(dissenting).
It appears from the ninth paragraph of the judgment that when the ballot boxes were opened it was discovered that 300 stubs in the various stub boxes were not signed by any voter. Twenty-four of the ballots with unsigned stubs were declared to be illegal, because not properly marked, 112 were votes, for contestant, and 164 were votes for contestee, thus contestee had a net loss of 52 votes because of unsigned stubs, sufficient to change the result of the election.
Art. 8.15, Vernon’s Election Code, provides that the voter shall sign his stub and place it in the stub box. This article further provides: “ * * * and unless the ballot is deposited in such ballot box and the stub in the stub box by the voter in person, the same shall not be counted as a vote in such election.” The article does not declare expressly that if the voter fails to sign his stub the ballot shall not be counted. It is apparent that the trial judge held that the signing of his stub by the voter is a mandatory provision, and refused to count ballots with unsigned stubs. In my opinion this was error.
These votes were regular in every respect, with the one exception that the voter failed to sign his stub. There is no allegation or proof that these votes were fraudulent or illegal in any other respect. What is said in 15-B Tex.Jur. 478, § 110, is here applicable:
Where the law commands that under named conditions certain ballots shall not be counted, it must be followed. However, in order to justify the court in rejecting the ballots of voters who have voted fairly and in good faith to fill an office which the law requires to be filled, nothing short of a clear legislative command will suffice. A voter should not be disenfranchised by legal implication where there is no such command.”
See also, Sanchez v. Bravo (Solis v. Dominguez, Tex.Civ.App., 251 S.W.2d 935; Longoria v. Longoria, Tex.Civ.App., 251 S.W.2d 939; Baker v. Scranton Independent School Dist., Tex.Civ.App., 287 S.W.2d 210; Mullins v. Powell, Tex.Civ.App., 273 S.W.2d 633; Graham v. Villareal, Tex.Civ.App., 242 S.W.2d 258; Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792; McCrary on Elections, 4th Ed., p. 168, §§ 225, 226; Art. 1.01 and Art. 8.21 Vernon’s Election Code; Fox v. Nail, 294 S.W.2d 407, a recent opinion by the El Paso Court of Civil Appeals, delivered on October 2, 1956.
As to this matter being presented by •fundamental error, see Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979.
I respectfully dissent.