Lucchese v. Mauermann, 11612.

• Decision Date: 10 April 1946
• Docket Number: No. 11612.,11612.
• Citation: 195 S.W.2d 422
• Parties: LUCCHESE et al. v. MAUERMANN.
• Court: Texas Court of Appeals

195 S.W.2d 422

LUCCHESE et al. v. MAUERMANN.

No. 11612.

Court of Civil Appeals of Texas. San Antonio.

April 10, 1946.

Rehearing Denied May 8, 1946.

Appeal from District Court, Bexar County, Fifty-Seventh District; Roy C. Archer, Judge.

Suit by G. J. Lucchese and others against Gus B. Mauermann to contest an election in the City of San Antonio on the question of borrowing money on such city's credit, issuing city bonds for certain purposes and levying taxes for payment of interest on and redemption of such bonds. From a judgment for contestee, contestants appeal.

Affirmed.

Stahl & Sohn, of San Antonio, for appellants.

Johnson & Rogers, T. D. Cobbs, Jr., and Nat L. Hardy, all of San Antonio, for appellee.

PER CURIAM.

This suit was instituted by G. J. Lucchese, H. H. Theis and E. H. Maddox, as contestants, against Gus B. Mauermann, as contestee, to contest an election held in, by and for the City of San Antonio, on September 25, 1945, upon the separate propositions to borrow money on the credit of the City of San Antonio, and to issue bonds of the City in the amount of $5,700,000, and to levy taxes for the payment of the interest and provide and create a sinking fund for the redemption of such bonds at maturity, for the Interregional Highways bond issue, the Airport Administration Building bond issue, the Streets and Bridges bond issue, the Garbage Disposal bond issue and the Fire Stations bond issue. According to the canvassing board, the result of the election was as follows:

                "Propositions For Against Majority
                Interregional Highways           6085      5207        878
                Airport Administration
                Building                         5771      5432        339
                Streets and Bridges              5583      5553        30
                Garbage Disposal                 5935      5252        683
                Fire Stations                    5628      5500       128"
                

There were seventeen other propositions voted upon at the same election, but all were defeated and are not involved in this contest.

The trial was to the court and resulted in judgment for contestee. Findings of fact and conclusions of law were made and filed. Contestants have prosecuted this appeal.

Appellants' first eight points complain that voters living in territories known as Olmos Park and Terrell Hills were not permitted to vote, there being enough qualified voters living in these territories to have changed the result of the election. Prior to July 26, 1945, the towns of Olmos Park and Terrell Hills purported to be regularly incorporated towns. On that date the City of San Antonio, by ordinance, attempted to annex the area composing these two towns to the City of San Antonio. Suits were filed contesting the right of the City of San Antonio to annex such areas to the City of San Antonio. These suits resulted in judgments enjoining the City of San Antonio from asserting authority over this area. Appeals were taken by the City in each case to this Court, where, upon agreed motions of the parties, the judgments were amended so as to expressly decree the attempted ordinances of annexation null and void and as thus amended the judgments were affirmed by this Court. As there is now upon the minutes of this Court a judgment decreeing the ordinances which attempted to annex the Cities of Olmos Park and Terrell Hills to be null and void, we hold that the voters residing in such territory were properly not permitted to vote in a bond issue election in the City of San Antonio. City of San Antonio v. State ex rel. Town of Olmos Park, Tex.Civ.App., 195 S.W.2d 421; City of San Antonio v. State ex rel. Town of Terrell Hills, Tex.Civ.App., 195 S.W.2d 421.

Appellants' points Nos. Nine to Seventeen, inclusive, raise the contention that the trial court erred in concluding that Proposition C-45 (Street and Bridge Bonds, in the sum of $2,000,000) had been carried at the election by a majority vote.

It appears that the officials in twenty-two of the election precincts in the City delivered their returns to the City Clerk the night of the election, but thereafter one or more of the persons who had served as election officials for each of these precincts appeared at the City Clerk's office, or before the Canvassing Board, and made certain changes in the election returns. The returns as thus altered were accepted as correct by the Mayor and City Commissioners, sitting as a Canvassing Board, and said board declared that Proposition C-45 had been carried by a vote of 5583 for, and 5553 against said proposition.

