Benavides v. Atkins
| Decision Date | 26 October 1938 |
| Docket Number | No. 7469.,7469. |
| Citation | 120 S.W.2d 415 |
| Parties | BENAVIDES v. ATKINS, County Chairman, et al. |
| Court | Texas Supreme Court |
Original proceeding for writ of mandamus by L. J. Benavides against Charles O. Atkins, County Chairman, and others.
Application granted.
Kennedy Smith, of Raymondville, and F. G. Garza, of Falfurrias, for relator.
Lloyd & Lloyd, of Alice, for respondents.
Relator, Benavides, by petition for writ of mandamus filed in this court seeks to compel respondent Atkins, as county chairman of the Democratic executive committee of Brooks County, and the committee, to certify relator's name to the county clerk of said county as nominee of the Democratic party for the office of county and district clerk of Brooks County, and to compel respondents Orth and Brooks as county clerk and county judge and members of the election board of the county to cause the name of relator as such nominee and candidate at the general election to be posted and to be printed on the official ballot.
Relator, Benavides, and respondent Orth were the only candidates for the nomination to the office of county and district clerk in Brooks County at the primary election held by the Democratic party on July 23, 1938. The Democratic executive committee of the county on July 30, 1938 met, canvassed the returns and declared that relator, Benavides, had received a majority of the votes cast at the said primary election for the nomination to said office. On the same day, July 30, 1938, respondent Orth filed with the Democratic executive committee of the county a contest of relator Benavides' nomination. The committee heard the contest and on August 9, 1938 decided it in favor of respondent Orth, declaring him to have been duly nominated at such election. On relator's appeal from such decision of the committee to the district court of Brooks County and after trial de novo of the contest, the court rendered its judgment on September 23, 1938, in favor of respondent Orth. Relator appealed from said judgment to the Court of Civil Appeals at San Antonio, Benavides v. Orth, 120 S.W.2d 99, which court by judgment rendered October 5, 1938, affirmed the judgment of the district court. On motion for rehearing, however, the Court of Civil Appeals on October 8, 1938, reversed the judgment of the district court as erroneous and further held that there was insufficient time to permit a retrial of the cause and dismissed "the contest and proceedings".
It is shown that on August 9, 1938, the day on which the Democratic executive committee of the county decided the election contest in favor of respondent Orth, the chairman of the committee issued a certificate declaring that said respondent had received a majority of the votes cast at the said primary election for nomination to the office of county and district clerk and on the same day filed the said certificate in the office of the county clerk. It further appears from the allegations in the petition not controverted that, notwithstanding the final judgment of the Court of Civil Appeals dismissing the election contest, the chairman of the executive committee and the committee have refused to certify the name of relator to the county clerk as nominee of the Democratic party for the office of county and district clerk, that respondent Orth as county clerk has refused to post relator's name as such nominee and that respondent Orth, as county clerk and a member of the county election board, and respondent Brooks, county judge, as a member of the county election board, have refused and will refuse to cause relator's name to be printed upon the official ballot for the general election as candidate of the Democratic party for the office of county and district clerk.
The principal contention made by respondent Orth is that, in virtue of the certificate made by the chairman of the Democratic executive committee and filed in the office of the county clerk on August 9, 1938, declaring that respondent Orth received a majority of the votes, and because relator has filed no contest of said certificate and no formal proceeding to determine its validity, he, Orth, is entitled to have his name posted and printed on the ballot as nominee of the Democratic party for said office. Relator takes the...
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