                 THEATTORNEY                      GENERAL


PRICE   DANIEL


                                 February

          Hon. Elton Gllliland              o@nlon    No. V-771.
          County Attorney
          Howard County                     Re:    Election of constable
          Big Spring, Texas                        not a nominee, who re-
                                                   celved one vote in
                                                   general election.
          Dear Sir:
                    We refer to your inquiry concerning the elea-
          tion of Mr. Jack Hatch as constable  of Preoinct No, 4
          in Hcmard County.  Your letter  reads in part as follows :
                        “In the 1940 PAmary Election there
                 was no nominee 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    a Mr. Jack Hatch, a res-
                 ident of Preoinat #4, and a qualified      vot-
                 er went to his voting box and inf’ormed the
                 Eleotion Judge of suoh voting box that he,
                 Jaok Hatoh,’ desired to vote for himself,
                 by write-in,    as Constable of Preolnot #4,
                 and requested direotiona     as to how such
                 vote could be cast.      The Eleotion Judge
                 telephoned the County Clerk and asked him
                 whether such a vote would be oounted and
                 what was the preoinct     number; the County
                 Clerk answered that such vote would be
                 counted, and that the preolnct was number
                 three.    Upon the basis or the inforrmtion
                 furnished,   Mr. Hatch voted for himself for
                 Constable of Precinct     #3. No other person
                 reoeived a vote for Constable in Justice
                 Precinct #3, and no votes were cast for a
                 Constable in Justice Precinct #4.
                      *Is Jack Hatch a duly elected Consta-
                 ble of Justice Precinct #4 in Howard Coun-
                 ty, 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     was marked ~reolnot    No. 3” In which Eatoh was
not a     qualified   voter and did not vote, oreated smbi-
guity     on the faoe o? the ballot which should be oon-
strued     aooording to the Intention    OS tha voter.
            The rule a pliaable to improperly market bal-
lots is stated in Vo! . 16 Tex. Jur. page 116, 800. 97
as follows:
            “IS a ballot had been inadvertently
      or improperly marked, evidence explaining
      the intention    of the voter is admissible,
      and if such ballot,    either upon its Saoe
      or when construed in connection with the
      attending circumstances,     indioates,   with
      reasonable certainty,     how the elector    in-
      tended to vote, effect     should be given to
      such intention.v
          State Ex rel. Easterday v. Howe, 44 N.W. 874,
is a case in which some of the.ballots   were marked RJ~~-
tice of the Peace, District   ln, and some were 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 oan-
         didate for justice     of the peace, they cer-
         tainly show that the voters intended to
         vote for the relator     for justice    of the
         peace OS the dlstrlot      In which they were
         cast.   The words ‘Slrst     dlstrlot*    did not,
         as we think, constitute      a part a? the le-
         gal designation   OS the oSSioe.       They
         should be treated as SurplUSage, and these
         ballots   should be counted for the relator.”
           In Bradford v. McCloskey, 244 S. W. 575, the
Court had a case in which some of the ballots   for pub-
lic weigher were marked ‘Public Weigher, Justice Pre-
cinct 1” and others were marked “Public Weigher, Pre-
cinct l*.   The Court 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 may be elect-
     ed in justice   precinct  No. 1 in Bexar
     County, just as there is but one office
     of constable in the same precinct,      and we
     can perceive 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 a bal-
     lot zn&‘bc    interpreted    by the ordinary
     rules which apply to written       instruments.
     Ii’, upon the face of the ballot,       the inte-
     tion of the voter is clear,      extrinsic   evi-
     dence 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 was made
     out, if calculated     to throw light upon the
     intention,   she-ld 3e admitted.      . . .
            “An inspection   of tl-.e original   ballots
     sent up with the record shows that there was
     an evident intention     on-the part of the vot-
     ers 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 San Antonio,        for city officers
     and ward aldermen (among the latter,         one in
     Fifth ward); that at said election         there were
     Sour candidates for alderman of the Fifth
     ward, among the number being Ludwig Hahncke
     and H. J. Volger ; and that, at the polling
     p,laoe in precinct No. 11 in said ward, 40
     votes were counted for Mahncke that were il-
     legal, because the office       was not designated.
     The ballots     have the official     stamp on them.
     and we must conclude,     under the la6, that ail
     the candidates for city or ward officers          at
     the city election     have their names on the of-
     ficial   ballot.    An inspection     of the ballots,
     as vlell as the allegations       in the pleadings,
     clearly   inaicates   that Uahncke was running
     for but one office,     that of alderman of the
     Fifth ward, and that all the ballots         cast for
     him were in that ward.        The votes having been
Hon. Elton   Gllllland   - Page 4   (V-771)



     cast for Mahncke, in his.own ward, and he be-
     ing a candidate for only one ofiioe,    we are
     led to the conclusion  that the district   judge
     did not err in counting them for Mahncke for
     alderman of the FiSth ward. . . .”
          Opinion No. O-203 by a former Attorney Gensr-
al held that a parson was elected to the offioe  OS oon-
stable who received  one vote, no vote having been cast
for any other person for the ofiice.
          In view OS the Sor8gOing we are Of the opinion
that Mr. Hatch was eleoted to the office of constable  of
Precinct No. 4 of Howard County,


            Where a candiaate for constable of Pre-
     cinct MO. 4 of Howard County, In which he re-
     sided, was not the nominee of any political
     party, but intended to vote for himself for
     the office;    was erroneously   infOrmed by the
     election    juc&e that the precinct was Ro. 3,
     an8 he erroneously wrote No. 3 on his ballot
     instead of No. 4, and where his was the only
     ballot cast for constable      in Precinct No. 4,
     he was duly elected to the office       of consta-
     ble of Precinct No. 4.
                                    Yours very truly,
                                A!l?roRNEY-       OF TEXAS




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