Purcell v. Lindsey

• Decision Date: 14 June 1958
• Docket Number: No. A-6898,A-6898
• Citation: 158 Tex. 541,314 S.W.2d 283
• Parties: Graham PURCELL, Relator, v. Jam LINDSEY, Chairman, et al., Respondents.
• Court: Texas Supreme Court

Page 283

314 S.W.2d 283

158 Tex. 541

Graham PURCELL, Relator, v. Jam LINDSEY, Chairman, et al., Respondents.

No. A-6898.

Supreme Court of Texas.

June 14, 1958.

Allen & Cherry, Buillington, Humphrey, Humphrey & Fillmore, Dawson & Penix, Jones, Parish & Fillmore, Kenneth Johnson, Kouri & Banner, Mock & Spell, Nelson, Montgomery, Robertson & Sellers, H. M. Muse, Peery & Wilson, Bradie E. Richie, Rogers, Eggers & Sherrill, Spence & Martin, Irvin J. Vogel, Nelson, Sherrod & Lambert, Wichita Falls, John McKelvey, Electra, for relator.

No appearance for respondents.

NORVELL, Justice.

Relator Graham Purcell has applied for a mandamus commanding the State Democratic Executive Committee (Jim D. Lindsey, et al.) to cause his name 'to be certified to the several chairmen of the county executive committees of the Democratic Party as a candidate for the Democratic nomination for the office of Judge of the Court of Criminal Appeals of the State of Texas before the 1958 Democratic Party Primary.'

The Committee refused to certify Purcell's name because he was not licensed to practice law (according to the records of this Court) until August 19, 1949 and hence at the time of the general election to be held on November 4, 1958 he would not have been 'a practicing lawyer, or a lawyer and judge of a court of record together (for) at least ten years.'

The applicable constitutional provisions are as follows:

'The Court of Criminal Appeals shall consist of three Judges, * * *. Said Judges shall have the same qualifications and receive the same salaries as the Judges of the Supreme Court.' Art. 5, § 4, Vernon's Ann.St.

'No person shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court unless he be, at the time of his election, a citizen of the United States and of this state, and unless he shall have attained the age of thirty-five years, and shall have been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years.' Art. 5, § 2.

While the constitutional amendment creating the Court of Criminal Appeals and prescribing the qualifications of its members (Art. 5, § 4) was adopted in 1891 and Article 5, § 2 relating to the qualifications of Supreme Court members was amended in 1945 so as to require ten rather than seven years of legal experience, this circumstance does not affect the construction of the constitutional articles involved, for as stated by this Court in Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 1315:

'The Constitution must he read as a whole, and all amendments thereto must be considered as if every part had been adopted at the same time and as one instrument, and effect must be given to each part of each clause, explained and qualified by every other part. Gibert v. Kobbe, 70 N.Y. 361. Different sections, amendments, or provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other. Dullam v. Willson, 53 Mich. 392, 19 N.W. 112, 51 Am.Rep. 128; State v. Astoria, 79 Or. 1, 154 P. 399.' (Italics ours.)

See, also, State ex rel. Wayland v. Vincent, Tex.Civ.App., 217 S.W. 402, affirmed Vincent v. State ex rel. Wayland, Tex.Com.App., 235 S.W. 1084.

It therefore appears that relator is ineligible to hold the office which he seeks under the plain wording of the constitutional provisions quoted and hence would not be entitled to have his name placed upon the primary ballot in view of the positive proscription of the election code that: 'No person ineligible to hold office shall ever have his name placed upon the ballot at any general or special election, or any primary election where candidates are selected under primary election laws of this State; and no such ineligible candidate shall ever be voted upon, nor have votes counted for him at any such general, special, or primary election. * * *' Art. 1.05 Vernon's Ann. Tex. Election Code. ¹ Brown v. Darden 121 Tex. 495, 50 S.W.2d 261; Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570; cf. Rummler v. Reavley, Tex., 293 S.W.2d 638.

But it is insisted by relator that in determining his eligibility we must look only to the qualifications prescribed by the amendment of 1891 and not to the later amendment of 1945.

Prior to 1876, appellate jurisdiction, both civil and criminal, was vested in the Supreme Court. However, the Constitution adopted in that year, created a Court of Appeals and vested it with appellate jurisdiction in criminal cases. ² The constitutional qualifications for members of the Supreme Court and the Court of Appeals were as follows:

'No person shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court unless he be at the time of his election a citizen of the United States and of this State, and unless he shall have attained the age of thirty years, and shall have been a practicing lawyer or a judge of a court of this State, or such lawyer and judge together, at least seven years.' Art. 5, § 2, Constitutional of 1876.

'They (judges of the Court of Appeals) shall be citizens of the United States and of this State; shall have arrived at the age of thirty years at the time of election; each shall have been a practicing lawyer, or a judge of a Court of this State, or such lawyer and judge together, for at least seven years.' Art. 5, § 5, Constitution of 1876. In 1891 the Constitution was amended so as to create the Courts of Civil Appeals and the Court of Criminal Appeals was established in place of the original Court of Appeals and vested with 'appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, with such exceptions or under such regulations as may be prescribed by law.' Art. 5, § 5.

The wording of the constitutional provision (Art. 5, § 4) relating to the qualifications of judges of the Court of Criminal Appeals has not been amended since 1891. As indicated above, such judge 'shall have the same qualifications and receive the same salaries as the Judges of the Supreme Court.'

Article 5, § 2 of the 1876 Constitution was amended in minor particulars in 1891 and at the time of the creation of the Court of Criminal Appeals the qualifications of the members of the Supreme Court were thus prescribed:

'No person shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court unless he be at the time of his election a...