Hanscom v. Lockhart

• Decision Date: 06 June 1895
• Parties: HANSCOM v. STATE ex rel. LOCKHART.
• Court: Texas Court of Appeals

31 S.W. 547

HANSCOM v. STATE ex rel. LOCKHART.

Court of Civil Appeals of Texas.

June 6, 1895.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Proceeding on the relation of W. B. Lockhart against S. S. Hanscom to try the right to the office of county judge. From a judgment for the relator, respondent appeals. Affirmed.

Lovejoy & Sampson and Spencer & Kincaid, for appellant. Jas. B. & Chas. J. Stubbs and Morgan M. Mann, for appellee.

WILLIAMS, J.

This was a proceeding in the nature of a quo warranto instituted by appellee, as relator, against appellant, for the purpose of trying the right to the office of county judge of Galveston county, for which the parties were opposing candidates at the election of 1894, and to which both claimed to have been elected. After a trial before a jury, in the course of which there was a count made of the ballots cast at the election, it was found that appellee had received a majority of 10 votes over appellant, and verdict and judgment were rendered accordingly. In this appeal many points are relied upon to reverse this judgment. Well condensed as are the briefs of counsel, they necessarily cover much space, and present many contentions against and in support of the judgment, which have had our careful consideration. The approach of the end of this term of court, and the propriety of an early decision of the cause without unnecessary delay, render it impracticable for us to do more upon most of the points than to announce the conclusions reached concerning them. Some of them, of controlling importance, will be discussed more at length.

The assignments attacking the information and the right of action under the facts alleged have been disposed of adversely to appellant by the recent opinion of the supreme court in the case of Dean v. State, 30 S. W. 1047.

Under the rulings of the court below in the trial of this case, there were counted for relator seventeen ballots from which respondent claimed that the names of both candidates had been erased by the voter, and four upon which respondent claimed the names of both had been left. The ballots have been sent up with the record, and, after an inspection of them, we agree with the court below in his rulings upon all of the first class, except two, viz. No. 90, of precinct 5, and No. 485, precinct 3, as to which the members of this court are not agreed. Those votes could not change the result, as we find it. We also concur with the trial judge in all of his rulings upon the ballots of the second class, except one, No. 312, of precinct 7½, which we think should have been excluded.

The court, over the objection of respondent, excluded 10 ballots, which are also before us, on the ground that the names of both relator and respondent had been erased from them; respondent contending that only the name of relator had been erased, leaving his own upon the ticket, and that these ballots should be counted as votes in his favor. We think the rulings of the court were correct as to all of these ballots, except one, No. 249, of precinct 3, which, in our opinion, should have been admitted and counted for respondent.

