Savage v. Umphries | Cases | Westlaw

We take from appellants' brief the following statement of the nature and result of the suit:

By trial amendments to the fifth ground of contest were added the allegations therein that one Shaughnessy, who acted as the judge of the election in precinct No. 5, was at the time an alderman of the city of *898 Amarillo, a position of emolument, etc.; to the ninth ground, that certain Mexicans were coerced, intimidated, and prevented from voting by Jeffries arrest; to the tenth number 318, were cast and deposited in the ground, that two votes, each bearing the ballot box, one of which was counted for prohibition and the other not counted, contestants contending that neither should have been counted; and the 20th ground of contest was amended by alleging that at the date of holding the election the city of Amarillo was a city of 10,000 inhabitants, and was on January 1, 1906, and 1907, and by adding other disqualifications to certain of the voters named in an exhibit to their petition.

The contestee's answer contained a plea in abatement and another in estoppel, the substance of which will be stated when we come to consider the court's action upon them. It also contained general and special exceptions to various grounds of contest alleged in the contestants' petition. On the merits the contestee answered by a general denial, and pleaded specially that in voting precinct No. 1 a “large number of persons, naming them, voted against prohibition, and owed and were due a poll tax to Potter county, Tex., for the year 1906; that a large number of persons, naming them, owed and were due, and did not pay, a city poll tax for the year 1906 to the city of Amarillo, in Potter county, Tex.; that certain persons, naming them, did not reside in Potter county, Tex., for 6 months next preceding the date of the election, and that certain persons, naming them, had not resided in the state of Texas for 12 months next preceding the date of the election; that certain persons, naming them, were over the age of 60 years on January 1, 1906, and did not take out a certificate of exemption before February 1, 1907; that certain persons, naming them, became of age after January 1, 1906, and before election day, and did not take out a certificate of exemption, etc.; that Carl Zapp was an alien at the time of casting his ballot; that Cowan, Trigg, Buckingham, and Jeffries voted in precinct No. 1, while living in precinct No. 5; that J. N. Browning, W. A. Christian, J. N. Vernon, R. B. Newcome, and Clyde Cockrell each voted ‘for prohibition,’ but their ballots were counted as against prohibition. By trial amendment H. R. Jack was challenged on the ground that he was not a resident of Potter county for 6 months next preceding the date of election, and also that he was not a resident of precinct No. 5, though he voted therein. Chas. J. De Wolf was also challenged on the ground that he was not a resident of the state of Texas for 12 months next preceding the election, and not of Potter county for 6 months, and that he voted in precinct No. 1, though not residing therein. Youngblood, Hasser, and Casey were also challenged on the additional ground that they were over age, but did not procure a certificate of exemption prior to February 1, 1907. Montgomery, Fountain, and Greer were challenged on the additional ground that they were minors on January 1, 1907, and became of age prior to election day, and did not procure a certificate of exemption. D. H. Greer was also challenged for the additional reason that he was not a resident of the county of Potter, state of Texas, for 12 months preceding the date of election. S. Boyer was challenged on the ground of not being a resident of the county for 6 months preceding the date of the election, and for 12 months in the state of Texas.”

Contestants prayed that “the matters and things complained of be inquired into; that the ballot boxes be opened, and the lawful ballots counted, and a result thereon be declared; and that if it should appear that such irregularities existed in bringing about such election, or in the holding or conducting of the same, as to render the true result impossible to arrive at, or doubtful of ascertaining, the election be declared void and a new election ordered.”

The case was tried by a special judge, the regular judge being disqualified. The exceptions of both contestants and contestee were considered, and sustained in part and overruled in part. (Those overruled and those sustained will be specifically stated when we come to consider the assignments complaining of such rulings.) The trial then proceeded on its merits before the court, without a jury, who found for the contestee on his plea in estoppel, and that the commissioners' court of Potter county had declared that local option had carried in the county by a majority of 15 votes, and concluded from the evidence as a matter of law that of the voters who voted for prohibition all were legal, except 8, whose names are given in its conclusions, and that 2 voters, whose names are stated, who voted against prohibition, were counted and estimated by the commissioners' court as being for prohibition, and that their votes should be deducted from the total vote cast for prohibition and added to the votes against prohibition; that the ballot containing no number, found in box 3, which read “for prohibition,” should be deducted from the total vote cast, and that the voters who voted against prohibition all were legal, except 5, whose names were stated.

The effect, therefore, of the conclusions of the trial court was to find that the election had carried for prohibition by a majority of 7 votes. The conclusions of fact and of law, filed by the trial court, were excepted to by the contestants, and from the judgment against them they prosecute this appeal.

Fifty assignments of error are presented and insisted on by appellants in their brief, and six cross–assignments are urged by the appellee in his. Before considering any of *899 them, we will state certain cardinal principles of law pertinent to elections which shall guide us in disposing of them.

Who shall exercise suffrage is a fundamental question, which the body politic must decide upon a just view of the true relation between the power of the suffragans and the rights of the whole people. Hence the exercise of the elective franchise is not a natural or God–given right, but is, as the word “franchise” implies, a right conferred by the state or body politic. In other words, as is said by an eminent authority on constitutional law, the questions whether one is fitted by intelligence to perform the function of an elector, or has such interests in the matters controlled through his suffrage as to check the misuse of power which self–interest prompts, or has such community of interest in the laws which are to govern the community, which should fit him for the discharge of the duties of a suffragan, must be determined by the body politic. “If he lacks intelligence, it is the greatest absurdity to give him the suffrage, and the greatest wrong to the community. If he lacks community of interest in the laws which are to govern the community, it is not only a serious danger, but a false principle, to give it to him, for thus you give power to the hand which is alien to the rights of others which it controls.” Tucker on the Constitution, 89. See, also, Solon v. State (Tex. Cr. App.) 114 S. W. 349. Hence, article 6 of the Constitution of 1875 of this state, as amended by the people in 1901 (Acts 1901, p. 322), determines who should have the right of suffrage, and, in connection with the act of the Twenty–Ninth Legislature and the amendment thereof by the Thirtieth, prescribes how it shall be exercised.

Section 2 of the article of the Constitution referred to is as follows: “‘Every male person subject to none of the foregoing disqualifications, who shall have attained the age of twenty–one years and who shall be a citizen of the United States, and who shall have resided in this state one year next preceding an election and the last sixth months within the district or county in which he offers to vote, shall be deemed a qualified elector and every male person of foreign birth subject to none of the foregoing disqualifications who not less than six months before any election at which he offers to vote, shall have declared his intention to become a citizen of the United States in accordance with the federal naturalization laws, and shall have resided in this state one year next preceding such election and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector; and all electors shall vote in the election precinct of their residence: Provided, that electors living in any unorganized county may vote at any election precinct in the county to which county is attached for judicial purposes; and provided further, that any voter who is subject to pay a poll tax under the laws of the state of Texas shall have paid said tax before he offers to vote at any election in this state and holding a receipt showing his poll tax before the first day of February next preceding such election. Or if said voter shall have lost or misplaced said tax receipt, he shall be entitled to vote upon making affidavit before any officer authorized to administer oaths that such tax receipt has been lost. Such affidavit shall be made in writing and left with the judge of the election, and this provision of the Constitution shall be self–enacting without the necessity of further legislation.” Such legislative enactments, prescribing the manner in which the right of suffrage given by the Constitution shall be exercised by the suffragans, as are pertinent to several assignments of error to be hereinafter considered, will be stated in connection with the assignments when we come to consider them.

