Briscoe v. Boyle

• Decision Date: 02 July 1926
• Docket Number: (No. 7670.)
• Citation: 286 S.W. 275
• Parties: BRISCOE v. BOYLE et al., Judges of Election.
• Court: Texas Court of Appeals

Page 275

286 S.W. 275

BRISCOE v. BOYLE et al., Judges of Election.

(No. 7670.)

Court of Civil Appeals of Texas. San Antonio.

July 2, 1926.

Rehearing Denied July 3, 1926.

Appeal from District Court, Uvalde County; L. J. Brucks, Judge.

Suit for injunction by Dolph Briscoe against J. M. Boyle and others, as presiding judges of election. From an order denying the injunction, plaintiff appeals. Reversed, and injunction granted.

Ditzler H. Jones, of Uvalde, and Guy S. McFarland, Will A. Morriss, and Will A. Morriss, Jr., all of San Antonio, for appellant.

R. J. Noonan, of Hondo, and W. B. Teagarden and B. W. Teagarden, both of San Antonio, for appellees.

SMITH, J.

As a preliminary to the holding of the party primary election on the fourth Saturday in July of the current year, the county democratic executive committee of Uvalde county adopted a —

"resolution and order providing a purported test for voters offering to vote in the forthcoming primary election aforesaid, whereby such voters might, and shall, be required to meet and possess and to manifest by affidavit the following test and to possess the following qualifications in addition to the qualifications of citizenship and payment of poll tax or exemptions from poll tax, and in substance and effect as follows, to wit:

"`My vote having been challenged on the ground that I voted for, gave aid and support and comfort to a political party other than the Democratic party at the last general election, and having been duly sworn, I now declare under oath that I did not vote, give aid, support or comfort to any political party and its nominees, other than the Democratic party and its nominees in the last general election; and I further declare that I will support the nominees of this party at the next general election.

                                     "`________, Voter
                

"`Subscribed and sworn to before me, this the ____ day, of A. D. 1922.

"`_______, Presiding Judge, Precinct No. ____.'"

Dolph Briscoe, a qualified voter in said county, acting for himself and others similarly situated, brought this action against J. M. Boyle and thirteen others constituting the presiding judges designated by the county executive committee to hold the forthcoming primary election in the several precincts of said county, and prayed for a temporary injunction restraining said election judges from observing and enforcing the authority and instructions contained in said resolution. Upon a hearing in chambers after notice, the district judge denied the temporary injunction, and Briscoe has appealed.

From the agreed facts in the case it appears that appellant and those for whom he acts voted in the Democratic primaries in Uvalde county in the year 1924, but in the ensuing general election voted against the person nominated for Governor in that primary, and for the nominee of another party for that office. In other words, appellant concedes that, although he voted in the Democratic primaries in 1924 under an express pledge to support the nominees of those primaries, he disregarded that pledge in its application to the nominee for Governor by voting against that nominee and for the nominee of another party. Appellees contend that, because of this violation of that pledge in 1924, appellant and those for whom he acts have not come into court with clean hands, and are therefore not entitled to the relief prayed for. And appellees further contend that the action complained of is a mere party regulation, and therefore political, and that the courts should not interfere therewith. The statutes governing primary elections do not expressly limit the qualifications of electors entitled to vote in such elections, except to exclude negroes from participating in "Democratic primary elections," and except by general terms to confine the right of suffrage to members of the particular party in whose primaries they offer to participate. The true spirit of election laws is to extend the right of suffrage to all persons normally entitled to that right, and not disqualified or rendered ineligible by express provisions. In this state the qualifications of persons...