Wright v. Marquis | Cases | Westlaw

This is a suit contesting the election for commissioner of precinct No. 4, in McMullen county, instituted by appellee against appellant. The cause was tried before the court and judgment rendered adjudging that appellee is entitled to the office.

The evidence showed that at the general election held on November 7, 1922, appellant was the Democratic candidate for the office of commissioner of precinct No. 4, in McMullen county, and his name as such candidate was printed on the ballot. The name of appellee did not appear on the official ballot. According to the official returns of the election, appellant received 24 votes and appellee 20 votes. The election was contested on the ground that Julius Glau and wife, Mrs. Ellen Pace, Avery Martin, Lionitis Muniez, John Martin, and Antonio Hasette had cast illegal votes for appellant. The court found that the votes of Julius Glau and wife were illegal because they were not residents of McMullen county; that the votes of Ellen Pace and Avery Martin were illegal because they were not residents of McMullen county. The court also held that a vote cast for A.R. Markuis by J.M. Whitley was intended to be a vote for A.R. Marquis, and should have been counted for him; that the vote of Mrs. Mae Hoegemeyer, who wrote the name of A.R. Marquis in the proper place on the ballot but did not scratch the printed name of appellant, should have been counted for appellee; that the vote of F.M. Galloway, who scratched the name of appellant and wrote “A.R. Maruuis” in the proper place, should have been counted for appellee. The conclusion of the court, embodied in the judgment, was that appellant received only 20 legal votes and appellee 22 votes, and the latter was declared the legally elected commissioner of precinct No. 4, McMullen county, Tex. The effect of the conclusions of the trial judge was to deduct the votes of Glau and wife, and Ellen Pace and Avery Martin, from the votes counted for appellant, and to add the two votes of J.M. Whitley and Mae Hoegemeyer to the votes that should be counted for appellee.

The court found that Mrs. Ellen Pace was not a resident of precinct No. 4, McMullen county, and consequently not entitled to vote in that precinct and county. We think there is evidence to sustain the ruling of the court. Mrs. Pace was shown by the evidence to be a peregrinator having no fixed place of abode, but living more in Atascosa than in McMullen county. We sustain the action of the court as to this voter.

We are of opinion that the court properly deducted the four votes of Glau and wife, Ellen Pace and Avery Martin, from the votes cast for appellant.

The language is mandatory and imperative. The statute does not say that when two names are printed or two names are written upon a ballot it shall not be counted, nor does it intimate that where one name is printed and another name is written on the ballot by the voter it shall be counted for the man whose name is written, but “where the names of two or more persons are upon a ballot for the same office, when but one person is to be elected to that office, such ballot shall not be counted for either of such persons.” It is true that the writing of the name may have indicated an intention to vote for the man whose name was written, but the intention of a voter cannot be permitted to set aside and render nugatory the plain provisions of the statute. Writing the name merely indicated that the voter may have desired to vote for the man whose name he had written; in other words, it was mere evidence of intention, and if two names had been printed on the ticket and in a contest a voter had sworn that he intended to vote for one of them, his testimony, if credited, might establish an excuse to destroy the statute and allow the intention to a voter to supplant and override it. It would be a dangerous precedent. Huff v. Duffield (Tex.Civ.App.) 251 S.W. 298.

In the case of Mrs. Hoegemeyer the name of A.R. Marquis was written in the proper place in the “Independent” column, but the printed name of C.B. Wright in the “Democratic,” column was not erased. The ballot was improperly counted for appellee, as hereinbefore indicated.

In section 538 of McCrary on Elections, a California case, Kirk v. Rhoads, 46 Cal. 398, is cited, and we think, as does that author, that as to those things over which the voter has control the law is mandatory as to ballots, and that as to such things as are not under his control it should be held to be directory only. “But if the elector willfully neglects to comply with requirements over which he has control, such as seeing that the ballot, when delivered to the election officers, is not so marked that it may be identified, the ballot should be rejected.” In line with that rule, it has been held in different states that if a ballot contains the names of more persons than are to be voted for for a specified office, it is void as to that *639 office and must be rejected. It has been held that in the absence of a law where a voter has written a name of a particular candidate and has not erased the printed name for the same office, the written name will be counted. “But when the statute of a state provides that if more persons are designated for an office than there are candidates to be elected, such part of the ticket shall not be counted, the statute will govern; and if a voter fails to erase the printed name of a candidate and writes under it the name of another person for the same office, the ballot shall not be counted for either.” McCrary on Elections, §§ 532, 533, 543; Blankinship v. Israel, 132 Ill. 514, 24 N.E. 615.

The evidence showing that appellee received 20 legal votes and appellant only 19, the judgment will be affirmed.