This case is before us upon certificate from the Court of Civil Appeals for the First District, as follows:
"A.L. Kulp brought this proceeding under Chapter 7, Title 36, of the Revised Statutes of Texas, to contest the election of Thomas L. Railey to the office of constable of precinct No. 1 of Harris County.
"The case made in substance by Kulp was that he had been nominated by the Republican party at a delegate convention held on July 16, 1904, for the purpose of nominating candidates for county and precinct offices for that county. That the Democratic party had nominated candidates for all county and precinct offices at a primary convention duly held on Saturday, July 9, 1904, for that purpose, at which time one W.W. Glass was nominated as the candidate of the Democracy for the office in question.
"Glass died on the 24th day of October, 1904, and on the 28th of October, 1904, the members of the Democratic Executive Committee for Harris County representing those voting precincts situated in justice precinct No. 1, met and undertook to nominate a candidate to fill the vacancy on the Democratic ticket occasioned by the death of Glass. Such members of the committee selected Railey as a candidate for the position. His name was duly certified to the county clerk for a place on the official ballot as such nominee and was so placed thereon by the county clerk.
"At the general election held on November 8, thereafter, Kulp received 1221 votes and Railey received 2697 votes. Most of the ballots cast for each were upon the printed official ballot on which the names of each appeared in print as candidates for their respective parties for constable of precinct No. 1. Some ballots were cast for each, however, on which the voters wrote the name of the person voted for. Of these Kulp received a clear majority and the validity of the votes thus cast is in no way assailed.
"Kulp claimed that Railey had not been nominated according to law, that his name had no place on the official ballot as a party candidate, and that therefore all official ballots cast for him were unlawful and should not have been counted.
"He further claimed that should it be conceded that he also had been irregularly nominated, still he was entitled to the office because he had received a majority of the written ballots. *Page 315
"The trial court after hearing the facts as stated above gave judgment for Railey.
"Kulp appealed and this court affirmed the judgment. No opinion was written, but we affirmed it on the ground that under the Act of 1903, General Laws, Chapter 101, by a timely proceeding, the name of any one could be excluded from the official ballot as a party candidate who had not been nominated according to the forms of law, but that as no such proceeding had been had and as no fraud was alleged and the voters had in good faith cast a majority of the ballots in favor of Railey, Kulp could not now be heard to question the regularity of the official ballot.
"The cause is now pending before this court on motion for rehearing. We respectfully certify for your decision the question:
"Did we err in affirming the judgment upon the ground stated?"
The case has been argued in this court upon the assumption that the decision of the Court of Civil Appeals was based wholly upon the failure of appellant to make objection to the official ballot before the election was held. We do not so understand the certificate. That fact is mentioned as only one of those which influenced the conclusion that appellant can not now be heard to question the regularity of the official ballot; the other facts being that an election has been held in which there was no fraud and in which the voters, in good faith, cast a majority of ballots in favor of appellee. All of these facts must be considered in answering the question whether or not the court erred "in affirming the judgment upon the ground stated." In our opinion, the fact that the appellant made no complaint before the election is not essential to the correctness of the decision. If the statutes referred to contained provisions requiring or permitting persons, such as he, to take steps before the election for the correction of such irregularity as that of which he now complains, this, of itself, would be a strong indication of the intent of the legislature that the validity of the ballots should not be questioned after the election upon such a ground. The statute makes no provision for such a proceeding, and, while it is true that it confers rights upon some persons and imposes duties upon others which doubtless may be enforced in the courts before the election is held, it is not at all clear that the right is given to a nominee of one party to object to the placing upon the official ticket of the opposing party the name of a person, as its candidate, upon the sole ground that such person has not regularly received the nomination of that party. Nor is it clear that appellant, if he had the right, had also the opportunity, in this instance, to avail himself of it. These are considerations which need not be elaborated, as we are of the opinion that they do not control the disposition of the question certified.
