McCharen v. Mead | Cases | Westlaw

A majority of the votes cast and counted were indorsed with the initials only of the presiding judges, and appellant contends that such ballots were invalid, on the ground that such indorsement was not in compliance with the mandatory requirement of the statutes that all ballots shall bear the signature of the presiding judges of the precincts in which the ballots are cast, and shall not be counted unless so indorsed. Articles 3001, 3005, 3011, R. S. We overrule this contention for the reasons given in the opinion rendered in this court on June 12, 1925, in cause No. 7412, Joe Turner v. R. H. Teller, 275 S. W. 115, involving the same election and ballots. Appellant's first proposition of law, in which this question is presented, will be overruled. This leaves in dispute the ballots of 17 other voters questioned here by appellant, to wit, Mrs. Julia Oberg, Manuel Seis, Mrs. J. M. McDowell, H. C. Smith, Mrs. G. F. Morse, E. E. Campbell, A. N. Davis, Mrs. A. N. Davis, J. H. Ransom, N. R. Kleman, Mrs. Ramona Kleman, R. P. Alcantar, O. W. Jones, Mrs. O. W. Jones, J. B. Pollock, W. L. Skipper, and Mrs. W. L. Skipper.

According to the decisions, and appellant concedes the rule to be applicable here, the voters mentioned were obligated to pay their poll tax for the year 1923 to Cameron county, since they were residents thereof on the 1st day of January, 1923; that they were not subject to the tax in Willacy county for that year, not being residents thereof on the 1st day of January; and that payment threeof *119 was purely voluntary, and did not satisfy the plain provision of the statute requiring the payment of the tax to the county in which they resided on the 1st day of January of the year of the levy. Linger v. Balfour (Tex. Civ. App.) 149 S. W. 795.

But appellant seeks to avoid the force of this rule by showing that, while the commissioners' court of Cameron county levied the poll tax for the year 1923, it did not actually make the levy until October 8th thereof; and it is contended that, because the levy was not made earlier in the year, it was ineffectual, was not a legal levy, and that under a holding of this court in Savage v. Umphries (Tex. Civ. App.) 118 S. W. 893, the voters in question were not required to pay their poll taxes in Cameron county, and the payment of a tax in Willacy county, although they were not residents thereof on January 1st, entitled them to vote in that county. The statutes, however, fix no specific period of time within which the levy shall be made, and we think the fact that it was not made in Cameron county until October 8th did not invalidate it. We overrule this contention made by appellant.

It is further contended that, because the tax was not levied until October 8th, it became discriminatory and in contravention of the constitutional requirement that all taxes must be equal and uniform, in that those who desired to do so, by paying their tax between October 1st and October 8th, the date of the levy, could have thereby escaped the county tax of 25 cents, which was compulsory upon those who paid after the latter date. No evidence is pointed out from which it may be inferred that the tax collector began the collection of taxes prior to the date of the levy, however, and it will be presumed that he did not do so until the levy was made and he was supplied with the appropriate assessment rolls, etc., as provided in article 7615. We overrule this contention, and hold that, because the five named voters did not pay their poll taxes in Cameron county, in which they resided in the year of the levy, they could not legally vote in Willacy county in the election of the ensuing year. These matters are presented in appellant's second proposition of law, which is overruled.

In his fourth proposition appellant complains of the exclusion of ballot No. 5, purporting to have been cast for appellant by Mrs. J. McDowell in precinct 1. It was marked for appellant, but not counted as a vote. Upon the tally list the ballot is shown as “5. Mrs. McDowell, disqualified.” Mrs. McDowell testified that at the polling place a ballot was handed her by an election official, but before she could or did mark it some one took it from her, and she thereupon left the polling place, and did not vote at all. The ballot appeared among the returns, fully marked, however. The record shows that Mrs. McDowell, to whom the ballot was issued, did not vote it, and the trial court correctly excluded it. The fourth proposition is overruled.

