Wood v. State, 5530.
| Decision Date | 12 October 1938 |
| Docket Number | No. 5530.,5530. |
| Parties | WOOD v. STATE ex rel. LEE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Gregg County; C. E. McGaw, Judge.
Suit in the nature of a quo warranto proceeding by the State of Texas, on the relation of Claude A. Lee, to establish relator's title to, and remove A. J. (Archie) Wood from, the office of Mayor of the City of Gladewater. Judgment for relator, and respondent appeals.
Affirmed.
Hurst, Leak & Burk and Taylor & Storey, all of Longview, and Samuel C. Harris, of Gladewater, for appellant.
Oscar B. Jones, M. Neal Smith, and Wynne & Wynne, all of Longview, for appellee.
On April 5, 1938, there was held an election in the City of Gladewater, Texas, for the purpose of electing a mayor and two city commissioners. Appellant Wood and appellee Lee were candidates for the office of mayor at said election. The city commission on April 12, 1938, canvassed the vote cast at said election and declared appellant the duly elected mayor of said city by a majority of fifty two votes. On May 3, 1938, this suit was instituted in the nature of a quo warranto proceeding by the district attorney of Gregg County upon the relation of appellee, C. A. Lee, against appellant for the office of mayor. In appellee's petition it is alleged that appellant wrongfully and illegally holds the office of mayor by virtue of an untrue and illegal certificate issued by the city commission of Gladewater certifying that appellant received a majority of the votes cast at said election; that said certificate of election is untrue for the reason that the majority of the legal votes cast at said election were for appellee. It was alleged further that all absentee ballots, 208 in number, were illegal and void "as being cast without authority of law." Appellee alleged a conspiracy between certain police officers of the city and appellant, having for its purpose the wrongful election of appellant as mayor of said city; that "in furtherance of said conspiracy, before said election was held, they secured a voting machine, and in violation of the statute and without any statute authorizing it or arranging for such procedure, they herded the Negroes of Gladewater to the polls, under solicitation, threats, fraud and compulsion by hauling them down in automobiles, telephoning for them, sending officers for them and coercing them to vote before election day, and then to swear in court or before the grand jury and any investigating body that they had intended to be out of town upon said day." Appellee alleged further that if the illegal votes cast in said election were "thrown out" it would result in the election of appellee by more than 100 votes. Numerous other allegations were made by appellee detailing acts of fraud on the part of alleged conspirators, and numerous individual ballots were challenged for different reasons not necessary to state in the view we take of this cause.
Appellant answered by general demurrer and numerous special exceptions and general denial. Appellant specially denied that the absentee ballots cast at said election were illegal. That numerous votes cast for appellee are illegal for reasons specifically named, but which will not be necessary to mention as no proof was offered in support of said allegation. Appellant also pleaded estoppel on the part of appellee who was shown to be a commissioner of the City of Gladewater, because of his acting and participating in the issuance of the election certificate to appellant declaring him the duly elected mayor of the city of Gladewater.
Trial was to a jury. At the conclusion of the testimony both parties made motion for peremptory instruction. Appellant's motion was overruled and that of appellee was granted. Upon the verdict so rendered judgment was entered for appellee Lee for title to the office of mayor, and removing appellant from said office. Appellant immediately filed his supersedeas bond in the amount fixed by the court, and the cause is now before this court for review.
A controlling question in this case is stated by appellant in his fourth proposition, which is: "The city election, held pursuant to the Revised Civil Statutes on the First Tuesday in April for the election of Mayor and City Commissioners, being a general election electors were properly permitted to vote absentee votes by appearing before the City Secretary, making the proper application and affidavit for ballot within the time prescribed by law, to-wit, not more than twenty nor less than three days prior to the date of the election and cast their ballot for the candidate of their choice upon the voting machine provided for that purpose in counties which have adopted such voting machines."
The undisputed facts of this case reveal that some 208 persons voted before election day. One hundred and seventy-seven of this number voted for appellant and twenty-two voted for appellee. The great majority of these voters appeared before the City Secretary in the City Hall in Gladewater and each made an affidavit of which the following is typical:
(Italics ours.)
It is the contention of appellant that these votes were legally cast under authority of Vernon's Ann.Civ.St. Art. 2956, Sec. 3; that this court should read into Subdivision 1 of Art. 2956, the words "expects to be" in the place of the word "is". It is contended that this should be done in order to give effect to the entire absentee voting statute and the intent of the Legislature. This brings us to the discussion of the absentee voting statutes enacted by the Legislature from the inception of said law in 1917. The first absentee voting law was passed by the 35th Legislature in 1917 as S.B. No. 33, Chap. 40, p. 62, Acts 1st Called Session, amending R.S. 1911, Article 2939 and reads: "Any qualified elector as defined by the statutes of this state, who expects to be absent from the county of his residence, and at any other place in this State, on the day of his election may vote subject to the following conditions, to-wit:" (Then follows conditions under which said elector may vote.) The emergency clause in said bill in part is as follows: "The importance of this Act to the people of the State," etc. Section 2. This article was carried forward in the revision of 1925 as Article 2956 (its present number) and the classification of absentee voters in said revision is "any qualified elector, as defined by the laws of this State, who expects to be absent from the county of his or her residence on the day of the election may vote subject to the following conditions." In 1931, Article 2956, R.C.S., was amended by H.B. No. 48, Chap. 105, p. 180, Regular Session, 42d Legislature, in several particulars, but the classification of absentee voters remained the same as in the 1925 codification and contained the words "who expects to be absent." The emergency clause in said bill recites that there are conflicting dates for holding elections, etc. In 1933, Article 2956 was amended by S. B. No. 93, Chap. 4, p. 5, Regular Session, 43d Legislature, in several particulars but the classification of absentee voters remained as in the 1925 revision and contained the words "who expects to be absent." The emergency clause of said bill reading in part, "the fact that under existing laws it is questionable whether absentee voting is permissible at special primary elections," etc. Section 2. In May, 1935, at the Regular Session of the 44th Legislature, c. 300, R.S. Article 2956 was again amended, subdivision 1 of said Act is: "Any qualified elector of this State who through the nature of his business is absent from the County of his residence, or who because of sickness or physical disability cannot appear at the poll place in the election precinct of his residence, on the day of holding any general or special or primary election, may, nevertheless, cause his vote to be cast at such election in the precinct of his residence by compliance with one or other of the methods hereinafter provided for absent voting."
Subdivision 2 of said Article as amended is:
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