Wood v. State, No. 7510.
Court | Supreme Court of Texas |
Writing for the Court | Critz |
Citation | 126 S.W.2d 4 |
Docket Number | No. 7510. |
Decision Date | 22 March 1939 |
Parties | WOOD v. STATE ex rel. LEE. |
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v.
STATE ex rel. LEE.
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Error to Court of Civil Appeals of Sixth Supreme Judicial District.
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. To review a judgment of the Court of Civil Appeals, 120 S.W.2d 955, affirming a judgment of the District Court removing A. J. (Archie) Wood from office and installing Claude A. Lee therein, A. J. (Archie) Wood brings error.
Reversed and remanded.
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.
CRITZ, Justice.
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
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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:
"Art. 2931. All provisions of this title which prescribe qualifications for voting and which regulate the holding of elections shall apply to elections in cities and towns. * * *"
"Art. 2997. * * * In all elections in incorporated cities, towns and villages, the mayor, the city clerk, or the governing body shall do and perform each act in other elections required to be done and performed respectively by the county judge, the county clerk, or the commissioners' court."
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, amending 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.
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