Section 1 of article 3397, Rev. St. 1895, as amended by Acts 30th Leg. 1907, p. 447, c. 8, is as follows: “At any time within thirty days after the result of the election has been declared, any qualified voter of the county, justice's precinct or subdivision of such county, or any town or city of such county in which such election has been held, may contest the said election in the district court of the county in which such election has been held, which shall have original and exclusive jurisdiction of all suits to contest such election, and the proceedings in such contest shall be conducted in the same manner as has been or may hereafter be prescribed, and said court shall have jurisdiction to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto, embracing final count and declaration and publication of the result putting local option into effect, and it shall have authority to determine questions relating to the legality and validity of said election, and to determine whether by the action or want of action on the part of the officers to whom was entrusted the control of such election, such a number of legal voters were denied the privilege of voting as had been allowed to vote might have materially changed the result, and if it shall appear from the evidence that such irregularities existed in bringing about said election or in holding same, as to render the true result of the election impossible to be arrived at, or very doubtful of ascertaining, the court shall adjudge such election to be void, and shall order the proper officer to order another election to be held, and shall cause a certified copy of such judgment and order of the court to be delivered to such officer upon whom is devolved by law the duty of ordering such election. It is further provided that all such cases shall have precedence in the district court and appellate courts, and that the result of such contest shall finally settle all questions relating to the validity of said *900 election, and it shall not be permissible to again call the legality of said election in question in any other suit or proceeding; and provided further, that if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared, are in all respects valid and binding upon all courts; provided also that pending such contest the enforcement of local option law in such territory shall not be suspended, and that all laws and parts of laws in conflict herewith be and the same are hereby repealed.” Acts 30th Leg. 1907, p. 447, c. 8.

Some of appellants' assignments present questions purely of law, and others present mixed questions of law and fact. Those of the first class will be first considered and disposed of, without regard to the order in which they are presented in the briefs; and, in considering those of the second class, our conclusions of fact pertaining to them will be stated.

1. That only one of the two tickets, each bearing the number 318, found in the box of voting precinct No. 5, was counted for prohibition, as was the one voted by J. M. Frazier, does not show any injury to appellants, in the absence of an allegation that the other ticket was voted against prohibition; for, from aught that appears from the allegation in appellants' tenth ground of complaint, both tickets bearing that number may have been for prohibition, and in that event appellants would have been benefited by not counting them both. Therefore appellants' first and fifth assignments of error, which complain of the court's counting only one of the tickets, instead of both, are overruled.

2. Acts 29th Leg. 1905, p. 535, c. 11, § 64, provides that “in all elections, general, special or primary, the polls shall be open from 8 o'clock in the morning until 7 o'clock in the evening, and the election shall be held for one day only.” It will be seen from our statement of the case that appellants alleged, as their fourteenth ground of contest, that in voting precinct No. 4 the polls were not opened until 11 a. m. and were closed at 4 p. m.; that there were polled in said precinct only 7 votes for and 3 against prohibition; that there were 20 legally qualified voters in said precinct and entitled to vote therein; and that a large majority thereof would have voted against prohibition, had the polls been opened during the hours required by law. The exceptions of appellee to this ground of contest are that it is too general, and fails to specify any voter or voters, who are voters in said precinct and desired to vote, failed to cast their votes by reason of said polls not being so kept open, nor does it show that such voters would have voted against prohibition. The second assignment of error complains of the court's sustaining the exceptions.

We think that the allegations in appellants' petition were sufficient to admit proof of the fact that the statutory requirement above quoted was violated by the officers charged with the duty of opening the polls and conducting the election, and that, had there not been such a violation of duty on the part of the officers, the result of the election at that precinct might have been different. It is a matter of general knowledge that many men, entitled to vote at an election, are so occupied with their own business, or in the discharge of their duty to their employers, that the only time they can spare, without prejudice to their business or violating their duty to their employers, to cast their ballots, is early in the morning, before their work commences, or late in the afternoon, after the day's work is done. If officers charged with the duty of holding elections are allowed to arbitrarily violate a provision of the election law that may result in depriving electors of their right to vote, or in making it inconvenient for them to exercise the right, the salutary provision, intended by the Legislature to secure an open, fair, and free election, with an opportunity for every qualified voter to exercise his right to the elective franchise, will be of little avail. It may be that, had the exceptions not been sustained to this ground of the contest, the evidence would have failed to show that appellants were in the least prejudiced by the failure of the officers of the election to open and keep open the polls at such election precinct during the hours prescribed by law. This, however, was a matter of fact, and the appellants, under the allegations in their complaint, had the right to introduce evidence to show that they were prejudiced by such breach of official duty on the part of those who were conducting the election. This right was denied them by the holding of the court, which we have no doubt was erroneous.

3. The third assignment complains of the court's sustaining appellee's exception to the twentieth ground of the contest. This ground of the contest will be noticed from our statement of appellants' pleadings. The exception interposed to it is that it is an insufficient ground for contesting the election, because it is not required that voters of the class mentioned should procure their certificates of exemption from payment of the poll tax from the tax collector before the 1st day of February, 1907, the year during which the election was held. As has been seen from the constitutional provision above quoted, any voter who is subject to pay a poll tax under the laws of the state of Texas must have paid the tax before he offers to vote at any election; but under the law male persons, otherwise entitled to vote, coming of age after the 1st day of January of the year in which the election shall be held, are not subject to the payment *901 of poll tax for the preceding year. There must, however, be some means of ascertaining the fact of whether the person who offers to vote belongs to a class who is not subject to a payment of the poll tax, else the requirement of its payment, as a condition precedent to the exercise of the elective franchise, would doubtless, in many instances, be avoided by the assertion that the person offering to vote was not subject to the tax for the year it was required to be paid. Hence section 23 of the election law passed by the Twenty–Ninth Legislature provides that: “Every male person who will be twenty–one years old on or before the day of an election and was not subject to a poll tax preceding the election at which he desires to vote, and who by reason of minority has not theretofore been subject to a poll tax but has or will become twenty–one years old on or before the date of any election, and who possesses all the other qualifications of a voter, shall be entitled to vote at such election, if he has obtained a certificate of exemption from the county collector before the first day of February, which shall specify the day when he will be twenty–one years old, and contain all the other requisites of a certificate of exemption. Before the certificate of exemption shall issue the applicant therefor shall make written affidavit of his age to be administered and certified to by the county collector, who shall file and preserve same.”

That section 2, above quoted, of article 6 of the Constitution, provided that its provisions “shall be self–enacting without any necessity of further legislation,” does not, in our opinion, render the section of the election law just quoted unconstitutional; for it does not attempt to restrain the Legislature from declaring when and in what manner it shall be determined that one offering to vote at an election is not subject to the payment of a poll tax. The section of the statute declaring when and how this matter shall be determined is general and applies to all elections, whether general or special, and to every voting precinct in which it is held, whether in a city having a population of 10,000 inhabitants or one having a population less than that number. Hence we are of the opinion that the contestants had the right, under the allegations setting forth the twentieth ground of contest, to show that the persons named therein arrived at the age of 21 years after January 1, 1907, prior to the election, and had failed to procure their certificates of exemption, as is required by the law to entitle them to vote at the election in question.

