Ferguson v. Wilcox

• Decision Date: 23 May 1930
• Docket Number: No. 5675.,5675.
• Citation: 28 S.W.2d 526
• Parties: FERGUSON v. WILCOX et al.
• Court: Texas Supreme Court

28 S.W.2d 526

FERGUSON v. WILCOX et al.

No. 5675.

Special Supreme Court of Texas.

May 23, 1930.

Rehearing Denied May 26, 1930.

Original petition for mandamus by James E. Ferguson, opposed by D. W. Wilcox, Chairman of the State Democratic Executive Committee, and others.

Writ denied.

Argued before BRITIAN, Special C. J., and BRADLEY, Special J., and PIERSON, J.

Bailey, Nickels & Bailey, of Dallas, and Ocie Speer, of Austin, for relator.

W. A. Keeling and J. H. Hart, both of Austin, R. T. Lipscomb, of Bonham, and A. S. Johnson and C. C. Renfro, both of Dallas, for respondents.

BRITAIN, Special C. J.

James E. Ferguson, relator, filed an original petition for mandamus in this court to compel and require D. W. Wilcox, chairman, and the other officers and members of the State Democratic Executive Committee of Texas, to certify to each of the Democratic county chairmen of the state the name of relator as a candidate on the Democratic ticket for Governor at the primary election of said party to be held on the fourth Saturday in July, 1930.

The petition is long, and in so far as is necessary to a determination of the issues here involved, it, in substance, contains allegations of fact as to qualifications, and the like, which would entitle relator to be certified as a candidate for the Democratic nomination of the party, unless the other allegations hereinafter referred to would render him ineligible to said office.

Relator further alleges that the committee named and its officers and members have refused to certify relator's name as such candidate, and that they do not intend to, have declared and threatened that they will not at the meeting of said committee, to be held on the second Monday in June, next hereafter, or otherwise, certify or direct their chairman to certify relator's name as such candidate.

Relator alleges that the reason assigned by the committee for their action is the impeachment by the Texas Senate of relator on September 25, 1917. Relator does not bring into question or review the validity of the impeachment proceedings and judgment therein; but in bar of said judgment and in release thereof, he alleges that at its regular session in 1925 the Legislature of Texas duly enacted a statute, in words and figures as follows:

"An Act granting to every person against whom any judgment of conviction has heretofore been rendered by the Senate of the State of Texas in any impeachment proceeding, a full and unconditional release of any and all acts and offenses of which any such person was so convicted under and by virtue of any such judgment, and to cancel and remit any and all punishment fixed or assessed by any such judgment of said Senate, including that of disqualification to hold any office of honor, trust or profit under the State of Texas, and declaring an emergency.

"Be it enacted by the Legislature of the State of Texas:

"Section 1. That every person against whom any judgment of conviction has heretofore been rendered by the Senate of the State of Texas in any impeachment case, shall be and is hereby granted a full and unconditional release of any and all acts and offenses of which he was so convicted by said Senate of the State of Texas, upon any charge or proceedings of impeachment.

"Sec. 2. That any and all penalties or punishment inflicted by or resulting from any such judgment heretofore rendered by the Senate of Texas, in any such impeachment case, including any disqualification to hold any office of honor, trust or profit under said State, shall be, and the same is hereby fully cancelled, remitted, released and discharged.

"Sec. 3. Any person coming within the purview of this Act may, should he so desire, apply to the Secretary of State for a copy of this Act and upon such application the Secretary of State shall prepare and deliver to the applicant a copy of this Act duly certified by him and shall make and preserve a record of such application and the delivery of such certified copy, which shall become a permanent record of his office; provided that such application or delivery of a certified copy shall not be necessary in order to render this Act effective, nor shall the failure of any person affected by it to make such application or receive such copy render this Act invalid or inoperative as to any person coming within the purview hereof.

"Sec. 4. The fact that the relief of persons from further operation of penalties and punishments inflicted under or by judgments in impeachment cases rendered by the Senate of the State of Texas is a Christian function to be exercised by the Legislature of Texas, and there being no law now in force granting the power to give relief in such cases, creates an emergency and an imperative public necessity which authorizes the suspension of the constitutional rule requiring bills to be read on three several days in each House, and said rule shall be and the same is hereby suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted."

