Benavides v. Orth.

120 S.W.2d 99

Opinions

MURRAY, Justice.

We are of the opinion that this Court was in error in affirming the judgment of the trial court in this contest, therefore, our original opinion will be withdrawn and the following opinion substituted therefor.

I. J. Benavides and M. F. Orth were the only candidates for the combined office of county and district clerk of Brooks County, Texas, at the primary election held in said County on July 23, 1938. The official returns of said election showed Benavides had received 696 votes and Orth 679 votes. On July 30, 1938, the Executive Committee of the Democratic party of Brooks County met and canvassed the returns and declared that Benavides had received 696 -votes and Orth 679 votes. On July 30th Orth filed with the committee his notice of contest of the election. On August 3d he filed his amended notice. Benavides answered, and a hearing was had before the committee, and on August 9, 1938, the Committee rendered a judgment in favor of Orth, declaring him to be the Democratic nominee for the office of county and district clerk of Brooks County. Bena-vides gave notice of appeal and the cause was removed to the 79th District Court of Brooks County.

On August 17, 1938, nineteen days after the canvass of the returns and the declaration of the results by the Executive Committee, Orth filed an original action in the 79th District Court seeking to set aside the declaration of the result of said election and seeking to contest said election upon additional grounds than those set forth in his contest filed before the Executive Committee.

On September 8, 1938, a special term of the district court was called for the purpose of hearing this contest.' The appeal from the judgment of the Executive Committee was docketed as cause No. 601, and the original action filed by Orth was docketed as cause No. 602. These two causes were consolidated by order of the trial court, over the objection of Benavides, a plea in abatement having' been filed to cause No. 602.

Upon an allegation that the ballots had been fraudulently or improperly counted, the trial judge ordered a recount of the ballots cast, and 'by the recount it was shown that M. F. Orth received 560 votes and that Benavides received 471 votes. According to the official returns -Bena-vides had received 490 votes and Orth 529 votes. As a result of this recount M. F. Orth was shown to have been elected by a majority of thirty-five votes.

The evidence shows that after the committee had recounted the votes on August 9, 1938, it again sent for the ballots and recounted all of the ballots in all of the boxes for all of the offices. The ballots had been in the custody of M. F. Orth, who is the contestant in this case, but the evidence further shows that R. J. Caldwell, who was the executive committeeman from Precinct No. 1, and who also served as presiding judge of voting box No. 1, held the keys to the box containing the ballots from said Precinct No. 1, and that said keys were never in the possession of M. F. Orth.

The hearing in the district court began on September 8, ■ 1938, and continued through September 10th, at which time a recess was taken by the court to enable the judge thereof to attend to other matters. The trial was again resumed on September 20th, and .abruptly brought to a conclusion on September 23d. The court after hearing some evidence with reference to the custody and care of the ballots since the election, admitted them in evidence over the objection of Benavides for .the purpose of a recount, at which time the following agreement was entered into by and between the parties:

“Stipulation of Counsel

“Without waiving any objections that Contestee has heretofore made to the opening of the ballot boxes in voting precinct No. 1 in Brooks County, Texas, and without waiving any right of the Contestee to introduce evidence and offer proof showing or tending to show that said ballots have been tampered with or altered since the date of said election, it is agreed by and between the parties hereto, with the consent of the Court, that a recount of the ballots contained in the ballot boxes in Precinct No. 1, Brooks County, Texas, at a Democratic Primary Election held on July 23rd, 1938, offered in evidence, for the nomination of County and District Clerk of Brooks County, Texas, shows that at said election the Contestant, M. F. Orth, received 560 votes, and the Contestee, I. J. Ben-avides, received 471 votes.”

Benavides attempted to. call to the witness stand every -voter who had voted at Precinct No. 1, for the purpose of showing whether or not his ballot had been tampered with since it had been cast on July 23d, 1938. The trial court, after hearing about sixty-four of these witnesses, refused to permit counsel for Benavides to continue with this line of testimony, and sustained special exceptions (which he had previously overruled) to that part of his answer which attempted to plead that the ballots had been tampered with, and shortly thereafter rendered judgment sustaining the contest and declaring M. F. Orth the Democratic nominee for the office of district and county clerk of Brooks County. I. J. Benavides has prosecuted this appeal from that judgment.

The question of mootness has been raised, but if we are able to dispose of this case with great dispatch we may be able to do so before, under the law, it will become moot. ■ .

Appellant, Benavides, first contends that appellee Orth’s petition filed in cause No. 602 was filed too late. It appears that the Executive Committee met and canvassed the returns and declared Benavides nominated on July 30, 1938, and that the petition in cause No. 602 was not filed until August 17, 1938, more than ten days after such declaration. We hold that this petition was not filed within the time prescribed by law.

Appellant next contends that the trial court committed error in consolidating causes No. 601 and No. 602, and that this consolidation amounted to permitting appellee to amend his original contest. We hold that it was error to consolidate these two causes.

