Referring to his dissenting opinion in case of Davis v. The State, 75 Tex. 420. The dissenting opinion did not come to hands of the Reporter, and is here inserted.
DISSENTING OPINION BY JUDGE HENRY IN DAVIS V. THE STATE. I find myself unable to concur in so much of the opinion of the majority of the court as relates to the election held in San Marcos, for the following reasons:
Articles 1664-1666 of the Revised Statutes read: "In each incorporated city, town, or village each ward shall constitute an election precinct." "There shall be designated by order of the Commissioners Court one place within each election precinct at which all elections in said election precinct shall be held." The Constitution provides, that "All electors shall vote in the election precinct of their residence." Each ward of the city of San Marcos was a separate election precinct without regard to any action or nonaction of the County Commissioners Court. That body had authority to name one place within each ward at which to hold the election and to appoint one presiding officer in each. The Constitution forbade any person voting in a ward in which he did not at the time live. Neither the Constitution nor the laws can be changed, disregarded, or silenced by the voter or by the County Commissioners Court. An order of the court assuming to disregard the law that makes the boundaries of each ward define and limit one separate election precinct is a nullity; and the voter who casts his ballot in a ward in which he does not live disregards the Constitution; and it necessarily results, that his vote can not be treated as lawful. The doctrine of de facto election precincts finds no *Page 192 place in the law. What it is unlawful for the Commissioners Court and the voter to do in the first instance can not become right or lawful by being repeated. The law, much less the Constitution, can not be repealed or superseded by such methods. Notwithstanding the wards were not recognized as election precints, and that all votes cast in any ward by nonresidents of that ward were illegal, yet if there had been but one poll held in any ward the votes of all residents of such ward otherwise qualified to vote ought to have been counted; and for such purpose it would have been proper to have examined into such ballot box. The law does not, however, authorize two separate elections to be held in one ward or in any other election precinct. It directs and authorizes one only. For the purpose of preventing fraudulent voting the policy of the law is, that there shall be only one poll at which one person can cast his vote.
Applying the foregoing rules, it follows, that as ballot boxes 1 and 2 were both situated in the same ward of an incorporated town that had been divided into wards, the votes of all residents of the ward were unlawful, because two polling places were used in one election precinct or ward instead of one only, as the law requires; and the votes of all nonresidents of the ward were unlawful for that and the additional reason that they were prohibited by the Constitution from voting outside of the election precinct or ward of their residence. The prohibition upon voting outside of the precinct in which the voter resides was incorporated into the Constitution to prevent fraudulent voting land preserve the purity of the ballot box. It took the place of registration under the preceding Constitution. It is the most important if not the only safeguard provided under our system against repeating and other descriptions of fraudulent voting. It furnishes an easy means of detecting a fraudulent voter, as the fact of his residence in the precinct is easily susceptible of proof on the one hand, and on the other may be disproved more easily than any other required qualification. It is of special importance in cities, where the changes of population are greater and the voters not so well known to each other as in the rural districts. The better known the limits of the election precinct are, and the longer it continues the same, the better will be the facilities for guarding the elections held in it. This no doubt furnished to the Legislature a reason for permanently establishing city wards as election precincts.
While the rural precincts may be changed yearly by the county commissioners, the wards of cities are more permanent, and as, in addition to other elections, those for the city are held in them, additional opportunities are furnished to voters to become acquainted with each other. If in different elections held by the same voters different precinct lines exist, confusion and uncertainty will be likely to result that will not occur when they always remain identically the same. *Page 193
If, however, no good reasons could be urged in support of the policy of the law, it would still be sufficient to find that a law of the Legislature has plainly said, that "each ward shall constitute an election precinct," and that the Constitution demands, that "all electors shall vote in the election precinct of their residence." The law has conferred upon the County Commissioners Court the authority to divide all of the county into election precincts, except so much of the county as may be covered by an incorporated village, town, or city that is divided into wards. Jurisdiction for that purpose within the limits of such corporation has not been conferred, and in my opinion does not exist. If such an incorporation in fact exists, the law of the Legislature divides it into wards, and the Constitution commands their observance. If the fact exists, it is the duty of the Commissioners Court to know and observe it. The act or fact of incorporation does not depend upon the Commissioners Court, but upon the people who incorporated the town. The town makes the wards, and the Legislature makes them election precincts. The Commissioners Court may neglect their duty and not know of the corporation (though it is difficult to see how that can be), but still their neglect or their ignorance of the fact will not unmake the corporation, destroy the wards, or change the imperative commands of the Constitution and law of the Legislature. The County Commissioners Court may in the discharge of its duty, when dividing the county into election precincts, appointing places for holding elections, and appointing election officers, properly institute inquiries whether there exists in their county any village, town, or city divided into wards, and if they find there is none, proceed to exercise jurisdiction over the whole county, if they are correct in their finding. But when such corporation does in fact exist, it can not be less a fact because the Commissioners Court fail through error of law, judgment, or fact to so find. It is the duty of the County Commissioners Court to ascertain and know whether there is an incorporated town divided into wards in their county, in order that they may properly discharge their own duties of appointing election officers and a place to vote therein; but they have no power whatever to create, change, destroy, or in any manner affect the existence of such corporations or the wards into which they are divided. They can not repeal by nonobservance, any more than they can by direct act, a law of the Legislature or silence the mandate of the Constitution. The Commissioners Court may investigate and find there is no corporation divided into wards, and lay out precincts over the territory; and yet, if in fact and for the observance of any right of the inhabitants the proof shows there was such a corporation, the law that makes the wards election precincts comes in conflict with the opposing act of the commissioners and overturns it.
It will not be contended that Commissioners Courts have the right to disregard the law; but because they did in fact disregard it, it is *Page 194 contended that it will be presumed that they ascertained the fact did not exist; will, in other words, be presumed that such incorporation did not exist, because the Commissioners Court acted contrary to it. That will not do when there is positive evidence to the contrary. If the record before us contained no evidence on the subject, then a presumption would arise from the disregard of it by the Commissioners Court that there was no such corporation. It is well settled, that presumptions are indulged in the absence of evidence, and never against it. If such a rule is to prevail, the Constitution and legislative provisions on this subject are dead letters, because the Commissioners Courts may disregard them in every instance, and from the very fact and act of disregarding them the conclusive presumption would arise that they ascertained that such incorporated towns did not exist, notwithstanding the uncontroverted evidence may show that they did.
My opinion is, that every act of Commissioners Courts beyond appointing a place to vote and election officers in incorporated villages, towns, and cities divided into wards, whether done with or without investigation, is a nullity; and the actual election precincts established by law, and the duty of the voters under the Constitution to observe them, stand unchanged.
The failure of the Commissioners Court to regard each ward as a lawful and separate precinct, or to appoint a place in each for voting, or to appoint officers to hold the election in each, can not operate to disfranchise the voters, as they may no doubt assemble at a proper place in their ward, choose their officers, and, acting with proper publicity, hold a lawful election.