Huff v. Duffield | Cases | Westlaw

This is an action contesting the election of B.S. Duffield, appellee, to the office of county and district clerk of Willacy county at the general election held on November 7, 1922, instituted by R.W. Huff, appellant. At that election appellant and appellee were the candidates for the offices in question, and the commissioner's court having canvassed the votes, declared that appellant had received 168 votes and appellee 169 votes and issued a certificate of election to appellee. This cause was tried by the district judge, and he concluded, after finding numerous facts as to various and sundry voters, that appellee received 164 legal votes and appellant received 163 legal votes, and consequently adjudged B.S. Duffield to have been duly and legally elected to the office of district and county clerk of Willacy county.

We have seen no Texas case denying the test as to whether the person from the place with intent to return or with the intention to abandon it as a residence is a proper test, except the case of Garvey v. Cain (Tex.Civ.App.) 197 S.W. 765, decided in 1917, by the Court of Civil Appeals at Beaumont, which if followed would change the residence of every United States Senator and member of the House of Representatives, the Governor of the State, and heads of departments, disfranchising the former, because they could not vote in the District of Columbia, and forcing the latter to vote in Travis county. No such construction of constitution or statute is warranted by statute or decision, and the same court afterwards repudiated the doctrine herein cited:

We will agree with this decision which is in harmony with all the Texas decisions, rather than the one in Garvey v. Cain, which is supported by no authority and so far as can be ascertained by us has never been cited by any court. The decisions of Texas, on the subject of intent, entering so largely into the determination of the place of residence, is fully supported in an exhaustive report on the subject of “residence” made by a congressional committee in the contested election case of Cessna v. Meyers, Appendix to McCrary on Elections, p. 557.

We are of opinion that there was evidence tending to show that Romaldo Garza lived in precinct No. 2, where he voted, and that he was qualified to vote. We overrule the fifth and twenty-first assignment of error.

Although finding that the law was violated, the court counted four votes mentioned for appellee. If the law as to the English language means anything, as we must conclude it does, it should not be ignored and disregarded, but should be enforced. The four votes should not have been counted for appellee, because they were clearly illegal.

The law undoubtedly makes the ability to speak and understand the English language a necessary qualification for voters in this state desiring assistance, and it is mandatory in stating the only circumstance under which assistance shall be given those who are physically unable to prepare a ballot and those over a certain age mentally incapacitated to prepare a ballot. They are the only ones who can be assisted, and that assistance can only be given when requested in English and must be given in English. Whether a wise law or not, it is the law and must be enforced. That law does not leave it open to construction as to whether it is mandatory or merely directory, but provides that—

As said by McCrary on Elections, § 225:

Speaking of the requirement as to numbering ballots and the fact that the voter might be deprived of his vote by the neglect of an officer of the election, the Supreme Court, in State v. Connor, 86 Tex. 133, 23 S.W. 1103, said:

The propositions under the twelfth, twenty-fourth, thirtieth, thirty-first, and thirty-second assignments treat on several different voters, and they are multifarious and confusing. However, it seems to be the contention of appellant that the election should be set aside on account of irregularities in connection with several voters. The wishes of a large majority of the people cannot be thwarted by the fact that one or two voters may have been deprived of the right of suffrage. It may be said that it was not ascertained for whom Tomas Garcia would have cast his ballot had he been permitted to vote. Juan Turner could not speak English nor understand an oath sought to be administered to him when his vote was challenged on the ground that he was not 21 years of age. There is really no merit in the assignments.

Article 2939, herein cited, requires as a prerequisite to voting that the voter has paid and shall hold a receipt for a poll tax paid before February 1st next preceding such election, or shall account for it if it is lost or misplaced. In regard to C.L. Pollock, Mrs. C.L. Pollock, Claude Pollock, C.E. Redlund, and Mrs. C.E. Redlund, the court found that each and all of them had paid all poll and property taxes due by them respectively, but had not received a separate poll tax receipt, so far as disclosed by the record. They were found in all other respects to be qualified voters, and each of them voted for appellee. They were, however, discarded by the trial judge. C.L. Pollock swore that he paid the poll tax for himself and wife in January, 1922, and obtained poll tax receipts for the same. He also swore that Claude Pollock paid his poll tax for 1922 and got a receipt for the same. He and wife and Claude did not have their receipts with them when they voted, but signed the paper presented to them by the judges of election, and they were permitted to vote. They certified they had paid the tax as required by law. They did not know precisely where their receipts were. The same facts were true in regard to C.E. Redlund and wife. The statute does not prescribe the form of affidavit, the object being to collect a poll tax from every voter as the price of his exercise of the right of suffrage. The law never intended to disqualify a voter who has actually and in good faith paid his poll tax, by reason of the failure of some officer to perform his technical duty. As to a matter of registration which is required in New York and whose provisions are similar to those in regard to poll tax requirements, the Court of Appeals of New York held, in the case of People ex rel. Frost v. Wilson, 62 N.Y. 186, that statutes directing a mode of proceeding of public officers are regarded as directory, unless there is a provision which shows that it is mandatory. The court said of the clause which prohibited any one from voting unless his name was on the register:

These voters should not have been required to make affidavit of loss, because they did not claim the receipts were lost, but merely that they were at home. The officers were satisfied that the five voters had the receipts when they swore they had paid the tax. The whole end desired to be gained by Constitution and statute is that the voter shall have a poll tax receipt and that the election officers shall be satisfied of that fact. The voters did all that was required of them by law. We are of the opinion that the poll tax paid by McCarens in 1921 qualified them to vote at the election in 1922 in Willacy county, and that their votes were properly counted for appellant. The same *303 is true as to the votes of Mr. and Mrs. Boner. They were qualified to vote.

Our conclusions are that five votes herein indicated as being illegal should be deducted from the total of 164 votes found to have been cast for appellee, and that the five votes of the Pollocks and Redlunds which were rejected by the trial judges should be counted for appellee, leaving him still 164 votes. We conclude that appellant's vote should be decreased by one vote permitted for him, leaving him with 162 votes. This attains the same result as that arrived at by the trial court.

The judgment as corrected in the number of votes legally cast is affirmed.