An examination of the complaint filed with the Democratic Executive Committee of Brooks County by appellee, M. F. Orth, discloses that it does'not meet the requirements of Art. 3148, R.C.S.1925, in that it does not state specifically the grounds of the contest, and does not contain special charges of fraud or illegality in the conduct of the election. The complaint 'was therefore insufficient to invoke the jurisdiction of the Executive Committee to hear the contest, and it necessarily follows that if the Executive Committee was without jurisdiction, the district court and this Court are likewise without jurisdiction.

Article 3148 provides as'follows: “The complaining candidate, if he desires to file a contest with the executive committee, shall, within five days after the result has been declared by the committee or convention, cause a notice to be served on the chairman or some member of the executive committee, in which he shall state specifically the ground of his contest; * * If special charges of fraud or illegality in the conduct of the election * * * are made, and not otherwise, the chairman * * shall within twenty days after the primary election, or the convention, convene the committee, who shall then examine the charges, hear evidence, * * * etc.” (Italics ours.)

The complaint or notice, both original and amended, filed with the Democratic Executive Committee of Brooks County, alleged that Orth and Benavides were rival candidates for the office of district and county clerk of Brooks County, at the Democratic Primary Election held on July 23, 1938, and that according to the canvass and result of the election, as had by the Executive Committee on July 30, 1938, Orth was shown to have received 679 votes, while Benavides was shown to have received 694 votes; and that the effect of said declaration of the result of said election is to declare the contestee, Benavides, entitled 'to the nomination for said office, and to have his name placed on the ballot as the Democratic nominee for said office at the general election to be held November 8, 1938. It then proceeds to set forth his grounds for contest in the most-general and widespread terms imaginable. We here quote from a part of the amended notice :

“But this contestant, M. F. Orth, would show that the declaration of the result of said election is incorrect and illegal and that in the event that a certificate of nomination or a certified statement is issued,' the same is and would be illegal and fraudulent in that the same is the result of the counting of votes and ballots that were wrongfully and illegally counted and the counting of votes and ballots that were wrongfully and illegally cast, and were cast by persons who were not legally qualified voters, and by persons who had no right to vote in or at such election and whose ballots were void and by the officers of the election or some of said officers wrongfully and illegally miscounting of votes and ballots, and by officers of the election, in the precincts of Brooks County throwing out and not counting legal ballots cast and voted for Contestant, and this Contestant further says that if and when the illegal, unlawful and fraudulent votes so cast at said election are eliminated therefrom, and the ballots which were cást are correctly, legally and rightfully counted, it will be found that this contestant has and holds a clear majority of all of the legal and lawful votes cast at said election for the Democratic candidates for said office and that this Contestant is therefore entitled to the certificate of nomination at the Democratic Nominee for the office of County and District Clerk of Brooks County, Texas, and is entitled to have said certificate issued and filed with the County Clerk, and is entitled to have any certificate which may have been issued or which hereafter may be issued corrected to show that this Contestant, M. F. Orth, is the Democratic Nominee for said office and entitled to have his name placed upon the ballot at the general election to be held in November, 1938, as the Democratic Candidate for said office of County and District Clerk of Brooks County, Texas.”

Following this general allegation, it is alleged that two voters, giving their names, were permitted to vote twice; it is not charged for whom they voted or that they voted for any one for district and county clerk. The complaint then sets out the names of eleven persons alleged to have voted in the election, who were not at the time of the election residents of the State for one year, of Brooks County for six months, and not at the time residents of the precinct in which they voted, or did not have a poll tax for the year 1937. It is not stated for whom these persons voted, nor that they voted for either candidate for district 'county clerk, nor at what boxes 'in the county they voted. ''

The complaint next alleges that five persons were permitted to vote at various voting boxes in the county, who were not at the time of the election above the age of twenty-one years. It is not charged that any of these persons voted for Benavides.

It next sets out the names of eight persons alleged to have voted at the election, who were not citizens of the United States. There is no allegation that these persons voted for Benavides, and it is not stated at what box they were supposed to have voted.

There are some other very general allegations that many persons were illegally allowed to vote.

The complaint ends with the following paragraph: “This Contestant would further show that had the ballots of the above named persons, and the ballots cast by them and as their ballots not been counted, and that had the ballots which w.ere legally cast at said election been counted correctly, as they were voted by the Election officers, that this Contestant would have and has a large majority of the legal and lawful votes cast at said election for the Democratic nomination for the office of County and District Clerk of Brooks County, Texas, and this Contestant now requests and demands that the ballots of the above named persons, named as voters and the ballots cast as the ballots of said above named voters be deducted and not counted and requests and demands that the ballots boxes be opened and re-counted, so that the fraud and illegallity-in the miscounting of votes, which were cast for this Contestant and illegality and unlawfully counting of said votes for Contestee be corrected, and the votes cast for this Contestant be counted for him, and that the result of said election heretofore declared on July 30th, 1938, be corrected and that the Contestant be declared to have received a majority of the legal and lawful votes at said election, for said office and that the proper certificate be issued for the filing with the County Clerk of Brooks County, Texas, entitling this Contestant to have his name printed on the ballot at the general election to be held in November, 1938, as the Democratic Nominee for the office of County and District Clerk of Brooks County, Texas.”