The decision must necessarily turn upon the question whether or not the law makes void, or forbids the counting of such votes as those upon which appellee's election depends. Admitting that no provision is made for candidates of one party to inquire, before election, into the regularity of nominations of candidates of an opposing party whose names are placed upon the official ballot, it by no means follows that irregularity in such nominations may be urged after the election as *Page 316 grounds for invalidating ballots based upon them. After being defeated at a free and fair election by the votes of the opposing party appellant's only complaint is that the candidate for whom those votes were cast was not regularly nominated by that party before the election. It would seem that the election itself ought to be a sufficient answer to this position. Certainly success in maintaining it would be a curious result of an effort on the part of the legislature to promote fairer elections. To justify a court in thus rejecting the ballots of voters invested by the constitution with the elective franchise who voted fairly and in good faith to fill an office which the constitution required to be filled at that time and by such voters, nothing will suffice short of a clear legislative command. This is the principle uniformly applied in determining such questions. Nothing of the kind is found in the statute of 1903. This statute provides for official ballots, one for each party, containing the names of its nominees, and these ballots are, by specified officers, to be prepared and put in the hands of voters, officially stamped as the ones authorized by law, and through them and no others, except in certain contingencies unimportant here, the voters are to exercise their right to vote. In order that the will of the people composing the parties may find full and fair expression in the nomination of candidates, the primaries and conventions for that purpose are to be held on specified days and are regulated by the statute in such way as to throw around them protection similar to that given to general elections. The names of nominees are to be certified in a prescribed manner to the county clerk and he is to prepare the official ballot of each party, containing the names of those thus shown to have received the nominations, and to furnish them to the election officers who, in turn, are to furnish them to voters. The statute forbids the placing of any name on the official ballot except those nominated at the time and in the manner provided, with some exceptions which need not be stated. No provision is made for supplying a vacancy caused by the death of a nominee; an omission which has been supplied by a statute adopted since the election in question.
But while this course of procedure in making nominations is plainly prescribed, there is nowhere in the statute a provision that votes shall be void or shall not be counted because of a departure from the rules laid down in the making of nominations. On the contrary the general scheme of the act is against such an idea. All questions of that sort are determined for the voter, before the election, by the official ballots. By minute directions and commands addressed to the officers, the law seeks to secure the formation of a ballot which shall show to the voter that the preliminaries have been arranged. Most of these commands can be enforced otherwise than by defeating votes after they have been cast, and many have attached to them the sanction of severe penalties for their violation. In some instances it is expressly provided that votes shall not be counted if certain rules are not observed; but, as we have said, there is nothing to indicate a purpose that questions arising out of the making and certifying nominations shall affect the validity of an official ballot after it has been voted. The voter has nothing to do with the making up of the ballot, but is required to use it, in order to exercise his right to vote. He can only vote for those whose names *Page 317 are printed on it or strike them out and insert others. The ballot comes to him from the officers of the law, regular on its face and authenticated, both by the printing on it and by the signature of the judge of election, as the ballot which he is required to use. If it is in the power of the legislature to thus impose on voters, in exercising their constitutional right, the necessity of voting tickets prepared for them in advance, and yet to defeat their choice, not for any act or omission of their own, but because of an antecedent dereliction of the officers appointed by law to prepare the ballots, certainly no purpose to do so can be imputed to the legislature without the clearest expression of it. It was unnecessary to expressly provide against such consequences, for the statute was passed with the knowledge of the rules of construction before stated which this and almost all other courts apply to such laws. Fowler v. The State,68 Tex. 34; Davis v. The State, 75 Tex. 424 [75 Tex. 424]; State v. Phillips, 63 Tex. 393.
