State v. Fletcher

• Decision Date: 05 May 1932
• Docket Number: No. 2218.,2218.
• Citation: 50 S.W.2d 450
• Parties: STATE ex rel. PAGGI et al. v. FLETCHER, Mayor, et al.
• Court: Texas Court of Appeals

50 S.W.2d 450

STATE ex rel. PAGGI et al. v. FLETCHER, Mayor, et al.

No. 2218.

Court of Civil Appeals of Texas. Beaumont.

May 5, 1932.

Rehearing Denied June 1, 1932.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Proceeding by the State of Texas, on the relation of Charles Paggi and another, against E. A. Fletcher, Mayor of the City of Beaumont, and others. From a judgment upon an instructed verdict in favor of defendants, relators appeal.

Affirmed.

Smith, Smith, Huffman & Boyd, of Beaumont, for appellants.

Combs & McFaddin, of Beaumont, for appellees.

WALKER, J.

On June 5, 1928, an election was held in the city of Beaumont to determine whether or not a commission should be chosen to form a new charter for the city and to elect charter commissioners. In this election 785 votes were cast for and 782 against the proposition; at precinct 12, a negro box, 53 votes were cast for and 5 against. The result of the election was regularly declared in favor of the proposition and that the commissioners, naming them, were duly elected. At that time there were in the city of Beaumont more than 9,000 qualified voters. Thereafter a contest was filed against the election, but on trial was dismissed by the court and the judgment of dismissal affirmed by this court. Carroll v. Gross (Tex. Civ. App.) 37 S.W.(2d) 286. Afterwards a quo warranto proceeding was instituted contesting the result of the election, but on conclusion of the evidence the plaintiffs in that suit took a nonsuit. The case at bar was filed the 9th of December, 1930, by the state of Texas, through the Attorney General, on relation of Chas. Paggi and Mrs. F. H. Paderas, against E. A. Fletcher mayor, and the city commissioners and the charter commissioners to contest the result of the election only in so far as the result was in favor of the choosing of commissioners to form a new charter. The grounds of the contest were: (a) The list of voters furnished the election officers was not in substantial compliance with article 2975 (Rev. St.); (b) V. H. Bailey, who was regularly designated by the city as judge of the election for Box 12, did not serve in that capacity, but the duties of the office were assumed and discharged by Will Blanchette; (c) some of the ballots voted at Box 12 were signed by Will Blanchette as judge of the election after the ballots had been given to the voters and marked by them but before they were deposited in the ballot box; (d) some of the voters carried into the voting box marked and spurious ballots; (e) no election booths or guard rails were provided for the use of the voters at Box 12; (f) the result of the election at Box 12 was so nearly unanimous as to indicate fraud. The allegation was further made that the election, by virtue of the ordinance under which it was called, was held under the general election laws of the state and that the irregularities, as enumerated above, made the election wholly void.

The defendants answered by general and special demurrers and general denial and other defenses not necessary to mention.

Upon trial judgment was entered in favor of defendants upon an instructed verdict.

Opinion.

For the purposes of this opinion it will be conceded that the election was held under and governed by the provisions of the general election laws of the state of Texas, by virtue of the ordinance under which it was ordered.

The lists of voters furnished the election judges, under the provisions of article 2975, R. S. 1925, were in the form of all lists furnished since 1923 and were identified as being the lists prepared by the city tax assessor and collector, but they did not bear the official certificate. They contained only the following information: Precinct number, name, race, sex, and address of the voter. The names of the voters were arranged in alphabetical order. The officers of the election at Box 12 testified that they knew personally every voter who voted at that box and knew that each and every voter was a qualified voter; that each voter had with him his poll tax receipt or exemption certificate; that no qualified voter was refused the right to vote, and that some voted whose names may not have been on the official list of voters; that they knew personally every voter in precinct No. 12 and that no one voted who did not live in that precinct; that in receiving the ballot from the voter they did not always check the list of voters to see whether or not he was officially listed.

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. It is their contention that the provisions of this article are mandatory and that the failure to comply substantially with its conditions rendered the entire election void. As to all voting precincts, except No. 12, the proposition is advanced purely as one of law, but as to precinct No. 12 it is urged in connection with the facts of the election, as stated above. 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. That was a suit for mandamus, praying for the ordering of an election, and the court's discussion of article 2975 was only by argument in support of the judgment denying mandamus. Here we have the fact that the lists were furnished, and as furnished, acted upon by the judges, and the lists furnished were such as had been used in all city elections since 1923. On the facts of this case, we think article 2975, prescribing a form for the certified list of voters, should be construed as directory and not mandatory. 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 constitutional suffrage, are deemed mandatory; such as, that voting shall be by ballot, that it shall take place on a certain day within certain precincts, etc. But regulations that are nothing more than mere directions for holding the election are considered merely formal in character and should be construed as directory. This is the clear holding of the Supreme Court in McKinney v. O'Connor, 26 Tex. 5, and Fowler v. State, 68 Tex. 30, 3 S. W. 255; also of this court in State v. Logan (Tex. Civ. App.) 5 S.W.(2d) 247, and Scurlock v. Wingate (Tex. Civ. App.) 283 S. W. 307. See, also, Turner v. Teller (Tex. Civ. App.) 275 S. W. 115; Bass v. Lawrence (Tex. Civ. App.) 300 S. W. 207. There is nothing in these authorities denying power to the Legislature to make mere regulations mandatory, but...