 |
| Citation | 351 S.W.2d 272 |
| Parties | Virgilio H. GUERRA et al., Appellants, v. Mario E. RAMIREZ et al., Appellees. |
| Court | Texas Court of Appeals |
Hill, King, McKeithan & Reynolds, Mission, Arnulfo Guerra, Roma, Gerald Weatherly, Laredo, for appellants.
L. Hamilton Lowe, Austin, A. J. Vale, Glenn H. Ramey, F. R. Nye, Jr., Emilio Gutierrez, Pope & Pope, Rio Grande City, for appellees.
This is an election contest growing out of a school trustee election held by Roma Independent School District in Starr County, Texas, on April 1, 1961. Virgilio H. Guerra, Lucio Gonzalez, Alonzo Alvarez, and Erasmo Z. Perez, known as the old party candidates, were declared to have been elected by the election officials, and Mario E. Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra, and R. T. Gonzalez, known as the new party candidates, were declared to have been defeated. There were eight names on the official ballot, with only four to be elected. Some 1950 votes were cast in the election. Of these, about 1,250 were present voters and about 700 were absentee voters.
The present voters taken alone gave the old party candidates a majority of about 800 to 400, while the absentee votes taken alone gave the contestants a majority of approximately 620 to 80. Thus it will be seen that the absentee votes were overwhelmingly for the new party candidates. About 216 absentee votes were challenged by Arnulfo Guerra, as challenger for the old party, and all of these challenges were sustained by the election judge. Francisco Hinojosa was the challenger for the new party and made only a few challenges, all of which were overruled.
After the rejection of some 200 absentee ballots cast for the new party candidates, the election officials declared the candidates of the old party elected by the following votes:
Old Party Candidates New Party Candidates
-------------------- ---------------------
Virgilio H. Guerra 936 votes Mario E. Ramirez 850 votes
Lucio Gonzalez 918 " Cesar Salinas 853 "
Alonzo Alvarez 890 " Mrs. Maxine C. Guerra 836 "
Erasmo Z. Perez 896 " R. T. Gonzalez 829 "
Thus it will be seen that the new party candidates were defeated by a margin of about 37 votes to 107 votes, after some 200 challenges were sustained.
The new party candidates contested the election, and after hearing evidence the trial court ruled that 192 persons listed in the contestants' petition whose votes had been rejected were qualified voters. He eliminated three votes for contestees on the ground that the persons casting these votes were convicts. He then held that the absentee votes marked 'mutilated' and rejected by the election officials, were valid and should be counted. This resulted in a gain of 13 votes for contestants.
The trial court also opened the stub box, collected all stubs which had not been signed, and eliminated the ballots corresponding to these stubs. Contestees thereby lost twenty votes and contestants three votes, resulting in a net loss for contestants of 17 votes. Of the absentee ballots held invalid by the trial judge, 190 were cast for contestants, and some seven cast for contestees. The trial court declared the contestants elected and the contestees defeated by the following votes:
Contestees Contestants
----------- -------------
Alvarez 872 R.T. Gonzales 1033
L. Gonzalez 899 M. Guerra 1037
V. Guerra 918 Ramirez 1054
Perez 879 Salinas 1057
The first question to be decided is whether the burden of proof was on the contestants to show by the evidence that the ballots rejected by the election officials were in truth and in fact those of voters qualified in every respect, or whether they were only required to prove that the grounds on which the ballots were allegedly rejected did not exist.
The general rule, universally followed, is that when election officials have rejected the ballot of a voter, such voter is presumed to be an illegal voter, and the burden of proof is upon the party wishing to have that ballot counted to show by clear and satisfactory proof that such voter was a legally qualified voter in every respect. Pippin v. Holland, Tex.Civ.App., 146 S.W.2d 266; Barker v. Wilson, Tex.Civ.App., 205 S.W.2d 543; Kempen v. Bruns, Tex.Civ.App., 195 S.W. 643; 21 Tex.Jur.2d, Elections, p. 446, Sec. 179. The same rule applies whether the ballots are cast by present voters or by absentee voters. Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956.
Appellees, while conceding that the general rule is that election judges are presumed to have done their duty, and therefore their action in rejecting votes should be upheld, unless those wishing to have such rejected votes counted show at least prima faciely that such votes were legal votes, contend that in this case the rule should be reversed, because Raul Gonzalez, who acted as presiding judge of the election, was disqualified to so act, and demonstrated that he was not fair and impartial, but biased, prejudiced and very much of a partisan in favor of the old party candidates.
In this connection, appellees point out that under the provisions of Art. 3.04, Texas Election Code, V.A.T.S., Raul Gonzalez was disqualified to act as such presiding judge because he had served as a member of the Board of Trustees of the Roma Independent School District up until two days before the election. He was neither duly appointed or elected, but merely appeared, and upon the suggestion of J. C. Guerra, volunteered to serve. Appellees further contend that he demonstrated his bias, prejudice and unfairness when he had first sustained a challenge made by Arnulfo Guerra, challenger for the old party, as to two absentee votes, but when someone present said 'they are ours' he reversed his ruling and Guerra withdrew his challenge; then, when Hinojosa, challenger for the new party, made the same challenge that had been made by Guerra, he promptly overruled it. They further point out that he sustained about 200 challenges to absentee votes made by Guerra without any sworn evidence to support such challenges.
Appellees have cited no authorities sustaining their contention to the effect that where it is shown that the presiding judge of an election is disqualified, not properly elected or appointed, prejudiced, biased and an unfair partisan, as above stated, the presumption should not be that he has done his duty in passing upon challenges to votes, but should be to the contrary. The case of Meriwether v. Stanfield, Tex.Civ.App., 196 S.W.2d 704, cited by appellees, goes no further than to hold that where it is shown that a presiding judge of an election is a strong partisan in favor of one side; that he has wagered money that a certain candidate will win, and that he alone read all the ballots and no one checked his reading thereof, the trial judge is justified in opening the ballot boxes and recounting the ballots. That case would not justify our holding here that the rule which assumes that election officials have done their duty, be disregarded and that rejected ballots should be counted, without evidence being offered by the contestants that they were cast by voters who were in every respect qualified to vote in the election.
It is plain that before the appellees here would be entitled to have a vote counted in their behalf, which had been rejected by the election officials, the burden would be upon them to show, by clear and convincing evidence, that the voters who cast such rejected ballots were qualified voters in every respect. This is true not only of the ballots marked 'rejected', but also of those marked 'mutilated'. This the appellees have failed to do, with the...
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