# Duncan v. Willis > Texas Supreme Court · May 15, 1957 · 157 Tex. 316 URL: https://www.frixlaw.com/law-library/cases/9668776 ## Case - **Full name:** J. O. Duncan, County Attorney Upshur County v. Clayton Willis Et Al. - **Court:** Texas Supreme Court - **Decided:** May 15, 1957 - **Citations:** 157 Tex. 316; 302 S.W.2d 627; 1957 Tex. LEXIS 569 - **Precedential status:** Published - **Opinion:** Concurrence by Garwood - **Judges:** Norvell, Garwood, Griffin - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668776 ## How later opinions describe it (automated extraction) - explaining that the election code does not authorize a voter to testify, after the election, how he or she intended to vote ## Opinion text Mr. Justice Garwood, joined by Justice Griffin, concurring. Pursuant to our practice of submitting proposed opinions (in rotation) prior to actual decision of the case, I submitted one in this instance, reaching the same conclusion we now reach on the point on which we granted the writ of error, but approaching it from a somewhat different angle. That point was the one involving the holding of Linger v. Balfour, Texas Civ. *332 App., 149 S.W. 795, 807 , to the effect that where the voter’s poll tax has been paid by another without previous authority, the corresponding vote is void. As to the point of the respondent seeking to uphold the decision of the Court of Civil Appeals on the theory that certain “ambiguous” ballots were wrongfully counted by the trial court as votes against the consolidation, I reached a conclusion contrary to that now reached by the Court. This latter conclusion I still believe to be at least just as sound as that now adopted by the Court, although obviously there are good arguments both ways. But, as to the point on which the writ was granted, I have concluded, after further thought and considering the Court’s opinion, that probably I was wrong about that point and the Court is also wrong. On this poll tax matter, my original theory was that, although neither the Constitution nor the Election Code declares the vote to be void or the voter to be disqualified, yet neither do they so declare in express terms with regard to a vote cast by one whose poll tax has not been paid at all, and since, in the latter situation it is held that the vote is void (Ramsay v. Wilhelm, Texas Civ. App., 52 S.W. 2d 757, 761 ), wr. of er. refused, there is no general obstacle to our inferring that votes are void even though no express constitutional or statutory provision so states. Thus I felt free to reason further that where the statutes make it a crime for a third party to procure and pay for the poll tax of a voter, it would at least be somewhat paradoxical to count the corresponding vote, and that accordingly it should not be counted. I did not reason, however, as the Court now seems to do, and as the Court of Civil Appeals did in Linger v. Balfour, supra, that in some unspecified manner the Constitution, and it alone, compels the conclusion that the vote is void. I could not and did not say that the instant case (and Linger v. Balfour) may be distinguished from cases upholding the validity of votes, such as Wallis v. Williams, 50 Texas Civ. App. 623, 110 S.W. 785 , on the ground that in the former the Constitution is what controls the matter, as distinguished from the statutes. The latter reasoning appears logically indefensible. The constitutional provision in question (Art. VI, Sec. 2) may, indeed, be construed as requiring the voter to furnish the money for his own poll tax, although it is not nearly as specific to this effect as are the statutes (see- Chap. 5 of the Election Code, particularly Art. 5.11also the' many corresponding penal provisions, such as Arts. 199, 201, 203 and 204, Vernon’s Texas P. C.). But in such a situation, or even one in which the only statutory pro *333 vision were identical with that of the Constitution, we do not reason that the vote is void only because the Constitution, as distinguished from the statutes, says what it does. If there were some question of the power of the Legislature in the premises, the constitutional provision as suck would be important, but no such question is here involved. The question before us is whether we shall draw a judicial inference that a vote is void, where neither the Constitution nor statutes say it is in so many words. How can we say that only the Constitution justifies that inference, and that the statutes do not, when the statutes not only contain a provision identical with the constitional provision in question (see Sec. 5.02, Election Code) but also the above-mentioned additional provisions which come much nearer justifying the inference than does the rather vague constitutional provision? Certainly if the statutes specifically stated that such votes should not be counted, while the Constitution said only what it now says, we would attribute the void character of the vote to the statutes and