McCormick v. Jester

• Decision Date: 05 December 1908
• Citation: McCormick v. Jester, 115 S.W. 278, 53 Tex.Civ.App. 306 (Tex. App. 1908)
• Parties: McCORMICK et al. v. JESTER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 278

McCORMICK et al. v. JESTER et al.^†

Court of Civil Appeals of Texas.

December 5, 1908.

On Rehearing, January 16, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Suit by L. E. McCormick and others against C. L. Jester and others to contest the result of a local option election. Judgment against the contestants, and they appeal. Reversed and rendered.

On June 15, 1907, a local option election was held within and for Navarro county, Tex., for the purpose of determining whether the sale of intoxicating liquor should be prohibited therein. On June 26, 1907, the commissioners' court canvassed the returns of said election and declared the result to be against prohibition by a majority of 12 votes, there being 2,488 votes for prohibition and 2,500 votes against. Prior to this, local option had for two years been in force in the county. On July 26, 1907, L. E. McCormick and nine others as contestants, appellants here, filed this suit, contesting said election, and made C. L. Jester, county judge, and C. L. Knox, county attorney, of Navarro county, contestees, parties defendant. On the 31st day of August, 1907, the same contestants filed a second suit against the same parties contesting the election on substantially the same grounds set up in the first suit. Thereafter, on the 21st day of September, the contestants filed a motion to consolidate the two suits, which motion was granted and the suits consolidated. On September 30, 1907, the contestants filed their first amended original petition, in which it was alleged, in substance, that the result of said election as declared by the commissioners' court was false and untrue, and was not a correct statement of the legal votes cast; that votes which were actually cast for prohibition were fraudulently counted as having been cast against prohibition, and that upon a recount the true result would be found to be in favor of prohibition instead of against prohibition; that lawful ballots cast for prohibition and received by election officers were, upon different illegal pretexts, rejected and not counted for prohibition, and specifying the number of lawful ballots for prohibition so rejected at the different voting boxes; that a large number of voters were unlawfully influenced to vote against prohibition, who would not have otherwise done so, by reason of the existence of a large and formidable combination of persons having unlimited means, which were corruptly used in the purchase of poll tax receipts, hiring persons to drum up and excite persons to go to the polls and vote against prohibition, the purchasing of votes, the use of liquor and cigars on election day, and other illegal practices, bribery, and threats, all done for the purpose of carrying said election against prohibition at all hazards; that 49 persons voted against prohibition in Corsicana, a city of more than 10,000 inhabitants, without obtaining exemption certificates as they were required to do by law; that a large number of persons were permitted to vote against prohibition who were illegal voters, in that they had failed to pay their state and county poll tax; that a large number of persons were also permitted to vote against prohibition who were illegal voters because they, while liable, had failed to pay their city poll tax due the city of Corsicana, Blooming Grove, and Frost; that a large number of persons were permitted to illegally vote against prohibition in precincts other than the precinct in which they resided; that there were persons permitted to illegally vote against prohibition, who had not lived in the state one year, nor the county six months; that persons not citizens, but subjects of a foreign power, were permitted to vote against prohibition; that persons under the age of 21 years were unlawfully permitted to vote against prohibition; that qualified voters, favorable to prohibition, were refused the right to vote; that persons were illegally permitted to vote against prohibition upon tax receipts paid and issued after February 1, 1907, preceding said election; that, by reason of the foregoing, the direct result of said election, based upon the legal votes cast, would show a majority in favor of prohibition, and that the votes of which complaint is made were all illegal under the laws of Texas—the names of the alleged illegal voters were set out; that all of said votes were cast and counted against prohibition by the election officers; and that the county clerk failed to post the notices of election as directed by law.

