Dewees v. Stevens

• Decision Date: 16 October 1912
• Citation: 150 S.W. 589
• Parties: DEWEES v. STEVENS et al.
• Court: Texas Supreme Court

150 S.W. 589

DEWEES v. STEVENS et al.

Supreme Court of Texas.

October 16, 1912.

Original petition by J. E. Dewees, chairman of the Democratic executive committee of Wilson county, against E. A. Stevens and others to compel the vacation of an order by said Stevens, as judge of the district court, directing petitioner to issue a certificate of election. Writ denied and preliminary restraining order dissolved.

O. A. McCracken and C. A. Cone, both of Floresville, for relator. J. E. Canfield and L. B. Wiseman, both of Floresville, for respondents Kott & Stevens.

DIBRELL, J.

On August 10, 1912, Hugo Kott filed in the district court of Wilson county his petition against J. E. Dewees, chairman of the Democratic executive committee of Wilson county and others, praying for a writ of mandamus to compel the said Dewees, as such chairman, to certify to the county clerk of Wilson county the name of Kott as the regular Democratic nominee for the office of county commissioner of precinct No. 3 of Wilson county. The petition, in substance, alleged that Kott, with two others, was a candidate before the Democratic primary held on July 27, 1912, for the Democratic nomination for county commissioner of precinct No. 3 of Wilson county, and that he had received a plurality of all the votes cast for the candidates for said office, and was therefore entitled to have his name certified to the county clerk as the nominee for such office, in compliance with the primary election laws of this state. The cause was set down for hearing in vacation, and after such hearing, on August 20, 1912, an order was entered by the district judge requiring J. E. Dewees, as chairman of the Democratic executive committee of Wilson county, to certify to the county clerk of said county the vote received by Hugo Kott in the primary election showing his nomination for such office.

The cause was submitted to the trial judge upon the pleadings and the following facts, both as agreed upon and as shown by the certificate of the county chairman, to wit: "It is hereby agreed by and between the parties to this suit that the plaintiff Hugo Kott is now and has been continuously for several years past a Republican, and that at the time of making his application for his name to be placed upon the Democratic ballot for the July primary in the year 1912 he was a Republican, and that he was a Republican prior to said time, and that he has been a Republican continuously since before the making of said application up to the present, and is still a Republican, and did not in any way or manner participate in the Democratic primary election held on July 27, 1912. That the said Hugo Kott has been postmaster at Lavernia, in Wilson county, Tex., continuously for a period of about six years next preceding this date, and that he is now such postmaster. It is further agreed that the plaintiff Kott's name appeared upon the official ballot in the Democratic primary as a candidate for such office and at the primary election held on said date he received a plurality of the votes cast in said election for said office and a plurality of all votes was sufficient to nominate in said election; that the members of the Democratic executive committee did not know that the plaintiff Hugo Kott was a Republican at the time said committee placed his name upon the ballot to be used in the Democratic primary election."

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