The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-12-15
A CITY ELECTION DECISION.
BALLOTS MUST Nm rNnsnavnD n
NE Used A. EvfDnNcE.


Galveston. Texas. December il.---In the
opinion Of Chief Justice Garrett q the
court Of civil appeals. First supreme ~
dicial district, in the car Of Dixon Gray
W.. Vim. A. Lapxhaiu, from Jefferson
county, among other interesting polnts
discussed arc those relating to the matter
OF duplicate ballots. and tho matter Of tho
custody Of ballots In city election.
Gray, the city marshal Of Beaumont,
was candidate for recollection. He re-
ccived. according to the face Of the re-
turns. $50 votes. and his opponent. Lang
ham. received 55s, Langham. through que
warrantc proceedings, contested the cleo
tion. alleging that the returns Of wards
Nos. 2 and were false. deceptive and
misleading, and that illegal votes we're
counted. On trial OF the case the ballots
were recounted. and it was ascertained
that there were two ballots numbered IL
two numbered 10. and two numbered S6
II was ALTO shown that after the election
officers had completed their count, the
presiding officers scaled the ballot boxes
and took them to their homes; that on
the Following day they delivered them to
the mayor. In the presence OF the city
council, and the mayor deposited them In
the vault OF the First National bank Of
| beaumont. The seals were intact and II
was shown from the testimony OF the pre-
sicing Officers. the mayor and the emf
ployes of the bank. that u was impossible
FOR amy one to have tampercd with the
boxes.
With respect 10 this last question the
| court OF appeals says: ut is contended
| however, that tho law makes no provision
for the preservation Of the ballots, ard
| that conaequsutiy they can not be admit
fA1 n - A..
incorporated under the general law, which
makes very general provisions with regard
10 elections and none rs to the preserva-
ton OF the ballots. But there are pro-
visions In the general election law Of the
State that show that It applies to all cleo
tons municipal, county and State. The
State law (Revised Statutes, article 1921
provides that in all city. town and village
elections. where not otherwise provided for
by the charter, the mayor shall order such
elSctiunN, give notice thereof and appoint
presiding Officers, who shall make returns
TO the mayor. under the same regulations
and With like erect, as In county elections
us far as applicable. Article 1884 prescribss
the Qualifications OF voters at city. town
and villago eleetions; artiole 1892 permits
cities containing a population or 10000
inhabitants or more to adopt such methods
10 protect the purity Of the ballot in eier-
lions held III their municipal elections, not
chapter relating 10 the manner OF holding
elections III such cities, as may be deemed
advisable; and, finally, by article 1870 the
PROVISIONS OF the law are made 10 apply
10 all elections, whether for officers or for
other persons, where not otherwise pro-
vided BY law. The general law requires
the ballots 10 BIO pTeseN ed and prescrbes
the manner Of preservation ana the Gus
tody thereof, ana that they shall be kept
for one year for use In amy contest tina.
may grow out of tho election. (Reylsed
Statutes. articles 17s7 and It4S.) They are
required TO be delivered to the county
clerk for keeping, and Just here some diff
ficulty arises as to tho officer the ballots
In II city election should be delivered to-
BY analogy. porhspF. they should be Se-
liYered 10 the city clerk II is commended
that as q prerequisite 10 tho Introduction
Of the Ballots IN evidence. the petition
should have alleged that they had been
preserved IN q custody prescribed by law,
but we arc OF the opinion that the petition
in this respect was sufficient on general
Snmurrer.
But the question OF the admisslb!llty OF |
the ballots IN evidence without having |
como from custody prescribed by law il |
ialhed by the fifth assignment OF error. |
we are OF the OPINION that the provisions |
OF the statute make them admissible ~
urinary evidence to eoutroyert the returns. !
and that the fact that the statute has
failed 20 prescribe custody for them.
but In that respect belng uncertain. should
not destroy them as evidence, II II be shown
when they are offered that they have
been preserved inviolase in some safe GUS
iody. When they come from the custody
prescribed by law in obedience To a writ |
from proper authority and are produced In
court apparently intact. they are prima
facie admissible. but when they come from
a custody that has not been prescribed by
law the bWhen is upon tho party seeking
to introduce them in evidence to show
that they have been safely preserved and
remain intact as they were when they left
the hands of the presiding officer OF the
sleciion.
With respect to the duplicate ballots, the
court says: For the purpose OF Identify
ng the ballot OF voter In case his right
10 vote has been successfully impeached In
4 contest OF the election and to prevent
fraudulent voting. the statute requires poll
lists 10 be kept upon which the name ana .
number OF the voter must be written and
lie ballot cast TO have upon 1t the voters ,
number corresponding with the number OF
he poll list; fR. s.. Art. 1881; and pro-
slhna any ballot which is not numbered M 4
required from being counted. (R. 81
Art, 1731.) This article has been held To
Ne mandatory. Estate vs.. Connor.) In Or
Ter 10 entiile thsm to be counted then n :
you'd seem the ballots should not only
lave the number thereon. but TINT The /,
lumber should correspond 10 the voters !
lumber on the poll list Buf the bill of /,
exceptions to The action of the court In !,
flowing the duplicate ballots numbered !.
a. 10 and 35 20 be counted does not shos !.
hat these numbers did not correspond to :
he same numbers upon the poIl list, and !
therefore, does lot bring them within tire
of the statute, u Is true that !
where there are two ballots having the !.
anne number corresponding TO the num-
ers OF two voters on tho poll lists having !
he same numbers THAI appear upon the :
'alI0,s. there would BIO an uncertainty ~ :
o for whom either Of the voters cast his Y
aIlot. The EtafNte will not be extended,
oweyer. TO cover q case not included y
within the terms of tho prohibition"
The judgment OF the court In Iangham's I
avor was affirmed. a motion for rehear- ~
ig has been filed.
Third Court of AppesIs. 10
Austin. Texas. December 1.-THE fol- 6
owing proceedings were had In the court
rftriI aurpala Third dfefrlct todov. q,