Gonzalez v. Rodriguez (270 S.W.2d 440, 1954)

POPE, Justice.

Cause No. 12732, styled Gonzalez et al. v. Rodriguez et al., is an election contest. In March of 1952 an election was conducted in Starr County to determine whether the Grulla Independent School District and the Rio Grande City Independent School District should be consolidated. This contest concerns only the election conducted in the Grulla District, Gonzalez v. Duran, Tex.Civ.App., 250 S.W.2d 322. The voters in both districts, according to the canvass, favored consolidation, and in the Grulla District there were 424 votes for consolidation and 384 against consolidation. Both the contestants and contestees challenged certain voters in the trial of the contest. The judgment of the trial court upheld the election and declared that there were 422 valid votes for consolidation and only 351 against consolidation. The contestants, in their attack upon this judgment, claim that the trial court erred with reference to 84 votes, which number of claimed errors is sufficient to overcome the majority of 71 votes favoring consolidation.

The election officials denied 57 persons the privilege of voting on the grounds that they were non-residents. The trial court held that 31 of those persons were residents of the Grulla District and were illegally denied the right to vote, but that the other 26 person were non-residents and disqualified as voters. We may discuss 11 of those 26 persons as a group. The evidence showed that all of the 57 persons owned homes, furniture and possessions in the Grulla District, but that each year, commencing in April, they made long and extended trips throughout the United States, following their trade of harvesting seasonal produce. But with reference to 11 of the persons whom the court held disqualified, there was additional convincing evidence which supports the finding that they were non-residents. The Tax Assessor-Collector testified that each of those 11 persons availed himself of a tax exemption accorded non-residents with reference to the payment of an automobile use tax required by Article 7047k. The Tax Assessor-Collector was an interested party, but that did not disqualify him as a witness. As the proper official in charge, he explained the tax office methods used in processing and issuing title certificates. He then identified certified copies of duplicate originals of the tax collector’s receipt for title applications issued to each of the 11 persons. These documents, without regard to other notations which contestants objected to, show that those 11 persons did not pay the use tax. The force of the evidence is that those persons, at a time when voting was not the issue, claimed a residence outside of Texas and thereby avoided the payment of a tax which they must have paid, had they been residents. That those persons gained an exemption and a tax advantage by reason of an earlier denial of residence in the Grulla District was not rebutted. Contestants claim that the documents may not be considered in the face of their objection that they were immaterial and irrelevant. Article 3731a permits the introduction of