Wood v. State
| Decision Date | 22 March 1939 |
| Docket Number | No. 7510.,7510. |
| Citation | 126 S.W.2d 4 |
| Parties | WOOD v. STATE ex rel. LEE. |
| Court | Texas Supreme Court |
Taylor & Storey and Hurst, Leak & Burke, all of Longview, and Samuel C. Harris, of Gladewater, for plaintiff in error.
Oscar B. Jones, Dist. Atty., M. Neal Smith, Asst. Dist. Atty., Wynne & Wynne, Angus G. Wynne, and Henry H. Harbour, all of Longview, for defendants in error.
Andrew Patton, Crim. Dist. Atty., E. G. Moseley and Harold McCracken, Asst. Crim. Dist. Attys., and Wilson, Ogden & Reichman, all of Dallas, amici curiæ.
This is a quo warranto action brought in the District Court of Gregg County, Texas, by the State of Texas upon relation of one Claude A. Lee against A. J. (Archie) Wood to try title to the office of Mayor of the City of Gladewater, in such county and state. It appears that Gladewater is a municipal corporation, duly incorporated under the general laws of this State. The election forming the basis of this action was held on the date provided by statute—April 5, 1938. At such election, Claude A. Lee and A. J. Wood were opposing candidates for the office of Mayor. On the face of the election returns, Wood received 871 votes and Lee 819. Wood was declared elected, and as we understand this record, now has possession of the office, and is exercising its functions and duties. After the returns of the election were announced, and the result declared, as shown above, this action was instituted by the State upon relation of Lee to remove Wood from the office in question, and install Lee therein. Trial in the district court was had with the aid of a jury. At the close of the testimony all parties moved for an instructed verdict. Wood's motion was overruled, and that of the State and Lee granted. The jury returned the verdict directed, and judgment was entered removing Wood from the office of Mayor, and installing Lee therein. Wood, in due time, filed a supersedeas bond, and perfected appeal to the Court of Civil Appeals at Texarkana. On final hearing in that court, the judgment of the district court was affirmed. 120 S.W.2d 955. The case is before the Supreme Court on writ of error granted on application of Wood.
It appears from the record before us that Wood was in possession of the office of Mayor at the time this case was tried in the district court. Furthermore, Wood held a certificate showing that he had been elected at the election in question. If no election was held on said date, Lee cannot be seated, because he was not elected. On the other hand, as above shown, Wood was declared elected over Lee by the proper authority. It must follow that if an election was held, Wood cannot be unseated, and Lee seated, unless it appears that Lee received a majority of the legal votes cast. In this case a peremptory charge for Lee was given, and therefore, if this judgment seating Lee is to be sustained, it must appear conclusively that Lee received a majority of the legal votes.
If we understand this record, the votes voted thereat were as follows:
Absentee ballots voted for Wood on
voting machine by voters ....................... 177
Absentee ballots voted for Wood mailed
in ............................................. 5
Absentee ballots voted for Wood by invalids ..... 3
Ballots voted for Wood on election
day, all on machine by voters .................. 686
___
Total ........................................ 871
Absentee ballots voted for Lee on voting
machine by voters .............................. 22
Absentee ballots voted for Lee mailed
in ............................................. 1
Absentee ballots voted for Lee by invalids ...... 5
Ballots voted for Lee on election day
all on machine by voters ....................... 791
___
Total ........................................ 819
As shown above, all votes voted at this election, absentee as well as those voted on election day, were voted directly on a voting machine by the voters, except 14, who voted either by mail or as invalids. We take it that these 14 votes were ultimately registered on the voting machine as provided by Section 6 of Article 3022a, Vernon's Ann.Civ.St. Thus, as we understand this record, all votes cast at this election were voted on a voting machine.
The Court of Civil Appeals holds that the voting machine on which the absentee ballots were voted was unconstitutional and void, because such voting machine was in violation of Section 4 of Article 6 of our State Constitution, Vernon's Ann.Civ.St. We are at a loss to understand how the unconstitutionality of the voting machine in question can aid or comfort Lee in this appeal. If the voting machine used for absentee voting was void, and the votes cast thereon therefore also void, the same is true of all other votes cast at such election, because they were also cast or voted on the same kind or character of a voting machine. If all votes were void, no election at all was held, and Lee cannot be seated.
We find that Article 2956, Vernon's Ann. Civ.St., which is our absentee voting statute, and which we shall later discuss, makes no direct mention of absentee voting in city elections. However, Articles 2931 and 2997, R.C.S.1925, respectively, provide:
We think the above Articles have effect to make the absentee voting provisions of Article 2956 applicable to cities incorporated under general law. Also, chapter 52, H. B. 121, Acts of 2nd Called Session, 45th Legislature, p. 1957, Section 7 of Article 2997a, Vernon's Ann.Civ.St. art. 2997a, § 7, expressly authorizes cities to use voting machines in voting absentee ballots. From all of these statutes, we think it is clear that absentee voting is provided for in city elections. We think further that in permitting absentee voting in city elections the provisions of our general statutes on the subject should be followed as near as practicable. Yett v. Cook, 115 Tex. 205, 281 S.W. 837.
If we properly interpret its opinion, the Court of Civil Appeals holds that our present absentee voting statutes limit electors or voters who may vote absentee to voters who are actually absent on election day, and does not permit such absentee voting by electors or voters who merely expect to be absent. Stated in another way, the Court of Civil Appeals holds that if a voter expects to be absent on election day, and therefore complies with the absentee voting statutes so as to cause his vote to be cast as an absentee vote on election day, such vote, if so cast, will be illegal and should not be counted, unless such voter is actually absent on such election day. We are unable to agree with this ruling for reasons which we will now proceed to give.
Our present absentee voting law, Subdivision 1, Article 2956, R.C.S. as amended, Vernon's Ann.Civ.St. art. 2956, provides: "Any qualified elector of this State who is absent from the county of his residence * * * on the day of holding any general special, or primary election, may, nevertheless, cause his vote to be cast at such an election in the precinct of his residence by compliance with one or other of the methods hereinafter provided for absentee voting."
It will be noted that the above statute uses the present tense. In other words, under the letter of the statute, an absentee vote seems not to be provided for unless the person so voting is actually absent on election day. We shall not attempt to trace in full detail the history of this statute. The Court of Civil Appeals has done so, and we refer to that opinion for such history. Our first absentee voting statute was enacted in 1917 by the 35th Legislature, c. 40, p. 62. By the terms of that statute, electors who expected to be absent on election day could cause their ballots to be cast on election day. This Act was codified as Article 2956 of our R.C.S.1925. The codification carried the phrase "expects to be absent." Article 2956 was amended twice with the phrase "expects to be absent" contained therein. The 44th Legislature, 1935, c. 300, p. 700, amended this statute so as to read: "who through the nature of his business is absent." It is thus seen that for the first time the Legislature in 1935 eliminated the phrase "expects to be absent," and substituted therefor the phrase "is absent." Again in 1935 the 44th Legislature, 2d Called Sess. c. 437, p. 1700, amended Article 2956, as amended, Vernon's Ann.Civ.St. art. 2956, and in such statute the phrase "is absent," and not the phrase "expects to be absent," is used. This last-mentioned Act is the one now in force. The Court of Civil Appeals very forcibly reasons that since the Legislature has seen fit, by amendment, to change the phrase "expects to be absent" to the phrase "is absent," effect should be given to such change. In our opinion, the present statute should be given the same construction, as regards the...
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