4. To appellants' trial amendment of the fifth ground of contest, the purport of which is shown in our statement of the case, the appellee interposes the exceptions that it contains no allegation of fraud or wrongful acts upon the part of Shaughnessy, the judge of the election, such as in law would justify holding the election void on account of his being at the time an alderman of the city of Amarillo, and, further, that it appears from contestants' pleadings that Shaughnessy acted as a judge in holding the election and became a de facto officer or judge thereof. These exceptions were sustained by the trial court, and such ruling is the subject of the fourth assignment of error. Section 60 of the election law of 1905 provides “that no one who holds any office of profit or trust under the United States or this state, or any city or town of this state, except notary public, * * * shall act as judge, clerk or supervisor of any election.” From this it is clear that Shaughnessy, if he was, as alleged by appellants, an alderman of the city of Amarillo, and acted as a judge of the election, was prohibited from holding such office and was incompetent, by reason of the statute referred to, to perform its duties or functions. The question to be determined is whether the provision of the statute just quoted is mandatory or directory.

The general rule is that statutory provisions regulating the conducting of public elections, if not made mandatory by the express terms of the law, will be construed as so far directory that the election will not be nullified by mere irregularities, not fraudulently brought about, when the departure from the prescribed method was not so great as to throw a substantial doubt on the result, and where it is not shown that there was any obstacle to a fair and free expression of the will of the electors. Black on Interpretation of Laws, p. 353. It is said that: “There is nothing better settled than that the acts of election officers de facto, who are in under color of election or appointment, are as valid, as to third parties and the public, as those of officers de jure. The doctrine that electors may be disfranchised because one or more of the judges or inspectors of election did not possess all the qualifications required by law finds no support in the decisions of any judicial tribune.” 15 Cyc. 311. But here, if the allegations in appellants' trial amendment be true, Shaughnessy was absolutely prohibited by the statute from acting as judge of the election. This inhibition did not go to his ineligibility or disqualification, but is an absolute denial of his right to act at all as judge in the election, and, in view of the statute, he could no more have acted as an officer de facto than he could de jure, for the law absolutely prohibits him from acting at all in any capacity. But it does not follow from this that, because he, in violation of the law, acted as a judge of the election, it should be declared null and void as to that precinct. It seems to us that the question as to the validity or invalidity of the election should be determined as though he had not acted at all, in the absence of any allegation that he did anything that would tend to change the result. In this view the election in that precinct should be regarded as having been presided over by only one judge, for the county *902 commissioners' court was required in voting precincts, where there were less than 100 voters who had paid their poll tax and received their certificates of exemption, to appoint two reputable men, who were qualified voters, as judges of the election, and it will be presumed that it performed this duty. We are not prepared, therefore, to hold that, because one of the parties appointed as judge was prohibited by the law from acting as such, would vitiate, so as to render null, the election as to such precinct, presided over by the other judge, who, in the absence of an allegation to the contrary, must be presumed as competent to act; for to so hold would be to disfranchise all the qualified electors who voted at said precinct, without it appearing that the election was in any way affected by being presided over by one judge, instead of two as required by the statute. We therefore overrule the assignment.

5. The sixth assignment of error, which complains of the court's overruling appellants' exception to appellee's plea of estoppel, is sustained. Neither the plea, nor the evidence adduced in support of it, presents any of the elements of a judgment estoppel. We know of no principle of law or equity, nor can we conceive of any, which takes from a party the right given him by law to contest an election of this character because he has obtained a temporary injunction restraining the publication of its result, when such restraining order has been dissolved. From this it follows that these assignments (7, 14, and 15), which complain of evidence introduced by appellee to sustain such plea, should be sustained. It also follows that the findings of fact and law by the trial court, complained of in the forty–second and forty–ninth assignments, that by reason of the matters alleged in said plea the appellants were estopped from contesting the validity of the election, are erroneous.

6. As the trial court found that W. F. Janzen was an illegal voter, and excluded his vote in estimating and declaring the result of the election, it is wholly immaterial whether he voted for or against prohibition. Therefore, if it should be held that the court erred, as is complained of in the eighth assignment, in excluding his testimony, offered by appellants, to the effect that he did not remember what was on the ticket he voted, such error was harmless.

7. The admission of the testimony of Horace Gooch, who resided in one voting precinct and cast his ballot at the election in another, as to his intention to vote in the one where he resided, instead of the one where he did vote, which is complained of by the ninth assignment, though error, was harmless, because the court held that he was an illegal voter, and excluded the vote cast by him from its estimate in declaring the result of the election.

8. W. A. Watkins, who voted at the election, having not less than six months prior thereto declared his intention to become a citizen of the United States in accordance with the federal naturalization laws, and having resided in the state one year next preceding the election and the last six months in Potter county, Tex., and having paid his poll tax as required by law, was, under the Constitution and laws of this state, a qualified voter and entitled to vote at said election, regardless of the fact as to whether or not his deceased father, who was an alien, had ever declared his intention to become a citizen of the United States. Therefore his testimony, complained of in the tenth assignment, to the effect that his deceased father had made affidavit of his intention to become a citizen of the United States, but was killed before he could take out his final naturalization papers, in no way prejudiced the appellants; the legality of W. A. Watkins' vote being the subject of inquiry. This also disposes of the sixteenth assignment of error.

9. The testimony of Ed. Kirk, as to where he thought E. C. Jeffries considered his home on the 3d of December, 1907, the admission of which is complained of by the eleventh assignment of error, was harmless, inasmuch as the court found that Jeffries' vote was illegal, because he voted out of the precinct of his residence in Potter county; it thus appearing that the trial court was not influenced, in excluding such vote, by the testimony complained of.

The twelfth assignment of error, which complains of the admission of testimony of a like character as to the residence of one De Wolf, is disposed of adversely to appellants upon the same ground.

10. The thirteenth assignment of error, which complains of the court's admitting in evidence the testimony of George Cole tending to show that he voted illegally at the election because of having failed to pay his poll tax prior to the 1st of February, 1907, for the reason that appellee's pleadings did not attack the legality of his vote upon such ground, is predicated upon an erroneous assumption of what is shown by appellee's pleadings, which assail Cole's vote upon the very ground which the assignment denies was alleged.

11. The seventeenth assignment of error complains of the court's overruling appellants' motion, made during the trial of the cause, for the court to have the district clerk remove from the ballot boxes of precincts Nos. 1, 3, and 5 certain ballots contained in said boxes, which were challenged by appellants, and then to direct the clerk to recount the remaining ballots in each of said boxes and announce to the court the result of the count. It occurs to us that this assignment regards merely a matter of procedure in the trial of the cause, and in the absence of a statute expressly requiring the court to proceed in the manner sought to be required by the motion the court could proceed in such manner as it *903 deemed best conducive to ascertain what legal and illegal ballots were found in the boxes of said precincts. In ascertaining this, it is shown by the record that all the ballots were taken from these boxes and their legality passed upon by the court, and those found to be illegal were deducted from the count in determining the number of legal votes cast. The assignment is, therefore, overruled.

