Ex Parte White

28 S.W. 542, 33 Tex. Crim. 594, 1894 Tex. Crim. App. LEXIS 176

• Court: Court of Criminal Appeals of Texas
• Decided: November 28, 1894
• Docket: No. 996.
• Status: Published

Opinion

SIMKINS, Judge.

At a local option election held on the 18th of January, A. D. 1894, in Justice Precinct No. 1, Hill County, Texas, which embraces the town of Hillsboro, local option was carried by a majority of eighty-five votes, and the notice of the result was duly published as required bylaw. Belator was afterwards arrested for selling intoxicating liquor in violation of said law, and thereupon sued out a writ of habeas corpus, alleging the law to be illegally adopted, for reasons stated in his petition. Upon a hearing the county judge overruled the prayer of petitioner and remanded him to the custody of the sheriff, and an appeal was taken to this court.

It is admitted in the statement of facts that relator sold intoxicating liquor at the time and place as charged, and that the sole question to be determined on this appeal is whether the local option law has been legally adopted in said precinct number 1 of Hill County. If so, the relator was properly remanded to the custody of the sheriff; and if otherwise, should be discharged. It is insisted that the law is invalid, because Hillsboro is au incorporated town, divided into four wards; yet the County Commissioners Court, with full knowledge of that fact, divided the Hillsboro voting precinct (which embraced not only the town itself but considerable territory lying adjacent thereto) into four voting precincts regardless of the ward divisions; and in fact each voting precinct contained parts of several wards.

There is no. question that it is the duty of the county commissioners in laying out or dividing an election precinct, which contains a town or city, into voting precincts, to recognize and designate the several wards as such voting precincts (Revised Statutes, article 1664), and when required for public convenience may subdivide each ward into as many voting precincts as they may deem proper. Acts 1889, p. 10. Such is the plain requirement of the statute, and it would seem that a nonobservauce thereof would ordinarily avoid the election. But this identical question came before our Supreme Court in Davis’ case, 75 Texas, 420. The city of San Marcos was divided into four wards, but the Commissioners Court established two voting precincts without reference to the wards, and including parts of the surrounding county. It was claimed that this act of the County Commissioners Court, in ignoring the existence of the city wards, would make the election a nullity. It was answered by respondent, that while it was true that such had been the method of laying out the voting precincts, yet it was the customary method; that for many years prior thereto the precincts had been so laid out and elections held therein without objection.

In passing on the sufficiency of the answer a majority of the court, notwithstanding a strong dissenting opinion by Justice Henry, sustained the election, holding that although the Commissioners Court had laid out the voting precincts regardless of wards of the city or town which, by statute, were made voting precincts, yet the elections having been fairly held in the precincts so laid out, without objection from any quarter, should not be declared invalid unless it was shown that the Commissioners Court had acted with a fraudulent purpose. The opinion, as we understand it, seems to rest upon two grounds: 1. The Commissioners Court, being charged with the duty of laying-out the voting precincts, had, by disregarding the wards, practically decided they did not exist, and to prove that they did exist in that character of contest (suit by quo warranto to try the right to the office of sheriff) was a collateral attack on their judgment. 2. That the law in reference to voting precincts, and which prescribes the duty of the Commissioners Court in regard thereto, fails to declare that a noncompliance therewith will invalidate the election as to those precincts; that the observance of the wards by the Commissioners Court in laying out the voting precincts is not absolutely essential to secure a fair expression of the popular will, and the law having failed to make it an essential prerequisite to the validity of the election, the court would not make it so. See to same effect, Bell v. Faulkner, 84 Texas, 187.

Now, we can see no reason why the last ground is not applicable to and decisive of the question at bar. If the position is sound it applies to any election, whether general or special, in which the Commissioners Court is empowered to define the voting places. Whatever view we might entertain if the question was open, need not be here considered. Deference to the views of the Supreme Court, as we understand them, incline us to hold that the position of appellant here considered is not well taken. There is no question of the fairness of the election in this case. The Commissioners Court of Hill County, on the 12th of February, 1885, divided the Hillsboro precinct into four voting precincts without reference to the wards of the city, as was done in the San Marcos case, and ever since 1885 to the present time, except in 1890, when the court house was being rebuilt, all elections, general and special (except city elections), had been held in the voting precincts as thus laid out. At the local option election here attacked the people had all voted at the same boxes at which they had been accustomed to vote for years past, without objection or protest from any quarter, and there is here no suggestion of fraud or wrong on the part of the Commissioners Court, or any one, and the votes were cast at what the voters supposed to be the proper places.

But relator earnestly contends that the election is void, because, as a matter of fact, the voting places for each of the four Hillsboro voting precincts were held in the court house building, which is situated outside of said precincts, and said votes were cast in violation of the constitutional requirement that all electors shall vote in the election precinct of their residence. Const., art. 6, sec. 2. It seems that in laying off the Hillsboro precinct into four voting precincts, in 1885, the Commissioners Court began at the southwest corner of the court house square, then ran north with the west boundary of said square into the country to a certain point; thence west, south, and east to the beginning, as Hillsboro voting precinct number 1. Thus it appears that precinct 1 went no nearer to the court house, where the vote of that precinct was polled, than the west boundary of the court house yard— some fifty or sixty feet from the building. So precinct number 2 began at the southwest corner of the court house square, and ran out west, south, east, and north to the southeast corner of the square. Precinct number 3 began at the southeast corner of the square, and ran out south, east, north, and west to the northeast corner of the square; and precinct number 4 began at the northeast corner thereof, and ran out east, north, west, and south to the northwest corner of the square. Thus it will be seen that the last three voting precincts did not close, and none of them included or excluded the court house, except precinct 1.

