The State of Texas ex rel. Barry v. W. C. Connor, 86 Tex. 133

BROWN, Associate Justice. The following questions of law were certified to this court by the Court of Civil Appeals for the Fifth Supreme District: “First. Is an agreed statement of facts upon which a case was tried in the court below, and which the court embodied in its judgment, sufficient in the absence of a statement of the facts, or findings of fact by the court, or agreed case for appeal under the statute, to authorize a.revision of the, judgment upon matters growing out of such facts ? “ Second.

Is the statement in regard to the 1747 unnumbered ballots,, as contained in the first clause of the said agreement set forth, a sufficiently certain statement of the facts as to show how said ballots were cast and counted as to authorize this court to revise such judgment upon the facts ? “ Third.

Is it necessary under the Constitution and laws of Texas andi the charter of the city of Dallas, as set forth in said above agreement, after the adoption by the city council of the city of Dallas of the Act of April 12, 1892, commonly known as the ‘Australian ballot system,’ that all ballots cast in an election in said city for city officers shall be numbered; and if so, is such requirement directory or mandatory? “ Fourth.

If such unnumbered ballots can in any event be counted, can this be done by the court in the absence of testimony showing the bona lides of the ballots ? ” To the first question we answer, that the agreed statement of facts, made and signed by the counsel and parties to the cause, and embodied in the judgment of the court, fully authorizes the Court of Civil Appeals, to review that judgment upon any question arising upon the facts therein, stated.

Article 1293, Revised Civil Statutes, is as follows: “The parties may-in any case submit the matter in controversy between them to the court-upon an agreed statement of facts, made out and signed by them or their counsel, filed with the clerk, upon which judgment shall be rendered as-in other cases; and in such case the statement so agreed to and signed, and certified by the court to be correct, and the judgment rendered, tliereon, shall constitute the record of the cause.” ■ Incorporating the agreed statement of facts in the record by the court, is as much an approval as if the judge had made a certificate under the-statute.

The object of requiring a statement of facts to be made out, is. to place before the appellate court all the facts upon which the judgment was rendered.

Article 1293 provides the manner in which this may be done before the trial is had. The law was substantially complied with by the agreement made and the incorporation of that agreement in the record. Fowler v. Simpson, 79 Texas, 617; Hill v. Baylor, 23 Texas,

Article 1333, Revised Civil Statutes, provides for the filing by the court of the findings of.fact and conclusions of law or a special verdict by a jury, in either of which cases an appeal may be taken without other statement of facts.

Article 1414, Revised Statutes, permits the parties to present their case to the court of appeals upon an agreed statement of the facts and proceedings, certified to by the court after trial. In each of these methods the same result is reached of presenting to the appellate court, in condensed form, the material facts upon which the judgment was rendered. In Salinas v.

Wright, 11 Texas, 578, this court said: “ To authorize the revision of a judgment on the merits, a formal statement of facts is not essential where all the evidence legally and conclusively appears by the record.” In that case the facts appeared by bill of exceptions. It conclusively appears from the record in this case that all the evidence which was introduced, and upon which judgment was rendered, is embraced in the agreement signed by counsel and the parties and embodied in the judgment of the court. Second.

The statement contained in the first clause of the agreement as set forth is sufficiently explicit to enable the court to revise the judgment on the facts, and to enter judgment in accordance with the agreement. If there was any doubt arising upon the language of the agreement, it refers to the “ first amended original information,” which alleges, that the 1747 ballots were unnumbered, and were counted and included in the aggregate of the vote; that if they had not been so counted, relator would have received a plurality of all votes cast, and being counted, the respondent received such plurality.

There is no reason why the parties to this character of proceeding may not make agreements as in any other case. If it had been a suit for land, and the agreement had read, “ If the court shall hold that the deed from A to B is valid and sufficient to pass title to the land, then judgment shall be entered for the plaintiff; but if the court shall hold that said deed is invalid, then judgment shall be entered for the defendant,” no question would be made of the sufficiency of the agreement to authorize a judgment in accordance therewith. Third. The third question propounded embraces two propositions: 1.

