Ex Parte Anderson , 51 Tex. Crim. 239 ( 1907 )

Relator was arrested under proper complaint for violating the local option law in justice's precinct number 1 of Henderson County. After said arrest he sued out a writ of habeas corpus before this court, contesting the validity of said election.

He insists that the local option law is invalid because the presiding judge of the voting precinct number 2 in the local option election, was at the time of the holding of said election an officer of trust under the laws of this State, to wit: was chairman of the democratic executive committee, having been theretofore elected to said office at the primary election held in said county on July 28th. The insistence is that he was thus holding two offices of profit and trust. We do not think there is anything in this contention. To be chairman of the democratic executive committee for the county was not an office of profit and trust within the contemplation of the laws of this State.

He also insists that the law is invalid because J.T. Deen, the presiding officer in voting precinct number 2 of said justice's precinct, did not sign his name on each ballot, but authorized Miller (one of the judges of said election) to sign his (Deen's) name on said ballot. As we understand the record, this was uniformly done in the presence of J.T. Deen, the presiding judge, by said Miller. It is agreed in the statement of facts that if the ballots upon which the presiding judge Deen authorized his signature to be placed are counted, together with the other ballots cast in said election, the result was properly declared by the commissioners court in favor of prohibition.

Then the question occurs, as to whether or not relator is correct in the proposition that the election is void, because the presiding judge did not sign his name in person upon the ballots. Relator cites Arnold v. Anderson, 93 S.W. Rep., 692, 14 Texas Ct. Rep., 713. Chief Justice Fisher, delivering the opinion for the Court of Civil Appeals, held: (after excluding the ballots that the presiding judge failed to write his name on the back of the ticket the correct result could not be ascertained therefrom) that the election was void because the presiding judge did not sign his name in person on the back of each ballot. This conclusion was reached by the learned judge, after first holding that the Terrell Election Law applied to local option elections as far as the ballot was concerned, as well as to the manner of holding the election. We held in Ex parte Keith, 83 S.W. Rep., 683, and Hanna v. State, 87 S.W. Rep., 702, that the Terrell Election Law did not apply to the manner of ordering a local option election, nor did it apply to the character of ballot. In the latter case this language was used: "The Constitution required the Legislature at its first session to pass a law whereby the voters of certain territory may by a majority vote determine, from time to time, whether the sale of intoxicating liquor shall be prohibited within the prescribed limits. In pursuance of this authority, the Legislature in passing the local option election law, in article 3388, Revised Statutes, 1895, provides the character of tickets to be used; and it will be seen that this article does not require that said tickets be headed ``Official Ballot.' Nor does said law require that but one ticket be used, with ``For Prohibition' and ``Against Prohibition' indorsed on the same ballot or slip of paper. There is nothing suggesting the impropriety of using two ballots or slips of paper, with ``For Prohibition' printed or indorsed on the one, and ``Against Prohibition' indorsed or printed on the other. However, if it should be conceded that the Terrell law applied as to the designation of ballots — that is ``Official Ballots,' — still we take it that this would be merely directory, and not a mandatory regulation. The failure to indorse on any ballot or ballots ``Official Ballot' would not necessarily exclude it, unless in connection therewith some fraud was shown. If it was a fair ballot, properly cast, it would be counted, although it might not have the heading required by the Terrell law — ``Official Ballot.' For a discussion of the latitude allowed, and the liberality of courts in counting ballots not in compliance with the law regulating elections, see McCrary on Elections, c. 14, arts. 493-514, inclusive. We accordingly hold that, because the voters used separate ballots — those voting for prohibition using one, and those voting against prohibition using another — and neither of these being indorsed ``Official Ballot,' did not vitiate the election."

It will be seen from an inspection of the local option law that there is nothing in the clause designating the character of ticket to be provided, requiring it to be marked "Official Ballot"; nor is there anything in said article requiring the election officer to indorse his name thereon: but it merely provides that the ballot shall be "for prohibition" or "against prohibition."

We therefore hold that the ticket in local option elections is not under the control, so to speak, of the provisions of the Terrell Election Law. Certainly to omit the word "Official Ballot" from the local option election ticket, would not vitiate the election, as required by the Terrell Election Law: it would be equally true, that it would not vitiate it to omit from the ticket the signature of the presiding officer. We note with care and concern the insistence made by Chief Justice Fisher to the effect that the endorsement of the name on the ballot is a beneficial provision of the Terrell Election Law, in that it promotes the purity of the ballot and prevents the stuffing of the ballot boxes. This may be true; but in the Keith case, supra, we held, that there was no conflict between the Terrell Election Law and the local option law: one being a general and the other a special law; and to interpolate upon the local option ballot a provision that the same had to contain the indorsement of the presiding judge, would to that extent, repeal by implication a pre-existing special law by a general provision, which we understand cannot be done unless clearly so intended.

Furthermore, if the provisions of the Terrell Election Law, which requires that the name of the presiding judge should be placed upon the ballot, also applied to the local option election, yet, we are constrained to conclude that this would be merely a directory provision and could not and should not vitiate the election. It is the province of the courts, wherein the contest of an election is before them for decision and mere irregularities are insisted upon to defeat the election, that the courts should not as above stated, declare said election invalid, where the result is readily ascertained, and there is no dispute about the fairness of the election. It is conceded in the statement of facts before us, that the election was in all things fair; that all parties who voted were qualified to vote; that no ballots were cast that were not legal ballots; and no one was permitted to vote who was not a legal voter in that precinct. There is no question made in this record but that the election fairly expressed the will of the majority of the people of the precinct, where said election was held. Then we think it would be amiss for us in the first instance, to hold that the Terrell Election Law applied to a local option election; or in the second instance to hold, even if it did, that the sheer fact or failure to place the name of the presiding judge upon the back of the ticket by the presiding officer would vitiate the entire election. Under the Constitution and laws of this State, the voters have rights in the premises that should not be frittered away, defeated or destroyed by laches of the officers, upon matters that do not affect and go to the genuineness, sincerity and honesty of the election. So believing we hold, that the election is in all things valid. The relator is hereby remanded to the custody of the officers, with all costs of this court taxed against him. Relator remanded.

Davidson, Presiding Judge, dissents.