Brewster v. Massey

• Decision Date: 23 September 1950
• Docket Number: No. 15193,15193
• Citation: 232 S.W.2d 678
• Parties: BREWSTER v. MASSEY et al.
• Court: Texas Court of Appeals

Page 678

232 S.W.2d 678

BREWSTER v. MASSEY et al.

No. 15193.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 23, 1950.

Rawlings, Sayers, Scurlock & Daly, Wade, Davis & Callaway, Martin, Moore, Brewster & Dean, Cantey, Hanger, Johnson, Scarborough & Gooch, Thompson, Walker, Smith & Shannon, Frank E. Crumley, R. V. Nichols, and Samuels, Brown, Herman & Scott, all of Fort Worth, for relator.

Frank Massey, of Fort Worth, for respondent Frank Massey.

Bryan, Stone, Wade & Agerton and Simon, Wynn, Sanders & Jones, all of Fort Worth, for respondent Melvin (Mel) Faulk.

PER CURIAM.

This is an action for mandamus, filed originally in this court, and sought to be maintained here under authority of Acts 1930, 41st Leg., 4th C.S., p. 4, ch. 4, § 1, sometimes cited as Art. 1735a, Vernon's Texas Civil Statutes, which provides that the Supreme Court or any Court of Civil Appeals shall have authority to issue a writ of mandamus against certain named officials to compel the performance of any duty imposed upon them by law.

Prior to January 1, 1948, Judge Walter Morris was elected to serve a term of four years beginning on January 1, 1948, as Judge of the 67th District Court, a district composed of the area which comprises Tarrant County. Judge Morris qualified and served as judge of such court until his death on August 4, 1950. Since the year 1950 fell in the middle of his term, and since his death occurred after the Democratic primary election was held that year, no one was nominated in the 1950 primary election for such office.

At the regular state convention of the Democratic Party held in Mineral Wells on September 12, 1950, Harris Brewster, the relator in this proceeding, was nominated by the convention for the office in question as the party nominee to appear on the November ballot. The nomination by the convention was made on recommendation of and pursuant to a resolution adopted by the state executive committee of the party, and the nomination was duly certified by the proper officers of the party to the county clerk of Tarrant County.

The Republican Party has named a nominee for said office, to appear on the November ballot, and has duly certified such nomination to the county clerk of Tarrant County.

On September 14, 1950, Mr. Frank Massey, one of the respondents in the present proceeding, filed a suit in the 126th District Court, in Travis County, seeking to enjoin the placing of Harris Brewster's name on the November ballot as the nominee of the Democratic Party. The Hon. Jack Roberts, Judge of the 126th District Court, also a respondent herein, issued a temporary restraining order, returnable September 21, 1950, which among other things enjoined the Hon. Melvin Faulk, as County Clerk of Tarrant County, from placing Mr. Brewster's name on the ballot as the Democratic nominee. Mr. Faulk, who is also a respondent in the proceeding before us, has heretofore stated in writing that he decided that he must await the final outcome of the Travis County suit before posting Mr. Brewster's name as the Democratic nominee or placing his name on the ballot as such, but has further stated that he has no personal interest in the matter, and no purpose other than to discharge his official duties when the courts shall have advised him what his duties are.

On September 18, 1950, Mr. Brewster filed in this court, after motion to file was granted, his petition for writ of mandamus, naming Mr. Massey, Mr. Faulk in his official capacity as County Clerk and as a member of the County Election Board of Tarrant County, and Judge Jack Roberts in his official capacity, as respondents. In response to a prayer in the petition, we caused to be issued at once a temporary restraining order enjoining Judge Roberts from proceeding further with the suit in the 126th District Court or from entering any orders therein other than to dismiss the suit, and enjoining Mr. Massey from prosecuting the suit in the 126th District Court or any action in any other court pertaining to the nomination of Mr. Brewster and the placing of his name on the November ballot, until and pending a hearing of the matter before this court on September 21, 1950. It being imperative that the entire matter be decided at an early date in order that Mr. Faulk may proceed with the posting of names of nominees and the printing of the ballots, all parties concerned were notified that the petition for writ of mandamus would be heard in this court at two o'clock in the afternoon, September 21, 1950. Respondents Frank Massey and Melvin Faulk filed replications in writing to the petition for mandamus, and written arguments, and at the time set for hearing the relator and the respondent Melvin Faulk appeared by counsel, the respondent Frank Massey appeared in person, and oral argument was presented to the court.

