State ex rel. Lukovich v. Johnston, 12244

Decision Date11 January 1951
Docket NumberNo. 12244,12244
Citation235 S.W.2d 932
PartiesSTATE ex rel. LUKOVICH et al. v. JOHNSTON et al.
CourtTexas Court of Appeals

Raymond E. Magee, County Atty. Galveston; Al L. Crystal, Houston; Robert R. Thornton and Bryan F. Williams, Jr., both of Galveston, for appellants.

Markwell & Stubbs and Russel H. Markwell, all of Galveston, Sherwood Brown Jr., Walter Ressel, Stone & Phipps, and Vincent Licata, all of Galveston, of counsel, for appellees.

MONTEITH, Chief Justice.

This is a second appeal in a quo warranto action brought in the District Court of Galveston County, upon relation of one Ambrose Lukovich, a candidate for the office of Fire-Police Commissioner of the City of Galveston in a municipal election held on May 10th, 1949, against respondent Walter L. Johnston, and three other candidates for said office. Walter L. Johnston was declared elected tot he office of Fire-Police Commissioner in said election and is now in possession of said office. A statement of the facts found and the issues presented are fully set out in the former decision of this Court in Volume 228 S.W.2d 327.

In a trial before the Court, judgment was rendered that relator was not entitled to the relief prayed for and that defendants were entitled to judgment. On application of relator, the trial court made and filed findings-of-fact and conclusions-of-law.

Upon the second trial of this suit the ballot box in Precinct No. 17 was opened and the ballots therein recounted. After eliminating those votes not personally signed by the presiding judge of hte precinct which were found to have been illegally cast and were thrown out, respondent Johnston was found to have been elected by a majority of seven votes.

On this trial it was stipulated by the parties that the testimony given by Oscar Bock, the election judge of Precinct No. 14, on the first trial would be considered as having been introduced in the second trial of the case. In the former trial Mr. Bock had testified that when voters came to his box to vote he asked them if they needed help and that if they stated to him that they did need help he helped them write their ballots. He stated that he helped about 20 or 25 persons and that he placed these ballots in the ballot box for them; that most of the people he helped were colored people who did not state that they could not read and write but stated that they wanted assistance. He testified that some of the people he assisted were neither blind nor crippled.

Relator relies in this appeal on two points of assigned error both of which are based on the contention that the trial court committed reversible error in refusing to eliminate all of the votes cast in said election in precinct No. 14 for the alleged reason that it is undisputed in the record that assistance had been rendered certain unidentified voters in that precinct by its presiding judge in violation of Article 3010 of the Revised Civil Statutes, that the votes which had been illegally cast could not be separated from the legal votes cast and that due to this fact it was impossible to ascertain the true result of the election.

The parts of Article 3010, Vernon's Annotated Civil Statutes, material to this appeal provide tht not more than one voter at at same time shall be permitted to occupy a voting booth, that no assistance shall be given a voter in preparing his ballot, except when the voter is unable to himself prepare the ballot because of some bodily infinmity that renders him physically unable to read and that in that case two judges of such election who have been sworn not to suggest how such voter shall vote may assist him.

At Volume 29, Corpus Juris Secundum, Elections, § 127, p. 193, the rule is announced that where in an election contest illegal votes can be segregated from the legal votes cast, only the illegal votes should be thrown out, and that the entire vote need not be impeached, but that where it is impossible to separate improperly marked ballots from those ballots which have been properly marked the votes of the entire district must be excluded.

This rule of law was first recognized and followed by the Courts of this state in the early case of Hodge v. Jones, 17 Tex.Civ.App. 511, 43 S.W. 41, 42, in which case the Court quoted from 1804f, which held that 'Should it appear on the trial of any contest provided for in article 1801 that it is impossible to ascertain the true result of the election * * * either from the returns * * * 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 should adjudge such election void'.

Articles 1801 and 1804f, referred to by the Court in that case, have been carried forward as Article 3054 of the Revised Statutes of 1925 which provides, in substance, that if it appears on the trial of any election contest provided for in Article 3045 that it is impossible to ascertain the true result of an election about which a contest is made either from the...

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3 cases
  • Thompson v. Willis
    • United States
    • Texas Court of Appeals
    • August 4, 1994
    ...not eligible for assistance, the voter's ballot may not be counted." Three cases speak to this issue. State ex rel. Lukovich v. Johnston, 235 S.W.2d 932 (Tex.Civ.App.--Galveston 1951), rev'd on other grounds, 150 Tex. 174, 238 S.W.2d 957 (Tex.1951), said at It is undisputed in the record th......
  • State ex rel. Lukovich v. Johnston
    • United States
    • Texas Supreme Court
    • April 25, 1951 7 votes. Lukovich appealed, and the Court of Civil Appeals at Galveston reached the conclusion that he was entitled to the office 235 S.W.2d 932. But it has certified two questions to this court, stating that it deemed that course advisable 'Since this is a case which cannot lawfully rea......
  • Reyes v. City of Laredo
    • United States
    • Texas Court of Appeals
    • August 28, 1990
    ...only part of a larger number of mail-in ballots containing erasures or other markings. Appellant cites State ex rel. Lukovich v. Johnston, 235 S.W.2d 932 (Tex.Civ.App.--Galveston 1951), for the proposition that where in an election contest illegal votes can be segregated from legal votes ca......

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