12. The eighteenth assignment of error complains of the court's excluding parol evidence of certain witnesses, who were qualified voters and voted at the election, offered by appellants as tending to show that certain ballots, shown by the official records of the election to have been voted, respectively, by the several witnesses, which were counted for prohibition, should have been counted against prohibition. The rule is that the contents of ballots can best be shown by the instruments themselves, if in existence; but, if it be shown that they are not in existence, then the contents may be proved by parol evidence, the same as that of any other document that has been lost or destroyed. But where it appears that the ballots have been tampered with, and that the identical ballots voted are not before the court, it seems that parol evidence of the contents of the ballots that were voted should not be received.

A voter cannot be allowed to testify that he voted one way, when he admits that he cast a ballot, which has not since been changed, showing that he voted another way. But testimony of voters that they voted for a certain candidate or measure, and that the ballots purported to have been cast by them have been substituted for, or changed from, those actually cast, is admissible; for, where it is contended that a fraudulent substitution has been made, the elector may be asked for whom or for what measure he voted. In election contests, as in all other cases, the rule, excluding parol evidence to contradict, vary, or modify written instruments, is much relaxed when fraud is alleged. 15 Cyc. 419, 420. “Stuffing ballot boxes,” or the fraudulent substitution of different votes from those actually cast at an election, can rarely, if ever, be shown by the testimony of those who perpetrated the fraud, and must, almost of necessity, be proved by circumstances, or by the parol testimony of the voters themselves as to what candidate or measure they actually cast their vote for at the election. It is true that such testimony may be false, and the temptation, for those vitally interested in the result of an election, to procure, by bribery or chicanery, perjured testimony of electors, may be great; but this goes to the probative force, rather than to the admissibility, of such testimony. If such evidence is false, it is easier to procure the evidence of the perjury than it would be to procure evidence of the fraudulent substitution of ballots for those actually voted at the election. If the testimony of men of the highest integrity of character, whose reputation for truth is unimpeachable, that they voted differently at the election from what the ballots accredited to them by the poll list shows, is to be rejected in cases of this character upon the ground of public policy, then the policy of the public may well be deemed as a cloak for hiding frauds perpetrated at the ballot box.

Finally, we believe the proposition: “Where it is alleged that certain persons (naming them), each voted ‘against prohibition,’ but that the county commissioners erroneously or otherwise counted their votes ‘for prohibition,’ and it was further alleged that great irregularities existed, and that other votes, naming them, were erroneously counted, and it was shown by the poll list that the person named in the pleadings cast the ballot accredited to him by number, and that the ballot boxes had at all times since the date of the election been in proper custody, and the boxes produced in court, opened, and the numbered ballots found, it was competent to present the alleged ballot, and to prove by the testimony of the voter that the ballot found in the box, and accredited to him on the poll list, was not cast by him, but that he cast another and a different ballot than that presented”––asserted by appellants under this assignment, should be sustained.

13. We believe that the testimony of the witness Graham, offered by appellants to show how the commissioners' court had counted certain ballots in reaching the conclusion announced by it as to the result of the election, the rejection of which is complained of by the nineteenth assignment of error, was properly excluded upon the ground that it is against sound public policy and contrary to the legislative intent that the action of the commissioners' court in counting the ballots should be impeached by the testimony of one who was present at the count as to how the duty was performed by the members of the court, and thereby show a different result than that officially ascertained and declared by them.

14. After the witness J. M. Russell, who was an officer of the election in precinct No. 1, had testified on direct examination as to the irregularities in the manner of holding the election, he testified, on cross–examination, “that right in front of this voting box in the hallway there was quite a number of men in it all the time; that there were booths on the opposite side of the hall; that during the time the polls were open there were other and more persons on the outside than the officers; that there were challengers on either side of the voting box, and that he made no objection to these extra persons participating in the election; and that said extra persons during the day would make objections to people voting.” On objection of appellee's counsel, this testimony was excluded on the ground that there were no allegations in the pleadings in regard to challengers. *904 The action of the court in excluding this testimony is the subject of the twentieth assignment of error. We think the testimony should have been admitted on cross–examination, as tending to show that the testimony of the witness given on his examination in chief, to the effect that there was no irregularity in holding the election at that precinct, was not true; but, inasmuch as there was no specific allegation as to such irregularity as the rejected testimony would tend to show, and as the case was tried without a jury, such error affords no ground for a reversal of the judgment.

15. The testimony offered by appellants for the purpose of showing that Ed Guleke, who voted at the election, and whose vote was counted for prohibition, who had not paid his city poll tax for the year 1906 prior to the 1st of February, 1907, to which he was subject, was an illegal voter, the exclusion of which is the subject of the twenty–first and twenty–third assignments of error, should have been admitted, for the statute provides that any voter who is subject to pay his poll tax under the laws of the state of Texas, or under the ordinance of any city or town in this state, before he offers to vote at the election shall have paid said tax; for we cannot believe, as appellee contends, that “the requirement that a voter be compelled to pay a city poll tax is an additional burden to that placed upon him by the Constitution, and is unconstitutional for that reason.” As has been before shown, the right of suffrage is not a natural right of the citizen, but a franchise dependent upon the law, by which it must be conferred to permit its exercise. It is true that where the Constitution of a state fixes the qualifications, and determines who shall be deemed qualified voters, in direct, positive, and affirmative terms, these qualifications cannot be added to by legislative enactments, yet, as the constitutional provision in section 2, art. 6, hereinbefore quoted, required that “any voter who is subject to pay a poll tax under the laws of the state of Texas shall have paid the tax before he offers to vote at any election in this state,” it cannot be said that this qualification is added to by the legislative enactment which requires the payment of a city poll tax by a voter who is subject to its payment; for such tax is required under the laws of the state of Texas, though it be a municipal tax, for no tax can be levied by a city unless it is done under the laws of the state. McCormick v. Jester (Tex. Civ. App.) 115 S. W. 278; People v. Teague, 106 N. C. 576, 11 S. E. 665. Though such testimony should have been admitted, we cannot, as is urged by appellants under the assignment, consider it as evidence, and deduct Guleke's ballot from the general result of the election as declared by the court.

16. The finding of the trial court in its tenth conclusion of fact, that A. S. Tugwell, who voted at the election, and whose vote was counted for prohibition, had paid a city poll tax to the city of Amarillo in January, 1907, for the year 1906, is diametrically opposed to Tugwell's own testimony, which is: “I paid a state and county poll tax in Potter county, Tex., prior to February 1, 1907, for 1906, but I did not pay a city poll tax for the year 1906.” The twenty–fourth assignment of error complains of this finding of the court and of its counting Tugwell's vote for prohibition. The assignment is sustained, for, according to his own testimony, his vote was illegal, and should not have been counted at all. McCormick v. Jester, supra.