Did the law require the officers conducting the election in the city of Dallas to number the ballots of the electors, in compliance with

article 1694, Revised Statutes? 2. If so, could the officers who conducted the election legally count the ballots not numbered, and can the court sustain the counting of such unnumbered ballots ? Articles 1694 and 1697 of the Revised Statutes were in force in the city of Dallas at the time of the election in question, and it was the duty of the officers holding the election to number the ballot of each elector in accordance with the requirements of

article 1694. The prohibition contained in

article 1697 is binding upon all courts, as well as officers of the election. The law is mandatory, and can not be disregarded. If ballots not numbered were counted in such election, such ballots were illegal, and must be rejected by the court upon an examination and revision of the judgment rendered. It is claimed on behalf of the respondent, that the law of April 12, 1892, entitled “An act to provide for the registration of all voters in all cities containing a population of ten thousand inhabitants or more, and to protect the purity of the ballot in such cities, and to provide penalties for the violation of the same,” prohibits the numbering of ballots in accordance with

article 1694, above referred to, and by implication repealed said article. The following language of said act, contained in the twenty-eighth section, is relied upon to sustain the contention upon this point: “Any elector or any one who shall, contrary to the provisions of this act, place any mark upon or do anything to his ballot by which it may afterward be identified as the one voted by any particular individual, upon conviction shall be punished,” etc.

By the Act of March 16, 1848, the officers of election were required to “ write and number the name of each voter; * * * one of the managers shall in every case, at the time of receiving the ticket or ballot, write upon it the voter’s number corresponding with the clerk’s list; * * * no ticket not thus numbered shall be counted or noticed in counting out the votes.” This continued to be the law in Texas until 1870, when the Twelfth Legislature enacted a statute by which it was provided, that one of the judges of election should write upon each ticket one or all of the words “ State,” “ District,” and “ Congress,” according as the voter might be entitled to cast his ballot for one or all of said offices.

It was made a penal offense for any officer of election to place any other mark upon any ballot. Laws 12th Leg., sec. 19, p. 131. An election for members of Congress was held in the State in 1872, and in Brazos County the ballots were numbered as under the law of 1848. When the returns were to be made up and certificate of election given, Governor Davis excluded from the estimate the vote of Brazos County, because the ballots were numbered, alleging as his reason that the numbering of the ballots operated to intimidate voters. Note to art. 6483, 2 Pasch. Dig. Laws.

The Thirteenth Legislature, which assembled in 1873, repealed the Act of 1870 and re-enacted substantially the law of 1848 on this point. The constitutional convention which framed the Constitution that was adopted in 1876 inserted in that instrument the following provision: “

Section 4 [Article 6]. In all elections by the people the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets, and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; but no law shall ever be enacted requiring a registration of voters of this State ” Two important changes had been made in the manner of conducting elections in this State; the registration of voters was required and the numbering of ballots had been forbidden.

The law requiring the numbering of ballots had been restored, and the registration law had been repealed; but to make sure that such laws should not be again enacted, the

section quoted was framed and adopted as part of the Constitution. This

section of the Constitution was framed and adopted in view of the recent changes of the law and of the action of the Governor in the case referred to. The language is such as to manifest the purpose to declare that the numbering of ballots was not calculated to intimidate voters, but was a means necessary to “ detect and punish fraud and to preserve the purity of the ballot box.” The Legislature which assembled in 1876, the first after the adoption of the Constitution, promptly enacted articles 1694 and 1697 of the Revised Statutes. When

section 4 of

article 6 of the Constitution was amended, omitting the prohibition against registration, in 1891, the same language was used, with the addition of the permission to the Legislature to enact laws for registration of voters in cities of 10,000 population or more. The purpose to have the ballots numbered was again expressed and commanded to be observed. The permission given to provide by law for the registration of voters in such cities as had the requisite population was intended as an additional safeguard against fraud in elections.

