Thompson v. Barnes

• Decision Date: 21 January 1966
• Docket Number: No. 4024,4024
• Citation: 399 S.W.2d 399
• Parties: Leland F. THOMPSON et al., Appellants, v. W. Ford BARNES et al., Appellees.
• Court: Texas Court of Appeals

Page 399

399 S.W.2d 399

Leland F. THOMPSON et al., Appellants, v. W. Ford BARNES et al., Appellees.

No. 4024.

Court of Civil Appeals of Texas, Eastland.

Jan. 21, 1966.

Rehearing Denied Feb. 18, 1966.

Yates & Yates, Jack M. Yates, Hooper & Perry, Abilene, for appellants.

Woodward & Johnson, Halbert Woodward, Coleman, for appellees.

PER CURIAM.

This is an election contest case. Leland F. Thompson and other residents of the City of Santa Anna, all owners of property duly rendered for taxation in the city and qualified voters in a bond election therein, brought this suit against W. Ford Barnes, Mayor of the City and the City Aldermen, contesting an election held on February 26, 1965. The purpose of the election was to determine whether the City should issue bonds in the sum of $64,000.00 for water system purposes and $200,000.00 for sewer system purposes. The election was favorable for the issuance of the water system bonds by a majority of six votes and for the sewer system bonds by a majority of nine votes. Contestants alleged numerous irregularities and illegalities in the holding of the election which they assert were sufficient to vitiate the election or to change the result thereof. Contestants also sought to have the ballot boxes opened for a recount of the ballots. The trial was before the court without a jury and the court after hearing the evidence threw out three votes, held that the election was in all other material ways legal and valid, that there was no fraud in the manner in which the election was conducted, refused to allow the ballot boxes to be opened, and found that both propositions had lawfully carried. Contestants have appealed.

In numerous points appellants contend that the record shows misconduct and irregularities in the election which would render it invalid, or at least, justify a recount. The misconduct and irregularities complained of by appellants include assertions that the election Judge Joe B. Baker did not properly sign his name to the back of all ballots as provided by Article 8.11 of the Election Code, V.A.T.S.; that Mr. B. B. Parker was appointed as a watcher although he was disqualified to so act under Article 3.04 of the Election Code and that Mr. Parker and Mayor, W. Ford Barnes, were guilty of misconduct in the rooms where the ballots were counted and in connection with the holding of the election; that the ballot boxes were not locked or sealed during the course of the balloting in violation of Article 8.02 of the Election Code; that following the close of the election the ballot boxes and the stub boxes containing the stubs were not locked and sealed, and that the ballots, after being counted at the election, were placed in ballot boxes numbers 1 and 2 instead of ballot box number 3 as required by Article 8.19 of the Election Code; and that the election officials were not sworn in as required by Article 8.01 of the Election Code.

The general rule is that statutes regulating the manner of holding an election 'are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure or such irregularity have affected or changed the result of the election.' Hill v. Smithville Independent School District, (Tex.Com.App.), 251 S.W. 209, (opinion adopted); Sykes v. Pandora Independent School District, Tex.Civ.App., 14 S.W.2d 124, (writ ref.); Kincannon v. Mills, Tex.Civ.App., 275 S.W. 1083, (writ ref.); Lightner v. McCord, Tex.Civ.App., 151 S.W.2d 362; Tate v. Farmer, Tex.Civ.App., 112 S.W.2d 782; Baker v. Scranton Independent School District, Tex.Civ.App., 287 S.W.2d 210; Minthorn v. Hale, Tex.Cvi.App., 372 S.W.2d 752; Sawyer v. Board of Regents of Claredon Junior College, Tex.Civ.App., 393 S.W.2d 391; Mullins v. Powell, Tex.Civ.App., 273 S.W.2d 633. In our opinion the irregularities and omissions complained of involve statutory provisions which are directory. Article 8.21 of the Code provides that: '* * * the mere failure of the presiding Judge to sign the ballot shall not make any such ballot illegal.' It is not shown that any of the irregularities complained of affected or changed the result of the election. The court correctly refused to hold the election void or to order a recount of the ballots.

The court at appellants' request made and filed findings of fact and conclusions of law. Among the findings of fact were, in substance, the following:

I.

That the election judge, Joe B. Baker properly affixed his name, in his own handwriting, to the back of all the ballots used by the voters in such election, with the exception of twelve or eighteen of such ballots; that such twelve to eighteen of said ballots had the name of the election judge, Joe B. Baker, affixed thereto by Lee Hunter and Arthur Hunter, duly appointed election officials, which signature was affixed under the direction of said election judge.

II.

That the voters voting in the election affixed their signatures to the backs of the ballot stub of their respective ballots, which was done at the time each respective voter voted at such election, and the voters who voted by absentee also properly affixed their signatures to the stubs of their absentee ballots.

III.

That the election officials, appointed by the City Council of the City of Santa Anna, Texas, counted and properly tallied each vote that was cast at said election and there were no ballots not counted that were properly cast at said election.

V.

That B. B. Parker voted at said election, but did not have a poll tax qualifying him to vote at same and that he voted 'for' each of the propositions.

XI.

That no qualified voter was denied the right to vote at said election.

XII.

That the only persons who knew of the status of the count of the votes prior to the close of the election were the duly constituted and appointed election officials of said election and Mr. W. Ford Barnes, Mayor of the City of Santa Anna, Texas, and Mr. B. B. Parker, and that said parties did not transmit such information to any other person in any manner or fashion, nor was such information used to influence any voter or prospective voter in any manner.

XIII.

That the said W. Ford Barnes and B. B. Parker were in the polling place and in the room where the ballots were being tallied and counted, but that said ballots were officially counted and tallied only by the duly appointed officials of said election and by no other persons.

XIV.

That the ballot boxes, used in said election were not locked, but the stub box was sealed.

XV.

That no person was refused the right by the City of Santa Anna or any of its officials to render...