Mitchell v. Jones

• Decision Date: 09 October 1962
• Docket Number: No. 7478,7478
• Parties: Tommie MITCHELL, Appellant, v. W. C. (Bill) JONES, Appellee.
• Court: Texas Court of Appeals

Page 224

361 S.W.2d 224

Tommie MITCHELL, Appellant, v. W. C. (Bill) JONES, Appellee.

No. 7478.

Court of Civil Appeals of Texas, Texarkana.

Oct. 9, 1962.

Fulton & McClain, Welby K. Parish, Gilmer, for appellant.

Power, McDonald & Mell, Gilmer, Smith, Hall & Huffman, Marshall, for appellee.

PER CURIAM.

This is an election contest arising out of the 1962 Second Democratic Primary Election in Upshur County. W. C. (Bill) Jones and Tommie Mitchell were run-off candidates dates for the office of Tax Assessor-Collector of Upshur County. The party Executive Committee canvassed the votes and found that Jones received 2741 votes and Mitchell received 2739 votes. Following a lengthy trial the District Court of Upshur County ordered Jones's name certified as Democratic nominee on the basis of 2720 votes for Jones and 2719 votes for Mitchell.

It is a fundamental precept of a democratic society that suffrage, the right to vote, is first among the citizen's prerogatives, because therein is the ultimate legal power to foster and protect whithout violence natural rights, constitutional privileges and democratic institutions, and the free exercise of the power is not to be curtailed or unreasonably restricted by legislative enactment or judicial decree. In recognition of this principle the Constitution of the State of Texas provides that every citizen of the United States who has resided in the State of Texas one year next preceding an election and the last six months in the county in which he offers to vote is a qualified voter unless (1) under twenty-one years of age, (2) an idiot or lunatic, (3) a pauper supported by the county, (4) previously convicted of a felony or (5) being subject to a poll tax has failed to timely pay it. Article 6, Sections 1 and 2, Vernon's Ann.Texas Constitution.

The Constitution in Art. 6, Sec. 4, and Art. 16, Sec. 2, has limited the field of legislative action to legislation 'necessary to detect and punish fraud and preserve the purity of the ballot box', and to protect the exercise of free suffrage from 'all undue influence * * * [by] power, bribery, tumult or other improper practice.' The paramount principle stated above and the constitutional provisions relating to the voting franchise are all pervasive and must be taken into account in the construction of the absentee voting laws, along with settled rules of statutory construction. ¹ When voting statutes are so construed it is appearent that a qualified citizen shall not be denied the exercise of his suffrage except in those cases where the legislature has acted within constitutional authority and has expressly or by clear implication indicated an intention that a ballot of a qualified voter shall be void if certain prohibited conditions are shown to exist.

The appellant's first five points question the legality of the ballots of well over 100 persons the trial judge ordered tallied in favor of W. C. Jones. Error is premised on the contention that Act. 5.05, Subdivisions 1, 2, 4, and 15, and Art. 8.13 of the Election Code, Vernon's Ann.Civ.St. are of such nature that failure of the voter, election official, notary, or other person mentioned by the statutes and authorized or required to do or perform a part in the absentee voting process, to do and perform every such act and requirement thereof voids an absentee ballot. In support of this position the appellant cites Farrell v. Jordan, Tex.Civ.App., 338 S.W.2d 269 (1960) and Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272 (1961) as authority for the proposition that compliance in minute detail with the mentioned statutes is mandatory. However, this question is not necessarily reached in the disposition of each of the points of error.

It is thought the present article 5.05 Election Code should be construed with due regard to its text prior to the 1959 amendment and predecessor statutes and the decisions thereunder. In Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792 it is said with reference to Art. 5.05 before amendment in 1959: 'Before the enactment of the recent code the only portions of what is now Article 5.05 that were declared mandatory were what is now Section 5 of Article 5.05 that relates to the legal time during which absentee voting is permitted at all, and Section 10 of the same article that provides that an elector who dies after voting absentee shall not have his vote counted.' All other provisions were held to be directory. Unless the amended text shows a provision is intended to be mandatory its re-enactment confirms the construction previously made. An examinaion of Article 5.05 as amended appears to have intended to add several mandatory provisions.

