Kempen v. Bruns

• Decision Date: 16 May 1917
• Docket Number: (No. 5889.)
• Citation: 195 S.W. 643
• Parties: KEMPEN et al. v. BRUNS, Mayor.
• Court: Texas Court of Appeals

195 S.W. 643

KEMPEN et al. v. BRUNS, Mayor.

(No. 5889.)

Court of Civil Appeals of Texas. San Antonio.

May 16, 1917.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Election contest by George J. Kempen and others against Charles Bruns, as Mayor of Seguin. From a judgment for the contestee, the contestants appeal. Affirmed.

Greenwood & Short, of Seguin, for appellants. P. E. Campbell and Dibrell & Mosheim, all of Seguin, for appellee.

SWEARINGEN, J.

Appellants, Geo. J. Kempen, Theo Koch, and F. Klein, by this suit sought to contest an election for the issuance of bonds for sewers, held in Seguin, Guadalupe county, Tex., July 27, 1916, and which resulted in favor of the issuance of bonds. Judgment was rendered by the court in favor of the contestee and against the contestants.

The allegations of the petition and answer and the facts proven will sufficiently appear in our discussion of the various assignments.

The first assignment is that the judgment is contrary to the evidence for numerous reasons, briefly stated, as follows:

The returns of the election showed a majority of six in favor of the issuance of sewer bonds. Five named voters were prevented from casting their ballots through error of the election officers. Two named voters were prevented from going to the polls by report of the erroneous ruling of the election officers. Two or three unnamed, unidentified negroes were prevented from voting, through the erroneous ruling of the election officers. Had these nine or ten voters been permitted to cast their ballots, the result of the election would have been materially changed. It is contended that, these facts being true, the judgment should have declared the election void, instead of carried.

The ruling denounced as error by appellants is that the election officers required as evidence of the qualification of a voter that the assessment rolls should show that the voter had paid his property taxes. This rule, variously expressed by different witnesses, seems to have been adhered to by the election officers in several voting places. The ruling that the assessment roll was the only evidence, or that it must be shown that the voter actually paid the property taxes, was error.

The Constitution does provide that only those, otherwise qualified to vote, who pay taxes on property in towns or cities, are qualified to vote in elections to determine the expenditure of money or assumption of debt by said towns and cities. One who pays taxes has been construed to mean a taxpayer, and it has been determined that a taxpayer, in the meaning of the constitutional provision mentioned, is one who owns property in the town or city subject to taxes. Hillsman v. Faison, 23 Tex. Civ. App. 398, 57 S. W. 920. There is no law making the tax records the exclusive evidence that the voter is a taxpayer. Neither is it necessary that the property tax be actually paid.

Did this erroneous ruling of the election officers materially affect the result of the election? If so, the election must be declared void. V. R. C. S. art. 3063.

The burden of proof is, of course, upon the contestant to prove every allegation tending to show the material effect upon the result of the election of the error complained of. Garcia v. Cleary, 50 Tex. Civ. App. 465, 110 S. W. 176.

Another rule of law that will be relevant in the discussion of this assignment is that the court will consider the evidence of how a voter, denied the privilege of casting his ballot, would have voted had he been permitted. The reason given for this rule, in the excellent work of McCrary on Elections, is:

"This would be held to be the law upon the well-settled principle that the offer to perform an act which depends for its performance upon the action of another person, who wrongfully refuses to act, is equivalent to its performance." McCrary on Elections, (4th Ed.) § 137, p. 104.

The Texas Statute, art. 3063, modifies this general reason somewhat, but the rule as previously stated is sustained by the decisions of the Texas appellate courts. Truesdell v. Bryan, 24 Tex. Civ. App. 386, 60 S. W. 61; McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278; Savage v. Umphries, 118 S. W. 909; Savage v. Umphres, 62 Tex. Civ. App. 209, 131 S. W. 291. The opinion by Justice Stephens, in Rathgen v. French, 22 Tex. Civ. App. 439, 55 S. W. 578, is not in conflict with the rule stated, as was made clear by Justice Stephens himself in the opinion in Truesdell v. Bryan, 24 Tex. Civ. App. 386, 60 S. W. 61.

Bearing in mind the foregoing rules of law, we will examine the evidence of unlawful exclusion of qualified voters, to ascertain the material effect, if any, upon the result of the election herein contested.

1. Henry Aubel was a qualified voter and was unlawfully prevented from casting his ballot. The undisputed testimony showed that he would have voted in favor of the proposition to issue the bonds, for which the election returns showed a majority of six had voted. The rejection of this vote cannot, therefore, be considered as materially changing the result.

2. Eddie Burns did not do all that was required of him by the law to have his vote counted, for he did not appear at the voting place at all. His excuse was that Nic Williams told him that the election officers would not allow him to vote. This is not a sufficient reason for counting his ballot as voted. Nic Williams was not an election officer.

3. R. L. Hellman testified that he thought he would have voted against the bond issue. This is not sufficient; he should have testified that he would have voted against the bond issue. McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 284. Then, again, Hellman told the election officer he did not have any taxable property in the town of Seguin, upon which testimony they were in duty bound to refuse his offer to vote. It was the voter's duty to furnish the election officers evidence of his qualification; he failed in this duty. The refusal of Hellman's vote cannot be considered.

4. Jerry Johnson testified that he would have voted for the bond issue. Hence the refusal to permit him to vote cannot be considered in the determination of this assignment.

5. W. H. Johnson did not do his full duty, in that he did not go to the voting place and offer to vote. His excuse for failure to do so does not justify a consideration of his pretended vote.

6. August Spahn was a qualified voter and was illegally prevented from voting without fault on his part. He would have voted against the proposition. While...