17. The fifteenth finding of fact by the trial court is as follows: “I find that John Parr was living with his parents in Greenville, Tex., until January 1, 1906, and for several years prior to said date; that about January 1st or 2d he left Greenville for Sulphur, Okl., to work; that he don't remember the exact day he left Greenville for Oklahoma, but according to his best recollection it was January 2, 1906; that when he left for Oklahoma he didn't know just how long he would stay there; that he was looking for work; that he came to Amarillo on the 7th day of July, 1906, from Oklahoma; that he was past 21 years of age on January 1, 1906; that he did not pay any poll tax for the year 1906 to Hunt county; that said voter was a single man, and between the age of 21 and 60 years, on December 3, 1907, but is not attacked on the ground of failure to pay Hunt county his poll tax.” John Parr was one of the five persons mentioned in appellants' eighteenth ground of contest as voting for prohibition, who were alleged to have owed a poll tax to the county of Potter and state of Texas for the year 1906 and failed to pay the same. It is urged by the twenty–fifth assignment of error that the finding of the court, above copied, shows that he was an illegal voter, in that he was due a poll tax to the state for the year 1906, and that he never paid the same as required by law, and that the court erred in counting his vote for prohibition. The finding, as well as the testimony, did show that he owed, and never paid, the state of Texas his poll tax for that year. We think that proof of this fact was, under the allegations in appellants' ground of contest, sufficient to show that his vote was illegal and should not have been counted; for, though the proof did not show that he owed a poll tax in the county of Potter, it did show that he owed it to the state of Texas, as alleged. It was not essential to prove that he owed a poll tax to both the state of Texas and county of Potter, and failed to pay the same, in order to render his vote illegal. The proof that he owed it to the state and had not paid it was sufficient to render his vote illegal, and it should have been rejected on that account. Therefore the assignment of error is sustained.

*905 18. A. C. Parr is another man who voted for prohibition at the election, whose vote is charged to be illegal because he had not paid his poll tax. The finding of the court upon this issue is as follows: “I find that A. C. Parr moved to Amarillo, Potter county, Tex., on January 19, 1907, from Hunt county, Tex., where he had resided for seven years; that he had paid his poll tax to the county of Hunt for the year 1906 prior to the 1st day of February, 1907; that he concluded there was going to be no election during the year 1907, and thinking he would not need them again, destroyed his poll tax receipts about six weeks prior to the election on December 3, 1907; that he had carried these receipts in his pocket until this time; that said voter was on December 3, 1907, between the age of 21 and 60 years.” Parr's testimony upon the question is as follows: “I was between the ages of 21 and 60 on January 1, 1906, when I lived in Greenville, Hunt county, Tex. I came to Potter county January 19, 1907. I had my state and county poll tax receipt for 1906 paid for, and took same out before February 1, 1907, and about six weeks before the local option election I got discouraged and did not think we would have any local option election and decided we were not going to have any, so I burned up the receipts. I voted in the local option election in Potter county, December 3, 1907. I voted in precinct No. 1.” The twenty–sixth assignment of error complains that the court erred in not finding that he was an illegal voter. While we are inclined to think that Mr. Parr got discouraged and burned up his poll tax receipts too soon, yet, if he made the affidavit required by section 71 of the Acts of the Twenty–Ninth Legislature as must be presumed in the absence of anything to the contrary, we are not prepared to say that his vote was illegal and wrongfully counted.

19. The twenty–seventh assignment of error is as follows: “The trial court erred in his finding of fact No. 18, wherein he fails to find that J. M. Young was an illegal voter, for the reason that the evidence introduced on the trial showed that said voter owed a state and county poll tax to Tarrant county, Tex., for the year 1906, which he had not paid prior to February 1, 1907, and it also showed that said voter voted for prohibition in the election in controversy and that his vote was so counted, which finding was duly excepted to by appellants.” We believe that the finding of fact referred to in the assignment shows, as a matter of law, that Young, if a citizen of 12 months' residence in the state of Texas when he voted at the election in question, was due a poll tax to the state of Texas and Tarrant county for the year 1906, which was never paid, and that, therefore, his vote should have been rejected by the trial court in determining the result of the election.

20. The thirtieth assignment of error complains of the court's finding that J. M. Neeley was a legal voter, and that his vote, cast for prohibition at the election, should be counted. It is undisputed that Neeley never paid a city poll tax to the city of Amarillo for the year 1906. His own testimony shows that he lived with his family in the town of Amarillo on the 1st day of January 1906; that his family has resided in that city ever since; that, though he owns a ranch which he considers his home, he had never lived on it since he first moved to Amarillo; and that he had always voted in said city. Section 4 of the election law provides that the residence of a single man is where he usually sleeps at night, and that of a married man is where his wife resides, if he be not permanently separated from her. If, therefore, it can be inferred, from his speaking of his family, that he had a wife residing with it, then his residence, under the law, was in Amarillo. If the inference cannot be drawn from his testimony that his wife was living, then he must be regarded as a single man; and, in that event, his residence was in Amarillo on the 1st of January, 1906, for the inference is clear that he usually slept there at night. So, in either event, his residence, in contemplation of our election laws, was in the city of Amarillo on January 1, 1906, for under such law one's residence must be actual, and determined by actual facts, and not by the intention of the voter. We are of the opinion, therefore, that the assignment is well taken.

21. The evidence does not show, as is contended by appellants in the thirty–first assignment of error, that J. G. Fondren, who voted at the election for prohibition, had not paid his state and county poll tax, to which he was subject, prior to the 1st of February, 1907. As to this matter there is no evidence one way or the other, and the presumption must be indulged, in the absence of anything to the contrary, that he produced the proper evidence before the judge of election that he had paid such tax in accordance with the law, or else he would not have been permitted by them to vote at such election. From the evidence it is questionable whether he owed a poll tax to the city of Amarillo for the year 1906, and, in deference to the finding of the trial judge, we conclude that he was entitled to vote at the election, and that his vote was properly counted.

22. It is insisted by the thirty–second assignment of error that the court erred in finding W. L. Barnes was a qualified voter at the election in controversy, for the reason that the evidence shows that he had not resided in the state of Texas 12 months prior to casting his vote. The evidence shows that Barnes came to Texas in April, 1906, and that he resided in Potter county from that time until the election was held, *906 and has continued to reside there ever since. We think this evidence warrants the finding of the trial court, although Barnes testified that he could not say at what time he formed the intention of permanently residing in Texas. The fact that he did actually reside in the state 12 months and in Potter county 6 months prior to casting his vote, and, being a citizen of the United States and possessing the other qualifications necessary to make him an elector, he was, under the Constitution and laws of the state, entitled to vote at said election.

23. We cannot sustain appellants' thirty–third assignment of error, which complains that R. H. Stone was not entitled to vote at the election, because he had not resided in Potter county 6 months prior to casting his ballot. The evidence shows that Stone, prior to January 1, 1906, resided in Hemphill county, Tex., and that he paid his state and county poll tax for that year in said county; that he has lived in Potter county since March, 1907; and that his family moved from Canada, and arrived in Amarillo, on the 4th day of June, 1907, and resided there ever since. As the election was held on the 3d day of December, 1907, even if the time of his residence should be estimated from the date of the arrival of his family in Amarillo, this evidence shows that he had resided in said city exactly 6 months when he voted at the election, and was, therefore, a qualified voter under the Constitution and laws of this state. Black on Interpretation of Laws, p. 162.

24. It is contended by the thirty–fourth assignment of error that W. A. Watkins, who voted at the election for prohibition, was a foreigner, and had never complied with the federal naturalization laws, and that he was at an age of between 21 and 60 years on January 1, 1906, and resided in the city of Amarillo and had not paid his poll tax to the city for that year. The evidence is sufficient to warrant the finding of the trial court in regard to his having declared his intention of becoming a citizen of the United States in accordance with the federal naturalization laws and had resided in the state one year next preceding such election. There was no finding of the trial court upon the question as to whether he was due and had paid a poll tax to the city of Amarillo for the year 1906, nor is it shown by appellants' brief that the court was requested to make a specific finding on such question. Therefore the assignment is overruled.

