Oliphint v. Christy

• Decision Date: 13 March 1957
• Docket Number: No. A-5970,A-5970
• Citation: 299 S.W.2d 933,157 Tex. 1
• Court: Texas Supreme Court
• Parties: G. R. OLIPHINT, Petitioner, v. George W. CHRISTY et al., Respondents.

Page 933

299 S.W.2d 933

157 Tex. 1

G. R. OLIPHINT, Petitioner, v. George W. CHRISTY et al., Respondents.

No. A-5970.

Supreme Court of Texas.

March 13, 1957.

Robert R. Breaker, South Houston, Homer T. Bouldin, Houston, for petitioner.

Lloyd M. Lunsford, South Houston, for respondents.

SMITH, Justice.

This suit was instituted as a statutory election contest and we recognize it as a 'contested election' within the meaning of Article 1821, Vernon's Annotated Civil Statutes. The suit as originally filed involved the contest of an election held in the City of South Houston, Harris County, Texas, on April 5, 1955 for the purpose of electing a Mayor, three Aldermen, and a City Secretary. Since this appeal involves only the two opposing candidates for the office of Mayor, the petitioner, G. R. Oliphint, and the respondent, George W. Christy, we shall hereafter refer to the parties as Mr. Oliphint and Mr. Christy.

The votes in the election were cast upon three voting machines which tabulated the results. There was one ballot which appeared within each voting machine and apparent to each voter at the time of casting his ballot. Each machine was equipped with automatic numbering devices, one of which was visible from the outside of the machine and recorded the number of each elector who entered the booth of such machine for the purpose of casting his vote. The other numbering device was protected from visibility until after the voting ceased and recorded the total number of votes cast for each respective candidate for each office. It is not possible from the record made by the machine to determine in an election contest how each elector voted. The number of votes cast in this manner for the office of mayor totaled 1,020 votes, of which Mr. Oliphint received 512 votes, and Mr. Christy received 508 votes, a margin of four votes in favor of Mr. Oliphint. Mr. Christy offered conclusive proof that ten of the electors who voted for the office of mayor were not legally qualified as electors. After establishing the illegality of the votes cast by such electors, Mr. Christy undertook to interrogate such electors on the witness stand as to the candidate for whom they cast their ballots. Three of these electors answered that they voted for Mr. Oliphint. However, Mr. Oliphint then made objection and the trial court refused to compel such witnesses to testify as to the candidate for whom they had cast their ballots. The Court of Civil Appeals in reversing and remanding the case stated 'that the trial court erred in refusing to compel the witnesses, who were shown to be disqualified to vote, to testify as to the candidate for whom they cast their vote.' 291 S.W.2d 409.

This being an election contest we feel impelled to at once dispose of the question of whether the jurisdiction of the Court of Civil Appeals is final, and whether, therefore, this Court is without jurisdiction. Article 1821, supra, makes the jurisdiction of the Court of Civil Appeals final in 'all cases of contested elections of every character,' except those in which (1) a contest for state office is involved, (2) the validity of a statute is questioned by the decision of the Court of Civil Appeals, (3) the Judges of the Court of Civil Appeals have disagreed upon a question of law material to the decision of the case, or (4) the Court of Civil Appeals has held differently from a prior decision of another Court of Civil Appeals or of the Supreme Court upon a question of law. Christy v. Williams, Tex., 298 S.W.2d 565, recently decided. We are of the opinion that this 'contested election' suit is one in which the validity of a statute was questioned by the decision of the Court of Civil Appeals and that this case falls squarely within the second exception mentioned above. This ground of jurisdiction is asserted in Mr. Oliphint's petition for writ of error. The statute, the validity of which was questioned by the Court of Civil Appeals, is Section 23, Article 7.14 of the Election Code, Vernon's Annotated Civil Statutes, and reads as follows:

'Section 23. Application of other Laws; Fraud and Perjury.