We must presume that the laws in force on the subject of numbering ballots and the prohibition as to counting the ballots not numbered were in the minds of the members of the convention and the Legislature when these provisions were framed, and the laws were not condemned, but approved. We can not presume that the Legislature in enacting the law of April 12, 1892, intended to prohibit the doing of

an act which was commanded by the Constitution and the law enacted in pursuance thereof. Nothing short of positive and unequivocal words could be so construed. The Legislature did not intend, in passing the Act of April 12, 1892, to prohibit the numbering of ballots in accordance with

article

Section 28 of that act does not justify any such conclusion. It prohibits officers and others, including the elector, from doing certain acts before the ballot is deposited, and was intended to protect the ballot from marks which would enable any one, without looking into it, to tell by whom it was cast, and to prevent any officer of the election to tell by whom it was voted without comparison to the poll list.

For example, suppose that the elector or other person should place upon the ballot a mark so that the officer of the election or other person looking on while the ballots were being counted could see or determine by whom it was cast, then in calling the ballot for counting, the vote of such person could be exposed. The object was to prevent the elector from being exposed unlawfully. Looking to the journals of both houses of the called session of the Twenty-second Legislature, we get the history of the passage of this law, which throws light upon the intention of the Legislature. The Senate passed

an act to govern all elections, framed after the plan of the “Australian” system, in which was embraced, in substance,

section 28 of the law under consideration, with almost the same language as that upon which the appellee’s counsel rely to sustain their contention. In other provisions of that bill were the direction to number the ballots, as required in

article 1694. The first twenty-two sections of the law of April 12," 1892, constituted the latter part of the Senate bill. It was not passed by the House. The House, however, passed a bill to provide for registering voters in cities of ten thousand population or more, being the first twenty-two sections of the Act of April 12, which went to the Senate, and there the last sections of the law now being considered were added ! by way of amendment, almost literally taken from the bill passed by the j Senate and sent to the House.

The language used in the Senate bill was j in substance, “ any elector or any one who shall, contrary to the provisions of this act, place any distinguishing mark upon or do anything to his ballot by which it may be identified as the one voted by any particular individual,’ ’ etc. It will be seen that the difference between the language quoted and that in the law as it passed consists in omitting the word 11 distinguishing ’’and inserting the word ‘1 afterwards.’ ’ Any mark by which a ballot could be identified must be a distinguishing mark, and such identification must be at a future time, that is afterwards. .

The language in each means the same thing. The words ‘ ‘ contrary to the provisions of this act” referred to the provisions of the Senate bill, from which the

section was taken and attached to the House bill, and was intended to except from the prohibition the marks authorized by that bill, which required the ballots to be numbered. We think that this explains the language upon which the counsel rely for the support of the proposition that it forbids numbering the ballots. The Act of April 12 is not in itself a complete system for holding elections in cities of ten thousand population. It does not provide for keeping any poll books or tally sheets, nor for making returns of the election, nor for counting the vote and preserving the ballots.

It is evidently intended simply as additional means of “ detecting and preventing fraud, and preserving the purity of the ballot,” which any such city may apply if five hundred of its citizens petition for it. It does not apply to all cities of ten thousand population, but to those only in which registration may be ordered. The law does not continue beyond the election for which the registration is ordered, but at each election the same steps must be taken, else that law can not be enforced.

If at the next election in Dallas for municipal officers no registration should be demanded, this law would not be in force, but the election would be conducted under the general law, and the ballots must be numbered; the result of which would be that the prohibition of numbering claimed to be expressed in the act would be put in force or not at the option of five hundred citizens of that city. It would be an extraordinary power for the Legislature to delegate to so few of the citizens, to suspend the operation of a general law of the State.

The right to petition for registration, and thereby put this law into effect within the cities having the requisite population, applies to elections for State, county, and precinct offices as well as to those for municipal offices. If the position that the numbering of ballots is forbidden by this law is sound, then in elections for State and county offices we would have the general law in force in all precincts in Dallas County-outside of the city, and the ballots numbered in them; while in the city no number could be placed upon them.

If a contest should occur, and it be charged that persons not qualified as electors were permitted to vote at a precinct outside the city, the ballots could be inspected and compared with the poll books to ascertain for which candidate the illegal votes were cast.

