Schrock v. Hylton, 12868.

• Decision Date: 14 October 1939
• Docket Number: No. 12868.,12868.
• Citation: 133 S.W.2d 175
• Parties: SCHROCK et al. v. HYLTON et al.
• Court: Texas Court of Appeals

133 S.W.2d 175

SCHROCK et al. v. HYLTON et al.

No. 12868.

Court of Civil Appeals of Texas. Dallas.

October 14, 1939.

Rehearing Denied November 13, 1939.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Election contest by T. M. Schrock and others against B. F. Hylton and others. From an adverse judgment, the contestants appeal.

Judgment reformed, and as reformed, affirmed.

Geo. Clifton Edwards, of Dallas, for appellants.

Taylor, Irwin & Irwin, Dean Gauldin, and Wallace B. Moore, all of Dallas, for appellees.

LOONEY, Justice.

This suit is an election contest. T. M. Schrock, A. M. Irwin, W. W. Evers, and A. J. Smith contested the election of B. F. Hylton, R. E. Curtis, Ben Prevatil, and R. E. Prine, as supervisors, and H. C. McDonald contested the election of C. J. Traquair, as assessor and collector of taxes, in and for Dallas County Lakeland Terrace Fresh Water Supply District No. 12. The contestants were incumbents, seeking re-election at an election held January 3, 1939, for five supervisors and an assessor and collector of taxes for the district. The results declared were as follows: In favor of L. C. Brooks, as supervisor, the validity of whose election is not involved; also, in favor of contestees, Hylton, Prine, Prevatil and Curtis, as supervisors, and Traquair, as assessor and collector of taxes.

In the trial court, contestants were defeated and appealed to this Court. On original submission, we held the election void, because the same was conducted without a certified poll list of the qualified voters of the Water District, as required by general statute (Art. 2975), therefore, set aside the judgment of the trial court and rendered judgment for contestants, nullifying and holding the election for naught.

Our decision was largely based upon the case of Yett v. Cook, 115 Tex. 205, 281 S.W. 837, by the Supreme Court, on the assumption that the general statutes brought under construction in the Yett-Cook case, were applicable and controlled the election held in the Water District, but, after reconsidering the question, we have reached the conclusion that, we erred in holding the election void and in nullifying same, for the reasons stated.

An opinion by Mr. BOND, Chief Justice, presented to our conference, and concurred in by other members, sets forth our unanimous opinion on the decisive questions involved. His opinion reads:

"The statute creating the district expressly provides for the manner of its creation, the holding of elections (Art. 7889), the form of ballots (Art. 7890), and the necessary prerequisites for a person who offers to vote (Art. 7891, and Art. 7930—1, Vernon's Ann.Civ.St.). Article 7891 provides: `Every person who offers to vote in any election held under the provisions of this chapter shall take the following oath before the presiding judge of the polling place where he offers to vote, and such judge is authorized to administer same: "I do solemnly swear that I am a qualified voter of ____ County and that I am a resident property taxpayer of the proposed Fresh Water Supply District voted on at this election, and have not voted before in this election."'; and Art. 7930— 1, § 7, provides: `Every person offering to vote at any election held under the provisions of this Act shall take the following oath before the presiding judge at the polling place where he offers to vote, and such judge is authorized to administer the same: "I do solemnly swear that I am a qualified voter of the ____ County Fresh Water Supply District No. ____ (inserting the name and number of the District) and have not voted before in this election."' Thus it will be seen that the Legislature has provided effective means of preventing repeating at elections, qualifying every voter offering to vote at any election held under the provisions of the Act, in that, the voter must be qualified under Sec. 2, Art. 6 of the Constitution, Vernon's Ann.St. (article on suffrage), that he is a resident taxpayer of the district, and that he had not voted before in the election in which he offers to vote. The right to vote is expressly granted by statute to any person possessing the qualifications prescribed, and who shall subscribe to the oath designed to insure a fair election in such district. There is no provision of the statute requiring a poll list of the qualified voters of the district, as is required in the General Election Statute; therefore, presiding officers of such elections are without authority to deprive a qualified voter, who has subscribed to the prescribed oath affecting elections in Fresh Water Supply Districts, of the right to vote, merely because of the absence of a poll list at the place of voting.

"The election in question was held under and governed by the provisions of the special statute relating to Fresh Water Districts, and not under the General Election Statute. General election law does not apply to a special election held under a special law. Wallis v. Williams, 101 Tex. 395, 108 S.W. 153. Therefore, the requirements of the special statute, being in the interest of pure elections, should be complied with, and so far as this record discloses, same was done. No voter should be disfranchised, or a pure election declared null and the majority of the voters set aside, merely because of the failure of election officers to have a poll list at the place of voting, which is not required in such elections.

"The case of Yett v. Cook, 115 Tex. 205, 281 S.W. 837, quoted in the original opinion, and on which contestants rely for reversal, throws no light upon the propositions here involved: First, the facts of that case have no relation to an election-contest; second, that was a suit for mandamus, asking that an election be ordered in the City of Austin, where the city ordinance required all elections to be held under the General Election Law. The city council declined to order the election in that case because they did not have sufficient time to supply the election officers with the necessary supplies, including list of voters. The Supreme Court, in refusing the mandamus, held, in effect, that the list was a necessary prerequisite for a legal election under the city charter and the council was clearly within its rights in declining to call the election. Obviously, such is not the case at bar. The election in question having been held by virtue of a special statute, the provisions thereof take precedence over the General Election Law, which requires a list of the qualified voters to be exhibited at the polling place. Therefore, a poll tax list of taxpaying voters not being a necessary prerequisite to support a legal election held under the Fresh Water Supply District Statutes, the cited authority does not support the conclusion expressed.

"Furthermore, this being a contest of an election suit, same must be determined under the express provisions of the statute relating to the subject of election-contests (article 3041 et seq., R.S. 1925). Art. 3054, supra, provides: `If it appears on the trial of any contest provided for in article 3045 [county office] that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach, or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office; which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the State.'

"So, for the purpose of this opinion, assuming that the election was held under and governed by the provisions of the general election laws of the State of Texas, which evidently was not the case, by virtue of the above statute, Art. 3054, supra, the burden of proof rested upon contestants to show that a poll list at the polling place would have materially changed the result of the election, or that the absence of such list did materially change the result; thus, in the absence of such showing, the failure of the election officers to have a certified list at the polling place at the time the election was held, becomes immaterial.

"In State ex rel. Paggi v. Fletcher, Tex. Civ.App., 50 S.W.2d 450, 452, in an election-contest, among other assignments of error, the contention was made, as here, to void the election, that a list of voters was not furnished the election officers in compliance with Art. 2975, R.S. The court said: `Because the voting lists furnished the election judges failed to furnish all the information prescribed by article 2975, appellants insist that the election was absolutely void. * * * In support of their proposition appellants cite Yett v. Cook, 115 Tex. 205, 281 S.W. 837, and articles 2975, 3005, and 3012 of the Revised Statutes. While it is true that the Supreme Court, in Yett v. Cook, discussed the office of the list of voters provided for by article 2975 and in effect held that the provisions of this article were mandatory, the facts of that case have no relation to the facts of this case, and what was said there can throw but little light on the proposition before us. * * * To have relief because its provisions were not complied with, appellants rested under the burden of alleging and proving "injury," which was not done. The right to vote is a constitutional right, and, while the Legislature has the power to establish rules regulating this right, such regulations should generally be given a liberal construction to effectuate the constitutional right of suffrage. Regulations which, from their very nature, are deemed absolutely essential to accomplish the purposes of...