Harrison v. Jay, A-4486

• Decision Date: 07 July 1954
• Docket Number: No. A-4486,A-4486
• Citation: 271 S.W.2d 388,153 Tex. 460
• Parties: HARRISON et al. v. JAY et al.
• Court: Texas Supreme Court

Page 388

271 S.W.2d 388

153 Tex. 460

HARRISON et al. v. JAY et al.

No. A-4486.

Supreme Court of Texas.

July 7, 1954.

Rehearing Denied Oct. 6, 1954.

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

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

GRIFFIN, 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. The trial court, in its judgment, excluded 26 votes for Clairemont and 25 votes for Jayton cast by voters in election precincts other than those in which the voters lived.

It is shown that on January 31, 1952, on the last day for the payment of poll taxes, that the tax collector of Kent County closed his office at Clairemont late in the afternoon and went to Jayton where he remained for some time on that night and issued a number of poll tax receipts in Jayton. It is the contention of contestees that 57 voters who obtained their poll taxes at Jayton on that night were disqualified and that having voted in favor of Jayton, that such votes should have been excluded. There is no attack made upon the qualifications of these voters other than the fact that they obtained their poll tax receipts from the tax collector in Jayton, and that at that time the tax collector had closed his office in Clairemont, the county seat. There is no showing that any person was prevented from obtaining his poll tax receipt at Clairemont because of the fact that the collector had closed his office and gone to Jayton on that night. The trial court held that the 57 votes were valid and should be counted. On appeal the Court of Civil Appeals at Eastland wrote a tentative opinion (which accompanies their certificate as required by Rule 466, T. R. C. P.) affirming the action of the trial court. Upon proper motion the Court of Civil Appeals have certified to us three questions, to wit:

One: Did we err in holding that votes cast in an election precinct other than the precinct in which the voters resided could not be counted?

Two: Did we err in holding that the contestees could not, in this election contest, attack the validity of the orders of the Commissioners' Court establishing the election precincts?

Three: Did we err in holding that the votes cast by voters so obtaining their poll taxes at Jayton were not illegal?

The opinion of the Court of Civil Appeals has correctly disposed of this cause, and the Court has given logical, correct and good reasons supporting their judgment. We will be as brief as consistent with the circumstances in giving our answer to the certified questions.

To the first question we answer 'No'. Article 2.06 of the Election Code, V. A.T.S., is very clear and provides: 'All voters shall vote in the election precinct in which they reside'. This language needs no construction or explanation and by its very terms requires that a voter must cast his vote in the voting precinct where he resides. The decided cases have held this requirement must be obeyed if the vote is to be counted. McCormick v. Jester, 1909, 53 Tex.Civ.App. 306, 115 S.W. 278, writ dismissed, want of jurisdiction; Linger v. Balfour, Tex.Civ.App., 1912, 149 S.W. 795; Major v. Loy, Tex.Civ.App., 1941, 155 S.W.2d 617; Spraggins v. Smith, Tex.Civ.App., 1948, 214 S.W.2d 815; Tondre v. Hensley, Tex.Civ.App., 1949, 223 S.W.2d 671; State ex rel. Lukovich v. Johnston, Tex.Civ.App., 1950, 228 S.W.2d 327, writ dismissed, want of jurisdiction. Appellants cite some cases where votes cast at a particular place outside the boundaries of an election precinct have been allowed and counted as legal ballots. However, those cited cases are cases where the whole of the qualified electors voting at the election all voted at the same polling place. Through inadvertence or uncertainty as to the election precinct lines, the Commissioners' Court had designated the polling place as outside the legal boundaries. No case has been cited where the votes of residents of an election precinct have been allowed to stand when not cast at the regularly established polling place used by these district voters. When a voter leaves his own polling place to vote at a polling place not used by the voting residents of his own residence district, his ballot has not been allowed to count.

To the second question we answer 'No'. The attack made in this election contest on the orders of the Commissioners' Court of Kent County, Texas, establishing the election precincts, is a collateral attack. In the case of Davis v. State, 75 Tex. 420, 12 S.W. 957, 962, relief was sought upon the ground, among others, that the Commissioners' Court of Hays County had failed to follow the statutory requirements to establish election precincts with the same area and boundaries as the wards of the City of San Marcos. The facts showed such to be true. The validity of the votes cast in the ...