The first point challenges the respective ballots of a group of voters who received assistance in marking their ballots on the basis that the person giving assistance was not sworn, and did not take an oath in accordance with that part of Art. 8.13 pertaining to persons rendering assistance to voters in the preparation of their ballot. Art. 5.05, Sec. 15 and Art. 8.13 contain provisions identical in meaning, stating that when assistance is rendered the voter in preparing a ballot other than the assistance allowed by statute the ballot shall be void. It must be assumed that the legislature intended what the statute said; that is, that the vote cast shall be void if the voter receives assistance in preparing a ballot other than the assistance allowed by law. The facts show that no voter received assistance except in marking a ballot; such assistance is the very thing the statute authorized. Taking an oath regarding his duties by the person rendering assistance is no part of the act of assisting the voter. Receiving assistance not authorized, not being assisted by an unsworn person, is the prohibited act voiding the ballot. It is sound policy, supported by abundant authority, that legislative acts tending to abridge the citizen's franchise will be confined to their narrowest limits by a liberal interpretation ² favoring the citizen's right to vote. Appellant's first point of error is overruled.

A person by person comparison has not been made, but it appears that invalidating the votes of substantially the same absentee voters challenged by the first point is the object of appellant's second point of error. The gist of the second point is that each of the group of voters failed to swear to the affidavit on the ballot carrier envelope after they voted.

Appellant asserts that such votes are invalid and should not be counted because this failure is a substantial non-compliance with that portion of Art. 5.05 of the Election Code which reads:

'* * * The elector shall mark the ballot before a notary public or other person authorized to administer oaths, sign his name on the back of the ballot stub, detach the stub from the ballot, fold the ballot and place it in the envelope marked 'Ballot Envelop' and seal the same. The elector shall then place the stub and the ballot envelope in the carrier envelope, seal the same and sign and swear to the affidavit on the carrier envelope, which shall be certified by the notary public or other officer before whom the ballot is marked. The carrier envelop shall then be mailed, postage prepaid, to the county clerk. As amended Acts 1959, 56th Leg., p. 1055, ch. 483, Sec. 1.'

Three different notaries and the County Clerk and his deputies are involved in actions which vary slightly with respect to each vote challenged. The proof shows the general pattern to have been that the voters signed the affidavit on the carrier envelope, or authorized someone else to sign it, and handed the affidavit to the notary of officer to be completed. The complaint is that the notary or officer did not orally administer an oath and the voter did not orally respond. The affidavits on their face are clear and complete. The oath signed by each voter began 'I, (voter's name), do solemnly swear * * *', etc. When the voter signed such oath in the presence of the notary and handed it over to the notary or officer for the purpose of the official affixing his jurat the affidavit was completed. Shelton v. Berry, 19 Tex. 154; Art. 23, Sec. 18, Vernon's Texas Civil Statutes; 'Affidavits', 2 Tex.Juris.2d 394, Sec. 1. The second point of error is overruled.

The third point of error is concerned with the votes of many of the voters involved in the first and second points. The point is that voters who were neither blind nor suffering from a bodily infirmity which rendered them physically unable to write were assisted in marking their ballots, such assistance constituting a violating of Art. 5.05 and Art. 8.13. The facts developed by the appellant varied as to the different voters. On the whole the evidence tended to show that the voter challenged was not blind, and had the use of both hands. In several instances the voter's illiteracy may have been the reason for needing assistance in marking the ballot.

Art. 8.13 provides that no voter shall have assistance in preparing his ballot unless he can not do so because of some bodily infirmity that renders him physically unable to write or sightless. In Art. 5.05 Sec. 15 it is provided that assistance authorized by Art. 8.13 may be rendered absentee voters insofar as Art. 8.13 is applicable, the latter article stating specifically: 'The witness assisting the voter may perform any or all of the physical acts necessary to comply with the procedure for absentee voting.' It is probable that the restriction in Art. 8.13 of the assistance to the physically impaired and blind, if mandatory, would in a proper case be held unconstitutional as depriving persons unable to read and write of their franchise. The constitution does not make literacy a qualification to vote. However, when assistance is rendered, as is the case here, the quoted sentence from Art. 5.05 Sec. 15 pertaining to assistance to absentee voters should be interpreted as allowing assistance to a qualified voter in the...