It was also shown that precinct 1 always voted in the northwest room, precinct 2 in the southwest room, precinct 3 in the southeast room, and precinct 4 in the northeast room of the court house. At this election the same rooms were voted in, except that, for some cause not stated of record, the voters of precinct number 2 voted in a room adjoining the southeast corner in which the voters of precinct 3 cast their votes. The room used on this occasion by the voters of precinct 2 was situate thirty feet distant across the hallway'from the room customarily used by them, but it was on the same side of the building. The question arises, is there here presented such a violation of article 6, section 2, of the Constitution as will avoid the election as to the four election precincts of Hillsboro %

Appellant contends, that if the ballot box was accidentally placed just across the limits of the voting precinct it would, regardless of the reason of its being placed there and of the good faith of the voters, avoid the election as to that precinct, by the very terms of the Constitution which require the voting to be done in the precinct of the voter. While we readily concede that the voting place should be within the limits of the voting precinct, yet we can not concur in the application of the constitutional provision to this case, as contended for by relator. The object of a provision of this character is to insure a fair and honest election by requiring each voter to cast his ballot at the same place where his neighbors voted, and those to whom his qualifications were best known, and by whom, if necessary, they could be challenged. Cool. Const. Lim., 754. Hence the inhibition is against a voter voting at any other poll than that of his own voting precinct, that is, the precinct of his residence. Indeed, this inhibition was the very purpose of the constitutional provision under discussion. Under the prior Constitution of 1869 (article 6, section 1), a voter could vote in any voting precinct in the county of his residence. But the evils resulting from the exercise of this right became so manifest that they led to the adoption of the present provisions.

Such then being the purpose of the Constitution, it certainly should not be invoked to set aside an election because the ballot box was accidentally placed a few feet across the limits of one of the precincts; a ballot box in which the entire voting precinct cast its ballots, as it had been accustomed to do for years past, and under the belief that it was within the precinct. It is to be observed that this is not a case where the votes were cast in some other precinct. The evidence shows the court house was in fact situate in no one precinct, but was common territory to three of the said voting precincts. Precinct number 1 was the only precinct that stopped at the court yard, and in sixty feet of the room where its polls were customarily held. To set aside the election in precinct number 1 for such a cause would be to bold that an election confessedly fair could be avoided by a mistake that tended in no way, directly or indirectly, to deny or abridge the right of voting or impede its exercise. Cool. Const. Lim., 768. It is essential to the validity of an election that it be held at the time and in the place provided by law; and it is a rule to which there are but few exceptions, that an election held at an improper place avoids the election, even without proof of fraud or injury. But one exception to the rule is where the voting is done at the same place for years, the people supposing it to be the true place, thoilgh in fact it was different from the place fixed by law. 6 Am. and Eng. Encyc. of Law, 323. Nor can we hold the change of the polls of precinct 2, from its usual place across the hallway of the court house to another room, sufficient to avoid the election held therein. The distance was very small; the voters knew where the poll was; practically it was the same place, being on the same side of the building. It could in no possible way have affected the election. There was no fraud or improper motive suggested in making the change. Dale v. Irwin, 78 Ill., 170; Wakefield v. Patterson, 25 Kan., 709; Steel v. Calhoun, 61 Miss., 656.

It results from the foregoing views that we do not think there has been any violation of the constitutional provision invoked by relator.

Relator contends, that through carelessness or mistake an area of 1500 acres was not included in any of the election precincts, as laid out by the Commissioners Court, which constituted a portion of precinct 1 of Hill County, over which the local option must prevail if adopted, and that there are ten or more voters residing upon the said tract of 1500 acres who are thereby disfranchised. The evidence shows that at least some five or six of these voters were known to have voted at Hillsboro. But concede that none voted, the number so disfranchised was too small to have possibly affected the result; and in the absence of fraud or improper motive on the part of the Commissioners Court, we can see no reason to disturb the election. If, indeed, the contention of relator is correct, it would follow that if the area so left out amounted to forty acres, and with but a single resident voter thereon, it would invalidate the election for the entire precinct, and not only in local option elections, but in all others. We can not agree to this position. We think the number so disfranchised must bear such a relation to the number actually voting as would suggest a probability that their participation in the election might in some way have affected the result. Elections are the ultimate expression of the sovereign will. When fairly expressed, that is, free from taint of fraud or charge of improper conduct, it becomes the duty of courts to sustain them where it can be done by a liberal construction of the laws relating to elections, rather than defeat them by requiring a rigid con formity to law. The great public purposes which are accomplished by elections demand this.

The judgment of the County Court is affirmed, and relator is remanded to the custody of the sheriff of Hill County.

Affirmed, and relator remanded to custody.

Judges all present and concurring.