Burroughs v. Lyles

• Decision Date: 24 June 1944
• Docket Number: No. A-235.,A-235.
• Citation: 181 S.W.2d 570
• Court: Texas Supreme Court
• Parties: BURROUGHS et al. v. LYLES, County Chairman, et al.

181 S.W.2d 570

BURROUGHS et al. v. LYLES, County Chairman, et al.

No. A-235.

Supreme Court of Texas.

June 24, 1944.

Original petition by Robert E. Burroughs and another for a writ of mandamus, to be directed to A. G. Lyles, County Chairman of Grimes County, John Long, and others, to keep the names of respondents Long and another off the primary election ballots as candidates for office of State Senator from the Fifth Senatorial District, wherein respondent Long filed a cross-complaint.

Writ granted.

W. W. Heath, of Austin, Robert E. Burroughs, Seale & Seale and Joe Seale, all of Centerville, and Burns & Burns, and Gordon Burns, all of Huntsville, for petitioners.

Earle P. Adams, of Crockett, and John W. Stayton, of Austin, for respondent Long.

Raymond Furr, of Austin, for respondent Fain.

SHARP, Justice.

This is an original petition for a writ of mandamus, filed by Robert E. Burroughs and Roger A. Knight, candidates for the office of State Senator from the Fifth Senatorial District. The petition names as respondents all of the county chairmen of the nine counties situated in the Fifth Senatorial District, together with John Long, of Houston County, and Clem Fain, Jr., of Polk County.

Respondents Fain and Long contend that this Court does not have jurisdiction of this case. They also claim that they have complied with the laws relating to filing and request for a position on the official ballot for the Fifth Senatorial District. Long filed a cross complaint, asking this Court to issue its writ of mandamus requiring the officials of the Democratic County Executive Committee of each of the nine counties comprising the Fifth Senatorial District to comply with Article 3117, Vernon's Ann.Civ.St., and to require each County Executive Committee to order and print the name of respondent Long on the official ballot to be used in the primary to be held on the fourth Saturday in July.

A brief statement of the facts alleged in the petition follows: The petitioners are qualified under the Constitution and laws of Texas to hold the office of State Senator, and have filed, prior to or on the third Monday in May, 1944, their written requests with the county chairmen of the nine counties comprising the Fifth Senatorial District to have their names placed on the official ballot at the general primary election of the Democratic Party of Texas. All of such requests were received by the respective county chairmen on or before the third Monday in May, which was May 15th. Since all of such requests complied with all of the requirements of the laws of this State, the petitioners were entitled to have their names placed on the official primary ballot.

The respondents Long and Fain prepared applications addressed to the various county chairmen of the Fifth Senatorial District, requesting that their names be placed on the ballot as candidates for the nomination for the office of State Senator. On May 15, 1944, the respondents Long and Fain placed their applications addressed to eight of the nine county chairmen in the United States mail by registered mail. None of the applications so mailed was delivered to or received by any of the county chairmen until after May 15, 1944. Respondent Fain did not sign the application sent to the respondent Lyles, County Chairman of Grimes County, and did not file any other application with the respondent Lyles on or before May 15th. Respondent Long is, and has been continuously for more than two years, the County Superintendent of Houston County, with a term of four years, which term expires on December 31, 1946.

It appears from the petition that the County Democratic Executive Committees of the counties of the Fifth Senatorial District met as provided in Article 3117, Vernon's Annotated Civil Statutes, to determine by lot the order in which the names of the candidates should be printed on the ballot. In the counties of Leon, Madison, San Jacinto, and Trinity the county committees voted to omit the names of the respondents Long and Fain from the ballot. In the counties of Polk, Houston, Walker, and Montgomery the county committees voted to place the names of the respondents Long and Fain on the ballot with the names of the petitoners. In Grimes County the county committee voted to omit the name of the respondent Long from the ballot, failed to have the name of the respondent Fain put on the ballot, and did not determine by lot the order in which the names of candidates for such office should be placed on the official ballot.

There is no district chairman of the Fifth Senatorial District, and no certificates were issued to the county chairmen as provided in Article 3114, Vernon's Annotated Civil Statutes.

