Mullins v. Powell, 12725

• Decision Date: 24 November 1954
• Docket Number: No. 12725,12725
• Citation: 273 S.W.2d 633
• Parties: Ernest MULLINS, Appellant, v. Joe R. POWELL, Appellee.
• Court: Texas Court of Appeals

Page 633

273 S.W.2d 633

Ernest MULLINS, Appellant, v. Joe R. POWELL, Appellee.

No. 12725.

Court of Civil Appeals of Texas, San Antonio.

Nov. 24, 1954.

Rehearing Denied Dec. 29, 1954.

Rankin, Kilgore & Cherry, Edinburg, for appellant.

Hill, Lochridge, King & Hodson, Mission, for appellee.

NORVELL, Justice.

This is an election contest involving a directorship of Hidalgo County Water Control and Improvement District No. 7. Trial was to the court without a jury and at the request of appellant the trial judge filed findings of fact and conclusions of law. The findings of fact are not questioned on this appeal.

The disputed election was held on January 1, 1954, and seven days thereafter the board of directors canvassed the returns and declared that Otto Jensen had been elected as one director, but that there was a tie vote between Joe R. Powell and Ernest Mullins, for the second directorship at issue. Another election was ordered held as to this place upon the board of directors. Mullins thereupon filed an election contest contending that he had been duly elected. Powell answered, stating that although he knew of no error in the official canvass, he nevertheless asserted that a recount of the ballots would show that he had been elected.

The contesting parties agreed that the district judge should open the ballot box and make a recount of the votes. The ballot box was accordingly opened and it was discovered that the election judge had failed to sign the ballots used in the election. Without waiving his objection to this defect or informality, appellant agreed with appellee that there were only four ballots in dispute and that a proper talley without considering these four votes showed the following result: Otto Jensen, 27 votes; Joe R. Powell, 25 votes; Ernest W. Mullins, 25 votes; J. R. Glenn, 24 votes. The appellant challenged the validity of one of the four disputed ballots because the voter had signed his name thereon. The trial judge held that this did not invalidate the ballot, and as the ballot was for Jenses and Powell, this ruling raised Powell's vote to 26 as compared to 25 for Mullins. No complaint is here made of this action on the part of the trial court. Upon this holding and the refusal to consider or count the other three disputed ballots as legal votes, Powell was declared elected.

It appears that Otto Jensen and Joe R. Powell had their names printed upon the ballot as candidates, while Ernest J. Mullins and J. R. Glenn were write-in candidates. On the three ballots in question the voters had written the names of Mullins and Glenn under the names of Jensen and Powell, without scratching out or otherwise obliterating the printed names. A bill of exceptions indicates that the three voters who cast these ballots would have testified that it had been their intention to vote for Mullins and Powell. The trial judge refused to admit this testimony. There was one further irregularity in that the ballots did not have printed upon them these words, "You may vote for the candidates of your choice by placing an X in the square beside the name or you may vote for the candidate of your choice in each race by scratching or marking out all other names in that race." Article 6.05, V.A.T.S., Election Code. Likewise, there was no square printed opposite the names of...