October 5th this Court handed down an opinion affirming the judgment of the trial court, but upon motion for rehearing a majority granted the motion and dismissed the proceeding. To this action the writer files this, his dissent.
The notice of contest filed before the committee (of which enough is herein quoted to show its sufficiency) was answered by Benavides, not by a plea to the jurisdiction, but by demurrers, general and special. The cause was heard before the committee and decided in favor of Orth, to which action Benavides appealed to the district court. After the statutory period of ten days allowed for filing a contest, Orth filed in the district court a contest, alleging in detail the same charges as were contained in his notice of contest filed before the committee. The trial court consolidated these proceedings. It is the view of the writer that in this no error is shown. Benavides had filed numerous special demurrers, some of which were sustained by the court and others overruled. The trial court undoubtedly has the authority to allow amendment in election contests, so long as no new matter is presented that is not contained in the notice filed before the committee. By a consolidation of these proceedings the trial court saved the time necessary for repleading in particularity usually required in pleadings, and did not allow any new matter not specifically complained of in Orth's notice filed before the committee. The proceeding being a trial before the court, the writer cannot perceive error in this action.
The majority hold that the notice filed by Orth was not sufficient to invoke the jurisdiction of the committee and the trial court to hear the contest. It is first noted that Benavides in his brief and in the oral argument made no such contention. He filed no plea to the jurisdiction before the committee nor the trial court. In fact, during oral argument here counsel for Benavides stated he did not contend that Orth's pleading before the committee was subject to general demurrer. His complaint here was that the trial court erred in overruling special exceptions to that part of the pleading of Orth wherein it was charged that election officials in Precinct No. 1 had miscalled and miscounted votes and sought to require Orth to charge the particular vote miscalled and miscounted and the specific election official who was guilty of such conduct. The trial court properly overruled these special exceptions.
Article 3148, R.C.S. 1925, provides for a primary contest of an election before the executive committee if the candidate 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, or in the manner of holding the convention * * * are made," the committee shall hear the contest, etc.
Orth, within the five days, filed a contest in which he charged "that the result as shown by the election returns was illegal and incorrect and that a certificate of nomination issued thereon would be illegal and fraudulent, in that the same is the result of counting the votes and ballots that were wrongfully and illegally counted and the counting of votes and ballots that were wrongfully and illegally cast. That the officers of the election, or some of said officers, wrongfully and illegally miscounted votes and ballots, and threw out and did not count legal ballots cast and voted for contestant, and this contestant further says that if and when the illegal, unlawful and fraudulent votes so cast are eliminated, and the ballots which were cast 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 such office."
It has been many times decided that a contest of an election is not a civil case and is governed by the statutes which authorize such proceedings. The statute above quoted provides for a contest upon specific allegations of fraud and illegality in the conduct of an election. The *Page 105 allegations which were made before the committee mean to the writer that electors cast their ballots for Orth and the election officials counted them for Benavides, and that electors cast their ballots for Orth and the election officials failed to count them for him. If these allegations are true it is obvious that such facts show the most pernicious fraud that could be committed in the conduct of elections. This is true regardless of whether the election officials miscounted the ballots through inadvertence, accident, mistake, or fraud; the result was the same to Orth in either event. From the very nature of such conduct it appears to the writer that a victim of such practice could not be expected to specify the particular election official responsible for that conduct, or the specific elector's ballot which was miscalled or miscounted. To demand this would demand the impossible. If such ballots were intentionally miscounted by the election officials it involved criminal offenses and the means for ascertaining such conduct are almost if not completely foreclosed against the victim of such practice. Therefore, it is my humble opinion that the allegations above quoted were sufficient to challenge the jurisdiction of the committee and of the district court upon the appeal from the committee. These allegations being sufficient under the statute authorizing the contest, the trial court did not err in overruling and not sustaining the special demurrers directed thereto.
In the case of State ex rel. R. C. Jennett v. Wm. P. Owens, 63 Tex. 261, the Supreme Court of this State sustained the jurisdiction of the district court in a quo warranto proceeding, in which the information challenged is stated by the Supreme Court in these words: "* * * at an election held in Galveston county, on the 4th day of November, 1884, the relator was elected to the office by receiving a plurality of the popular vote, but that Owens had obtained the certificate of election, and had usurped, and was holding and executing the office without authority of law. The information charges fraud in the returns of election made from several of the precincts of the county, in that the votes of these precincts was not properly counted by the presiding officers. It alleges that had the vote been properly counted and returned at these precincts, the returns would have shown that Jennett had received a plurality of all the votes cast for sheriff * * *."