Petitioners seek to keep the name of respondent Long off the ballot in all counties in the district, and seek to keep the name of Fain off all the ballots except in Polk County.

That this Court has jurisdiction of this matter is settled by the case of Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484. Therefore we overrule the above contention of respondents Fain and Long.

Article 3112, Vernon's Annotated Civil Statutes, in part reads as follows:

"Any person desiring his name to appear on the official ballot as a candidate for the nomination * * * for State Senator when such Senatorial District is composed of one or more than one County, * * * shall file with the chairman of the executive committee of the party for the district, said request with reference to a candidate for a State nomination, or if there be no chairman of such district executive committee, then with the chairman of each county composing such district, not later than the third Monday in May preceding the general primary. * * * Immediately after said date each such district chairman shall certify the names of all persons for whom such requests have been filed to the county chairman of each county composing such district. If said name is not submitted or filed within said time, same shall not be placed upon said ballot." (Italics ours.)

The italicized portion of the statute was added by amendment in 1943, and in our opinion clearly evinces an intention by the Legislature to make the requirement of filing mandatory. If the requests by Long and Fain were filed too late, the various county committees had no discretion in the matter; their names should be omitted from the ballot.

An attack is made on the validity of Article 3112 on the ground that the caption of the Act is insufficient to meet the constitutional requirement. The caption reads as follows:

"An Act amending Article 3112, Title 50, Chapter 13, Revised Civil Statutes of Texas, 1925, so as to fix the final filing date of all those running for State offices and certain district offices, on the third Monday in May preceding the general primary; and declaring an emergency." Acts 1943, c. 218.

We think the language used in the caption, "to fix the final filing date of all those running for State offices and certain district offices, on the third Monday in May preceding the general primary," is sufficient to give notice of the purpose of the law. 39 Tex.Jur., 97; Doeppenschmidt v. International & G. N. R. Co., 100 Tex. 532, 101 S.W. 1080; Murray v. Reagan, 129 Tex. 206, 102 S.W.2d 202; Bitter v. Bexar County, Tex.Com.App., 11 S.W.2d 163. We overrule the foregoing contention.

Petitoners rely upon the construction placed upon Article 3112 by the Attorney General, which is that in order to be regarded as filed, the request must be in the hands of the county chairman within the time for filing. We quote from an opinion of the Attorney General, which was approved on June 6, 1944, Opinion No. O-6060:

"On June 18, 1910, in an opinion addressed to the Honorable I. N. Fallis, County Chairman, Clifton, Texas, the Honorable Jewel P. Lightfoot, Attorney General, held that a candidate for State Senate in a district composed of more than one county, was required to have his application for his name to be placed upon ticket in the hands of the district chairman, or the respective county chairmen, within the time prescribed by law; and that transmission by mail where application failed to reach chairmen was not sufficient compliance to get name upon ballot.

* * * * *

"The Attorneys General of the State of Texas have consistently held that candidates for district office, in districts composed of more than one county, are required to have their applications for names to be placed upon ballot in the hands of the District Chairman, or respective County Chairmen, within the time prescribed by law."

This long-continued administrative construction is entitled to great weight, especially in view of the fact that the statute was amended as late as 1943, and the Legislature, which is presumed to have been aware of the interpretation, made no changes in the language that would indicate a contrary intent.

There is an additional reason why we think the interpretation of the Attorney General is correct. Article 3111, Vernon's Annotated Civil Statutes, provides in part as follows:

"The request to have the name of any person affiliating with any party placed on the official ballot for a general primary as a candidate for the nomination of such party for any State office shall be governed by the following:

* * * * *

"2. Any such request shall be filed with the State chairman not later than the first Monday in June preceding such primary, and shall be considered filed if sent to such chairman at his post-office address by registered mail from any point in this State. * * *"

The fact that the Legislature provided that a request sent by registered mail should be considered filed in the quoted statute, but made no such provision in Article 3112, is convincing that a different rule was intended to apply. This is especially so since the general rule is that the word "filed" is not satisfied until the instrument is delivered to the proper officer. Words and Phrases, Perm.Ed.,...