(dissenting).
This is a primary election contest between Tommie Mitchell, contestant-appellant, and W. C. (Bill) Jones, contestee-appellee, for the office of Tax Assessor-Collector of Up-shur County for an unexpired term. The contest involves absentee ballots. This writer and his wife voted by absentee ballots, illegally, in the primary election in Up-shur County. We knew at the time we voted we were voting illegally. We didn’t have the courage nor the intestinal fortitude to insist that we be permitted to vote legally. We knew what the law required, but we didn’t obey it. An attorney for the contestant-appellant, and an attorney for the contestee-appellee knew about our illegal voting prior to the contest. Neither side challenged our illegal votes. The attorneys were just being courteous. Judges and their families are not infallible. When we knowingly make a mistake, our actions should be criticized. In the future, we will vote legally.
The Executive Committee of the Democratic party canvassed the returns of the Second Primary on June 5, 1962. It certified the results of the Second Primary held on June 2, 1962, and declared that the ap-pellee, W. C. (Bill) Jones, received 2,741 votes, and that appellant, Tommie Mitchell, received 2,739 votes. It certified that Jones was the Democratic nominee for the office of Tax Assessor-Collector. The contest was filed. After the trial the court held that the contestee, Jones, received 2,720 legal votes and the contestant, Mitchell, received 2,719 legal votes. It certified that Jones was the nominee.
Appellant brings forward IS points of error. By his points 1, 2, 3, S, 6, and 15 he takes the position that Arts. 5.05 and 8.13 of the Texas Election Code, as amended in 1959, are mandatory, and that certain absentee ballots cast for the contestee should not be counted. Without quoting the statutes or naming the voters, Articles 5.05 and 8.13 of the Texas Election Code, as amended in 1959, are mandatory. A total of 112 absentee ballots that were cast for the con-testee should NOT have been counted. The articles relate to affidavits, assistance given to absentee voters, provides that any person assisting in such voting shall take an affidavit, and concludes with the following paragraph: “Where any assistance is rendered in preparing an absentee ballot other than as herein allowed, the ballot shall not be counted, but shall be void for all purposes.”
From the legislative history it seems that. Subd. 15 of Art. 5.05 of the Texas Election *235Code is a new subdivision regulating assistance to absentee voters. The courts have previously held that provisions allowing assistance to voters unable to mark their ballots is directory; not mandatory. The purpose of the subdivision was to impose the same restrictions on absentee voters as exists to regular voters at regular polling places. Such statutes have been held to be mandatory. Appeal of Cusick, 136 Pa. 459, 20 A. 574, 10 L.R.A. 228; Farrell v. Jordan (Tex.Civ.App.) 338 S.W.2d 269, wr. dism.; Guerra et al. v. Ramirez et al. (Tex.Civ.App.) 351 S.W.2d 272, wr. dism.
The courts have held our previous statutes to be directory, not mandatory, without a statute so providing. In Stratton v. Hall (Tex.Civ.App.) 90 S.W.2d 865, wr. dism., the court said:
“It appears to be well settled that in the absence of a statute prohibiting the counting of ballots because of irregularities either in preparing or casting, and in the absence of fraud or of a showing that the returns were changed or tampered with, ballots cast by qualified voters should be counted.” (Emphasis added.)
It seems that the courts have long been pointing out the necessity of the amendment of our absentee voting statutes that were passed in 1959. Since that time, two decisions have been handed down. Both of these decisions have held the statutes mandatory.
Appellant takes the position that the action of the voters in applying for the absentee ballots, the manner of assistance that was received by them, and the fact that they were required to swear to them were not complied with according to the 1959 amendments. The testimony shows that none of the voters actually swore to the affidavit for the application for the ballot, and did not swear to the return on the envelopes. Although they signed their names, or someone else signed for them, the notaries signed, and placed their seal upon it, there was still no oath administered to the voters in either instance. The requirements of an affidavit are set out in 2 Tex.Juris.2d Chap. 4, p. 408 to 415, including §§ 14 through 21. The sufficiency of an affidavit is set out in 3 Am.Juris.2d 396, § 20; and is further defined in 2 C.J.S. Affidavits § 20 b, p. 958.
For the errors hereinabove pointed out, I would sustain points 1, 2, 3, 5, 6, and 15, and 112 absentee votes that were cast for the appellee Jones would be deleted.
By his point of error No. 4 the appellant takes the position that the mailing of the absentee votes were in violation of Secs. 1 and 4 of Art. 5.05. I believe the point to be without merit and would overrule it.
By his point 6 appellant takes the position that the requirement of the statutes to tear the stub from the ballot and place it separately in the envelope should not be held to be mandatory in the event the other statutes were not held to be mandatory. To hold that the requirements of the statutes are not mandatory would be in conflict with the holding of the Court of Civil Appeals in Guerra v. Ramirez, supra. I think the requirements of the statutes as to the stubs on the ballots are mandatory. I would overrule this point.
By his 7th point, appellant says the trial court erred in counting the ballot of Marianne Kinnimer because she made an application for an absentee ballot before Clayton Willeford, a Notary Public in Upshur County. It seems to be well settled that subdivision 1(b) of Art. 5.05 has been held to be mandatory. Where a person makes application for a ballot in the county where he or she votes, mails the application for ballot from outside the county, and mails the envelope with the ballot enclosed from outside, they have voted illegally. While Miss Kinnimer was in Upshur County, she should have gone before the County Clerk and cast her ballot. In the case of Farrell v. Jordan, supra, Chief Justice Bell held that a person voting in this manner had voted illegally. Such was his holdings as to Mrs. *236E. A. Weams and Mrs. Minnie Brightwell. I would sustain this point and would not count her vote.
