Dick v. Kazen

• Decision Date: 10 July 1956
• Docket Number: No. A-5918,A-5918
• Citation: 292 S.W.2d 913,156 Tex. 122
• Parties: C. B. DICK et al., Relators, v. Mrs. Abraham KAZEN, Jr., et al., Respondents.
• Court: Texas Supreme Court

Page 913

292 S.W.2d 913

156 Tex. 122

C. B. DICK et al., Relators, v. Mrs. Abraham KAZEN, Jr., et al., Respondents.

No. A-5918.

Supreme Court of Texas.

July 10, 1956.

Dissenting Opinion Aug. 15, 1956.

Francis P. Maher & Maria G. Maher, Laredo, for relators.

R. Dean Moorhead, Austin, Victor C. Woods, Laredo, for respondents.

GRIFFIN, Justice.

C. B. Dick and other duly qualified candidates for nomination for various district and county offices to be determined at a primary election to be held by the Democratic Party in Webb County, Texas on July 28, 1956, filed this original application for a writ of mandamus against Mrs. Abraham Kazen, Jr., as chairman, Victor C. Woods, as secretary, and all the other members of the County Democratic Executive Committee, hereinafter called the Committee, of Webb County, Texas. The relief sought was to compel the Committee to prepare the official ballot to be used at such primary election by determining by lot the order in which the names of all the candidates for each district and county office should appear on said ballot, as is required by Article 13.17, V.A.T.S., Election Code of this State; and to prepare the official ballot for such primary election by placing each candidate's name for each office upon the official ballot in the order so determined by lot. It was alleged that the Committee held its meeting at 8:30 a. m., June 18, 1956, and determined the placement of the names of all candidates for all district and county offices on the official ballot for such primary election in a manner different than 'by lot', and in violation of Article 13.17, V.A.T.S., Election Code. By an affidavit accompanying this application it is made to appear that the Committee had met in a public meeting on the day provided by Article 13.17 of the Election Code, and determined the order in which the various candidates for the various offices would appear on the official ballot 'by lot by slate.'

Respondents, with commendable frankness, answer that in all contested State offices, and for the State Representative (where there were three candidates) the relative positions on the ballot were determined by drawing by lot individually the names of the respective candidates. In all the rest of the contested county and district offices there were only two candidates for each position; that one candidate had the endorsement of a local organization known as the Reform Party and that the other candidate had the endorsement of the Independent Club; that such endorsements had been widely publicized in Webb County and were well known throughout said county; that there were several candidates of the same name on the two 'slates' and also instances of several candidates of the same name on only one 'slate', but, of course, for different offices; that the Executive Committee discussed these facts, and in order to avoid confusion between various candidates of the same name, and in order to give the voters a clear cut choice between the candidates endorsed by the Independent Club and those endorsed by the Reform Party, it was decided to place the candidates of each faction in a definite position on the official ballot. To accomplish this result and in fairness to both factions, it was decided to determine by lot by 'slate' this position. In this manner each candidate would have a 50% chance to be the first on the ballot under the listing of the office for which he was a candidate, and a 50% chance to be in second place on said ballot. That such procedure to so determine by lot the order of the candidates was made in good faith and in a sincere effort to be fair, and afforded to each candidate a 50-50 chance, avoided confusion, and gave each voter, where so desired, a clear opportunity to vote a 'straight ticket', and thus to support either the Reform Party and its endorsed candidates or the endorsed candidates of the Independent Club. Further, it was alleged, such decision was made only after being advised by legal counsel that such determination would be a determination 'by lot', as provided for in Article 13.17 of the Election Code. Acting on such advice and for the purposes as above set out, the Committee did determine the position of the candidates for the contested district and county offices by drawing by lot the names of the two factions, and the faction first drawn was the Independent Club and the Reform Party was the second name drawn. In accordance with this determination by lot, the Committee had placed the Independent Club candidates first under each contested district and county office, and the Reform Party candidates in second place. These facts were not controverted and we therefore have the jurisdiction under Article 13.41, V.A.T.S., Election Code and Article 1735a, Vernon's Ann.Civ.St. to issue the writ of mandamus. It is elementary and requires no citation of authority that we cannot issue a writ of mandamus if a fact issue is raised by the pleadings and affidavits filed.