By these changes in the election returns 38 additional votes were accounted for. Of these 38 votes, 34 were added to the vote in favor of Proposition C-45, and 4 were added to the vote against said proposition. Without these votes accounted for by the alterations, the vote as disclosed by the original returns would be 5549 votes for Proposition C-45 and 5549 votes against the proposition—a tie vote.

It appears that voting machines were used to register the votes cast upon the day of election, but that paper ballots were used for absentee voting. After the election a petition was filed, in accordance with the provisions of Article 2997a, Section 19, Vernon's Ann.Civ.Stats., and a recheck and comparison of the results shown on the official returns made, with the results appearing and registered on the counter dials of each voting machine used in the election. This recheck was made in the presence of a District Judge and a County Judge, as provided for by law.

The minutes of the Canvassing Board relating to this recheck and events subsequent thereto are as follows:

"* * * After the recheck of each machine, and before moving on to the next machine, the County Judge and District Judge signed a certificate written on the back of the Official Return for the precinct in which the machine in question was used. In the certificate, the Judges certified as to the correctness or incorrectness of the returns as compared with the voting machine counter dials. In making the recheck and comparison, it was discovered by the Canvassing Board that certain precinct election officers had failed to enter the result of the absentee votes on the Official Returns. Where it appeared that the absentee votes had not been included in the totals shown on the Official Returns, the certificate signed by the District Judge and County Judge stated that fact.

"The recheck and comparison of all voting machines used in the September 25th Election was completed at 12:00 o'clock, Noon, Saturday, September 29, 1945. * * *

"On Monday, October 1, 1945, the Canvassing Board summoned the Presiding Judges of those precincts in which it appeared to the Canvassing Board, from the recheck of the voting machine counter dials, that the absentee votes had not been included in the totals shown on the Official Returns. The Canvassing Board then and there directed such election officials who had failed to enter the absentee votes upon the Official Returns to amend the Returns and enter correctly the result of the tally of the absentee votes upon the Official Returns, and to endorse on the Official Returns a notation of such action. This procedure was continued through Monday and part of the morning of Tuesday, October 2, 1945; all of which occurred before the final canvass was made by the Canvassing Board. * * *

"After the recheck and comparison of the counter dials of the voting machines had been completed, and after the entry of the necessary corrections by the election officers, the Canvassing Board met in the Council Chamber of the City Hall at 10:00 o'clock A. M., on Tuesday, October 2, 1945, to make the official canvass of the Returns of the City Special Bond Election held on Tuesday, September 25, 1945, and to declare the result thereof.

"Present and sitting as the Canvassing Board were: Mayor Mauermann, Chairman, and Commissioners Callaghan, Hein, Steffler and Anderson.

"Present also were District Judge Quin and County Judge Anderson, who reported that the recheck and comparison of the voting machine counter dials with the Official Returns had been completed and certified to be correct.

"Elmer Ware Stahl and A. R. Sohn, attorneys representing the petitioners who had requested the recheck and comparison of the voting machine counter dials, appeared and challenged the certificate which had been written on the back of each Official Return and signed by the County Judge and District Judge during the recheck, objecting to the inclusion in the certificate of the phrase: `Absentee votes not shown in totals.'

"Following a discussion, Judge Quin stated: `It is my opinion that the County Judge and I certify to the correctness or incorrectness of the counter dials and have no authority beyond that.'

"Thereupon, the phrase `Absentee votes not shown in totals,' was stricken by drawing a red line through the phrase, from the certificates in which it appeared, by Judges Quin and Anderson, but otherwise no change was made in the certificate."

Upon the trial of the case, the appellants offered the original election returns in their unaltered form which they contend show that the election resulted in a tie vote. Appellee offered the returns as altered or corrected for "all purposes." These were the returns accepted by the Canvassing Board.

Upon the point of evidence involved we are inclined to agree with appellants. The original returns seem to have been duly certified in accordance with applicable statutory provisions. They are not self-contradictory or erroneous on their face. Consequently, the original returns are admissible as "official statements" under a well recognized exception to the rule against hearsay evidence. 16 Tex.Jur. 182, § 142; 18 Am.Jur. 345, § 251. We have not been cited to a statutory provision which authorizes persons who have acted as election judges to alter or change their official report after the election is over. Article 2997a, Section 19, above referred to, does not authorize an alteration of the returns...