# THEATTORNEY GENERAL

PRICE DANIEL February

Hon. Elton Gllliland County Attorney HowardCounty Big Spring, Texas

Dear Sir: o@nlon No. V-771.
Re: Election of constable not anominee, whorecelved onevote in general election.

Werefer to your inquiry concerning the eleation of Mr. Jack Hatch as constable of Preoinct No, 4 in HcmardCounty. Your letter reads in part as follows :

“In the 1940 PAmary Election there wasnonominee ror Constable of the newly rormed Justice Precinct #4, and in the General Election no space Zor a candidate for such office was provided. In the General Eleotion aMr. Jack Hatch, aresident of Preoinat #4, and a qualified voter went to his voting box and inf ’ormed the Eleotion Judge of suoh voting box that he, Jaok Hatoh,’ desired to vote for himself, bywrite-in, as Constable of Preolnot #4, andrequested direotiona as to howsuch vote could be cast. TheEleotion Judge telephoned the County Clerk and asked him whether such a vote would be oounted and whatwas the preoinct number; the County Clerk answered that such vote would be counted, and that the preolnct wasnumber three. Upon the basis or the inforrmtion furnished, Mr. Hatch voted for himself for Constable of Precinct #3. Noother person reoeived a vote for Constable in Justice Precinct #3, and novotes were cast for a Constable in Justice Precinct #4.
*Is Jack Hatch a duly elected Constable of Justice Precinct #4 in HowardCounty, Texas?”Hon. Elton Gllliland - Page 2 (Y-771)

where Hatch was a qualirled voter In fortioa Preoinot Ro. 4 of Hmard Oounty and mat hir ballot ior a qualified person Sor Constablo In that prsoinot, which could only elect one Constable, the iaot that the ballot wasmarked ~reolnot No. 3” In which Eatohwas not a qualified voter and did not vote, oreated smbiguity on the faoe o? the ballot which should be oonstrued aooording to the Intention OStha voter.

Therule a lots is stated in Vopliaable ! to improperly market bal-

. 16Tex. Jur. page 116, 800. 97 as follows:

“IS a ballot hadbeen inadvertently or improperly marked, evidence explaining the intention of the voter is admissible, and if such ballot, either upon its Saoe or whenconstrued in connection with the attending circumstances, indioates, with reasonable certainty, howthe elector intended to vote, effect should be given to such intention.v
State Exrel. Easterday v. Howe, 44N.W. 874, is a case in which someof the.ballots were marked RJ~~- tice of the Peace, District ln, and somewere marked *Justice of the Peace, District 3.” The Court said:

while these ballots designated the wrong districts, yet, being cast in the third dlstriot, Where relator was a oandidate for justice of the peace, they certainly showthat the voters intended to vote for the relator for justice of the peace OSthe dlstrlot Inwhich they were cast. Thewords ‘Slrst dlstrlot* did not, aswethink, constitute a part a? the legal designation OSthe oSSioe. They should be treated as SurplUSage, and these ballots should be counted for the relator.”
In Bradford v. McCloskey, 244S. W. 575, the Court hada case in which someof the ballots for public weigher were marked ‘Public Weigher, Justice Precinct 1” and others were marked “Public Weigher, Precinct l*. TheCourt said that there was but one office of public weigher in precinct No. 1, by reason of which either designation was sufficient. The Court said:Bon. Elton Cilllland - Page 3 (V-771)

There Is but one ofiioe a? publlo weigher to whioh a candidate maybe elected in justice precinct No. 1 in Bexar County, just as there is but one office of constable in the sameprecinct, andwe canperceive 0s no more reason for using the word ‘

justice* in describing one than the other ,v In State ex rel. Vogler v. Mahncke, 41 S. W. 18.5, the Court said on the point:

n

. The law seems to be that aballot zn&‘bc interpreted by the ordinary rules which apply to written instruments. Ii’
, upon the face of the ballot, the intetion of the voter is clear, extrinsic evidence should not be admitted, least of all his win evidence as to what his intention was. But if, from the face of the ballot, the intention be doubtful, then evidence of the circumstances under which it wasmade out, if calculated to throw light uponthe intention, she-ld 3e admitted.

. . .

“An inspection of tl-.e original ballots sent upwith the record shows that there was anevident intention on-the part of the voters to vote for Mahncke, but for what office is left in doubt. In this case the pleadings of appellant allege that an election was held in the city of SanAntonio, for city officers andward aldermen (amongthe latter, one in Fifth ward); that at said election there were Sour candidates for alderman of the Fifth ward, amongthe number being LudwigHahncke andH. J. Volger ; and that, at the polling p,laoe in precinct No. 11 in said ward, 40 votes were counted for Mahnckethat were illegal, because the office was not designated. Theballots have the official stamp on them. andwemust conclude, under the la6, that ail the candidates for city or ward officers at the city election have their names onthe official ballot. Aninspection of the ballots, as vlell as the allegations in the pleadings, clearly inaicates that Uahnckewas running for but one office, that of alderman of the Fifth ward, andthat all the ballots cast for himwere in that ward. The votes having beenHon. Elton Gllllland - Page 4 (V-771)

cast for Mahncke, in his.own ward, and he being a candidate for only one ofiioe, we are led to the conclusion that the district judge did not err in counting themfor Mahnckefor alderman of the FiSth ward.

. . .” Opinion No. O-203 bya former Attorney Gensral held that a parson was elected to the offioe OSoonstable whoreceived one vote, novote having been cast for any other person for the ofiice.

In view OSthe Sor8gOing weare Ofthe opinion that Mr. Hatch was eleoted to the office of constable of Precinct No. 4 of HowardCounty,

Wherea candiaate for constable of Precinct MO.4 of HowardCounty, In which he resided, was not the nominee of anypolitical party, but intended to vote for himself for the office; was erroneously infOrmed bythe election juc&e that the precinct wasRo. 3, an8 he erroneously wrote No. 3on his ballot instead of No. 4, andwhere his was the only ballot cast for constable in Precinct No. 4, hewas duly elected to the office of constable of Precinct No. 4.
Yours very truly,
A!l?roRNEY- OFTEXAS

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