State ex rel. Lukovich v. Johnston

• Decision Date: 25 April 1951
• Docket Number: No. A-3076,A-3076
• Citation: 150 Tex. 174,238 S.W.2d 957
• Parties: STATE et rel. LUKOVICH et al. v. JOHNSTON et al.
• Court: Texas Supreme Court

Page 957

238 S.W.2d 957

150 Tex. 174

STATE et rel. LUKOVICH et al. v. JOHNSTON et al.

No. A-3076.

Supreme Court of Texas.

April 25, 1951.

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

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

BREWSTER, Justice.

This is the second appeal of this cause, a quo warranto proceeding by which Ambrose Lukovich, appellant, seeks to recover from Walter L. Johnston, appellee, the office of Fire-Police Commissioner of the City of Galveston. For the first appeal, see State of Texas ex rel. Lukovich v. Johnston, Tex.Civ.App., 228 S.W.2d 327, error dismissed for want of jurisdiction.

At the second trial, the trial court deducted certain illegal votes which reduced Johnston's plurality but still left him the winner by 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 reach the Supreme Court on writ of error, our jurisdiction being final.'

These questions relate to the effect to be given to illegal assistance which certain voters in election precinct No. 14 of the City of Galveston got from the presiding judge of that precinct. Art. 3010, Vernon's Ann.Civ.Stat., provides that no assistance shall be given a voter in preparing his ballot, except when he is unable to prepare it because of some bodily infirmity that renders him physically unable to write or is over 60 years old and unable to read and write, in which even two election judges, sworn not to suggest how such voter shall vote, may assist him.

From the certificate it appears that Bock, the presiding judge, testified that when a voter looked like he needed help, without reference to age, he, the judge would ask the voter if he needed help; that if the voter answered in the affirmative, he, the judge, went alone with the voter into the voting booth, called off the names of the several candidates and then scratched off all except the name of the candicate for whom the voter wanted to vote; that he helped them because 'they couldn't read or write', because they were 'not educated'; that of those he helped, only about three were blind; that of 'the rest of them' he helped, none was either blind or crippled; that he 'guessed' he helped about 20 or 25 'people like that'; that he didn't think it could have been more than 25 voters whom he so helped. On this testimony the trial court's finding of fact was: 'In weighing Mr. Bock's testimony it should be borne in mind that the burden of proof was upon Relator Lukovich to establish by a preponderance of the evidence the essential facts necessary to a recovery of the relief he sought, and it should further be borne in mind that Mr. Bock was a witness for the Relator Lukovich. Subjecting Bock's testimony * * * to these tests, I am of the opinion, and so find, that no more than 20 voters were illegally assisted by Mr. Bock.'

With that factual background the questions certified are:

'Question No. 1: Was the assistance rendered by the presiding judge of Precinct No. 14, as set forth above, of such a nature as to render the ballots cast by such assisted voters void?

'Question No. 2: If Question No. 1, above, is answered 'yes', should this Court (a) eliminate from the total votes cast in the Fire Police Commissioner race in the City of Galveston all of the 339 votes cast in such Precinct No. 14, and (b) since, by eliminating these votes, relator, Ambrose Lukovich, received a majority in the remaining precincts, should the office be awarded to him?'

Under our conclusion it is unnecessary to answer the first question, so we shall confine our discussion to the second.

A quo warranto proceeding is said to be akin to a suit in trespass to try title, because in the former the plaintiff may show 'as a muniment of title that he was duly chosen to the office by the people', whereas in the latter he shows 'that he derived the right to his property by a just and legitimate chain of title'. State ex rel. Jennett v. Owens, 63 Tex. 261. That this means he must rely on the strength of his title to the office rather than on the weakness of defendant's claim to it is made clear in Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 121 A.L.R. 931, wherein it is held that in such a proceeding (1) the burden is on the plaintiff to prove that he got a majority (or plurality) of the legal votes cast; and (2) if he fails in this, the judgment must be for defendant even though all votes cast were void. And see State ex rel. Stevens v. Black, Tex.Civ.App., 14 S.W.2d 72.

Yet, in the face of this rule,...