Little v. Alto Independent School Dist. of Alto, Cherokee County, 759

Citation513 S.W.2d 886
Decision Date29 August 1974
Docket NumberNo. 759,759
PartiesT. D. LITTLE et al., Appellants, v. The ALTO INDEPENDENT SCHOOL DISTRICT OF ALTO, CHEROKEE COUNTY, Texas, et al., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

James N. Parsons, III, Paxton, Whitaker & Parsons, Palestine, for appellants.

Charles R. Holcomb, Cox & Holcomb, Rusk, Emerson Stone, Jr., Stone & Stone, Jacksonville, Peter M. Tart, McCall, Parkhurst & Horton, Dallas, for appellees.

DUNAGAN, Chief Justice.

Appellants, T. D. Little and other residents of the area comprising the Alto Independent School District, brought suit against the Alto Independent School District, contesting an election held on April 7, 1973. The purpose of the election was to determine whether the school district should issue bonds in the amount of $950,000.00. The results of the election were favorable to the issuance of such bonds by a total vote of 601 to 331. 1

Contestants alleged numerous irregularities and illegalities in the conduction of the election resulting in the perpetration of a fraud on the voters so as to make it impossible to determine the true will of the majority. Contestants also sought to have the ballot boxes opened for a recount of the ballots. The court refused to open the ballot boxes for a recount and upheld the validity of the election. Trial was held before the court without a jury and after hearing all the evidence, the court rendered judgment for the defendants-appellees. From this judgment contestants-appellants have perfected their appeal to this court.

Pursuant to contestants'-appellants' request therefor, the court made and filed its findings of fact and conclusions of law, finding that there was no evidence of any fraud and that the contestants failed to prove any defects in the election concerning a sufficient number of votes to change the results thereof.

Appellants contend that subsections 2 and 4 of Article 4.05 of the Election Code, V.A.T.S., were not complied with in that the notice given of the election failed to state the hour during which the polls would be open and that a copy of the notice as printed in the local newspaper was not filed with the county clerk.

Subsection 3 of Art. 4.05 states that '* * * or any other special election is specially provided for by the laws of this state, the notices of election shall be given in compliance with the laws governing each respective election.' The Supreme Court of Texas in Wallis v. Williams, 101 Tex. 395, 108 S.W. 153, made a clear distinction between general elections and special elections. The Supreme Court stated that special laws provide for special elections; special laws being those which apply to an 'individual or individuals . . . of a class and not to all of a class.' It cannot be questioned that the election in question is a special election, Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App., Houston, 1967, ref'd, n.r.e.), and therefore governed by the special laws applicable thereto. The rules and procedures governing notice for school tax and bond elections are set forth in Sec. 20.04 of the Education Code, V.A.T.S., which states in part that:

'* * * Each such election shall be called by resolution or order of such governing board or commissioners court, which shall set forth the date of the election, the proposition or propositions to be submitted and voted on, the polling place or places and any other matters deemed necessary or advisable by such governing board or commissioners court.'

The evidence clearly shows that such notice requirements were met through the publication of notice in the Alto Herald Newspaper, dated March 22, 1973. Subsections 2 and 4 of Art. 4.05 of the Election Code are not applicable here. Appellants' first contention is overruled.

Appellants next assert that the relationships between some of the election officials and employees of the Alto Independent School District were a violation of Art. 3.03 of the Election Code and thereby created a situation of bias or prejudice in the conduction of the election. This contention is overruled. Art. 3.03 is concerned with the qualifications of the election judges, clerks and watchers and Subsection (b) states that 'no person shall serve as a judge or a clerk in a general, special or primary election who is employed by any Candidate whose name appears on the ballot * * * or who is related to such Candidate within the third degree either by affinity or consanguinity.' (Emphasis added.)

The record shows that the election judge was the uncle by marriage of the principal of the Alto High School and that the judge had been chosen by the Superintendent of the Alto Independent School District; that one clerk was the wife of the principal of the Alto Elementary School; that a clerk was the first cousin of the principal of the Alto High School; and that another clerk was the sister of the secretary of the Alto Independent School District.