25. The finding of the trial court that E. C. Jeffries, who voted against prohibition at the election, resided in voting precinct No. 5 of the city of Amarillo, and cast his vote in precinct No. 1 on the day of the election, is assailed by appellants' thirty–fifth assignment of error, upon the ground that the legality of his vote was not attacked on account of his voting in a precinct different from the one in which he resided. This allegation, “that J. E. Cowans, Ed. Trigg, Frank Buckingham, and E. C. Jeffries each and all voted in precinct No. 1, when in truth and in fact they resided in precinct No. 5, and should have voted in said precinct No. 5,” is found in appellee's reply to appellants' ground of contest. This is a complete answer to the assignment, and demonstrates that it should be overruled.

26. In its conclusions of fact the court found that H. R. Jack, who voted at the election in Amarillo for prohibition, was an illegal voter, because he failed to pay his city poll tax. This finding is objected to by the thirty–sixth assignment of error upon the ground that his vote was not challenged by the appellee for nonpayment of his poll tax. In appellee's reply to appellants' ground of contest, Jack's name appears among a number of others immediately preceding this allegation, “each and all owed and did not pay the city poll tax to the city of Amarillo, Potter county, Tex., for the year 1906.” This is conclusive against the assignment.

27. Appellants' thirty–ninth assignment of error is as follows: “The trial court erred in his finding of fact No. 46, wherein he found that one ticket with the number 87 on it and one ticket with the number 376 on it were legal tickets, and should be counted, for the reason that in voting box No. 1 two tickets were found folded together, both reading for prohibition, the number 87 being on the one folded on the outside, while there were two other tickets found in the same box, both reading for prohibition, with the number 376 on the ticket folded on the outside, and the evidence shows that one each of said tickets was counted for prohibition, which finding of fact was duly excepted to by appellants.” The proposition advanced under it in appellants' brief is: “Where tickets are found in the ballot box folded together, none so folded can be counted. All must be rejected.” It will be perceived that no complaint is made in the assignment of the two votes bearing the numbers referred to being counted, nor is it even asserted in the assignment that they were counted. The assignment, without stating any ground, simply complains of the court's finding of fact No. 46. An examination of the statement of facts fully supports the finding of the trial court complained of by the assignment, and, as the proposition asserted cannot be deduced from the assignment of error, it will not be considered.

28. The forty–seventh finding of fact of the trial court is as follows: “I find that box No. ––––– contained a ticket which was torn in three pieces, which pieces fitted together perfectly and made a complete ticket of the ordinary size, bearing upon the back thereof the number 332, and read ‘for prohibition’; that said No. 332 appeared on *907 the poll list opposite the name of W. A. Blank.” The fortieth assignment of error complains of this assignment, and asserts the proposition that a ballot mutilated or torn to pieces cannot be counted. We hold with appellee in his counter proposition, which is that, when a torn ballot can be so placed together as to show beyond doubt its number and for what it was voted, it does not lose its validity simply because it is torn, and should be counted. It does not appear from the evidence that the ballot was torn before it was counted by the election officers, and the rule seems to be that, where a ballot appears to have been mutilated, it will be presumed to have been done after it was counted by the election officers, as it must be supposed that they know, and will perform, their duty. 15 Cyc. 365. The ballot is to be construed in the same way as any other written or printed document, and the construction must be such as to give effect to the voter's intent, if it can be ascertained from the face of the ballot. No court would hold a written or printed document, torn as the ballot in question was, inexpressive of its maker's intent simply because it was found torn in such a manner after its execution and delivery; nor can we perceive why a different holding should be made in regard to the ballot in question.

29. The trial court's fourth conclusion of law, which is as follows: “Of the voters who voted ‘against prohibition,’ and the legality of their votes challenged by contestee, all were legal voters except the following voters, which were illegal, and their votes should be deducted from the total vote cast ‘against prohibition,’ to wit: W. H. Baggett, Chas. De Wolf, Geo. Cole, H. R. Jack, and E. C. Jeffries”––is assailed by the forty–third assignment of error for the reason that under the pleadings and proof introduced on the trial the voter of each of the votes named in the conclusion of law was legal, and the votes should have been counted against prohibition. This assignment, in so far as it questions the court's conclusion as to the legality of the votes of Jeffries, De Wolf, Cole, and Jack, is, in effect, disposed of by what we have said in passing upon the eleventh, twelfth, thirteenth, and thirty–sixth assignments of error, in which, as is before seen, we have held that the votes of those four were illegal and properly rejected by the trial court. There seems to have been no complaint of the trial court's finding of fact, upon which the conclusion of law is based, that Baggett's vote was illegal, and for that reason should not be counted. Therefore such finding, which is as follows: “I find that W. H. Baggett was not 60 years old until February, 1906, and that he did not pay a city poll tax, nor a state and county poll tax, for that year, but voted on an affidavit of over age; that said voter had resided in Amarillo, within the corporate limits of said city of Amarillo, for several years prior to December 3, 1907, and find him an illegal voter for failure to pay poll tax for the year 1906”––must be regarded as conclusive of the fact stated therein. The conclusion of law of the trial court, as to the legality of his vote, logically attaches to the fact found in the conclusion stated. The assignment of error is overruled.

30. Under the forty–first, forty–fourth, and forty–eighth assignments of error is asserted this proposition: “Where it is shown that coercion, intimidation, and unlawful arrests have been made on election day in close proximity to the polls, from voting, and the result of the election was very close, and where it was further shown that gross irregularities and errors existed in the count, in the casting of ballots, in the determination of the result, and in the general conduct of the election, from all of which it would be impossible to arrive at a correct result if the election had been legally held, it is proper to set aside such election and to order a new election; and a failure to do so is error.” In view of the evidence and findings of the trial court, we are not prepared to hold that this proposition is sustained in its entirety by the record, or to such an extent as would authorize this court to declare the election void. There was, however, to our minds evidence of fraud, or at least gross irregularities suffered, if not committed, by officers charged with the duty of holding the election in accordance with the law. While such evidence is not so conclusive as to authorize us to set aside the conclusions of fact found by the trial court upon the matters to which the proposition quoted relates, the record shows, at least, such irregularities as justify us in animadverting upon the manner in which it was held and conducted. In doing so, we will say that if, when blind fanaticism runs riot and greed of traffic corrodes and corrupts, the officers charged with the duty of presiding over and conducting elections fail to administer and enforce the law, it is in vain that the great statesman, whose illustrious name is given to our election laws, labored in his old age to maintain the purity of the ballot, upon which depends the perpetuation of our republican institutions. The bands of social organism will be loosened when we fail to maintain the purity and sanctity of the ballot, and anarchy, like another blind Samson, may grapple and pull down the pillars of state, and bury the best government the world ever saw beneath the ruins of the temple, which the hands of patriotism erected to perpetuate.

31. It does not appear, from the statement subjoined to the proposition under the fiftieth assignment of error, that specific findings were requested by appellants upon the matters that the assignment complains of the court's failing to find. It would seem, however, from the action of the court, complained of by the eighteenth assignment of error, hereinbefore considered and disposed of, *908 that there could have been no findings of fact upon such matters; for it appears, from the statement under the assignment referred to, as well as from the assignment itself, that all the evidence offered by appellants to show the existence of the facts, which they now contend that the court should have found, was excluded upon objection of the appellee, which we held to have been erroneously sustained.