'The provisions of all other laws relating to the conduct of elections or primary elections, shall so far as practicable, applied to the conduct of elections and primary elections where voting machines are used, unless herein otherwise provided; provided, however, it is declared to be the public policy of this State that the provisions herein, providing for the use of voting machines at elections, are regulations to detect and punish fraud, and to preserve the purity of the ballot box; and any voter who fraudulently or illegally casts a ballot, or who casts a fraudulent or illegal ballot upon a voting machine, at any election (after the casting of such fraudulent or illegal ballot, or such fraudulent or illegal casting of a ballot has been established by final adjudication before a court of competent jurisdiction and by competent evidence) shall be compelled and required to disclose the names of the candidate or candidates for whom he cast such ballot at such election, and the ballot cast by him upon any question or questions at such election in any proceedings instituted under the laws of this State in any court of competent jurisdiction, and whoever in such proceedings shall swear and/or testify falsely, shall be deemed guilty of the offense of perjury, and shall be subject to the penalties provided for such offense by the laws of this State.'

The Court of Civil Appeals upheld the validity of this statute, but, in doing so, the court 'questioned' the validity of such statute so as to give this court jurisdiction, although it was an election contest. Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 626. This Court, in the above case, settled the question in favor of taking jurisdiction with the following holding:

'This Court has jurisdiction of this case, although it is an election contest, because 'the validity of a statute (chap. 333, Acts Regular Session of the 49th Legislature) is questioned by the decision' of the Court of Civil Appeals. See Article 1821, Revised Civil Statutes, as amended by Chapter 33, Acts Regular Session 41st Legislature, and Article 1728, as amended by Chapter 144, Acts Regular Session 40th Legislature, Vernon's Annotated Civ.Stats. Arts. 1821, 1728.'

While that court (Civil Appeals) sustained the Act as valid, its constitutionality was attacked by three points of error in the appellant's brief and that court in its opinion gave consideration to them. The decision of the Court of Civil Appeals, therefore, questioned the validity of the statute, as it 'raised a question about', 'called in question' its validity and subjected the question to judicial examination. See Webster's New International Dictionary. Having jurisdiction of the case, this Court may also review and pass upon the question as to the correct construction of the Act, even though we may hold that the Act is valid. Mr. Oliphint questions the validity of the Act in this Court under his second point of error, which reads:

'The Court of Civil Appeals erred in holding that the constitutional privilege and right guaranteed a voter to keep his vote a secret vote or secret ballot could be, and was destroyed or denied by the Legislature of Texas, by enacting Section 23 of Article 7.14 of the Election Code of the State of Texas.'

It is contended under this point that Section 23 is invalid and that the 'constitutional right and privilege of a voter to a secret ballot cannot be changed or taken away by any Act of the Legislature', and that even though it has been conclusively established that the voter had cast an illegal ballot as defined in the Article, such illegal voter is entitled to the same protection under the Constitution as a legal voter. Mr. Oliphint further reasons that the holding of the Court of Civil Appeals in the present case is in conflict with the holding of this Court in the case of Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 121 A.L.R. 931, and the holding of the Court of Civil Appeals in the case of Handy v. Holman, Tex.Civ.App., 281 S.W.2d 356 (no writ history). Careful consideration of the Wood and Holman cases, supra, has convinced us that the holdings in these cases do not conflict with the holding in the present case. We deem it unnecessary to analyze the Holman case. It is sufficient to say that the Court in that case merely followed the reasoning advanced in the Wood case on the question of whether or not a witness (voter) could be compelled to waive his privilege of keeping his vote a secret if he claimed the privilege from self-incrimination. The Wood case was decided in 1939, and was a quo warranto proceeding. In that case the Court had before it two questions: (1) the constitutionality of voting machines, and (2) whether or not absentee ballots should be rejected merely because such voters were not actually absent on election day. The Court pointed out that Section 4, Article 6, of our Vernon's Ann.St.Constitution contains four distinct provisions:

'1. It requires that in all elections by the people the vote shall be by ballot.

'2. It requires that in all elections by the people the tickets shall be numbered.

'3. It provides that the Legislature shall make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box.

'4. It provides that the Legislature may provide, by law, for the registration of voters in all cities containing a population of ten thousand inhabitants or more.' (126 S.W.2d 8)

In upholding the constitutionality of the voting machine, the court held that the first provision meant 'that the voter in all elections shall be accorded a secret ballot.' At this point we call attention to the significant distinction between the Wood case and the one at bar. The record in the former is void of any proof of illegal votes because of disqualification as contemplated by Section 23...