However, no evidence of any undue influence or improper tampering with the election process is presented in the record. Although it may be that, as regards Art. 3.03, some of the relationships described are questionable, in the absence of any attempted exercise of influence on electors or unfairness, the fact that some election officers did not meet all qualifications will not render the election void. Hunnicut v. State, 75 Tex. 233, 12 S.W. 106; Bell v. Faulkner, 84 Tex. 187, 19 S.W. 480; Gayle v. Alexander, 75 S.W.2d 706 (Tex.Civ.App., Waco, 1934, n.w.h.). Furthermore, this statute is directory only; hence complete observance of such is not necessary to the validity of the proceeding. Gayle v. Alexander, supra.

In light of our view of the law controlling this point, we think it is immaterial as to whether the language contained in Art. 3.03 of the Texas Election Code is broad enough to be applicable to 'specific issues' as well as 'candidates.' Therefore, we leave this question for future determination.

Appeallants base point of error No. 4 on the further assertion that the election in question was held in violation of Art. 7.02 of the Election Code which concerns the necessity for voting booths and guard rails to protect the secrecy and sanctity of the vote. The election was held in the Alto High School Auditorium, which is equipped with fold-down, theatretype seats. These were used by voters as a place to mark ballots and appellants contend that such facilities could lead to collusion in the marking of ballots. In Altgelt v. Callaghan, 144 S.W. 1166, 1171 (Tex.Civ.App., San Antonio, 1912, dism'd), it was stated that:

'The provision of the law in regard to voting booths is for the purpose of obtaining secrecy of ballot and is peculiarly for the benefit of the voter, and, while the law in regard to voters preparing their ballots in the booth should be enforced, the failure to do so would not invalidate the votes of those not using the booths.'

The failure to provide voting booths and guard rails therefore does not render the election void. This provision of the Election Code is likewise directory and, as before, the failure to observe its requirements is not necessary to the validity of the election. State v. Fletcher, 50 S.W.2d 450 (Tex.Civ.App., Beaumont, 1932, dism'd). Appellants' Point No. 4 is overruled.

Appellants also contend that the validity of the election is questionable because of improper custody of the ballot box, which constitutes a violation of Art. 8.29a of the Election Code. Art. 8.29a states that:

'Unless otherwise provided by law, the returns of all elections held by school districts, conservation districts, and other political subdivisions shall be canvassed by the governing board of the subdivision holding the election, and the copy of the returns and accompanying records for use in the official canvass shall be delivered to the presiding officer of the governing board. The governing board shall make proper provision for custody, storage, and safekeeping of the ballot boxes containing the voted ballots, which shall be delivered to the presiding officer or to such other person as the governing board shall direct. * * * The keys to the ballot boxes containing the voted ballots shall be delivered to the constable of the justice precinct in which the office of the governing board of the subdivision is maintained. If the office of constable is vacant, the keys shall be delivered to the sheriff of the county in which the office of the governing board of the subdivision is maintained.'

The record reflects that after the ballots had been counted, the election judge turned the locked ballot boxes containing the ballots, along with the key, over to either the Superintendent of the Alto Independent School District or to the Chairman of the Alto School Board. The record also shows that at the time of trial the Superintendent of Schools, Mr. McClendon, had the ballots locked in the school district's safe and that certified returns were given to the County Clerk and the Chairman of the School Board. These same procedures had been followed by the election judge without question in previous bond elections held in Alto. From the evidence and testimony presented, the election judge complied substantially with the Election Code in his handling of the returns and ballot boxes.

In Leslie v. Griffin, 23 S.W.2d 535, 540 (Tex.Civ.App., Austin, 1929), reversed on other grounds by the Supreme Court, 25 S.W.2d 820, the court states:

'It is now well settled that the provisions of the law prescribing the conduct of elections and regulating the character and manner of the returns, and how and when same shall be made, are only directory and not mandatory; and that irregularities in carrying out same, unless such irregularities result in tampering with the returns, or have prevented the voters from a free exercise of their suffrage, shall not vitiate such election. * * *'

No such results are shown here. The only violation regarding ...

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