Harrison v. Jay

• Decision Date: 18 December 1953
• Docket Number: No. 3052,3052
• Citation: 280 S.W.2d 636
• Parties: Euel D. HARRISON et al., Appellants, v. M. V. JAY et al., Appellees.
• Court: Texas Court of Appeals

Page 636

280 S.W.2d 636

Euel D. HARRISON et al., Appellants, v. M. V. JAY et al., Appellees.

No. 3052.

Court of Civil Appeals of Texas, Eastland.

Dec. 18, 1953.

Rehearing Denied July 29, 1954.

Scarborough, Yates, Scarborough & Black, Abilene, for appellant.

Wilson, Wilson & Logan, San Angelo, Tom Davis, Haskell, for appellee.

LONG, Justice.

On March 29, 1952, an election was held in Kent County for removal of the county seat from Clairemont to Jayton. The result of such election as canvassed by the Commissioners' Court was declared to be 610 for Jayton and 308 for Clairemont. If the result so declared is sustained, Jayton being more than five miles from the center of the county, failed to receive the necessary two-thirds majority of the vote polled to remove the county seat as required by Article 1595, Vernon's Annotated Revised Civil Statutes. This suit was brought by twenty interested citizens of Kent County as a statutory election contest of such election. By agreement of the parties, the case was transferred to the District Court of Haskell County where the trial was held which resulted in a judgment for contestants declaring the result of the election to be in favor of the removal of the county seat to Jayton. Contestees have appealed.

The trial court, in its judgment, excluded 26 votes for Clairemont and 25 votes for Jayton cast by voters in election precincts other than in which the voters lived. The trial court also excluded 5 votes for Clairemont and 7 votes cast for Jayton on other grounds. Both contestants and contestees challenged for various reasons the validity of numerous votes cast at the election. Considerable evidence was introduced and many questions raised in the trial court, but the case has been narrowed down to two questions on this appeal.

Appellants contend the trial court erred in excluding the votes cast in voting precincts outside the residence of the voters because the voting precincts in Kent County were never legally created and because the voters in casting said votes did so in good faith. The other question presented is that the trial court erred in refusing to exclude 57 votes for Jayton for the reason that the voters obtained their poll taxes at Jayton after the collector had closed his office in Clairemont on January 31, 1952. We do not agree with either of these contentions. The law is well settled that all voters must vote in the election precinct in which they reside and that a vote not so cast is illegal. V.A.T.S., Election Code, Art. 2.06.

In McCormick v. Jester, 53 Tex.Civ.App. 306, 115 S.W. 278, 287, the court said:

'The appellees cross-assign error to the holding that Johnnie Cook, Ed Ewing, W. L. Green, Henry Hicks, J. W. Higgins, Guy, Millorn, Lewis Pevehouse, Sanford Scroggins, Owen Sheppard, and Jim Wilhelm were illegal voters, and deducting their votes from the total number of votes cast against prohibition. These voters did not vote in the precinct of their residence. This is a constitutional requirement, and cannot be ignored. Const. art. 6, § 2; Gen.Laws 1905, p. 522, c. 11, §§ 7, 10; Cooley's Const.Lim. (7th Ed.) 754; Roper v. Scurlock, 29 Tex.Civ.App. 464, 69 S.W. (456) 458.

'The fact that the voter believed that he lived in a different precinct did not justify his voting there. G. R. Rakeshaw did not vote in the precinct of his residence, and his vote was illegal.'

The evidence discloses that the voters who voted in precincts other than the one in which they resided did so in some instances because it was more convenient to vote there or because of their desire to vote in that particular election precinct or on account of the failure of the voters to acquaint themselves with the precinct lines that had been in existence for many years. It is the duty of the Commissioners' Court, under Article 2.04 of the Election Code, which was formerly Article 2933, to divide their respective counties into election precincts by an order to be entered upon...