Roach v. Malotte

• Decision Date: 14 April 1900
• Parties: ROACH et al. v. MALOTTE et al.
• Court: Texas Court of Appeals

56 S.W. 701

ROACH et al. v. MALOTTE et al.

Court of Civil Appeals of Texas.

April 14, 1900.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by Charles Malotte and another against I. N. Roach and another to contest an election. On motion of plaintiffs the district court struck out the answer of contestees, and judgment was rendered in favor of plaintiffs. Defendants appeal. Reversed.

Flanary & Wilson, for appellants. A. H. Culwell, for appellees.

HUNTER, J.

This suit was filed July 19, 1899, to contest the local option election held in justice's precinct No. 2 of Parker county, known as the "Springtown Precinct," on July 1, 1899, to determine whether or not the sale of intoxicating liquors should be prohibited within said precinct. I. N. Roach, county judge, and A. B. Flanary, county attorney, were made contestees. On the 11th of July, 1899, the commissioners' court, with said Roach as chairman or presiding officer, declared the result of the election to be 273 votes for prohibition and 273 votes against prohibition, and, prohibition being then in force in the precinct, said commissioners' court entered an order continuing it in force. The facts upon which the contest was based were that Wiley Downs, who was a qualified voter in the precinct, handed to the judges of the election a ballot against prohibition, which was deposited by the judges in the ballot box, and that afterwards, within two minutes, and before leaving the polls, he bethought himself, and discovered that he had voted against prohibition when he intended to vote for it, and, making the statement to the judges that he had made a mistake, requested them to open the ballot box, and take out his ballot, and allow him to vote another ballot expressive of his sentiments on the issue, all of which was accordingly done, and the first ballot was taken out by the judges, handed to him, and he then and there destroyed it, and prepared another ballot, and caused it to be placed in the ballot box. The first ballot was against prohibition, and was not counted. The second ballot was for prohibition, and was so counted, and this made the vote a tie in the precinct. The first ballot was voted by an innocent mistake, and was corrected in good faith, and there was no actual fraud intended or perpetrated by anybody connected with the transaction. The contestees did not deliver to the contestants any answer to the contest, or file any in this cause, until November 7, 1899, on which day they filed an answer in this cause with the clerk of the district court in which were an unverified plea in abatement, a general demurrer, and general denial, and a special statement contesting the votes of Charles Lindsey, Martin Lynch, and Ona Sullivan upon the ground that they had voted against prohibition, and were not legal or qualified voters,—the first because he was a blind pauper, then being supported by the county; the second, because he was then a soldier in the United States army; and the last-named because he was a minor under the age of 21 years,—and prayed that the ballot box containing these ballots be opened, and the matter inquired into and investigated, and that said votes be stricken out, and not counted. A motion was made on November 8th to strike out this statement and answer because it had not been filed or delivered to contestants or their attorneys within 10 days after notice of the contest had been delivered to contestees, and this motion was sustained, and the statement and answer of contestees were stricken out, to which they excepted, and this action is the basis of one of contestees' assignments of error here. The district court, upon the evidence as above related, also struck out and refused to count the ballot of Wiley Downs for prohibition, and this is also made the ground of serious complaint here.

Our local option law is found under title 69 of our Revised Statutes of 1895, and is contained in articles 3384-3399, inclusive. There is but one article in said title which relates to a contest of an election held thereunder, and that is article 3397, which provides, in substance, that within 30 days after the result of the election has been declared any qualified voter of the justice's precinct, etc., may contest the same in any court of competent jurisdiction, in such manner as has been or may be hereafter prescribed. No mode of contest is prescribed in that title, and we therefore conclude that it was the intention of the legislature that such contests should be made and conducted in the manner pointed out in title 36, being our statute on elections. In chapter 7 of that title, which relates to the contesting of elections, we find article 1797, which provides: "Contested elections for other purposes than the election of officers shall be tried by the district court in the county where the election was held, or either of them if there is more than one such court." Article 1804t provides: "If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town or village, any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far...