McBeth v. Streib | Cases | Westlaw

This is another primary election contest which comes here on appeal from the district court of Uvalde county, which court, after a lengthy hearing, entered judgment awarding the Democratic nomination for the office of county commissioner precinct No. 3, of said county, to appellee, Fritz Streib, as a result of the run-off primary held on August 22, 1936.

Appellant McBeth, and appellee Streib, were the runners-up, or two high candidates, in the general primary on July 25, 1936, as candidates for the stated nomination. They were rival candidates, and of course the only two candidates for such nomination at the run-off primary held on August 22. By the official canvass made by the election officers on August 29th thereafter, appellee Streib was declared the winner by a majority of 23 votes, and certificate of nomination was, accordingly issued to him as the Democratic nominee for such office.

On September 4th thereafter, appellant McBeth filed his contest of such nomination, and on September 12th the trial of the issues presented on this appeal was commenced before the Honorable Brian Montague, regular judge of the Sixty-Third judicial district of Texas, and presiding in this cause for the Honorable Lee Wallace, regular judge of the Thirty-Eighth judicial district.

The pleadings of the parties were sufficient to authorize the evidence admitted at the hearing and to present the questions and propositions raised in this appeal.

On the trial the court sustained fifteen challenges made by appellee to votes which had been counted for appellant, and twenty-five challenges made by appellant to votes which had been counted for appellee. As a result of the trial, the court held that appellee Streib received a majority of thirteen legal votes, and entered judgment declaring him to be the Democratic nominee of such primary.

Appellant concedes that there is one controlling issue presented in the appeal. That issue, or question, is this: Are citizens of Texas, who are in all other respects qualified to vote at a primary election held for precinct officers in the precinct where they reside, disqualified to vote at such elections on the sole ground that they are enrollees in and members of the Civilian Conservation Corps and subject to the rules and regulations of such organization? In other words, appellant herein contends that an enrollee in or a member of such government organization cannot acquire “residence” in any voting precinct where he may be living and while a member of such organization which will entitle him to vote, he being in all other respects fully qualified under the law as an elector in such precinct.

There are questions raised concerning qualifications of four other voters whose votes were challenged on other grounds, but we need not discuss the propositions raised respecting the legality of their votes, if we conclude that the judgment of the trial court overruling appellant's challenge of the eighteen ballots cast by members of the Civilian Conservation Corps should be affirmed. The proper answer to the question concerning said eighteen votes will determine the appeal.

Both these contentions are overruled. A special district judge, regularly elected as such, or a regular district judge sitting in another district, through arrangements authorized by law, and in accordance with such laws, either at a regular or special *994 term of the district court, is empowered to perform any duty and to exercise any authority which the duly elected and qualified judge of the district could perform or exercise within such county. 25 Tex.Jur. 326, and authorities cited.

We come, then, to the controlling question involved in the appeal.

It is undisputed, or determined by the trial court on disputed and substantial evidence, that Frank Navarro, J. W. Davis, Arthur Wharton, Clay Hoag, Emerence L. Mack, Grover C. Butler, Albert Richards, M. H. Davis, Thomas Dunlap, Leopoldo Gomez (Tamez), John W. Shane, R. L. Winans, J. H. Bohmenblust, Earl King, Byron Ashabranner, Alfred Menendez, Charles Lightfoot, Jr., N. D. Bradford, were each citizens of Texas; that each and every one of them had resided in Texas for more than one year, and in the voting precinct in Uvalde county, where they cast their ballots, more than six months next preceding the election in question. As a matter of fact, practically all of such persons are native-born citizens and life-long residents of the state. Likewise, it is undisputed, or found by the trial court on disputed and sufficient evidence, that each of said eighteen citizens (1) either paid their poll tax, as required by law, or secured their exemption certificates, or exercised their legal rights otherwise under lawful exemptions prior to the date of the election; and (2) actually voted at the said election as held; and (3) each such voter is a single man, over twenty-one years of age at the date of the election, and “eats and sleeps” in the barracks provided by the United States government situated on Garner State Park, which is owned by the state of Texas.

No question was raised or challenge made to their right to vote before, or at the very time of, the election.

It is significant and important, we think, that there is no charge of corruption, fraud, or wrongdoing on the part of any of these voters or any one connected with the granting of their poll taxes, or exemption certificates prior to the election, or any officer of the election. The sole ground and contention of disqualification asserted against each of such voters is that by reason of their enrollment in the Civilian Conservation Corps and subjecting themselves to rules necessary or incident to such employment and status, they had not acquired and could not acquire residence in the precinct where they lived and voted, under the circumstances stated, at the said election held on August 22, last.

We do not believe that our laws intended to encourage citizens to exercise their high privilege and duty of voting at all elections concerning their rights and choosing their public officials, and safeguarding and making effective such actions, should be construed in such a narrow and technical manner as to destroy such right and privileges and to disfranchise duly qualified and good-faith citizens in the exercise of their right of franchise.

Our organic and statutory laws, in plain terms, deny the right of franchise to citizens in the military service. The reasons for such denial were properly determined by the adopters of the Constitution and members of our lawmaking bodies. There is no provision in our Constitution, or in any of our statutes, which by any rule of *995 fair and reasonable construction could be here applied to disfranchise these citizens of their right to vote; they each being otherwise fully qualified electors. We have reviewed and carefully considered the authorities cited and urged by able counsel for appellant as sustaining his contention, particularly the decisions of the appellate courts of this state, and we find that they do not support his contention. Had it been the intention of the framers and adopters of the Constitution, or the members of the Legislature, to deny the right of franchise to citizens situated as were and are the eighteen here under consideration, they should and would have so provided in plain terms. The subject is too important and rights involved entirely too serious and vital to depend upon implications or incidental and far-fetched constructions.

These eighteen citizens derive their right to vote from the Constitution and laws of Texas, and such right is not incidental or negative; it is positive and affirmative. They each complied with the statutes governing their right to participate in the election as held, according to the findings of fact duly made by the trial court, and applied to such statutes as shown by the judgment he entered herein. We find that the disputed questions of fact decided by the trial court are based upon substantial and sufficient evidence. We have considered the findings of fact of the trial court in the light and as applicable to the statutes of our state governing the rights of these eighteen challenged voters, and their conduct prior to and at the time of the election. Articles 2954 and 2955 set out their general qualifications and requirements. They each meet the tests there prescribed.

Other articles of our statutes prescribe the rules governing the payment of poll taxes and the securing of exemptions, as a prerequisite to the privilege of voting. Article 2973 specifically provides for proof of residence on the part of the applicant for a poll tax or exemption certificate. If he has any doubt about the residence of any applicant, it is the duty of the officer to whom application is made to require proof of the facts. It is clear, from the record before us, that no question was raised or proof required of any of the eighteen voters here involved. While this is not of particular importance in this decision, it does show the good faith of all concerned; and the securing of poll tax receipts and exemption certificates by these particular voters, as well as the actual voting on the day of the election, bear directly upon the questions of their intention and residence in the precinct.

It is our opinion that the trial court correctly decided the issues presented, and entered the proper judgment in this cause, and that such judgment should be in all things affirmed. It is so ordered.

This is a summary proceeding under the statutes, and in order that this election contest may not become moot before final disposition, appellant is allowed two days within which to file motion for rehearing.