There were counted for relator 10 ballots, each of which had the name of the voter who had cast it written upon the back of it; and, when they were offered in evidence, respondent objected to their admission, on the ground that the indorsements rendered them void. This contention is based upon article 1694 of the Revised Statutes, and upon the provisions of the act of the legislature of April 12, 1892, regulating the registration of voters and the conduct of elections in cities of 10,000 inhabitants or more, which were in force in Galveston when the election in question was held. Acts 22d Leg., Called Sess., p. 18, § 28. Article 1694, Rev. St., provides that "all ballots shall be written or printed in plain white paper, without any picture, sign, vignette, device or stamp mark, except the writing or printing in black ink or black pencil of the names of the candidates and the several offices to be filled, and except the name of the political party whose candidates are on the ticket; provided such ballots may be written on plain white foolscap, legal cap or letter paper." There is a further provision for the rejection from the count of tickets not in conformity with the above requirements, and upon other grounds. There are also various provisions prohibiting acts and omissions the violation of which is declared to be an offense, but is not made ground for rejection of ballots. Articles 1694, 1695, and 1697. The act of 1892 does not contain within itself a complete system of laws for the conduct of elections in cities where it is put in force, but simply adds to the body of laws upon the subject some additional regulations and safeguards. It is a mistake to assume that it works any such radical change in the election laws of this state as has been wrought in other states by the adoption of a new and complete system of election laws modeled after that of Australia. Decisions of the courts of those states enforcing the minute and rigid regulations of their statutes have often very little application here, and are apt to be misleading rather than otherwise. Our statute introduces comparatively few of the regulations and prohibitions found elsewhere in the reformatory statutes; and generally it seeks to secure obedience to its requirements by the imposition of penalties upon those guilty of violations of them, and not by nullifying ballots that have not been cast in strict accordance with them. In one instance it provides that a ballot cast shall not be counted; i. e. where it has not upon it the official stamp. In another it provides that "any person who shall show his ballot after it is marked to any person in such a way as to reveal the contents thereof or the name of the candidate or candidates for whom he marked his ballot, * * * or any elector; or any one who shall, contrary to the provisions of this act, place any mark upon or do anything to his ballot by which it may afterward be identified as the one voted by any particular individual,"—shall be punished, etc. But it does not declare that the ballot so exposed or marked shall not be counted. Under the Revised Statutes as they stood before this law was passed, and under the later statute, it is apparent, therefore, that some acts or omissions will cause the rejection of a ballot, while others simply subject persons to prosecution and punishment. It is for the legislature to prescribe the causes for which votes shall be rejected, and to those prescribed the courts have no right to add others. Davis v. State, 75 Tex. 432, 433, 12 S. W. 957; State v. Phillips, 63 Tex. 393; Owens v. State, 64 Tex. 509; Williams v. State, 69 Tex. 372, 6 S. W. 845.

It may be conceded that the writing of the voter's name upon the back of his ticket is a violation of the act of 1892; but, as there is no provision in that act which makes the disregard by the voter of the prohibition above quoted a ground for rejecting the ballot, if it is rejected it must be by virtue of some other law. We are to determine, therefore, whether or not the name upon the ticket is a "picture, sign, vignette, device, or stamp mark," within the meaning of article 1694. If it is either, the vote is, by the express provisions of that article, to be rejected. It is not contended that it is either a picture, sign, vignette, or stamp mark, but it is urged that it is a "device." Without entering into any discussion of the various definitions given of that word, we think no one would naturally or ordinarily speak of a person's name as a "device," or understand it to be included in that word. It would be a strained interpretation of the language that would make it apply to the name of the voter written upon his ticket,—such an interpretation as a court cannot put upon an election statute to the disfranchisement of the voter. Says Chief Justice Willie, speaking of this provision of the statute: "All statutes tending to limit the citizen in his exercise of this right [suffrage] should be liberally construed in his favor. Unless the ticket comes with the letter of the prohibition, it should be counted. We do not feel disposed to extend the meaning of the word `device' beyond its literal signification." Owens v. State, supra. In State v. Phillips, 63 Tex. 393, the same judge states the same principle, and says: "By the word `device,' as used in the statute, was, doubtless, meant a figure, mark, or ornament of a similar character with the pictures, signs, etc., enumerated in the came connection, and placed upon the ticket in a like manner." If we are to assume that the purpose of the prohibition in article 1694 was to prevent the voter from disclosing his vote by investing his ballot with any evidence by which it could be afterwards identified, and hence conclude that the language must be construed to embrace anything which could bring about that result, the contention of appellant might be sound. But that statute neither says that its purpose is to forbid the voter from furnishing means by which to identify his vote, nor forbids his doing it in many ways. He may not vote a ticket such as is prohibited but many methods of showing his vote are left open to him. Neither the size, shape, thickness, nor texture of the paper on which the ballot is to be written is prescribed. It must be upon plain white paper, but either legal-cap, foolscap, or letter paper may be used. It may be wholly written or wholly printed, or partly written or partly printed. Mutilations and irregularities of shape are not prohibited; and, finally, the voter is not forbidden to expose his ticket, or to tell whom he pleases what candidates he is voting for. It, therefore, seems to the writer to be difficult to maintain the proposition which is assumed in argument, and sometimes in decisions, that the purpose of this statute was to...