Complaint is made because of the refusal of the trial court to exclude the ballot cast by J. B. Pollock upon the ground that he was a resident of one precinct, but voted in another. The trial court found that Pollock resided and voted in the same precinct. Appellant's statement under this proposition is that–

W. L. Skipper and wife, whose votes were cast and counted for appellee, were residents of Victoria county on January 1, 1923, and remained such until late in October of that year, when they removed to Willacy. They did not pay a poll tax in Victoria, but did pay it to Willacy county. These voters were in the same situation as to residence as Alcantar and four others, who are described in appellant's second proposition and hereinabove adverted to. If a county poll tax was levied in Victoria county, as it was in Cameron county in Alcantar's case, then the Skippers were obliged to pay the tax to Victoria county, and payment to Willacy did not satisfy the statute. Linger v. Balfour, supra. But there is no affirmative showing that a county poll tax was levied in Victoria county for 1923, and, as the levy of such tax is not mandatory, but is purely permissive, resting *120 entirely within the discretion of the commissioners' court, there is no presumption that such levy was made in Victoria county for 1923. This relieved the Skippers of any obligation to pay the Victoria county tax, and their timely payment of the state tax in Willacy county entitled them to vote in that county. Savage v. Umphries, supra. The ballots of the Skippers were therefore properly counted for appellee, and appellant's eighth proposition is overruled.

The trial court excluded the ballot cast for appellant by Mrs. G. F. Morse upon the ground that she was not a resident of the state. The record shows that this voter and her husband had previously resided in Willacy county for four years, and owned a home there; that about 18 months before the election she sold her furniture, or most of it, storing the remainder there, but did not sell her home; told a neighbor that she was going back North to make her home with her children. She and her husband left a few days later for New York state, where they remained for a period of 18 months, returning a few days before the election. They had paid their poll taxes for the previous year, but did so only because the collector would not accept their property tax without payment of the poll tax. She voted in the election, and was still there at the time of the trial of this case in the following month. Her husband does not appear to have voted. In the meantime they made some unsuccessful efforts to sell their home, of which they had not repossessed themselves. They were living in a rented house. Mrs. Morse and her husband testified that during all of their absence they had an intention to return to and maintain their home in the county. We think the facts stated were sufficient to overcome Mrs. Morse's claim of intention, or at least they raised a clear issue, which the court resolved against appellant in a finding which we do not feel warranted in disturbing. Appellant's fourth proposition is accordingly overruled. In this connection we will advert to appellee's second cross–proposition, which relates to the same question.

While considering the question of residence we will dispose of appellee's first cross–proposition, challenging the action of the court in excluding the ballot cast by Mrs. Wesley Ludlum for appellee. The evidence showed that about two years before the election Mrs. Ludlum and her husband, theretofore residents of Raymondville, left that place and moved to Florida, where it seems they had acquired and still own their only home. They owned no home in Raymondville. After spending 18 months in Florida, Mrs. Ludlum returned to Raymondville, but her husband stayed on in Florida. She voted at this election, and was still in Raymondville when this cause was tried a few weeks later. It is significant, however, that she did not testify. The evidence conflicted as to what her expressed intentions were, as to whether she was back in Raymondville only temporarily, or to remain there. But the preponderance of that evidence was that she did not regard Raymondville as her home, and, her *121 husband having refused to rejoin her there, she expected to rejoin him in Florida. The trial court heard several witnesses upon this issue, and, we think, correctly resolved it against appellee, whose cross–proposition thereon is overruled.

