Ferris v. Carlson

• Decision Date: 18 June 1958
• Docket Number: No. A-6906,A-6906
• Citation: 158 Tex. 546,314 S.W.2d 577
• Parties: John D. FERRIS, Relator, v. Maurice CARLSON et al., Respondents.
• Court: Texas Supreme Court

Page 577

314 S.W.2d 577

158 Tex. 546

John D. FERRIS, Relator, v. Maurice CARLSON et al., Respondents.

No. A-6906.

Supreme Court of Texas.

June 18, 1958.

Curtis E. Hill, Dallas, for relator.

Ralph W. Currie, Dallas, for respondents.

GARWOOD, Justice.

Relator Ferris, following an unsuccessful application for mandamus in the Court of Civil Appeals (314 S.W.2d 295), seeks a similar writ here to compel the respondents, Dallas County Republican Party Executive Committee, its chairman and other officers, to place his name on the ballot for the forthcoming primary as a candidate for the Republican nomination for judge of the 101st District Court of Dallas County.

The relator's corresponding application to the committee, admittedly filed in due time and due form, with payment of $100 by way of filing fee or assessment, has been refused by formal resolution of the committee adopted on May 12, 1958-approximately a month after the date of the application and a week after the payment of the $100. The sole reason given in the resolution was that, by the express terms of Art. 1.05 of the Election Code, V.A.T.S., relator is not entitled to go on the ballot without being legally qualified to hold the office sought by him; and that relator is not so qualified, since he has not 'been a practicing lawyer or Judge of a Court in this State, or both combined, for four (4) years next preceding his election', as required by Sec. 7 of Art. V of the State Constitution, Vernon's Ann.St.

In his sworn petition for mandamus relator alleges, in addition to the undisputed facts of public record that he has been licensed to practice law in this state since 1935 and has paid the State Bar dues each year in which they were required, that he is, and was at the time of filing his said application fully qualified for the office in question, and that although having been in the business of a securities dealer in Dallas from 1943 until approximately the end of 1957, he, during that period, engaged also in 'such law practice as came to me', and, during said period, 'held myself out as a lawyer, ready, willing and able to handle any legal matter offered me for handling-. My compensation paid me for such services as I rendered was paid as broker's commissions when same was due for broker's services and as attorney's when same was due as such'.

The sworn answer of the respondents alleges (and relator does not deny) numerous facts in connection with the occupation of the relator which are, generally speaking, inconsistent with his being actually engaged in the practice of law in the customary sense during well over four years preceding his application to the committee, relator's said conduct including a statement in a recent lawsuit to the effect that his business was 'the investment brokerage business', although he was 'Reputed to be a lawyer', statements on certain of relator's recent poll tax receipts giving his occupation as other than that of a lawyer, his failure to list or describe himself as a lawyer in the Dallas telephone book or city directory or in any publication in which lawyers customarily list themselves, and other acts and omissions strongly suggesting that, if relator practiced law to any extent, such was subordinate to his principal occupation of investment broker.

Notwithstanding the facts last mentioned, we conclude that the relator is entitled to the relief prayed for. The case is quite different from that of Purcell v. Lindsey, Tex., 314 S.W.2d 283, in which there was no dispute as to the facts at any stage of the proceedings and the matter of the applicant's qualifications was purely one of constitutional construction. It is more like Weatherly v. Fulgham, 153 Tex....