If the contest was upon the ground that such persons voted inside the city, then no such investigation could be had, for the reason that without the numbers the ballots of the illegal voters could not be identified; and thus a discrimination would exist for which there can be no sound reason given, and fraud would be promoted in the cities, rather than prevented. If the elections for State, county, and municipal officers should occur at the same time, and the law of April 12, 1892, is put into force in a city, then by the terms of

section 24 of said act “ all ballots used by the voters at said election shall be furnished by the officers conducting said election, upon which shall be printed the names of all candidates for State, county, city, or precinct offices upon one ticket,” etc. The general law governing elections for State, county, and precinct offices requires the ballot to be numbered, and if the law governing election for municipal officers forbids such numbering, “ with the names of each upon the same ticket,” what can be done ?

If not numbered, so far as the State, county, and precinct election is concerned, they can not be counted; and if numbered, under the contention of appellee, so far as municipal officers is concerned, the officer placing the number thereon is liable to a heavy penalty. These embarrassing consequences serve to show more clearly that the construction sought to be placed upon the law is not a correct

interpretation of it. ¡No Legislature would have enacted a law involving elections in such complications and introducing such discriminations between citizens of different localities as to the exercise of a right equally sacred to all. It was believed that there was a necessity in cities, that did not exist in towns and country precincts, for.additional means of protecting the voter from undue influence, and to preserve the ballot from the corrupting influence of fraud, and for this purpose the law was enacted.

It is claimed that the Legislature has no power to enact any law by which the elector may be deprived of the benefit of his ballot without ¡ fault on his part. The right of suffrage is conferred by the Constitution, and is not one of the natural and inalienable rights which are excepted out of the powers of government. The elector takes the right subject to ' limitations imposed by the Constitution, and such limitations as the Legislature may impose, not inconsistent with the fundamental law.

While 1 the right to vote is a valuable right, which should be duly guarded, the j public has a right that the ballot should be protected from fraud, and j this right in the public is paramount to the individual right of the citizen to cast his vote. When necessary to preserve the right of the public in a pure ballot, the right of a citizen to have his ballot counted must yield to the needs of the public good; as in many other instances the private right must be subservient to public necessity.

But no elector is here j claiming the right to have any one or all of the unnumbered ballots counted; and if it were so, no one of them could enforce it, because the ballot of no elector who cast one of those not numbered could be identified. In form this is a proceeding in the name of the State, but in fact it is a contest between two opposing candidates for the possession of an office. The exercise of the functions of that office is a right which belongs, under the Constitution and laws, to that one who was legally elected, and the right should be determined according to the rules prescribed by law.

Articles 1694 and 1697, Revised Civil Statutes, were enacted in pursuance of the commands of

section 4,

article 6, of the Constitution of this State. It was for the Legislature to determine the necessity, and the courts can not disregard the law. It is consistent with the constitutional requirement that the ballots be numbered, and is perhaps the only means by which fraud perpetrated by persons voting who are not qualified electors could be effectually punished; thus depriving the promoter of the fraud of its fruits.

It may be that in some instances the failure to number might occur by reason of a misunderstanding of the law, or from negligence in the officer, and the voter might be deprived of the benefit of his ballot without his fault; but the Constitution has declared that it is one of the means to be adopted by the Legislature to detect, prevent, and punish fraud. The Legislature has so enacted, and it must be obeyed.. It is unnecessary to discuss the difference between directory and mandatory statutes. The law commands that the number shall be written on the ballot, and forbids those not numbered to be counted.

Taking the two articles together, and especially in connection with

section 4,

article 6, of the Constitution, there can be no doubt that they are mandatory. 1 ‘A clause is directory when the provision contains mere matter of direction and no more; but not so when they are followed by words of positive prohibition.” Bladen v. Philadelphia, 60 Pa. St., 466; Pearce v. Morris, 2 Ad. & El., 96. Prohibitory words can rarely if ever be directory. There is but one way to obey the command ‘ ‘ thou sJialt not,” which is to abstain altogether from doing the act forbidden. Delivered November 16, 1893. The answer to the third question renders it unnecessary to answer the fourth.