Moore v. Plott

• Decision Date: 04 December 1918
• Docket Number: (No. 6107.)
• Citation: 206 S.W. 958
• Parties: MOORE et al. v. PLOTT.
• Court: Texas Court of Appeals

Page 958

206 S.W. 958

MOORE et al. v. PLOTT.

(No. 6107.)

Court of Civil Appeals of Texas. Austin.

December 4, 1918.

Appeal from District Court, Falls County; W. A. Patrick, Judge.

Action by C. H. Plott against C. O. Moore and others. From an order granting a temporary injunction, the defendants appeal. Reversed and rendered.

Spivey, Bartlett & Carter, of Marlin, for appellants.

BRADY, J.

In this case appellants appealed from an order granting a temporary injunction, made ex parte and in chambers. The injunction restrains appellants, E. M. Dunson, as county judge and ex officio chairman of the commissioners' court of Falls county, and the other members of the commissioners' court of said county, from canvassing the returns, and declaring the result of the last general election as to the office of sheriff of Falls county, until the further orders of the court.

Appellee filed his verified petition in the court below, with certain supporting affidavits attached, alleging that in said election he received 934 votes for sheriff, and that appellant C. O. Moore received 1,454 votes for such office; that appellee was the Democratic nominee for sheriff, and that his was the only name printed upon the Democratic ticket for that office at said election. Appellee further averred that at least 1,000 of the votes cast, counted, and returned for appellant Moore were absolutely void, because said Moore was not the nominee of the Democratic party, nor of any other political party having a ticket in the said general election, and because the electors who attempted to vote for Moore prepared their ballots by drawing a line through the name of appellee, and writing in the name of C. O. Moore in the space left for appellee on said Democratic ticket, and that they did not write Moore's name in the blank column on the ballot, in the space left for the office of sheriff, as required by law; further, that some of the said electors did write the name of Moore in the blank space on the Republican ticket, the Socialist ticket, the Independent ticket, and at other places on the ballot used at the election.

Appellee averred that the voters were without legal authority to so prepare their ballots, and that each such ballot so cast, counted, and returned was void, because the law required the voters desiring to vote against appellee, and for appellant Moore, to write Moore's name in the blank space provided and left for that purpose upon the official ballots.

Appellee further alleged that appellant Moore did not receive as many as 500 legal votes cast at such election, and that appellee's majority of the legal votes cast for sheriff was at least 500, and that he was entitled to a certificate of election, and prayed therefor.

It is alleged that the office of sheriff in said county has a pecuniary value of $1,000 a year, and that appellee is entitled to the fees and emoluments thereof by virtue of his claimed election to the same.

In his petition appellee alleged his intention to contest the election, and that by law he was required to serve notice upon appellant Moore of his intention to contest such election within 30 days after the return day thereof, and upon information and belief charged that appellant Moore had absented himself from Falls county, his whereabouts being unknown to appellee, with the intention of remaining away an indefinite time, and with the purpose of defeating service of such notice and appellee's right under the law affording the right of contest. Appellee alleged that he had no adequate legal remedy, and prayed for a writ of injunction restraining the county judge and other members of the commissioners' court from canvassing the returns of said election for the office of sheriff, from declaring appellant Moore to be the duly elected sheriff of said county, and from issuing a certificate of election to said Moore, and that upon final hearing the injunction be made perpetual.

As we have stated, there are a number of supporting affidavits attached to appellee's petition, which show that a large majority of the votes cast for appellant Moore for sheriff were prepared by the voters' having scratched appellee's name from the Democratic ticket and writing Moore's name, either in that column or in other columns on the ballot provided for the tickets of other political parties, and that in but a very small percentage of cases did the voters casting their ballots for Moore write in his name in the blank column on the ballot provided by law for that purpose.

While it may not be a fact of much importance in this case, yet it is worthy of note that the said supporting affidavits show that, as to the voting boxes covered by said affidavits, practically 90 per cent. of the votes cast for appellant Moore were prepared by the voters writing in the name of Moore in the Democratic column, after having scratched appellee's name therefrom.

The trial judge considered appellee's petition, together with his supporting affidavits, ex parte and in chambers, and his fiat thereon and the record reveal that upon such evidence alone he granted the temporary injunction, substantially as prayed for by appellee, and the writ was issued and served accordingly.

In this character of proceeding, we are required to consider the record just as it existed at the time the writ was granted. The case comes to us alone upon appellee's petition, with the supporting affidavits attached, the fiat of the judge entered thereon, and the writ issued under such order. Appellants have filed briefs in this court, but no briefs are upon file for appellee.

In their brief appellants present several assignments of error and propositions, which we will consider. But the fundamental question presented for our decision is whether or not appellee's petition and the affidavits attached showed a good cause of action, and whether, based thereon, the trial court properly granted the temporary injunction. If not, it was fundamental error; and this question calls for a statement and consideration of the statute governing such an election, and a review of the authorities bearing upon the questions arising therefrom.

Appellants make the proposition that the injunction should not have been granted, because the petition shows that appellant Moore received a majority of the votes cast in said election, and that they were counted for him by the managers of the election, and returns accordingly made, and that the petition wholly fails to show that said votes were illegal; that the persons desiring to vote for appellant Moore had the legal right to scratch appellee's name from the ballot, and write in the name of appellant Moore at any proper place for the office of sheriff, either in the ticket of any political party, the name of which appeared on the ballot, or in the blank column provided for that purpose on the right-hand side of the ballot.

The effect of this proposition is to assert that the statute on the subject is directory, and not mandatory. In this connection, it is to be stated that the sole ground of attack upon the votes cast for appellant Moore, contained in appellee's petition, is that such voters did not write in the name of Moore at the proper place on the ballot, to wit, the blank column, and appellee does not allege any fraud or mistake in the election, nor does he question the legal qualification of the electors who so voted for appellant Moore, nor any unfairness in the election, save in the manner in which the votes were prepared which were cast for Moore.

The statute governing this particular matter is article 2969, Vernon's Sayles' Civil Statutes. After directing the form and method of printing the ballots, and the arrangement of the tickets of each political party in parallel columns, this article provides that:

"When a voter desires to vote a ticket straight, he shall run a pencil or pen through all other tickets on the official ballot, making a distinct marked line through such ticket not intended to be voted; and when he shall desire to vote a mixed ticket, he shall do so by running a line through the names of such candidates as he shall desire to vote against in the ticket he is voting, and by writing the name of the candidate for whom he desires to vote in the blank column and in the space provided for such office; same to be written with black ink or pencil, unless the names of the candidates for which he desires to vote appear on the ballot, in which event he shall leave the same not scratched." (Italics ours.)

It will be seen that literally this statute requires a voter, in a case like this, where he desires to vote against a candidate whose name appears upon the omcial ballot, and for another whose name does not appear thereon, to write the name of the candidate for whom he wishes to vote in the blank column and in the space provided for such purpose. If this statute be mandatory, it is clear that most of the votes cast for appellant Moore under the allegations of appellee's petition were illegal and void, and that, so far as this question alone is concerned, it was not error to grant appellee his temporary injunction. On the other hand, if the statute is merely directory, then the failure to observe its directions would constitute, at most, an irregularity, which under the authorities would not avoid the election, or render the votes so cast illegal, and, independently of any other question, the action of the trial court in granting the injunction would be fundamental and reversible error. This is the main question in the case, and its importance warrants, if it does not require, at least a brief review of the decisions and authorities controlling the question.

Mr. McCrary, an eminent writer upon the subject of elections states the rule laid down by the weight of authority as follows:

"The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be...