We hold that the determination of the order in which the names of the candidates for the district and county offices shall appear on the official ballot has not been determined 'by lot' as required by Article 13.17. The good intentions and honest sincerity of the respondents is no defense to the requirements of the law; nor may such failure to follow the statute be excused because of the local situation existing in Webb County due to the fact that a number of candidates for various offices have the same names and that confusion on the part of the voters might arise therefrom. The Election Code establishes a uniform procedure to be followed throughout the State of Texas. Our Election Code places on each voter the responsibility of determining those candidates for which he wishes to cast his ballot and marking his ballot accordingly.

Article 13.17 provides:

'The various county committees of any political party, on the third Monday in June preceding each general primary, shall meet at the county seat and determine by lot, in open meeting, the order in which the names of all candidates for all offices, including state-wide races, requested to be printed on the official ballot shall be printed thereon.'

The legal requirement that the Committee shall determine the order in which the names of the candidates shall appear on the official ballot has been in our statutes since 1903. The first law covering primary elections by ballot was passed by the Legislature in 1903. Prior to the effective date of such law all nominations had been made by conventions held by the respective parties, and not by election ballot. Sec. 94, General Laws, 28th Leg., 1903, Ch. 101, p. 150, provides, in part: 'The vote in all primary elections shall be by official ballot, which shall have printed at the top thereof the name of the party, and under it the names of all candidates, those for each office being arranged in alphabetical order beneath the title of the office for which they are candidates. * * *' (Emphasis added.)

In 1905, the so-called 'Terrell Election Law' came into effect. It repealed the 1903 Act. Section 113 of the 'Terrell Law', Acts 29th Leg., 1905, 1st C.S., p. 521 et seq., provided that it was the duty of the various county committees of any political party to meet on the date provided by such law to determine the order in which the names of the various candidates for the various offices should appear on the official ballot, 'and said order shall be determined by lot so no preference shall be given to any candidate.' (Emphasis added.) Section 111 of this law also provides, in part, that the county committee on the third Monday in June of each election year '* * * shall meet at the county seat and determine by lot the order in which the names of all candidates for each nomination or position requested be printed on the official ballot shall be printed thereon * * *.' (Emphasis added.) This same provision was carried forward into the 1911 revision as Article 3106. In the 1925 revision this became Article 3117, Vernon's Annotated Civil Statutes, and remained in the same verbiage until the enactment of the Election Code in 1951, when it was changed to read as Article 13.17 above set out. The language of the old law reading, 'all candidates for each nomination, * * *' now reads 'all candidates for all offices * * *.' Taking into consideration the whole of the Election Code and the spirit of the enactment, we do not believe the Legislature intended to change the method of determining the order in which the names of the candidates should appear on the official ballot from what it was under the preexisting statutes; i. e., that the order of the names of all candidates for each office on the ballot shall be determined by lot as to each office. 'Lot', as used in this provision quoted, is defined in 54 C.J.S., p. 839 as follows: 'The word 'lot,' used in one sense, signifies the existence of the element of chance, and in this sense is defined as a contrivance to determine a question by chance or without the action of a man's choice or will; anything used in determining a question by chance, or without a man's choice or will; the use of lots as a means of deciding anything, as to choose by lot. Also, that which causes, falls, or happens; chance, fortune, hazard.'

The respondents raised the question that each and every candidate for each contested district and county office is a necessary party to this proceeding, and since relators have not made such candidates parties to this proceeding, the mandamus should be refused. We overrule this contention. The holding of elections and the election procedure is a part of the political power of the State, and except as provided by statute, the judiciary has no control over them. Wall v. Currie, 147 Tex. 127, 213 S.W.2d 816, 817, wherein this court quotes with approval from 29 C.J.S., Elections, § 88, pp. 121-122, the following:

'* * * 'Except to the extent that jurisdiction is conferred by...