In the similar case of Gray v. State, 19 Tex. Civ. App. 521, 49 S.W. 699, it is said [page 701]: "But, in support of the demurrer, the appellant relies mainly upon the failure of the petition to allege fraud with reference to the official returns, because only for fraud could the returns be set aside and resort had to the ballots as secondary evidence. There were other allegations in the petition with regard to illegal voters who were alleged to have voted for the respondent in sufficient numbers to have changed the result of the election. These allegations were sufficient to sustain the petition, even if the others were insufficient to authorize the introduction of the ballots in evidence. The averments with respect to returns as to each of wards 2 and 3 were substantially that the returns were false, deceptive, and misleading, and that a fair, correct, and true count, tally, and return of the votes as they were actually cast would show a much smaller vote for the respondent, with the addition, as to ward 3, that one of the officers was so excessively drunk that he could not perform his duties and did not tally certain votes cast for the relator. We think these averments, in the absence of a special exception, were sufficient to give the relator the right to controvert the returns by the introduction of the ballots themselves. It having been alleged that the returns were false, and showed a much smaller vote for respondent than he had received, it was unnecessary to allege that the officers of the election had acted fraudulently in making them; for the injury to the relator would have been the same, and the ballots, if they came from proper custody, were admissible as primary evidence of the result to controvert the returns."
In the early case of Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535, Ann.Cas. 1913A, 699, it was noted that the statute providing for a primary election contest was meager, but it was intimated that the courts should adopt reasonable rules in order that such proceedings should be determined in accordance with the statutes authorizing them.
In the instant proceeding the trial court sustained several special exceptions, and I think properly overruled the ones complained of in this proceeding. The requirement *Page 106 of the statute that grounds of contest shall be specifically alleged is made for the purpose of apprising the opposing candidate of the nature and kind of proof he will be called upon to meet. The allegations above quoted certainly put Benavides upon notice that he would be required to prove that no ballot cast for Orth had been miscalled for him, and that all ballots which had been cast for Orth had been properly called for him. Benavides complains that the trial court, under the evidence presented by Orth, had not the right to go into the ballot boxes and give effect to the ballots and disregard the election returns. The real basis of Orth's proof was that in election precinct No. 1, of Brooks County, the tally clerks were behind on two or three occasions and were instructed to catch up by adding votes thereto. The evidence was almost exactly the same as in the case of Henderson v. Albright,12 Tex. Civ. App. 368, 34 S.W. 992, and in that case the court say [page 994]: "When the count was concluded by them, there were discrepancies existing between the tally sheets of the different clerks of the election, which discrepancies were attempted to be reconciled by guessing at the result, and changes made accordingly; and it is evident, from the evidence, that it was impossible for the correct result to have been ascertained by such proceedings."
As a further basis for the opening of the ballot boxes by Orth he tendered proof that Benavides, when the contest was filed before the executive committee, contacted one of the members of that committee and asked him not to go into the ballot boxes and stated to him that if he did that he would be sunk. In addition to this, Orth presented proof of the integrity in the safekeeping of the ballots since the election, and thereupon the trial court entered the ballot boxes and Benavides and Orth stipulated that a counting of the ballots contained in Precinct No. 1 would show the same result as that found by the executive committee when that committee tried the contest before it.
Article 3149 provides that either the court or the executive committee may, if in its opinion the ends of justice require it, unlock and unseal the ballot boxes used in the precinct where fraud or illegality is charged to have been used, and examine their contents, after which they shall be sealed and delivered to the county clerk.
Article 3150 provides for the committee to certify their findings, etc.
Thus it is seen that under the statutes quoted it is within the sound discretion of the committee or the trial judge. Under the proof presented by Orth, if the committee or the trial judge, in the exercise of the discretion given by the statute, had decided not to go into the boxes, an appellate court could not require them so to do. Lueders et al. v. Ehlinger, Tex. Civ. App. 31 S.W.2d 1099; it being a discretionary act of the committee or judge. Orth did present some evidence, which was held to be sufficient in the Henderson Case, supra, and which was deemed sufficient by the committee and the trial court. The committee and the court, upon opening the ballot boxes, found that Orth had received a clear majority, and that the election returns were false and incorrect. It appears to the writer that an appellate court should not now say that the committee and the trial court abused their discretion.
Complaint is also made that the trial court erred in allowing the ballots to be introduced in evidence because it was not shown that such ballots had not been changed, tampered with, or altered. The proof showed that the ballot boxes, upon the completion of the election, were locked and delivered to the committee, and by them to the county clerk. The only evidence of miscounting the ballots occurred in precinct No. 1. The boxes used by this precinct were locked and the keys kept by the presiding judge, and such boxes turned over to Mr. Orth, the present county and district clerk, and by him kept in a locked vault. This was a sufficient prima facie showing of the integrity of the ballot boxes and the ballots contained therein. It was so held in the Henderson Case, supra, and by the Supreme Court in the Gray Case. The opinion of the Supreme Court being in 92 Tex. 396, 49 S.W. 217.
