Willis v. Duncan | Cases | Westlaw

This is a contest of a school consolidation election held in the Glenwood Common School District No. 21 of Upshur County, Texas, on April 30, 1955. The appellants are resident citizens of said school district and were contestants in the trial court. The appellee, the County Attorney of Upshur County is contestee because of his official position as such. Trial was to the court and judgment was rendered against contestants holding that 90 of said votes cast in said election were for consolidation and 91 of said votes were cast against consolidation. Appellant brings forth several points, among which are Points 7 and 8, which read as follows:

Point 7, as well be noted, concerns the votes of B. E. Butler and his wife, Mrs. B. E. Butler; and No. 8 concerns the votes of Floyd Craig and Mrs. Craig. All these votes were held invalid by the trial court. There is no disputed fact issue concerning these four votes. The only issue presented is one of law. It is the contention of appellee that the fact that the poll taxes of these four voters paid by another person without the knowledge and consent of the voters and with money belonging to the payor renders said votes illegal. The facts are undisputed that these four voters were qualified under the statute to vote, unless the payment of their poll taxes by another person from his own funds renders said votes invalid.

Article 5.02 of the Texas Election Code, V.A.T.S. reads as follows:

Article 5.13 reads as follows:

We find no language in either of these articles specifically denying a person the right of suffrage because his poll tax has been paid by another without his knowledge or consent. In Warren v. Robinson, Tex.Civ.App., San Antonio, 32 S.W.2d 871, 872, it is held:

In the case of Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792, 794, also by the San Antonio Court, we find this language:

Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388, quotes with approval the statement set out above from Warren v. Robinson, supra. See also Sanchez v. Bravo, Tex.Civ.App., 251 S.W.2d 935; Reynolds v. Cobb, Tex.Civ.App., 196 S.W.2d 60; State ex rel. Sharp v. Martin, Tex.Civ.App., 186 S.W.2d 111. Many other cases could be cited on this same point. There is one case relied upon by appellee, *916 Linger v. Balfour, Tex.Civ.App., 149 S.W. 795, which seems to hold to the contrary of the cases cited above. We find no other case in Texas which follows this case on this point, although the case has been cited many times on other points. In view of the contrary holdings of a majority of the courts of this state with approval by the Supreme Court in Harrison v. Jay, we feel constrained to follow the majority.

No person in this state who possesses all the qualifications of a voter under our statutes should be denied the important privilege of voting in an election. As said by some of the eminent authorities heretofore cited, to refuse the ballot to any one, it must be by direct mandate from the Legislature. We feel that, as heretofore pointed out, these four parties named in the points set out above who have complied with all the other requirements of the statute should not be denied the ballot because their poll txas were paid by another person with his own funds without their knowledge or consent. It must be remembered that the statutes set out above place the odium upon the person paying the poll tax for another and not upon the person whose poll tax is paid. Suppose, for example, that after their poll taxes had been paid without their knowledge and consent by the third party and handed to them, they should have become suspicious of their right to vote and had gone to the tax assessor and collector at the proper time and asked to pay their poll taxes. Certainly the tax collector would not have issued second poll tax receipts in their names, and thus they would have been deprived of a vote without any wrongdoing on their part. It is our conclusion, therefore, that Points 7 and 8 set out above present reversible error.

It is our opinion that the four votes discussed above and held invalid by the trial court were valid votes and should have been counted for consolidation. This being true, the election carried for consolidation by a vote of 94 to 91.

We have carefully examined all other points brought forward by appellants as well as all cross-points brought forward by appellee. In our opinion the same are without merit since there is substantial testimony to support the trial court's actions complained of and they are respectfully overruled.

The judgment of the trial court is therefore reversed and judgment is here rendered for contestants.