The trial court found that J. H. Ransom was a resident of Cameron county on January 1, 1923. Ransom did not pay his 1923 poll tax to that county, however, but paid it to Willacy county before February 1, 1924, having become a permanent resident thereof in September, 1923. He voted for appellant, for whom his ballot was counted in the returns, but excluded by the trial court on the finding that he was a resident of Cameron county on January 1, 1923, and did not pay a poll tax to that county for that year, thus placing him in the category of Alcantar and four others discussed above under appellant's second proposition. Appellant challenges this action of the court, contending that the evidence shows Ransom was not a resident of Cameron county on January 1, 1923, but was a transient person, not liable to Cameron county for the tax for that year, and having seasonably paid the tax to Willacy, of which he had unquestionably been a resident more than a year next preceding the election, was entitled to vote therein. So the validity of his ballot depends on the question of fact as to whether he was a transient person or a resident of Cameron county on January 1, 1923. The facts as to this voter are undisputed, and are clearly disclosed by his own testimony. He was 49 years of age, and unmarried. For 12 years he had been a member of a bridge gang on a railroad traversing that section of the state. During all that time he had eaten and slept in that car, and had his washing done wherever it stopped long enough to permit the service. The car was never stationed in any particular county, but was constantly “moving about from place to place in the state of Texas,” keeping the railroad's bridges in repair. It was his only home during the 12 years. His father had lived in Cameron county, and whenever the son visited there he stayed at his father's or his sister's and “considered” that his home. But his father had been dead three years and it is reasonably inferred from Ransom's testimony that he had not even visited the old home during that period. His case does not disclose a single element of residence in Cameron county, except the voter's bare conclusion, expressed in his testimony, that he “considered” that county his home, and that it was his home. But this conclusion was refuted, not only by facts in detail affirmatively showing to the contrary, but by his further conclusion, frequently expressed in his testimony, that he was a “transient,” and had had no home except on the bridge car. During the 12 years he was on the bridge gang he had paid no poll tax nor voted in any county. In September, 1923, however, he quit the bridge gang, settled at Sebastian, in Willacy county, where he accepted *122 and is still engaged in local employment, seasonably paid that year's poll tax to that county, and voted at the ensuing election therein. In this state of facts the voter was not liable to Cameron or any other county for the 1923 count tax, and his payment of the state tax to Willacy county entitled him to vote in the election there. His ballot was cast for appellant, and the court erred in not so counting it. We sustain appellant's third proposition.

A. N. Davis and his wife voted for appellant, but their votes were excluded by the court below on the finding of the trial court that they abandoned their residence in Willacy county. The evidence showed that in April, 1924, the Davises had acquired and moved into a homestead of Raymondville, the county seat, to be paid for in monthly installments. They had been married 13 years, had a family of five children, and Mrs. Davis was in very poor health. Her husband is a band master and a Baptist preacher, and at the time of the election was working in a lumber yard in Cameron county, but expects, as soon as his wife's health permits, to enter the evangelistic field. He is a poor man, dependent upon whatever work he can get, wherever he can get it. This condition has kept him away from Willacy county most of the time since he purchased the home there, and, unless conditions change, will probably keep him away much of the time in the future. He declares he does not intend to give up his home, hopes to keep up his payments on it, to make it his permanent home, where his wife and children may stay, and where he also may stay as much of the time as the uncertainties of his callings may allow. They originally moved to Willacy county from Abilene, where they owned a home, which they sold on leaving there. They own no other home than that in Raymondville, do not expect to sell that one, but hope and intend to live in it, even though they must at times rent it out and live elsewhere, according to the exigencies of their rather precarious existence. We think the court erred in holding that this family had abandoned their home and their residence in Raymondville. Every family, no matter how unhappily situated, no matter how cruelly pursued by misfortune or penalized by the adversities of thriftlessness, improvidence, or other causes, should not be denied the privilege of making and calling some place their home merely because their poverty or other necessities may oblige them, from time to time, to temporarily abide elsewhere. If it is their own, if they own no other, if they look upon or towards it as their home, if they intend to keep and maintain it as such in spite of vicissitudes which may sometimes interrupt their use of it, and no matter how humble it is in its appointments, it is not for the courts to deprive it of that character and them of their franchise through strict construction of our election laws. We hold that the ballots of these voters should be counted as cast.