The essential facts of the case are not in dispute. Mr. Massey's justiciable interest in the matter arises from the fact that he has taken the necessary steps to have his name placed on the November ballot as an independent candidate for the office in question and asserts that he, as a member of the Democratic Party, desires and has the right not to be opposed by Mr. Brewster as the nominee of the Democratic Party under the circumstances which prevail. No question is raised concerning the statutory and constitutional qualifications of Mr. Brewster and Mr. Massey to serve as judge of said court.

The Supreme Court discussed at length in Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 520, 70 A.L.R. 1484, the validity of Article 1735a, and the authority of the Supreme Court and the Courts of Civil Appeals to entertain an action for mandamus in a situation like the one now before us. The statute was declared to be valid. It was declared:

'No questions could arise of wider public interest or of graver importance to the state than those involving abridgment of rights of citizens to participate in government through the selection of those who may become public officials by means of party nominations. A speedy, final determination of such questions is at times possible only through the exercise of jurisdiction elsewhere than in the district court.'

It was held that ordinarily rights may be enforced in a mandamus proceeding brought in the district court, appealed to the Court of Civil Appeals, and brought to the Supreme Court by writ of error, and that the extraordinary jurisdiction of the Supreme Court or Court of Civil Appeals cannot be successfully invoked where these ordinary remedies are complete and adequate. It was further held, however, that the Legislature did not exceed its powers in making it possible for the Supreme Court or Court of Civil Appeals to take original jurisdiction to issue the writ of mandamus where there is an urgent necessity for the exercise of such court's authority to maintain and protect the general rights and important interests of the state and the people. Referring to the case then before it, the court said:

'This case comes clearly within the class of cases involving the enforcement of the sovereignty of the state and the protection of the citizen's right to effective participation in his state's government. * * * The primary laws of this state are based upon a recognition of political parties as agencies of the people for the exercise of the powers thus reserved to them by the Constitution. It necessarily follows as a part of the right of the people to organize political parties for the constitutional purposes stated that the people of the state have the power through their Legislature to enact laws having for their purpose the protection of the constitutional rights, declared in the provisions just quoted.'

The court declared that if it should refuse to take jurisdiction, relator would be unable to procure any decision from the state's highest judicial authority, that no judgment of the district court could become final in time to be of any avail in view of the statutory rights of review by appellate courts, and that relator was therefore without other adequate remedy.

All that was said by the Supreme Court in justification of its assumption of jurisdiction is applicable to the question of assumption of jurisdiction by this court in the present case. The concurrent jurisdiction of the Court of Civil Appeals with that of the Supreme Court in such as case is expressly recognized by the Supreme Court in the case just cited.

In Benavides v. Atkins, 132 Tex. 1, 120 S.W.2d 415, the relator sought by an original action for mandamus filed in the Supreme Court to compel certain officers of the Democratic Party to certify him to the county clerk as the Democratic nominee for a certain office, and also to compel the county clerk and other named officials to cause his name to be placed on the official ballot as the party nominee. Respondents in the case questioned the jurisdiction of the Supreme Court to issue the writ of mandamus against the county clerk and the county judge, making the contention that Article 1735a conferred jurisdiction on the Supreme Court to issue the writ of mandamus against officers of a political party but not against county officials. The court held that it had authority to issue the writ of mandamus against the county clerk in his official capacity and the county clerk and the county judge as members of the county election board, because such was necessary to make effectual the relief sought by the relator. Also, the Supreme Court, in another and similar original action for mandamus, ordered the county clerk to place the relator's name on the ballot, in Iles v. Walker, 132 Tex. 6, 120 S.W.2d 418.

We are convinced that we have at least potential jurisdiction of an action like that brought here by relator. Next to be considered is whether or not we should exercise such jurisdiction in view of the suit pending in Travis County.

It is held in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, and in many other cases,...