To our minds nothing could be more widespread and general than the above complaint or notice. It is immaterial that persons were permitted to vote at the election who were not qualified to vote, unless such persons cast their votes for Benavides. The most favorable light that could be placed upon this petition or complaint is, that it simply asks for a recount of the ballots by the Executive Committee. It is plain in this State that there is no statute authorizing a recount of the ballots. When the executive committee meets as a canvassing board, canvasses the election returns, declares the result of the election and adjourns, its duties are at an end, and it has no further authority to again meet and recanvass the election returns. Furthermore, the committee at no time has authority to recount the ballots, except where a valid election contest has been filed.

In 20 C.J., p. 193, § 244, we find the following quotation: “Recount. It is provided by some statutes that where the total of the entry of votes in the different columns opposite an office on the tally sheet do not balance with the total of ballots voted at the polling place, the ballots must be recounted for such office before the result is declared. However, such a provision is merely in the nature of an instruction to the election officers to recount the ballots before making a return; it does not authorize or permit them to reconvene on a day subsequent to the completion of the canvass and recount the ballots. After inspectors of election have once made a canvass of votes, they cannot be compelled or permitted to make a new one. Even where the returns are sent back to the inspectors because of omissions or clerical errors, they are forbidden to change or alter any decision before made by them. After an alleged illegal vote has been read and counted, the power of the election officers to reject it ceases.”

And § 259, p. 203, reads as follows: “Ballots. In the absence of a statute conferring it, a board of canvassers has neither express nor implied power to recount the ballots. * * * ”

It has been properly held by the Court of Criminal Appeals in Carroll v. State, 124 Tex.Cr.R. 180, 61 S.W.2d 1005, that after election officers have made return, ballot box cannot be opened, nor can ballots be used as evidence except in case of “contest” and then only in response to due process.

Article 3125, R.S.1925, as amended by Acts 1933, 43d Leg. p. 762, Ch. 225, § 10, Vernon’s Ann.Civ.St. art. 3125, provides in part as follows :

“Canvass of result.

“At the meeting of the county executive committee, provided for in Article 3124, returns from the election precincts of the county shall be canvassed by the committee, and the result of the election declared by it. * * *f>

It is plain that the returns referred to are the election returns as made by the precinct election officer. See Arts. 3123 and 3124, R.C.S.1925, as amended, Vernon’s Ann.Civ.St. arts. ⅞123, 3124. Art. 3128, R.C.S.1925, makes it certain that the ballots are no part of the election returns from which the executive committee is to make its canvass.

These Articles of the statutes when construed in connection with the provisions of Arts. 3148 and 3149, R.C.S.1925, make it clear that the Executive Committee has no power to recount the ballots unless and until an election contest, based upon special allegations of fraud and illegality in the conduct of the election, is filed. These allegations must be clearly, precisely and specifically stated, and, further, the materiality of such frauds and illegalities fnust be shown. 20 C.J. p. 227, § 292; Taliaferro v. Lee, 97 Ala. 92, 13 So. 125; Territory ex rel. Sherman v. Board of Sup’rs of Mohave County, 2 Ariz. 248, 249, 12 P. 730; McCrary on Elections, Par. 437; Edwards v. Logan, Ky., 69 S.W. 800; Oxley v. Allen, 49 Tex.Civ.App. 90, 107 S.W. 945; Bigham v. Clubb, 42 Tex.Civ.App. 312, 95 S.W. 675; Altgelt v. Callaghan, Tex.Civ.App., 144 S.W. 1166; Garess v. Tobin, Tex.Civ.App., 261 S.W. 430; Clary v. Hurst, 104 Tex. 423, 138 S.W. 566.

Appellant’s complaint, instead of being a' specific charge of illegality and fraud, was in the most general terms imaginable. It seems that it would be impossible to prepare a complaint that would be more general. If the complaint in this case is a sufficient basis for an election contest, then a contest may be had in this State upon a general allegation of fraud in the election and a request for a recount. It is clear that this was never intended, because the statute, Art. 3148, above, clearly provides that any contest before’ the executive committee shall be had on specific charges of fraud and illegality in the conduct of the election, “and not otherwise.” In the absence of a proper complaint the action of the executive committee in recounting the ballots was unauthorized and a void proceeding, and the judgments of the County Executive Committee and of the District Court therein were ineffectual.

We are further of the opinion that even if we should hold the complaint legally sufficient, there were other errors committed during the trial which would necessitate a reversal of this case, and as there is insufficient time for another trial, the case is moot, and regardless of the grounds on which we base our action, we come to the* inevitable conclusion that the contest should now be dismissed.

Accordingly, the judgment heretofore entered herein will he set aside and judgment now entered dismissing this election contest and the proceedings therein, at the cost of appellee.