Defendants filed their trial answer on October 8, 1907. It consisted of pleas to the jurisdiction; pleas in abatement; general demurrer; general denial; denied that there was any illegality, fraud, bribery, or corruption in any manner or form in connection with said election, but that a majority of the qualified voters voted against prohibition, and claiming the election to have been honestly and legally conducted; that a number of persons who were not qualified voters, because they had not paid their state, county, and city poll tax, who voted in precincts other than that in which they resided, who had not lived in the county for six months, or the state one year, and for other reasons specified, were permitted to vote for prohibition, and whose votes should be rejected; that certain ballots cast in favor of anti-prohibition were not counted by the election officers; that the act of the Legislature requiring persons in cities of over 10,000 population, not subject to the payment of poll taxes, to procure exemption certificates, imposed an unjust burden and was therefore void; that the act of the Legislature granting a special charter to the city of Corsicana was void; that a number of persons illegally voted for prohibition in the city of Corsicana who had not obtained exemption certificates as required by law; and asking that the ballot boxes be opened and the votes and ballots complained of be inspected and rejected, and that all of said votes be recounted, and the direct and legal result of said election be inquired into, which would be shown to be in favor of anti-prohibition.

On November 16, 1907, contestants filed their supplemental petition, replying to the trial answer of defendants. Some of the demurrers and exceptions were overruled, and others sustained. Those material to this appeal will be hereinafter specified. The trial began on November 18, 1907, and continued during that week, and was then postponed until December 9th, after which time the trial continued until it was completed, on December 21st. Under the pleadings and written agreement of counsel, the court appointed a commission of four persons—two "pros" and two "antis"—to recount the votes cast for and against prohibition, to inspect all ballots, to ascertain how each person voted, whose vote was in question, etc., and that the work of the commission should have the same effect as if done in open court, was to be "regarded by the court as conclusive," and "was to be received by the court as a fact." There was no exception to the report of the commission. It was unanimously made by the four commissioners, and was introduced in evidence without objection. The case was tried before the court without a jury. On December 21, 1907, the court below found in favor of contestees, appellees here, upholding the validity of the election, and refused to set it aside. Judgment was accordingly entered. The court below filed conclusions of law and fact. Under the court's finding the majority of 12 votes in favor of anti-prohibition as declared by the commissioners' court was reduced to 5. In his conclusions of law and fact the court says: "I sum up 41 `anti' and 35 `pro' improperly voted, and on count of ballots (1) one net gain for contestants. The result is that the majority of 12 against prohibition as declared by commissioners' court is reduced to 5, and judgment for contestees." Contestants duly excepted to the court's conclusion of law and facts, and, in open court, excepted to said decision and judgment, and perfected an appeal.

Richard Mays and Treadwell & Tarver, for appellants. C. L. Knox, W. W. Ballew, and Gibson & Calloway, for appellees.

BOOKHOUT, J. (after stating the facts as above).

Appellants alleged that Corsicana was a city of more than 10,000 inhabitants, and that some 38 persons residing in said city not subject to payment of poll tax had voted against prohibition, whose votes were so counted, and that same were illegal because said voters had not procured exemption certificates within the time required by law from proper authorities.

Appellees demurred to said allegations on the grounds that there was no provision in the Constitution of the state of Texas requiring persons residing in cities of more than 10,000 inhabitants, not subject to the payment of poll tax, to procure certificates of exemption, and that such statutory requirement was in conflict with and repugnant to the Constitution of the state, and that the Legislature had no power to impose a qualification for suffrage not fixed by the Constitution. Appellees further demurred on the ground that said legislative enactment imposed a burden on a particular class not imposed by the Constitution, which burden applied to said particular class of voters only, and discriminated unfairly against them, and was class legislation, and therefore unconstitutional. The trial court sustained these demurrers, and this action of the court is made the basis of appellants' first and second assignments of error.

The petition set up the names of 38 voters, who were alleged to be over 60 years of age, and who voted in the city of Corsicana without procuring the exemption certificate. Having found on an examination error in the record, independent of this ruling, for which the judgment must be reversed, it does not become necessary for this court to pass upon these assignments.

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