Bass v. Lawrence

LEVY, J.

(after stating the facts as above).

It appears from the court’s finding of fact No. 5 that 16 voters who cast their votes for appellee were given assistance in the preparation of their ballots by the officers of the election. These voters “were qualified voters over 60 years old and unable to read and write.” But, as found by the court, “neither* of the officers was sworn to assist the voter as provided by article 3010, R. S. 1925, but only took the general oath as officers of election before the polls were opened. This finding applies to each of the voters who were assisted in making out their ballots, and in each instance the ballot was prepared as the voter himself directed.” Further, as found by the court, there is “no evidence of fraud” in the case. There is no contention that the election officers violated the provisions of the article except for their mere omission to take the oath prescribed. The court concluded that the mere failure of the officers to take the oath prescribed by article 3010 did not invalidate the votes; there being no fraud practiced. This conclusion, as found in con-elusion of law No. 3, is challenged by appellant in bis first proposition. Tbe point made and insisted upon is that unless the election officers be “first sworn” preliminary to giving official assistance to the voter, under the lienalty terms of article 3010 “the ballot shall not be counted, but shall be void for all purposes.” The answer to the point in question is dependent upon the proper construction of the provisions of article 3010, R. S., as the language is not plain and explicit. The article relates entirely to aid given a voter. It begins by forbidding that “any assistance be given a voter in preparing his ballot, except when a voter is unable to prepare the same himself because of some bodily infirmity, such as renders him physically unable to write, or is over sixty years of age and is unable to read and write.” Then follows the provision for assistance, reading:

“In which case two judges of such election shall assist him, they having been first sworn that they will not suggest, by word or sign or gesture, how such voter shall vote; and they will confine their assistance to answering his questions, to naming candidates, and the political parties to which they belong, and that they will prepare his ballot as such voter himself shall direct; provided that the voter must ini every case explain in the English language how he wishes to vote, and no judge of the election shall use any other than the English language in aiding the voter, or in performing any duty as such judge of the election.”

Then follows the paragraph reading:

“Where any assistance is rendered in preparing a ballot other than as herein allowed, the ballot shall not be counted, but shall be void, for all purposes.”

The language of the penalty is fairly susceptible of the sense or meaning urged by the appellant that the ballot would be invalidated by tbe omission or failure of the election judges to take the formal oath prescribed. The direction that the election judges shall be “first sworn” may, strictly speaking, be regarded as mandatory, in the sense that there is imposed the duty of obedience on those who come within its purview. And, of course, if that provision were meant to prohibit the election judges from giving assistance or help at all to the assisted voter until and unless such officer shall have been “first sworn,” then a limitation was imposed upon the authority of- the officer to act, and a noncompliance would be fatal, and the entire act of assistance would faii at the point of not taking the oath. The proceeding could not go on to a conclusion, treating the neglect to take the formal oath as a mere irregularity. But that is not the plain and obvious meaning of the words used, and a different construction from that is fairly authorized as the intended meaning and application of the penalty. It is believed that the language or purport of the article reasonably goes' to show that it was the legislative intention to prohibit, and as a penalty to invalidate the ballot,, “any assistance” or help by the officer to the assisted voter different or “other than as herein” specified, viz. “answering his (the voter’s) questions” ; (2) “naming candidates, and the political parties to which they belong”; (3) “prepare his ballot as such voter himself shall direct”; (4) and said officer shall not “use any other language than the English language,” and shall not “suggest, by word, sign or gesture, how such voter shall vote.” There is reasonably and fairly the intention of the Legislature to exact a strict compliance with the enumerated previsions.

The direction of taking the preliminary oath is disjoined and not intended to be included in the penalty paragraph. This view is more in accordance with the Penal- Code providing criminal punishment to the officer for violating the above-enumerated provisions. Articles 224, 225, P. C. Irregularity of official action, consisting of the mere neglect or lack of strict compliance with a statutory direction, unless the law declares the specified irregularity fatal, has not usually been allowed to vitiate the ballot when the object and end of the statute has been accomplished and neither the public nor the particular voter injured by the course of proceeding. Courts generally justly consider the chief purpose of such law, namely the obtaining of a fair election and tbe voter’s free choice by ballot, as paramount in importance to minor requirements which prescribe the formal steps to reach that end. As appears in the present ease, the objects contemplated by tbe Legislature of a full and free expression of tbe voter’s choice were in nowise violated or prevented. The omission to take the oath was an innocent irregularity, free of fraud, and not interfering with the full and fair expression of the voter’s choice. Therefore it is thought, as the trial judge concluded, that the provision is so far directory that the ballots were not invalidated by tbe mere fact that the election officer was not sworn. Hunnicut v. State, 75 Tex. 233, 12 S. W. 106.

As appears in finding of fact No. 4, the presiding officer at the Browning box wrote his name or initials on the ballots after tbe ballots were made out by the voters and before they were placed in the ballot box. He did not indorse his name or initials on the ballots before tbe ballots were handed out to the voters. The court concluded, in conclusion of law No. 2, that there was a substantial compliance with the law, not invalidating the ballots. The appellant contends that the conclusion is erroneous, as the statutory provision requiring the presiding officer to write his signature on the hack of the ballots “previously” to delivery to the voter-is mandatory, and a noncompiiance with its terms operates to invalidate such ballots. The statute requires the presiding judge to deliver to the voter “one official ballot on the blank side of which the presiding judge shall have previously written his signature.” Article 3008, R. S. Article 3012 explains the reason for having the signature of the officer named. Article 3018 forbids any ballot to be counted “that does not bear the judge’s signature.” The above requirements spring out of the; policy of the statute to have only the official ballot deposited by the voter to be counted. And, as stated in Turner v. Teller (Tex Civ. App.) 275 S. W. 115:

“The specific purpose of the requirement in question is to make certain the identity of the ■ballot cast with that of the ballot handed to the voter at the time of voting. Identity may be said to be ‘of the essence’ of the provision.”

Therefore, if the signature of the presiding judge was, as here appears, .actually on the ballot at a time before the ballot was deposited by the voter in the voting box and it was an official ballot, the purposes and ends of the statute were accomplished. The direction as to the time when the signature shall be indorsed on the ballot may be regarded as directory. The mandatory portion of the provision, invalidating the ballot if not done, pertains to the actual signáture being on the official ballot before depositing it in the ballot box. The court did not err in the conclusion made.

The third proposition brings in review the court’s conclusion of law No. 1, based on findings of fact Nos. 6, 7, and 8. It is believed that the trial judge correctly concluded that the provisions of the statute respecting returns should be regarded as directory, the statute not- expressly declaring noncompliance to be fatal. Freedom of inquiry in investigating the title to office tends to secure fairness in the conduct of elections and integrity on the part of returning officers. The electors may not be'disfranchised for a mere irregularity in forwarding returns, when free from fraud, nor because no return is made in the specific manner provided.

The judgment is affirmed.