Then, too, the actual ballots upon the recount before the committee, and agreed to by the parties before the trial court, showed that Orth received a majority for the office to the extent of thirty-five votes, and that the election returns were incorrect. The effect of the holding of the majority is to deny the right of contest when the means used in the conduct of an election was the miscounting or miscalling of votes cast by electors. It is the writer's opinion that the statute authorizing such *Page 107 contest intended to furnish a right of redress when such a means is used. Thus, in the instant proceeding, a majority of the electors of Brooks County cast their ballots for Orth, and the election officials in precinct No. 1, through mistake or otherwise, miscalled or miscounted these ballots. The committee and the trial judge corrected these errors and declared Orth the nominee. The majority of this Court, for insufficient reasons to the writer, overturned those judgments and thereby thwart and nullify the will of the majority of the electors.
Complaint is also made by Benavides that the trial court erred in sustaining a demurrer to a part of his answer which referred to his allegation that the ballots had been tampered with, altered, or changed. This matter is shown by a bill of exceptions #1, which has the following qualifications, to-wit:
"The above and foregoing Bill of Exception No. 1 having been presented to and considered by the Honorable L. Broeter, Judge of the 79th Judicial District of Texas, on this the: 22nd day of September, A.D. 1938, and the undersigned having examined said bill the same is approved with the following qualifications:
"The trial of this case was begun on September 8th, 1938, and on September 10th, 1938, this court on his own motion recessed the trial of this case until September 20th, 1938, when the trial of this case was resumed. Although the ballot boxes were opened and the ballots recounted on September 10th, 1938, contestee never requested permission to examine and never examined the ballots in said boxes in Precinct Number One (1), Brooks County, Texas, until September 21st, 1938, Numerous voters were called to testify as to the way they voted, who testified they had voted for Benavides and their ballots also showed they voted for Benavides. Contestee has not at any time requested a recess of the trial of this case and has been ready at all times to proceed with the trial.
"The court heard 64 witnesses, offered by contestee from September 20th, 1938, to September 22d 1938, who testified as shown in the statement of facts beginning on page 140 off said statement of facts, which testimony is hereby referred to and incorporated herein for all purposes, and the court then being of the opinion that the testimony of said witnesses did not show any alteration or change of the ballots or tampering with the ballot boxes in voting Precinct Number One (1), Brooks County, Texas, and said contestee, by his: attorneys, having admitted in open court (1) that he did not know what any additional witnesses to be offered by him would testify to, (2) that he had not made any effort to ascertain what said witnesses would testify to; and contestee stated he would call all of the voters who had voted in Precinct Number One (1), Brooks County, Texas, at the Primary Election held on said county on July 23rd, 1938, as witnesses, the court, was of the opinion that such amendment and the testimony of such witnesses would result in unnecessary delay, without benefit being apparent to contestee, and the court thereupon overruled said motion to amend offered by contestee.
"L. Broeter
"Judge District Court, Brooks
County, Texas."
The real complaint seems to be that the trial court erred in sustaining this demurrer and not allowing further proof offered by Benavides to sustain such allegations. The ballots; were first available to Benavides on the 9th day of August, 1938, at the time of hearing the contest before the committee. The trial in the district court was begun on the 8th day of September, 1938, and continued until the 10th day of said month, and then recessed until the 20th day of September, 1938, and continued until the 23rd day of September, during which time the court heard some sixty-two witnesses. The witnesses, when presented with their ballots, testified that such ballots reflected the correct vote as cast by them, except possibly two electors. Thus, save the exceptions noted, Benavides, from the 9th day of August until the end of the trial, was unable to offer any evidence of tampering, alteration, or change of the ballots introduced in evidence, and stated through his counsel that he did not know of any witness who would support such a charge. In this situation, the writer is of the opinion that the trial court was correct in refusing to hear further testimony without assurance from Benavides, or his counsel, that such evidence would probably be offered. It was evidently the opinion of the trial court that Benavides in attempting to call all of the voters who cast their ballots in precinct No. 1 (more than a thousand) was for delay and without any expectation or possibility of; presenting any evidence to show tampering, changing or alteration of ballots. *Page 108
Benavides well knew, when served with the notice of contest by Orth, prior to August 9th, that he would be called upon to meet proof that the ballots would show a different result than the returns of the election. If the ballots had been altered or changed, the burden of showing such facts was upon Benavides. The trial court was confronted with the knowledge that the general election was to be held upon November 8, 1938, and that the trial of this case must be finally determined by an appellate court within at least thirty days prior to November 8, 1938. It was the trial court's duty to determine the case with dispatch, having in mind the rights of the parties to the contest. It is the writer's opinion that the trial court, with full knowledge of his responsibility, acquitted himself with judicial learning and ability and, in a fair and impartial manner, gave to the parties a fair trial. Therefore, under the well settled decisions of our Supreme Court, Orth has made specific allegations of fraud and illegality in the election returns, and having proved proper custody of the ballots, was entitled to introduce the ballots in evidence. The ballots showing that Orth received a majority of all the legal votes cast and Benavides having failed to show any alteration, tampering or change of the ballots, the trial court was correct in declaring Orth the nominee for the office of county and district clerk of Brooks County.
For these reasons the writer believes the judgment of the trial court should be affirmed, and thus enters his dissent to the judgment of the majority.