Appellant says the court erred in counting the vote of C. G. Willis who, at the time, was in New Orleans, Louisiana. He did not make application according to the statutes as required by Sec. 2 of Art. 5.05. The article is mandatory, and the vote of Willis should not be counted. I would sustain that point of error and would not count the vote of Willis.
By his 9th, 10th and 11th points of error appellant takes the position that the trial court erred in opening the Rocky box. I do not believe that under the pleadings and the evidence that there was any showing that would allow the trial court to open the ballot box and the stub box. My theory of the law as to these three points is stated 'in McJimsey v. Yates (Tex.Civ.App.) 324 S.W.2d 438, wr. dism. I would sustain these three points and certify the Rocky box as containing 147 votes for appellant, and 46 votes for the appellee.
By his 12th point of error, appellant states that the trial court erred in not counting the votes of three people who presented themselves apparently for the purpose of voting, but did not have their poll tax receipts. The people did not carry their poll tax receipts when they presented themselves to vote. They could have gotten them had they been eager to cast their ballots. Under the record in this case, the refusal of one person to vote and the other people not applying to vote was not beyond the discretion of the election judge. I would overrule this point of error.
By his 13th point of error, appellant says the court erred in counting the vote of Mrs. T. B. Burford for contestee because the absentee ballot was mailed to the post office box of someone else, not the permanent or temporary place of residence of the voter, and the provisions of Art. 8.13 of the Election Code pertaining to aid and assistance are mandatory and must be complied with. The statutes being mandatory, I would sustain this point as to the aid and assistance given the voter.
By his 14th point, appellant takes the position that the trial court erred in not counting the votes of John King and wife, Joyce King, and Tommie Lee Aaron. He did not count the vote of Tommie Lee Aaron because he paid his poll tax in Ector County. He had lived in Ector County until about March 10, 1960. He, being a married man, had to reside in Upshur County for six months. I would overrule this point as to Tommie Lee Aaron.
The trial court erred in refusing to count the votes of John King and wife, Joyce King. King and his wife own a farm in Upshur County. They had recently moved to California for the purpose of finding work. They left part of their household goods in Upshur County. His wife and children were in Texas at the time of the election contest. King had stated that he intends to return to Upshur County and build a home on the farm. If his residence in California was temporary, he could have maintained his residence in Upshur County and continued to vote there. I would sustain the point of error as to John King and Joyce King, and count the votes for appellant.
Appellee brings forward 8 cross-points of error. By his cross-point one, appellee takes the position that the trial court erred in counting the vote of J. D. Peoples for the appellant because Peoples did not cast a vote in the election. What has heretofore been said on point twelve presents the question of whether or not J. D. Peoples was denied the right to vote. He was not refused the right to vote illegally. He could have returned and secured his poll tax receipt, or made an affidavit and he would have been permitted to vote. I would sustain this cross-point.
By his cross-points 2, 3, and 4 appellee complains of the action of the trial court about matters pertaining to the Rocky box. *237As heretofore stated on points nine, ten and eleven, the Rocky box was illegally opened. I would overrule these cross-points.
By his cross-point 5, appellee says the trial court erred in not counting absentee votes that were cast in the election. The Absentee Canvassing Board failed to count the votes for undisclosed reasons. To require the counting of a ballot, they must show that the voter was a qualified voter in every respect, as a matter of law, before his vote can be counted. There are many qualifications that must be shown to prove that the voter is qualified. The trial court did not err in refusing to count these votes. I would overrule cross-point 5.
Appellee’s cross-point 6 says that the court erred in holding that certain ballots should be counted as votes for the contestee, Jones, because the applications for absentee ballots bore a physician’s certificate signed by a duly licensed and practicing doctor of Chiropractic. Sub-division 2, Art. 5.05, provides that a ballot may be mailed to persons unable to go to voting places because of sickness or disability upon application sworn to by a voter and certified to by a duly licensed physician or an accredited Christian Science practitioner. I find no cases holding that a duly licensed Chiropractor, or Dr. of Chiropractic, is not authorized to sign such a certificate. If the statutes are so construed as requiring that the certificate of a medical doctor or an accredited Christian Science practitioner would render unacceptable the certificate of a licensed Chiropractor, or other member of the healing arts, the statutes would be unconstitutional and in violation of Art. 16, Sec. 31 of the Texas Constitution. It provides that No preference should be given to any school of medicine. The State of Texas through a Board of Examiners, licenses Chiropractors. “Medicine” as that word is used in this section of the Texas Constitution embraces the art of healing, whether by scientific or supposedly scientific method, the art of preventing, curing or alleviating diseases, and remedying as far as possible results of violence and accident, some thing or method supposed to possess curative power, and embraces among others, physicians, surgeons and osteopaths. Ex parte Collins, 57 Tex.Cr.R. 2, 121 S.W. 501, affirmed Collins v. State, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439; Ex parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479. In the event the legislature intended to leave out Chiropractors, they made a mistake. I would sustain this cross-point as to the certificate, the votes being disallowed for other reasons.
I think the appellee’s cross-points 7 and 8 are without any merit. I would overrule the same.
I would reverse and render the judgment of the trial court, holding that the appellant, Mitchell, received 2,722 votes, and the appellee, Jones, received 2,602 votes.