Sewell v. Chambers, 14929.

• Decision Date: 27 February 1948
• Docket Number: No. 14929.,14929.
• Citation: 209 S.W.2d 363
• Parties: SEWELL et al. v. CHAMBERS et al.
• Court: Texas Court of Appeals

Page 363

209 S.W.2d 363

SEWELL et al. v. CHAMBERS et al.

No. 14929.

Court of Civil Appeals of Texas. Fort Worth.

February 27, 1948.

Appeal from District Court, Jack County; J. E. Carter, Judge.

Election contest by D. R. Sewell, for himself and the benefit of all other taxpaying resident voters, and others, against R. D. Chambers, as Mayor of the City of Jacksboro, and others. From an adverse judgment, the contestants appeal.

Judgment reversed and cause remanded.

Stine, Bunting & Stine, of Henrietta, and W. E. Fitzgerald, of Wichita Falls, for appellants.

John W. Moore, of Jacksboro, and Grindstaff, Zellers & Hutcheson, of Weatherford, for appellees.

SPEER, Justice.

This is an appeal from the judgment of the District Court of Jack County in an election contest held in the City of Jacksboro to determine if four different kinds of revenue bonds should be issued by the City.

Appellant, D. R. Sewell, for himself and the benefit of all other tax paying resident voters, contested the election as to all four propositions and named as contestees the appellees, R. D. Chambers, as Mayor, R. L. Henderson and V. R. Akins, as commissioners.

All references made by us in this opinion to statutes will be found in Vernon's Annotated Civil Statutes.

The pleadings of all parties are necessarily lengthy and we shall refer to them as briefly as we may, so as to show what was really in controversy.

Appellants (contestants) plead many irregularities in holding the election, such as, that contestees had not furnished to the officers holding the election, a list to be furnished by the County Tax Collector of persons who had paid their poll tax during the current year, as required by Article 2975; the presiding judge who was appointed by the Board to hold the election was an extreme partisan in favor of the bond issues and knew himself not to be a qualified voter; the officers holding the election from time to time during the progress of voting unfolded ballots, inspected them and announced in the presence of other members and persons then voting that such voter had voted against the propositions; the officers holding the election required certain voters to sign their respective ballots to thus enable them to declare such ballots mutilated while counting; that ballots cast against the propositions were changed after being deposited in the voting box and that the counting judges in canvassing the votes erroneously called many ballots and had them recorded for the propositions when they were in fact voted against them; those holding the election did not observe the provisions of Articles 3013 and 3015 in placing in box No. 4 all unused ballots along with those claimed to be mutilated, nor did they keep a list or register of any kind showing that any ballots had been mutilated but placed all unused ballots and those claimed to be mutilated into the box with the counted ballots and returned them in that form; that the presiding judge of the election did not take the oath of office nor did he require his helpers to take such oath, as provided by Article 2998.

The petitioner alleged notice and grounds of contest by him and the reply by contestees in the manner and within the time required by Article 3042; that the returns as declared and made were false, deceptive and fraudulent; that thirty-two named persons were permitted to vote who were not exempt from poll taxes and had paid none within the time provided by law to qualify them; that twenty-nine named persons were permitted to vote who had not rendered for taxation any property in said City for the current year, as provided by Article 2955a; that seventeen named persons were permitted to vote who either did not live inside said City or had not so resided for six months next prior to the time of the election; that four named persons voted absentee ballots, which said ballots were not made and returned in the manner required by law and were void; that illegal ballots were cast in the name of six persons who did not vote at all in said election. Allegations were made that all or practically all of the ballots so alleged to have been illegally cast were in favor of the respective bond issues and were so counted by those holding the election in favor of said issues; that in canvassing, tabulating and returning said votes the election judges "threw out" approximately thirty-five ballots upon the theory that they were mutilated ballots, whereas they were intelligible and plainly revealed the intention of the voters and should have been counted; that contestant was unable to give the names of such persons whose votes were so disregarded. It was alleged that all illegal acts of those holding the election were occasioned either by mistake, accident or fraud; that if the election had been conducted and the returns made according to law the results would have been different and the bond issues defeated. Prayer was that the returns and declarations made thereon be set aside, that the ballot box be opened by the court, the votes counted and the result of the election declared by the court to be that the bonds election was defeated, and for general relief.

Contestees answered with general denial and specially that twenty-one named persons (eleven of whom were named in the same class by contestant) voted without exemption or poll tax receipts; that twenty named persons (ten of whom were those named in the same class by contestant) cast illegal votes in said election when they owned and had rendered no property for taxation in the City for the current year; that the four persons named by contestant as residing outside the City voted in said election, and that all of said illegal votes were cast against each of the bond issues. Contestees prayed that the illegal votes of those above pointed out be subtracted from those shown by the returns to have voted against said issues and the result declared by the court accordingly.

The issues thus made were tried to the court without a jury; the court heard the testimony offered by the respective parties concerning the illegal votes asserted by each and from the statement of facts before us seventeen of the votes challenged by one or the other of the parties were found to be legal, and by statements shown to have been made by the court forty-eight votes cast in the election were found to be illegal. Some of those found to be illegal the court did not indicate the grounds upon which he based his finding, but several were because the voter had no poll tax receipt, others were upon the stipulation of the parties, while others were based upon the ground that they were not shown to have owned and rendered any property in the City, while others lived outside of the City, and others were persons who were shown to have not voted at all or were unknown, and the four absentee votes were declared illegal.

Those votes declared by the court to be illegal were compared to the poll list from which the number of the ballot was ascertained, the ballot box opened, the forty-eight ballots removed and tabulated in the manner shown to have been voted, and the totals for and against the respective bond propositions subtracted from each of the official returns, and the result of the election declared by the court thereafter shows that propositions one to four inclusive were carried by the following majorities: No. 1, 17 votes; No. 2, 36 votes; No. 3, 21 votes; and No. 4, 40 votes.

After the ballot box had been opened and the forty-eight removed, counted and tabulated as above pointed out, the contestant offered to the court for consideration, all the remaining ballots cast at the election and asked that they be counted by the court and tabulated as the best evidence of the intention of the respective electors, this for the reason the court could not know how many ballots had been erroneously declared by the election judges to have been mutilated and because the various and sundry elements of mistake, accident or fraud had been conclusively shown and the court had by its ruling of illegal votes found all of same to exist. The court declined the proffered testimony and declared the evidence insufficient to warrant going into the mutilated ballot question. Upon this ruling of the court contestant predicates his principal point of error for reversal.

Substantially all of our statutory proceedings concerning elections and election contests are so worded as to apparently apply to primary and general elections for state, district, county and precinct officers, but in revenue bond elections and other elections by municipalities Article 2997 provides that the mayor, city clerk or governing body of the municipality has the same duties and responsibilities as those of the county judge, county clerk or the commissioners' court in other elections. We call attention to this provision at this time to avoid explanatory statements found in other articles of the statutes to which we shall refer.

We are at first confronted by the contention of appellees (contestees) that we are without jurisdiction to hear this appeal, for the reason Article 3042 provides the requisites of a contest, such as this, to be that contestant must within thirty days after the return day of the election give notice in writing to the contestee of his intention to contest the election, stating the grounds therefor, and that by Article 3043 the contestee shall reply thereto within ten days after receiving such notice and statement, and that in the instant case no proof was offered by contestant that such notice and reply were given in the manner and within the time required by law. There is no contention that such notice and reply were not pleaded but it is insisted that no proof was offered on the point.

We think there is no merit in the motion to dismiss this appeal upon the ground stated. This record discloses that the election in controversy was held September 19, 1947, and...