This brings us to appellee's cross–assignments of error. Appellants contend that they should not be considered, because the appellee did not except to the findings of fact and conclusions of law with reference to the votes which are claimed by the cross–assignments to have been illegal. As is said in Hahl v. Kellogg (Tex. Civ. App.) 94 S. W. 391: “It is settled by an unbroken line of authorities that it is not necessary to take exception to findings of law and fact, when there is a statement of facts in the record, in order to review them on appeal”––citing Voigt v. Mackle, 71 Tex. 78, 8 S. W. 623; Smith v. Abadie (Tex. Civ. App.) 67 S. W. 1077; Brenton & McKay v. Peck (Tex. Civ. App.) 87 S. W. 903.

1. The first of these cross–assignments complains that the court erred in not finding that D. H. Greer was an illegal voter, inasmuch as he had not been a resident of the state of Texas for one year and of the county of Potter for six months prior to December 3, 1907. The evidence shows that Greer came, with his father, to Amarillo on June 4, 1906; that he was 21 years old in October, 1907; that he remained in Amarillo, and his father returned to Tennessee; that it was the understanding, when his father left for his home in Tennessee, that D. H. Greer should remain in Amarillo; that his father returned to Amarillo in March, 1907, with his family, and resided there thereafter. As young Greer, with the consent of his father, remained in Amarillo from the date of his arrival there up to the time of the election, in our opinion, it made him a resident, in contemplation of our election law, of the state of Texas for 12 months prior to the time he voted, and that the court, therefore, properly held that he was a qualified voter.

2. The second cross–assignment complains that the court erred in failing to find Phil Denitz, who voted at the election against prohibition, an illegal voter, in that he owed and did not pay a state and county poll tax for the year 1906 prior to February 1, 1907. The evidence, to our mind, clearly shows that he was due such poll tax for the year 1906, and that he failed to pay it within the time required by law to entitle him to vote at the election. The assignment is therefore sustained.

3. The third cross–assignment complains of the court's failure to find J. C. Storm, who voted for prohibition at the election, disqualified from voting because he did not pay a state and county poll tax in Potter county for the year 1906. We do not think that the evidence shows that he became a resident of the state of Texas until in June, 1906, and he was, therefore, not subject to payment of poll tax for that year. The assignment is therefore overruled.

4. The fourth of these cross–assignments complains that the court erred in failing to find that the vote of C. A. Fisk, who voted against prohibition at the election, was an illegal voter, for the reason that he owed and did not pay a state and county poll tax to the county of Grayson for the year 1906. The evidence shows that, Fisk moved, with his family, from Grayson county, Tex., to Amarillo, Potter county, Tex., on the 27th day of February, 1906, and that he paid his poll tax, state, county, and municipal, for the year 1906, in Potter county in January, 1907. He was, however, on the train going to Amarillo on the 1st day of January, 1906, and made arrangements to move to Amarillo on the 6th day of January of that year. We are not prepared to say, under these facts, that Fisk was not, under the Constitution and laws of this state, a qualified voter at the election, especially as the evidence fails to show that a county poll tax was levied (which, under the Constitution and laws, is not mandatory, but merely permissive) by the county commissioners' court of Grayson county for the year 1906. He did pay his state poll tax within the time required by law, and it would seem that it is immaterial, so far as it affects his qualification as an elector, whether he paid it in Grayson or Potter county.

5. The fifth cross–assignment complains of the court's failure to find that Sam Snyder, who voted against prohibition, was not a legal voter. The evidence shows that Snyder was born in Denton county, Tex., in November, 1884; that he resided in Amarillo, Potter county, on the 1st of January, 1906; that he did not pay a state and county poll tax for that year anywhere or at any time. He testified that he was exempt from such tax because he belonged to the National Guards, and had been a member of the troop to which Mr. Golding belonged since 1905, and is still a member of the same, and that he voted against prohibition. If, as a member of the National Guards, he was employed in the service of the army of the United States, he was not, under our Constitution, entitled to vote at all; and if he was not employed in such service, under section 2, art. 6, before quoted, of the Constitution, he could not legally vote at the election, if he had not paid at least his state poll tax within the time prescribed by law. Therefore the assignment of error is well taken.

6. The sixth, which is the last, cross–assignment of error, complains that the court erred in finding the vote of Carl Zapp, which was against prohibition, legal, and in not deducting *909 it from the total number of votes cast against that measure, because he was not a citizen of the United States and had never declared his intention to become one in accordance with the Acts of Congress. It seems from the testimony of Jos. Astrican, which is based entirely upon what he heard Zapp say, that Zapp was a German and came to the United States of America when he was 5 years old, and had resided ever since in the United States, and that he had never taken out naturalization papers. As a man is a citizen of the country to which his father owes allegiance, it was incumbent upon the appellee to show that Zapp's father was not a citizen of the United States during his son's minority. The evidence, in our opinion, is not sufficient to prove such fact. Therefore the assignment of error is overruled.

Finis. In view of the record and these conclusions, the question presents itself: What should be the disposition of the case on this appeal? The recount before the county commissioners' court of the vote cast at the election in question resulted in that court's finding that the total number of votes cast at the election was 943, 479 of which were for prohibition and 464 against prohibition, making a majority, according to the finding of that court, of 15 votes in favor of prohibition. On the contest of the election before the trial court, it was found that 8 of the votes counted by the commissioners' court for prohibition were illegal and should not be counted. This would leave a total vote of 935 cast at the election, of which 471 were for prohibition and 464 against prohibition, leaving a majority in favor of prohibition of 7 votes. In reviewing the findings and conclusions of the trial court, this court has held that 4 of the votes cast for prohibition and 2 of the votes cast against prohibition were illegal, making 6 more votes which should not have been counted, which makes a total legal vote cast and entitled to be counted at the election of 929, of which 467 were for prohibition and 462 against, leaving a majority in favor of prohibition of 5 votes.

This would require an affirmance of the judgment, were it not for the errors, indicated in this opinion, in the trial court's rulings upon appellee's exceptions to appellants' pleadings, and in sustaining objections to testimony offered by appellants upon issues involved in this contest. On account of such errors the judgment of the district court is reversed, and the cause remanded for a new trial in accordance with this opinion.

Both parties have filed motions for rehearing in this case.

The appellants in their motion insist that we failed to consider and dispose of the forty–seventh and forty–ninth assignments of error, and request us to file conclusions of law and fact as to the questions they involve. The first of these assignments was, in effect, disposed of by our third conclusion, and we deemed it unnecessary to repeat what we had said in disposing of an assignment involving precisely the same question. As to the second of these assignments, we thought and still think that, inasmuch as the court sustained appellee's exception to that part of appellants' pleadings which challenged the legality of the votes of the parties whose names are mentioned in the assignment, there were then no pleadings in the case which authorized the trial court to pass upon the question of fact as to whether or not such parties were qualified to vote at the election; and, being of such opinion, we deemed we were without authority to pass upon a question of fact that the trial court had cut itself off from passing upon by sustaining exceptions to the only pleading which sought to bring such fact in issue. Where a judgment is reversed, the Court of Civil Appeals cannot render judgment for the other party based upon evidence not admitted on the trial, but must remand the case to the trial court. Eidson v. Reeder (Tex.) 105 S. W. 1113; Brazelton v. Campbell (Tex. Civ. App.) 108 S. W. 771. Nor, when a judgment has been reversed because an exception has been erroneously sustained to pleadings, can a judgment be rendered on appeal upon evidence which would have been admissible under the pleadings if the exceptions had not been sustained. Therefore the only consideration that could be given the forty–ninth assignment of error was involved in the disposition of the third.

