State v. Connor

• Decision Date: 16 November 1893
• Citation: 23 S.W. 1103
• Parties: STATE ex rel. BARRY v. CONNOR.
• Court: Texas Supreme Court

23 S.W. 1103

STATE ex rel. BARRY v. CONNOR.

Supreme Court of Texas.

November 16, 1893.

Certified questions from court of civil appeals of fifth supreme judicial district.

Proceeding by the state, on the relation of Bryan T. Barry, against W. C. Connor, to contest an election.

John P. Gillespie, H. P. Lawther, F. M. Etheridge, and Harris & Knight, for petitioner. R. E. Cowart, J. C. Kearby, A. P. Woozencraft, Wm. P. Ellison, G. G. Wright, and J. M. McCormick, for respondent.

BROWN, J.

The following questions of law were certified to this court by the court of civil appeals for the fifth supreme district: "First. Is an agreed statement of facts upon which a case was tried in the court below, and which the court embodied in its judgment, sufficient, in the absence of a statement of the facts or findings of fact by the court, or agreed case for appeal under the statute, to authorize a revision of the judgment upon matters growing out of such facts? Second. Is the statement in regard to the seventeen hundred and forty-seven unnumbered ballots, as contained in the first clause of the said agreement set forth, a sufficiently certain statement of the facts as to show how said ballots were cast and counted as to authorize this court to revise said judgment upon the facts? Third. Is it necessary, under the constitution and laws of Texas, and the charter of the city of Dallas, as set forth in said above agreement, after the adoption by the city council of the city of Dallas of the act of April 12, 1892, commonly known as the `Australian Ballot System,' that all ballots cast in an election in said city for city officials shall be numbered; and, if so, is such requirement directory or mandatory? Fourth. If such unnumbered ballots can in any event be counted, can this be done by the court, in the absence of testimony showing the bona fides of the ballots?"

1. To the first question, we answer that the agreed statement of facts made and signed by the counsel and parties to the cause, and embodied in the judgment of the court, fully authorizes the court of civil appeals to review that judgment upon any question arising upon the facts therein stated. Article 1293, Rev. St., is as follows: "The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, filed with the clerk, upon which judgment shall be rendered as in other cases; and in such case the statement so agreed to and signed and certified by the court to be correct and the judgment rendered thereon, shall constitute the record of the cause." Incorporating the agreed statement of facts in the record by the court is as much an approval as if the judge had made a certificate under the statute. The object of requiring a statement of facts to be made out is to place before the appellate court all the facts upon which the judgment was rendered. Article 1293 provides the manner in which this may be done before the trial is had. The law was substantially complied with by the agreement made, and the incorporation of that agreement in the record. Fowler v. Simpson, 79 Tex. 617, 15 S. W. 682; Hill v. Baylor, 23 Tex. 263. Article 1333, Rev. St., provides for the filing by the court of findings of fact and conclusions of law or a special verdict by a jury, in either of which cases an appeal may be taken without other statement of facts. Article 1414, Id., permits the parties to present their case to the court of appeals upon an agreed statement of the facts and proceedings certified by the court after trial. In each of these methods the same result is reached, of presenting to the appellate court, in condensed form, the material facts upon which the judgment was rendered. In Salinas v. Wright, 11 Tex. 578, this court said: "To authorize the revision of a judgment on the merits, a formal statement of facts is not essential, where all the evidence legally and conclusively appears by the record." In that case the fact appeared by bill of exceptions. It conclusively appears from the record in this case that all the evidence which was introduced, and upon which judgment was rendered, is embraced in the agreement signed by counsel and the parties, and embodied in the judgment of the court.

2. The statement contained in the first clause of the agreement, as set forth, is sufficiently explicit to enable the court to revise the judgment on the facts, and to enter judgment in accordance with the agreement. If there was any doubt arising upon the language of the agreement, it refers to the "first amended original information," which alleges that the 1,747 ballots were unnumbered, were counted and included in the aggregate of the vote; that, if they had not been so counted, relator would have received a plurality of all votes cast, and, being counted, the respondent received such plurality. There is no reason why the parties to this character of proceeding may not make agreements as in any other case. If it had been a suit for land, and the agreement had read, "if the court shall hold that the deed from A. to B. is valid and sufficient to pass title to the land, then judgment shall be entered for the plaintiff, but, if the court shall hold that said deed is invalid, then judgment shall be entered for the defendant," no question would be made of the sufficiency of the agreement to authorize a judgment in accordance therewith.

3. The third question propounded embraces two propositions: (1) Did the law require the officers conducting the election in the city of Dallas to number the ballots of the electors in compliance with article 1694, Rev. St.? (2) If so, could the officers who conducted the election legally count the ballots not numbered, and can the court sustain the counting of such unnumbered ballots?

Articles 1694 and 1697 of the Revised Statutes were in force in the city of Dallas at the time of the election in question, and it was the duty of the officers holding the election to number the ballot of each elector in accordance with the requirements of article 1694. The prohibition contained in article 1697 is binding upon all courts, as well as officers of the election. The law is mandatory, and cannot be disregarded. If ballots not numbered were counted in such election, such ballots were illegal, and must be rejected by the court upon an examination and revision of the judgment rendered.

It is claimed on behalf of the respondent that the law of April 12, 1892, entitled "An act to provide for the registration of all voters in all cities containing a population of ten thousand inhabitants or more, and to protect the purity of the ballot in such cities and to provide penalties for the violation of the same," prohibits the numbering of ballots in accordance with article 1694, above referred to, and by implication repealed said article. The following language of said act, contained in the twenty-eighth section, is relied upon to sustain the contention upon this point: "Any elector or anyone who shall, contrary to the provisions of this act place any mark upon or do anything to his ballot by which it may afterward be identified as the one voted by any particular individual upon conviction shall be punished," etc. By the act of March 16, 1848, the officers of election were required to "write and number the name of each voter. * * * One of the managers shall in every case, at the time of receiving the ticket or ballot, write upon it the voter's number corresponding with the clerk's list. * * * No ticket not thus numbered, shall be counted or noticed in counting out the votes." This continued to be the law in Texas until 1870, when the 12th legislature enacted a statute by which it was provided that one of the judges of election should write upon each ticket one or all of the words, "State," "District," and "Congress," according as the voter might be entitled to cast his ballot for one or all of said offices. It was made a penal offense for any officer of election to place any other mark upon any ballot. Laws 12th Leg. § 19, p. 131. An election for members of congress was held in the state in 1872, and in Brazos county the ballots were numbered as under the Law of 1848. When the returns were to be made up, and certificate of election given, Gov. Davis excluded from the estimate the vote of Brazos county because the ballots were numbered, alleging as his reason that the numbering of the ballots operated to intimidate voters. Note to article 6483, 2 Pasch. Dig. The 13th legislature, which assembled in 1873, repealed the act of 1870, and re-enacted, substantially, the law of 1848 on the point. The constitutional convention which framed the constitution that was adopted in 1876, inserted in that instrument the following provision: "Sec. 4, (art. 6.) In all elections by the people the vote shall be by ballot and the legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot...