Wallis v. Williams , 50 Tex. Civ. App. 623 ( 1908 )

This suit was brought by appellants against the appellees to contest the declared result of an election held in Chambers County on April 11, 1907, to determine the question of whether the county seat of said county should remain at the town of Wallisville or be removed to the town of Anahuac in said county.

Upon the face of the returns out of a total of 634 votes Wallisville received 244 and Anahuac 390 votes. The returning board declared the result in accordance with these figures to be in favor of Anahuac by a majority of 146 votes.

Upon the trial in the court below 24 votes cast for Anahuac and 2 votes cast for Wallisville at the Stowell box in said county were rejected, because the ballots were not signed by the presiding officer, and 35 votes cast for Anahuac at Black Branch precinct were rejected on the ground of fraud and undue influence. Anahuac having a majority of 87 of the remaining votes, the result as previously declared by the County Judge was confirmed and judgment rendered accordingly.

Two ballots were used at this election. Upon one of these ballots were printed the following words: "Official Ballot for Remaining at Wallisville," and upon the other: "Official Ballot for Removal to Anahuac." These ballots were prepared and furnished the election officers by the proper authority and no other ballots were used in the election.

At a former day of this term we certified to the Supreme Court the question of whether the Act of the 29th Legislature regulating the manner of holding elections and prescribing the kind of ballots to be used, applies to elections held to determine the location of a county seat. The answer of the Supreme Court to this question being in the negative disposes of the first assignment of error, which assails the judgment of the court below upon the ground that all of the ballots used at said election were illegal and void and therefore the election was void. The election not being governed by the statute above referred to, the ballots used were not illegal and the assignment must be overruled. Wallis v. Williams, 101 Tex. 395 [101 Tex. 395].

Under the second assignment of error appellants contend that the trial court erred in finding that the illegal influence exerted by the promise of parties favoring Anahuac to contribute funds to assist in contesting the result of a hog law election previously held in said county, only affected 35 votes, and in not holding that said unlawful agreement and promise was such fraud as to contaminate the entire election and render it void.

The facts found by the trial court upon this issue are as follows: "I find that at a meeting held at Black Branch precinct in said county by the voters of said county who were opposed to the adoption of the hog law at an election on that question, as hereinafter mentioned, that C. M. Wilcox presided over this meeting, and the same was held prior to the order of the Commissioners' Court submitting the question of this county seat election, but after the question was under agitation and a petition was being prepared for the purpose of having it called. And I further find that thirty-five persons present at said meeting agreed to vote for the removal of the county seat from Wallisville to Anahuac, and that they did afterwards so vote at the election that is herein contested; that they were induced to so vote by a promise and agreement publicly made in said meeting with one George (or Joe) Root, to this effect: The said Root, at said meeting, having proposed to those assembled there that the people of Anahuac would aid by contribution of money to a fund for the contest of a stock or hog law election which had been held in this county prior thereto and the result of which was declared on or about January 9, 1907, the fund being so raised being for the purpose of paying the fee of an attorney to represent the parties opposed to said hog law and who were contesting the same; and that a vote was taken in said meeting by which the said 35 voters pledged themselves, after said proposition of support had been made to them in behalf of the people of Anahuac, to vote for Anahuac in the election to be held for removal of the county seat to said place."

The assignment can not be sustained. If it be conceded that the facts found by the trial court authorized the rejection of the votes of the 35 persons who attended the meeting mentioned, there is nothing in the evidence to indicate that persons other than the 35 mentioned agreed to, and did, vote for Anahuac in consideration of the promise of the parties representing Anahuac that the citizens of that place would contribute funds to assist in contesting the hog law election. While the citizens of Anahuac had a right to contribute funds to assist in defraying the expenses of contesting the hog law election, they had no right to make the promise of such contribution conditioned upon any person or number of persons voting for that town for the county seat, but it can not be assumed, in the absence of evidence, that the fact that such contribution was made or promised improperly influenced any of the voters in the county seat election other than the 35 that the trial court found had agreed to vote for Anahuac in consideration of such promised contribution. State v. Humphries, 74 Tex. 466; Hanscom v. State, 10 Texas Civ. App. 638[10 Tex. Civ. App. 638]; Bailey v. Fly, 35 Texas Civ. App. 410[35 Tex. Civ. App. 410].

The third assignment complains of the refusal of the trial court to reject the ballots of a number of voters who had not paid their poll tax in person. The facts as to the payment of their poll taxes by the voters whose votes are challenged by this assignment, as found by the trial court, are as follows: "I find that the records of the tax collector and the receipts issued by him, show no irregularity in the payment of the poll taxes by any person; and that those taxes that were shown by his testimony to have been paid by persons other than the parties in whose names the receipts were issued, without written authority to the person making the payment, were paid in good faith, and with the money of, and at the request of, the several persons for whom paid, although I find that the payment of the money was not made by them in person to the tax collector, but was paid for them on their verbal request by another party than themselves."

The right of suffrage conferred by the Constitution does not depend upon the payment of his poll tax "in person" by the voter. All that it requires is that the voter shall pay his poll tax on or before February 1st next preceding the election and that he shall have his receipts therefor. The statute upon the subject directs that the voter shall pay the tax in person or give a written order therefor, but it does not provide that a failure to obtain his receipt in the manner directed by the statute will disfranchise the voter. Each of the voters in question had complied with the provisions of the Constitution by paying their poll tax and obtaining a receipt therefor, regular upon its face, and the irregularity or mistake of the tax collector and the voter in the manner of making the payment and obtaining the receipt would not deprive the voter of his constitutional right of suffrage.

What we have said in disposing of the second assignment of error disposes also of the questions presented under the fourth and fifth assignments, which complain of the finding of the trial court that the circular issued by the Anahuac Townsite Company to the Colored Citizens of Chambers County was not shown to have improperly influenced any of the voters, and the refusal of the court to allow contestants to introduce evidence to show that in several precincts the colored voters therein voted for Anahuac. There was nothing improper in the circular and if the evidence offered by the appellants had shown that every negro in the county voted for Anahuac it could not be assumed that any of them were improperly influenced in casting their votes by anything contained in said circular.

The sixth assignment complains of the refusal of the trial court to reject the vote of Mat Riban on the ground that the evidence was insufficient to sustain the finding that said Riban was over 60 years of age, and the undisputed evidence shows that he had not paid his poll tax. The rejection of this vote could not have affected the judgment and the question raised by the assignment is immaterial and therefore is not decided.

What has been said under the second, fourth and fifth assignments disposes of the question raised by the seventh assignment, and for the reasons given in disposing of the previous assignments just mentioned the seventh assignment is overruled.

The eighth assignment complains of the judgment on the ground that there is no evidence in the record to sustain the finding that Anahuac is within five miles of the geographical center of Chambers County or that Wallisville is more than five miles from such center, and Anahuac having received less than two-thirds of the votes cast in such election the result of the election could not be legally declared to have been in favor of Anahuac.

It is a sufficient answer to the contention in this assignment that Wallisville is not shown not to be within five miles of the center of the county, to say that the order of the County Judge declaring the result of the election to be in favor of Anahuac is not contested on this ground. The order is contested upon the ground that Anahuac was not within five miles of the center of the county, but upon this issue we think the burden of proof was upon appellants, and in the absence of evidence to the contrary the order of the County Judge declaring that Anahuac had been selected as the county seat would be presumed to have been legally and properly made and entered. We further think that the evidence in the record is sufficient to sustain a finding that Anahuac is within five miles of the center of the county, and if we are wrong in our conclusions as to the burden of proof upon this issue being upon appellants, the assignment is not sustained by the record.

There is no merit in the ninth assignment. The appellees were not required to show that notices of the election were posted for the time and in the manner required by law. The failure to post the notices would not render a county seat election void when all the evidence shows that the time and place for holding the election was generally known throughout the county and there is no evidence that any voter failed to participate in the election for want of notice of the time and places at which the election would be held, and nothing to create even a suspicion that the failure to post notices, if there was such failure, in any way affected the result of said election. Buchanan v. Graham, 36 Texas Civ. App. 468[36 Tex. Civ. App. 468].

We are of opinion that the judgment of the court below should be affirmed and it has been so ordered.

Affirmed.