But it is insisted by the appellee that we erred in sustaining appellants' third assignment of error; the insistence being that section 23 of the Terrell election law is an additional limitation to that fixed by the Constitution on the right of suffrage. The basis for this contention, as we understand it, is that inasmuch as section 2, art. 6, of the Constitution specifically enumerates the classes of persons who shall not be allowed to vote, it is beyond the legislative power to add to it any other class or classes of persons among those to whom the elective franchise is granted by the Constitution. This is undoubtedly correct; for unquestionably the Legislature could not place bald–headed, bow–legged men, or any kind of men, among the classes who are inhibited by the Constitution from voting. But it does not follow that section 23, referred to, places any one in the prohibited class. On the contrary, it clearly appears that it does not; for it recognizes their right to vote, and simply prescribes what shall be done to entitle them to exercise the right. It is no more a limitation of the right given by the Constitution to the class mentioned in the section to vote than are other sections of the act upon the right of those subject to the payment of a poll tax who shall have paid such tax before he offers to vote. Every one, under the *910 law, must produce the evidence it prescribes when he offers to vote; and, if he does not, he cannot exercise the right. If section 23 should be held unconstitutional upon the ground contended for by appellees, then it would logically follow that the entire election law is void.

It is further contended by appellee that we erred in sustaining appellants' second assignment of error, and in doing so are in conflict with the cases of Oxley v. Allen (Tex. Civ. App.) 107 S. W. 945, and Hash v. Ely (Tex. Civ. App.) 100 S. W. 980. In the latter case the question of the effect of a failure to comply with section 64, regarding the time of opening and closing the polls, of the Terrell election law, upon an election, does not seem to have been involved. In the first, the petition alleged that the election was illegal because the polls at one of the voting boxes were closed at 6 o'clock and not kept open for the time required by law, to wit, until 7 o'clock p. m., and thereby a large number of voters were deprived of the privilege of voting, which would have changed the result and have rendered the same doubtful. In passing upon an exception to this part of the petition the court said: “We do not think that the court erred in sustaining the exception * * * because * * * the number and names of the persons who, it is claimed, were deprived of voting at said election, were not alleged, nor was any excuse offered for failing to state them; nor is it alleged that the result would have been materially changed by the reason thereof, but only that it would have changed the result.” It will be seen from our statement of the allegations of plaintiffs' petition, to which exceptions were sustained in the present case, that they are essentially different from those in that case. In this one the polls were not opened until 11 a. m., and were closed at 4 p. m. In other words, they were not opened until three hours had elapsed from the time the law prescribed they should have been, and were closed three hours before they should have been. Also the number of legally qualified voters entitled to vote in precinct 4 are stated, and it was alleged that a large majority would have voted against prohibition if the polls had been opened as required by law. It is true that the names of the voters are not stated, nor is it alleged who of those not voting would have voted against prohibition, or who of them would have voted for it.

The provisions of a statute as to the time of opening and closing the polls ordinarily are held so far directory that an irregularity in this respect, which does not deprive a legal voter of his vote or admit a disqualified person to vote, will not vitiate an election. Patton v. Watkins, 131 Ala. 387, 31 South. 93, 90 Am. St. Rep. 43; People v. Prewett, 124 Cal. 7, 56 Pac. 619; Cleland v. Porter, 74 Ill. 76, 24 Am. Rep. 273; People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451; Fry v. Booth, 19 Ohio St. 25. But it is also held that, if the departure from the provision of the statute in regard to the time of opening or closing the polls was so great that it must be deemed to have affected the result, the election must be held invalid. People v. Hill, 125 Cal. 16, 57 Pac. 669; Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673, 49 Am. St. Rep. 68; Banks v. Sergent (Ky.) 48 S. W. 149; State v. Drake (Wis.) 53 N. W. 496. As is said in Tebbe v. Smith, supra: “The rule as to directory provisions applies only to minor and unsubstantial departures therefrom. There may be such radical omissions and failures to comply with the essential terms of a directory provision as will lead to the conclusive presumption that the injury must have followed. A substantial compliance with the terms of a directory provision is, after all, required. And a substantial compliance is not had by strictly following some provisions, while essentially failing to observe others. There must be a reasonable observance of all the prescribed conditions. It is the duty of the courts so far to adhere to the substantial requirements in regard to elections as to preserve them from abuses subversive of the rights of the electors; and under this view the question becomes a broader one than can be disposed of by answering that in the individual case no harm resulted. * * * In this case we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance and lack of appreciation of the responsibility of their positions, and we may say, further, for such is the evidence, that no harm is shown to have resulted from their conduct; but, looking to the purity of elections and integrity of the ballot box, we are constrained to hold that conduct like this [when the law required the polls to be open at sunrise and to be kept open until 5 p. m., and they were not opened until near 10 o'clock] amounts in itself to such a failure to observe the substantial requirements of the statute as must invalidate the election. And, while reluctant to so hold in this instance, we are confirmed in the opinion by consideration of the fact that any other interpretation would add grave perils to the safe conduct of our elections, which are already harassed by dangers enough.” The court then holds that the votes of Lake precinct should therefore have been rejected.

It was, we apprehend, for the purpose of having the votes of voting precinct No. 4 rejected, for it was alleged that only 7 were polled there for and 3 against prohibition, that the allegations were made by plaintiffs in their petition. We have not been able to find any case where such a wide departure *911 from the statute regarding the time of opening and closing the polls as is alleged in this case has ever been sustained upon the ground that such statute, being simply directory, was substantially complied with. If the polls can be kept closed nearly half the time they are required to be kept open, and the election upheld upon the ground that the statute, being simply directory, was substantially complied with, then the officers charged with the duty of opening and keeping open the polls may ignore the law and take their own sweet wills instead as the standard of duty. If this be so, a wider door to election frauds could not be opened––a door that the Terrell election law contemplates shall never exist in the structure of the election laws in Texas. When there is such a palpable violation of the law as is presented by that part of plaintiffs' petition, to which the court sustained the exception complained of by the second assignment of error, it cannot be expected of the party complaining of it to allege more than was done by the plaintiffs in this case; for it would be practically impossible for him to ascertain who of the qualified voters of the precinct would have voted, and how they would have voted, had there not been such a wide departure from the law. These matters would necessarily be enveloped in doubt; and it might well be doubted whether the electors themselves could say with any certainty whether they would have voted and on which side of the question they would have voted. We adhere to our original opinion on this question, and do not believe it is in conflict with either of the cases cited, as claimed by appellee, nor with any decision of any of the Courts of Civil Appeals, but believe it is fully sustained by principle and the weight of authority.

We deem it unnecessary to discuss any other of the questions raised by either of these motions, believing that they were all sufficiently discussed and correctly disposed of in our original opinion.

Both motions are overruled.