That said statute was duly approved by the Governor of Texas, and duly filed in the office of the Secretary of State at Austin on March 31, 1925, and shown as chapter 184, pages 454, 455, General Laws of the State of Texas, passed by the 39th Legislature at its Regular Session, 1925. Relator further alleges due compliance with said law in making application to and receiving from the Secretary of State a certified copy of said statute at named dates in the year 1926, and he alleges that the effect of this act was to remove from relator any and all disqualifications to hold office under the State of Texas resulting from the impeachment proceedings and judgment aforesaid. He also set out in his petition the Act of the 40th Legislature, Regular Session, 1927, known as chapter 242, page 360, which undertook to repeal the Amnesty Bill aforesaid in toto and alleged that the same was wholly ineffectual for that purpose, in so far as plaintiff's rights were concerned.

Other attacks were made by relator in his petition on certain statutes involved in primary election laws upon constitutional and other grounds, but in view of our holdings in this case it is unnecessary to set out or further refer to them.

Relator further alleged that but 46 days would elapse between the date of the meeting of the Executive Committee, fixed by law, and the first primary election, and that the time was so short as to preclude the possibility, or reasonable probability, of having relator's rights litigated and determined in the time intervening, and that relator's candidacy would be prejudiced thereby. He further alleged that other parties, to the relator unknown, were threatening to file injunctive proceedings designed to delay and prevent the certification of relator's name.

In due course respondents duly filed their answer, wherein they pleaded: (a) To the jurisdiction of the court; (b) general demurrer; (c) special answer setting out the election of relator as Governor of Texas; his conviction by the Texas Senate on ten of the articles of impeachment on September 25, 1917, and removal of relator from the office of Governor of the State and declaring him disqualified to hold any office of honor, trust, or profit under the State of Texas. They set out the judgment of conviction as follows:

"State of Texas, v. Jas. E. Ferguson.

"Whereas, the House of Representatives of the State of Texas did, on the 24th day of August, 1917, exhibit to the Senate of the State of Texas Articles of Impeachment against Jas. E. Ferguson, Governor of the State of Texas, and the said Senate, after a full hearing and an impartial trial, has by the votes of two-thirds of the members present, this day determined that the said Jas. E. Ferguson is guilty as charged in the 1st, 2nd, 6th, 7th, 11th, 12th, 14th, 16th, 17th and 19th of said Articles of Impeachment, said articles and the votes thereon being as follows, to-wit: (Omitted here.)

"Now, therefore, it is adjudged by the Senate of the State of Texas sitting as a court of impeachment, at their chamber, in the City of Austin, that the said James E. Ferguson be and he is hereby removed from the office of Governor and be disqualified to hold any office of honor, trust or profit under the State of Texas. It is further ordered that a copy of this judgment be enrolled and certified by the President pro tem of this Senate as presiding officer, and the Secretary of the Senate, and that such certified copy be deposited in the office of the Secretary of State of the State of Texas, and be printed in the Senate Journal."

They alleged that this judgment was in full force and effect, and further pleaded that the Amnesty Act set out in full in relator's petition was invalid as being in contravention of the Constitution of the State, which they alleged did not vest in the Legislature power to grant pardons to one who had been impeached, removed from office, and declared to be disqualified to hold any office of honor, trust, or profit under this State. They further alleged that relator was ineligible to hold the office of Governor, and that the committee was prohibited from certifying his name to the various county chairmen to be placed on the primary ballot in such primary election. (d) They further alleged that the filing of the petition was premature, in that relator's application to the Executive Committee was filed on April 16, 1930, and without a hearing by the committee or a request for a hearing in advance of the second Monday in June, 1930, the regular day fixed by law for the Executive Committee meeting, and that the committee had not had an opportunity to consider said petition before the whole committee, where a full discussion might be had, and for that reason they prayed that the petition be dismissed.

Both the petition and answer are duly verified, and set out the facts sufficiently to raise the issues hereinafter considered by us. The facts are...