Willis v. Duncan, 6888

• Decision Date: 04 October 1956
• Docket Number: No. 6888,6888
• Citation: 294 S.W.2d 914
• Parties: Clayton WILLIS et al., Appellants, v. J. O. DUNCAN, County Attorney, Upshur County, Texas, Appellee.
• Court: Texas Court of Appeals

Page 914

294 S.W.2d 914

Clayton WILLIS et al., Appellants, v. J. O. DUNCAN, County Attorney, Upshur County, Texas, Appellee.

No. 6888.

Court of Civil Appeals of Texas, Texarkana.

Oct. 4, 1956.

Rehearing Denied Nov. 8, 1956.

Looney E. Lindsey, Power, McDonald & Mell, Gilmer, for appellants.

Fulton, Hancock & McClain, Edwin M. Fulton, Hollie G. McClain, Gilmer, for appellee.

HALL, Chief Justice.

This is a contest of a school consolidation election held in the Glenwood Common School District No. 21 of Upshur County, Texas, on April 30, 1955. The appellants are resident citizens of said school district and were contestants in the trial court. The appellee, the County Attorney of Upshur County is contestee because of his official position as such. Trial was to the court and judgment was rendered against contestants holding that 90 of said votes cast in said election were for consolidation and 91 of said votes were cast against consolidation. Appellant brings forth several points, among which are Points 7 and 8, which read as follows:

'Point 7: The voters B. E. Butler and Mrs. B. E. Butler, being legally qualified voters in the Glenwood School District and holding duly issued poll tax receipts, which entitled them to vote in the Consolidation Election held in said District on April 30, 1955, their ballots should have been counted as ballots cast for consolidation, and the trial court erred in rejecting them and in not so counting them.

'Point 8: The voters Floyd Craig and Mrs. Floyd Craig, being legally qualified voters in the Glenwood School District and holding duly issued poll tax receipts, which entitled them to vote in the Consolidation Election held in said District on April 30, 1955, their ballots should have been counted as ballots cast for consolidation, and the trial court erred in rejecting them and in not so counting them.'

Point 7, as well be noted, concerns the votes of B. E. Butler and his wife, Mrs. B. E. Butler; and No. 8 concerns the votes of Floyd Craig and Mrs. Craig. All these votes were held invalid by the trial court. There is no disputed fact issue concerning these four votes. The only issue presented is one of law. It is the contention of appellee that the fact that the poll taxes of these four voters paid by another person without the knowledge and consent of the voters and with money belonging to the payor renders said votes illegal. The facts are undisputed that these four voters were qualified under the statute to vote, unless the payment of their poll taxes by another person from his own funds renders said votes invalid.

Article 5.02 of the Texas Election Code, V.A.T.S. reads as follows:

'Every person subject to none of the foregoing disqualifications (Art. 5.01, Election Code) who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States, and who shall have resided in this State one (1) year next preceding an election, and the last six (6) months within the county in which her or she offers to vote, shall be deemed a qualified elector, provided that any voter who is subject to pay a poll tax under the laws of this State, shall have paid said tax before offering to vote at any election in this State and holds a receipt showing that said poll tax was paid before the first day of February next preceding such election; * * *.'

Article 5.13 reads as follows:

'No candidate for office shall pay the poll tax for another. No person shall for or an behalf of any candidate for office or person interested in any question to be voted on pay the poll tax for another.'

We find no language in either of these articles specifically denying a person the right of suffrage because his poll tax has been paid by another without his knowledge or consent. In Warren v. Robinson, Tex.Civ.App., San Antonio, 32 S.W.2d 871, 872, it is held:

'The law does not render poll tax receipts paid by others than the voters invalid, and the qualified voter has the right to vote regardless of how he may have obtained the receipt, if he was qualified under the law to obtain a receipt. The disqualification must attach to the voter himself, and, when in possession of poll tax receipt, he has the right to vote. There is no such intimation in the statute.'

In the case of Fugate v. Johnston, Tex.Civ.App., 251...