not to the Constitution alone. Thus I did and do believe that we cannot set the instant case and Linger v. Balfour apart, and say that in them the votes were void “under the Constitution,” but that all other cases of irregularity in the payment of poll taxes are “statutory cases’ and thus entitled to a contrary result. Unless the same language means one thing when used in a constitution but something different when used in a statute, the absence of a provision nullifying the votes in question is just as important to the validity of the votes in the one case as in the other. If we cannot infer invalidity from the statutes, we cannot infer it from identical and even vaguer language in the Constitution. If we are to say that votes based on irregular poll tax payments are valid unless an express provision of law declares them invalid, what difference can it make that the irregularity exists in one case by reason of a statute and in another case by reason of both the Constitution and a stattute? The opinion in Linger v. Balfour does, of course, purport to rest itself on the Constitution, but to that extent it is erroneous, even should the result be justifiable on other grounds. The fact is, that we adopt the fallacious “constitutional” distinction largely in order to invalidate the ballots here involved, yet at the same time not cast doubt on several decisions of the Courts of Civil Appeals, such as Wallis v. Williams, supra (see also Fugate v. Johnston, 251 S.W. 2d 792 ) in which certain poll tax payment irregularities are held not to affect the cor *334 responding' votes. Now there may be some actual distinction between such cases and the instant one in that here the wrongful act of the third party in paying the poll taxes in question with his own money and without any sort of authority from the voters in question was a more serious type of irregularity, pointing, as it does, somewhat more directly than other irregularities might, toward a purpose of the third party to suborn votes. But the Constitution does not create that or any distinction, and if the latter exists at all, it is rather vague. On the other hand, I share what seems to be the agreed view, evidenced by Wallis v. Williams, that not every irregularity involving the payment of poll taxes of voters by third parties should invalidate ballots. Also one must recognize considerable force in the general thesis — stated in quite broad and emphatic terms in Fugate v. Johnston, supra, and Warren v. Robinson, Texas Civ. App., 32 S.W. 2d 871 , 872 — that where the third party assists in the procurement of the voter’s poll tax receipt and thereby violates a statute, the vote itself should not be avoided unless the statute declares that it should be. There is also the obvious possibility that the persistent failure of the Legislature to make such a declaration evidences its preference for enforcing the state policy against third parties assisting voters in the matter of their poll taxes through the penal laws (above cited) which, incidentally, are directed against the third parties rather than against the voter himself. All this being true, and the present question being an entirely open one, so far as this Court is concerned, I have now concluded that the better answer is simply to overrule Linger v. Balfour and thus establish a uniform rule in cases of this general type to the effect that the vote in question shall be counted, notwithstanding that the third party who procured or assisted in procuring the voter’s tax certificate may have been guilty of a crime in so doing. Often enough the voter himself will be entirely innocent in the matter or will actually vote his own convictions in any event. I do not think it can be said with any certitude, in the face of existing penal provisions, that upholding the votes in question will significantly increase irregular practices, still less foster an unhealthy state of mind on the part of voters generally. In no event, can I see any compelling motive, theoretical or practical, to resort to arbitrary distinctions between cases like the instant case and Linger v. Balfour, supra, on the one hand, and, on the other, cases involving other kinds of irregularities in the payment of poll taxes. If decisions such as Wallis v. *335 Williams, supra, are correct; if the Court’s “constitutional” distinction between such decisions is unsound, as I consider it to be; if there is no other distinction that is satisfactory, as I believe there is not; and if there is no compelling reason to uphold Linger v. Balfour, supra, which I think there is not, our logical course seems to be to overrule the latter decision, sustain the holding of the Court of Civil Appeals that the four votes here in question were valid, and uphold its judgment on that ground. Opinion delivered May 15, 1957. Rehearing overruled June 19, 1957. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668776. Public record. Not legal advice.