Del Rio Independent School District of Val Verde County v. Aldrete

• Decision Date: 15 December 1965
• Docket Number: No. 14449,14449
• Parties: DEL RIO INDEPENDENT SCHOOL DISTRICT OF VAL VERDE COUNTY, Texas, et al., Appellants, v. Cristobal P. ALDRETE et al., Appellees.
• Court: Texas Court of Appeals

Page 597

398 S.W.2d 597

DEL RIO INDEPENDENT SCHOOL DISTRICT OF VAL VERDE COUNTY Texas, et al., Appellants, v. Cristobal P. ALDRETE et al., Appellees.

No. 14449.

Court of Civil Appeals of Texas, San Antonio.

Dec. 15, 1965.

Rehearing Denied Jan. 19, 1966.

Dobbins & Howard, San Antonio, W. S. Nixon, Del Rio, for appellants.

Montague & Thurmond, Del Rio, Hart Johnson, Fort Stockton, for appellees.

PER CURIAM.

This is a contest of an election to consolidate Common School District No. 5 of Val Verde County, hereinafter referred to as C. S. D. #5, with the Del Rio Independent School District, hereinafter referred to as Ind. S. D. The proposition carried in Ind. S. D. by a vote of 565 to 43, but was defeated in C. S. D. #5 by a vote of 113 to 83. This contest was duly filed by certain trustees of Ind. S. D. and some residents of S. S. D. #5, who favored consolidation. A lengthy non-jury trial was had wherein challenges were asserted against a substantial number of voters in C. S. D. #5 by both contestants and contestees. Judgment was entered in favor of contestees declaring the true vote in C. S. D. #5 as 50 votes 'For Consolidation' and 71 votes 'against Consolidation' and decreeing that the proposed consolidation failed to carry by a majority of 21 votes.

Contestants complain on this appeal of the trial court's action relative to 76 ballots, and their complaints are divided into three general classifications. 1. Twenty-six voters who favored consolidation were found to be non-residents of C. S. D. #5 and their votes disqualified, after the trial court located the common boundary line between C. S. D. #5 and Ind. S. D. 2. It is asserted that the trial court erroneously overruled contestants' challenges based on the residence of twenty-nine voters who voted against consolidation. 3. Contestants also complain of the trial court's refusal to hold invalid twenty-one absentee ballots because of alleged irregularities in the conduct of the absentee election. By cross-assignments, contestees assert that the trial court erred in holding that twelve voters who had voted against consolidation were non-residents of C. S. D. #5.

The common boundary line between Ind. S. D. and C. S. D. #5, which is in controversy, was defined by the County School Board in 1949 as the north line of Survey No. 6 and the south line of Survey No. 8, Block 4, I & GN RR Co. Survey. All of Survey No. 6 was placed in Ind. S. D. and all of No. 8 was placed in C. S. D. #5. The boundary line was not located on the ground at this time. The controlling question concerning the legality of the twenty-six voters found by the trial court to be non-residents is whether the trial court was authorized in this proceeding to locate the boundary line between these districts in accordance with a boundary line located on the ground by a survey made subsequent to this election, or was bound by the well-recognized boundary line before and at the time of the election.

The undisputed evidence shows that in 1951 Mr. Conger Jones, a registered land surveyor, had located a boundary line on the ground which was uniformly recognized for all purposes at the time of this election, as the common boundary line between the two districts. Mr. J. A. Conklin, a licensed land surveyor and public surveyor, was employed by the contestees shortly after this election contest was filed to verify the Jones line and to establish the correct line. these two surveyors testified fully at the trial as to the location on the ground of the common boundary line as established by each surveyor. The trial judge found that the true line was that established by Conklin. Twenty-six voters, otherwise qualified, who had cast votes 'For Consolidation' lived north of the line established by Jones, but south of the line established by Conklin, and their votes were declared illegal by the trial court and not counted in the judgment.

In November, 1951, Jones was employed by the owners of the part of Survey No. 8 and the northern part of Survey No. 6, where the disputed voters now reside, to survey No. 8 on the ground in connection with a proposed sale. In doing so he was required to locate on the ground the common boundary line between these two surveys. In 1953 a plat containing his field notes and the boundary line located by him was filed in the Surveyor's Map Records of Val Verde County. Although Surveys No. 6 and No. 8 are in the center of a tier of four surveys in Block 4, Jones surveyed only No. 8. He discovered an apparent excess acreage of 43.9 acres in Survey No. 8. His field notes were filed with the General Land Office, and on December 10, 1954, the Commissioner issued a deed of acquittance in according with the Jones 'corrected field notes' whereby the 683.9 acres of land contained in Survey No. 8, as described by metes and bounds in said deed, were acquitted to the original grantee.