The Davis case involved so serious an objection to an election as that, in part, it was not held at the places required by law, arising from the fact that the commissioners' court had made only one election precinct out of the town of San Marcos when the law made a precinct of every ward in the town. Conceding that the law had been departed from in establishing the precincts before the election the court said: "But the question is — the court having established the precincts not in conformity with this provision and the election having been fairly held in the precincts so established, without objection from any quarter — should it be declared illegal? . . . Was it the purpose of article 1665 of the Revised Statutes not only to direct that the Commissioners' Courts should make each ward of an incorporated town, village, or city a voting precinct, but also to provide that in the event of their failure to do so the election as to precincts affected by such failure should be declared a nullity? The main design of all election laws is, or should be, to secure a fair expression of the popular will in the speediest and most convenient manner, and we think a failure to comply with provisions not essential to attain that object should not avoid the election, in the absence of language clearly showing that such was the legislative intent." It is true that all the decisions of this court on the subject were controlled by laws very different from that of 1903, and it is true that the socalled reform election laws, which have been adopted in recent years and which, in their general character at least, are followed by our statute, have introduced many new regulations much more stringent in character than those formerly existing; and the very nature of some of these may be such that they will be fatal to ballots cast in disregard to them without an express declaration to that effect; but this can not be said of the provisions upon which this case depends. The same rule of construction always applied to other election laws can be and has been applied to them; and that is that they are not to be allowed to defeat the will of a majority of the voters fairly and freely expressed at the general election in accordance with the provisions regulating it, when they contain no words expressive of such a purpose. This is well sustained by the best authority. In New York, a clerk charged with the duty of making up the official ballot placed names upon it as the nominees of one of the parties which had made no nominations for the *Page 318 offices named. The Court of Appeals, in a proceeding begun to arrest this action before the election, held that it was unauthorized by and in violation of law, but, in another proceeding to contest an election in which the ballots had been actually voted, held that the votes could not be thus defeated, saying: "The ballots used were official ballots, provided by the county clerk, whose duty it was, under the law, to prepare, print, and distribute them to subordinate officials, whose duty in turn was to place them in the hands of the inspectors of election of each election district in the county for use at the election. The printed endorsements, including the authentication by the county clerk required by the election law, appear in due form on the outside of the ballots. The ballots were regular in form in every respect. There was nothing within or upon the ballots from which a voter could know that the ballot was not made up in exact conformity to the law. It was impossible for him to ascertain from an inspection that the candidates for state and judicial offices, printed in the column of the regular Democratic party, had not been regularly nominated by that party, or that the clerk in arranging and printing the ballot, had not inserted the names with full authority. The effort in this proceeding is to disfranchise innocent voters because of a latent defect in the official ballot furnished by the state, not discernible on inspection, which ballot they were compelled to use; the defect consisting in the unauthorized insertion therein by a public official, charged with the duty of making up and printing the ballots, of names of candidates in a party column not duly nominated by such party. . . . We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake, or even the willful misconduct, of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult. There can be no justification for the claim in this case to disfranchise the 681 voters in Queens County who voted for state and judicial officers by using the party ticket and emblem of the Regular Democratic party of Queens County, unless by force of some imperative provision of statute, which admits of no other construction." (People v. Wood, 42 N.E. 536.) The same principles were applied in Stackpole v. Hallahan, 16 Montana, 40, where many supporting authorities are cited, and the previous case of Price v. Lush (10 Mont. 61) is greatly modified, if not overruled. In Massachusetts, the law required that the ballot should have upon it an official endorsement and that the voter, when voting, should fold the ticket so as to expose the endorsement, and that no ballot without the endorsement should "be deposited in the box." Ballots were voted at an election without this endorsement, and in a contest as to their validity the court said: "Apart from evidence the form and appearance of the three ballots at least warranted the board in assuming that the ballots were official within section 1 of the statute. If official ballots, they were not forbidden to be counted by the words of the statute. It is true that section 230 prohibits ballots like these being deposited in the box, but this is not equivalent to prohibiting their being counted in *Page 319 case they are deposited without remark. If not allowed to be deposited, the voter could get a perfect ballot and cast his vote. If allowed to be deposited and not counted, the voter is disfranchised. The latter result is not to be admitted without very clear words, and such words would raise a constitutional question which we do not decide." O'Connell v. Matthews,177 Mass. 521; Lindstrom v. Board of Canvassers, 94 Mich. 467. The facts of these cases were much stronger in favor of the contestants than those under consideration, and the decisions in our opinion correctly state and apply the principles governing the subject.
We answer that the Court of Civil Appeals did not err in affirming the judgment of the district court on the ground stated.