THEATTORNEY GENERAL
PRICE DANIEL
February
Hon. Elton Gllliland o@nlon No. V-771.
County Attorney
Howard County Re: Election of constable
Big Spring, Texas not a nominee, who re-
celved one vote in
general election.
Dear Sir:
We refer to your inquiry concerning the elea-
tion of Mr. Jack Hatch as constable of Preoinct No, 4
in Hcmard County. Your letter reads in part as follows :
“In the 1940 PAmary Election there
was no nominee ror Constable of the newly
rormed Justice Precinct #4, and in the
General Election no space Zor a candidate
for such office was provided. In the
General Eleotion a Mr. Jack Hatch, a res-
ident of Preoinat #4, and a qualified vot-
er went to his voting box and inf’ormed the
Eleotion Judge of suoh voting box that he,
Jaok Hatoh,’ desired to vote for himself,
by write-in, as Constable of Preolnot #4,
and requested direotiona as to how such
vote could be cast. The Eleotion Judge
telephoned the County Clerk and asked him
whether such a vote would be oounted and
what was the preoinct number; the County
Clerk answered that such vote would be
counted, and that the preolnct was number
three. Upon the basis or the inforrmtion
furnished, Mr. Hatch voted for himself for
Constable of Precinct #3. No other person
reoeived a vote for Constable in Justice
Precinct #3, and no votes were cast for a
Constable in Justice Precinct #4.
*Is Jack Hatch a duly elected Consta-
ble of Justice Precinct #4 in Howard Coun-
ty, Texas?”
Hon. Elton Gllliland - Page 2 (Y-771)
where Hatch was a qualirled voter In fortioa
Preoinot Ro. 4 of Hmard Oounty and mat hir ballot
ior a qualified person Sor Constablo In that prsoinot,
which could only elect one Constable, the iaot that the
ballot was marked ~reolnot No. 3” In which Eatoh was
not a qualified voter and did not vote, oreated smbi-
guity on the faoe o? the ballot which should be oon-
strued aooording to the Intention OS tha voter.
The rule a pliaable to improperly market bal-
lots is stated in Vo! . 16 Tex. Jur. page 116, 800. 97
as follows:
“IS a ballot had been inadvertently
or improperly marked, evidence explaining
the intention of the voter is admissible,
and if such ballot, either upon its Saoe
or when construed in connection with the
attending circumstances, indioates, with
reasonable certainty, how the elector in-
tended to vote, effect should be given to
such intention.v
State Ex rel. Easterday v. Howe, 44 N.W. 874,
is a case in which some of the.ballots were marked RJ~~-
tice of the Peace, District ln, and some were marked
*Justice of the Peace, District 3.” The Court said:
while these ballots designated the
wrong districts, yet, being cast in the
third dlstriot, Where relator was a oan-
didate for justice of the peace, they cer-
tainly show that the voters intended to
vote for the relator for justice of the
peace OS the dlstrlot In which they were
cast. The words ‘Slrst dlstrlot* did not,
as we think, constitute a part a? the le-
gal designation OS the oSSioe. They
should be treated as SurplUSage, and these
ballots should be counted for the relator.”
In Bradford v. McCloskey, 244 S. W. 575, the
Court had a case in which some of the ballots for pub-
lic weigher were marked ‘Public Weigher, Justice Pre-
cinct 1” and others were marked “Public Weigher, Pre-
cinct l*. The Court said that there was but one office
of public weigher in precinct No. 1, by reason of which
either designation was sufficient. The Court said:
Bon. Elton Cilllland - Page 3 (V-771)
There Is but one ofiioe a? publlo
weigher to whioh a candidate may be elect-
ed in justice precinct No. 1 in Bexar
County, just as there is but one office
of constable in the same precinct, and we
can perceive 0s no more reason for using
the word ‘justice* in describing one than
the other ,v
In State ex rel. Vogler v. Mahncke, 41 S. W.
18.5, the Court said on the point:
n . The law seems to be that a bal-
lot zn&‘bc interpreted by the ordinary
rules which apply to written instruments.
Ii’, upon the face of the ballot, the inte-
tion of the voter is clear, extrinsic evi-
dence should not be admitted, least of all
his win evidence as to what his intention
was. But if, from the face of the ballot,
the intention be doubtful, then evidence
of the circumstances under which it was made
out, if calculated to throw light upon the
intention, she-ld 3e admitted. . . .
“An inspection of tl-.e original ballots
sent up with the record shows that there was
an evident intention on-the part of the vot-
ers to vote for Mahncke, but for what office
is left in doubt. In this case the pleadings
of appellant allege that an election was held
in the city of San Antonio, for city officers
and ward aldermen (among the latter, one in
Fifth ward); that at said election there were
Sour candidates for alderman of the Fifth
ward, among the number being Ludwig Hahncke
and H. J. Volger ; and that, at the polling
p,laoe in precinct No. 11 in said ward, 40
votes were counted for Mahncke that were il-
legal, because the office was not designated.
The ballots have the official stamp on them.
and we must conclude, under the la6, that ail
the candidates for city or ward officers at
the city election have their names on the of-
ficial ballot. An inspection of the ballots,
as vlell as the allegations in the pleadings,
clearly inaicates that Uahncke was running
for but one office, that of alderman of the
Fifth ward, and that all the ballots cast for
him were in that ward. The votes having been
Hon. Elton Gllllland - Page 4 (V-771)
cast for Mahncke, in his.own ward, and he be-
ing a candidate for only one ofiioe, we are
led to the conclusion that the district judge
did not err in counting them for Mahncke for
alderman of the FiSth ward. . . .”
Opinion No. O-203 by a former Attorney Gensr-
al held that a parson was elected to the offioe OS oon-
stable who received one vote, no vote having been cast
for any other person for the ofiice.
In view OS the Sor8gOing we are Of the opinion
that Mr. Hatch was eleoted to the office of constable of
Precinct No. 4 of Howard County,
Where a candiaate for constable of Pre-
cinct MO. 4 of Howard County, In which he re-
sided, was not the nominee of any political
party, but intended to vote for himself for
the office; was erroneously infOrmed by the
election juc&e that the precinct was Ro. 3,
an8 he erroneously wrote No. 3 on his ballot
instead of No. 4, and where his was the only
ballot cast for constable in Precinct No. 4,
he was duly elected to the office of consta-
ble of Precinct No. 4.
Yours very truly,
A!l?roRNEY- OF TEXAS
WTW:wb