The primary reason for the survey work was in furtherance of plans to subdivide the area for residential purposes. On May 24, 1955, a plat of the Frank Newton Subdivision was filed with the City Secretary and Mayor of Del Rio. On June 12, 1956, a map of the Buena Vista Subdivision was approved and filed in the New Map Records of the City. On June 27, 1956, a plat of the Buena Vista Subdivision was filed with the Val Verde County Clerk. Each of these plats was prepared by Jones and shows the common boundary line of Surveys No. 6 and No. 8 in the area in question to be forty-six feet north of and parallel with the north line of Stricklen Avenue.

The trial court found that as homes were built in the Buena Vista Subdivision and such improved properties were assessed for taxation, the Tex Collector for Ind. S. D. and the County Tax Collector (who was assessing and collecting the taxes for C.S.D. #5) in assessing and collecting school taxes for the respective school districts, used the boundary line as shown by the Jones plats as the common line and they assessed and collected taxes on this basis.

The trial court further found that the census takers, acting under instructions of the County School Superintendent of Val Verde County, used the boundary line as shown on said plats in making the scholastic census, and that the County School Superintendent returned such census reports to the State Board of Education in accordance with this boundary line. Transfer fees were paid consistently after 1958 on the children who lived north of such boundary line but attended schools in Ind. S. D. (The twenty-six disqualified voters had paid transfer fees on their children sent to school in Ind. S. D.)

It was further found that the Commissioners' Court of Val Verde County from and after the time the Jones plats were filed had approved the tax rolls which showed the land north of this boundary line as being subject to C. S. D. #5 school taxes. The County Judge in approving the petition seeking the consolidation election and in determining that the petition was signed by the Requisite number of residents of C. S. D. #5, recognized the boundary line as established by the Jones plats. All twenty-six voters, including the presiding judge, of one of the C. S. D. #5 voting precincts were issued poll tax receipts and were on the poll lists as residents of Survey No. 8.

Mr. Conklin testified that when he checked the field notes of Jones he found they were erroneous and not based upon any markers contained in the original patent to Block 4, which was an office survey. Conklin found an excess in the entire tier of four surveys, and, after prorating this excess equally among the four surveys, he established the common boundary line 276 feet north of the line established by Jones.

It is our opinion that where the location of a boundary line is not certain, the residence of the voters should be determined in accordance with the recognized line. Such a rule is set forth in 29 C.J.S. Elections § 54. Lovewell v. Bowen, 75 Ark. 452, 88 S.W. 570 (1905), and Smith v. Combs, 310 Ky. 755, 221 S.W.2d 672, Ky.Ct. of App., are cited in support of this rule. See also Nunnelly v. Doty, 240 Ky. 642, 276 S.W. 152, Ky.Ct. of App; Stice v. Parsley, 217 Ky. 716, 290 S.W. 471, Ky.Ct. of App.

In Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954), the Supreme Court, in answer to a certified question, held that Art. 2.06 of the Election Code, V.A.T.S., by its very terms requires that a voter must cast his vote in the voting precinct where he resides. In Harrison the precinct lines had been in existence for many years and the challenged voters were found to have voted in other precincts because it was more convenient to vote there, because of their desire to vote in that particular precinct, or because of their failure to acquaint themselves with the precinct lines. The Supreme Court recognized that a different rule applies where the Commissioners' Court had, through inadvertence or uncertainty as to the election precinct lines, designated the polling place outside the legal boundaries.

In Tondre v. Hensley, Tex.Civ.App., 223 S.W.2d 671, no writ history, this Court recognized the distinction between a case where a voter, through inadvertence or mistake, votes in the wrong precinct and a case where the boundary line of the precinct is uncertain. The Court said: 'However, it is a different matter when contiguous or near at hand voting precincts are involved and the poll taxpayer is mistaken as to the location of precinct lines and this confusion is also shared by the tax assessor-collector, the issuing authority for poll tax receipts. Voters should not be disqualified where uncertainty exists both in the minds of the tax...