E. E. Campbell and his wife moved to Raymondville on January 5, 1924, rented and moved into a dwelling house, which they continued to occupy until August 8th, when the owner took possession of it for his own uses. Campbell diligently sought to rent another house for his family, but could find none. His wife was far advanced in pregnancy, and because of her condition they quite naturally decided they should not go into a hotel or boarding house to live. In this situation Mrs. Campbell, with her husband's approval, decided and did go to her mother, in an adjoining county, and remained there until her child was born in the following December. Campbell remained in Raymondville, where he had a position, although whenever he found opportunity he went over and spent the night with his wife at her mother's. He continued at his work in Raymondville until two or three days before the election, when he was discharged. He set about to get other employment, and remained there with that object in view until several weeks after the election, when he accepted a position in another county, to which he then removed. He and his wife voted in the July primary in Willacy county; they kept their furniture in storage there, after they were obliged to give up their house. Campbell actually resided there with the intention of maintaining his residence there from January 5th until after the election was held. The only incident raising any question of residence was the absence of Mrs. Campbell with her mother in expectation of her first–born child, and in pursuing that course she but yielded to the natural instinct of every young mother to return for the solemn event to the care and ministration of her own mother. The state of Texas does not disfranchise its citizens in such cases as this. No matter how families may be situated, they are not held to have abandoned their residence in a given community merely because the husband or wife or both temporarily absent themselves on account of their own health, or that of their children, or to educate their children, or to serve their government, or because their trade or business or profession takes them elsewhere for varying periods of time. Campbell's ballot should have been counted for appellant, for whom it was cast. This is not an issue on which there is a conflict of evidence, nor does its disposition depend upon the preponderance of the evidence, as appellee contends. The decision depends upon the application of the law to facts which are clear and undisputed. We have very carefully refrained in this case from deciding any matter upon our conclusion as to the preponderance of the evidence, *123 nor do we intend to disturb the trial court's finding upon any issue where the evidence is in conflict upon a material element of that issue.

Manuel Seis voted for appellant, but the trial court excluded his ballot on the ground that the voter was an alien. Both parents of Seis were born in Mexico, and he testified his mother told him he also was born in that republic. His father died when he was two years of age, and the son testified that, if his father ever became naturalized, the witness “never heard of it.” The status of the voter was precisely the same as that of Jose Alcala in the case of Huff v. Duffield, 251 S. W. 298, the record in which we have again examined, and in which this court held Alcala to be disqualified. We approve the action of the trial court as to Seis, and overrule appellant's tenth proposition.

Two ballots numbered 128 were cast in precinct No. 2. The tally list shows Mrs. Julia Oberg's number to be 127, and her husband's number to be 128. No ballot numbered 127 was cast, however. Oberg testified that his wife immediately preceded him in voting, that she voted, and he recognized one of the ballots numbered 128 to be the ballot cast by him. Mrs. Oberg did not testify, being at home and ill, and Oberg failed to identify the alternate ballot 128 as having been marked or voted by his wife. So we have two ballots numbered in duplicate, one of them being fully identified by the voter casting it. The other stands unidentified, unless identification may be inferred from the facts that Mrs. Oberg's number on the tally list was 127; that no ballot bearing that number was cast; and that she preceded her husband into the polling place, cast her ballot just before he cast his, which was numbered 128. This combination of circumstances strongly indicates that through the carelessness of the numbering official her ballot was given the number 128, when its correct number was 127. Under the law each ballot must be given the number corresponding to the voter's number on the poll list so that it may be certainly identified; that fraud may be prevented, and that no voter may cast more than one effective ballot. Where two ballots bear identical numbers, the fact becomes obvious that the voter bearing that number on the tally list has cast two ballots, or that a ballot has been cast without having been numbered as required by law. If the voter bearing that number satisfactorily identifies one of the two as the ballot cast by him, such ballot will be counted as cast, but the identification of that ballot automatically discredits its alternate, at least in the absence of a full and satisfactory identification and explanation. We think such identification and explanation was supplied in this instance, and that both ballots 128 should have been counted for appellant.