Gammage v. Compton

• Decision Date: 02 March 1977
• Docket Number: No. B-6542,B-6542
• Citation: 548 S.W.2d 1
• Parties: Robert Alton GAMMAGE, Relator, v. The Honorable John L. COMPTON et al., Respondents.
• Court: Texas Supreme Court

Page 1

548 S.W.2d 1

Robert Alton GAMMAGE, Relator, v. The Honorable John L. COMPTON et al., Respondents.

No. B-6542.

Supreme Court of Texas.

March 2, 1977.

Kronzer, Abraham & Watkins, Michol O'Connor and W. James Kronzer, Burnett & Jones, O'Rourke & Lawler, Terence L. O'Rourke, Houston, for relator.

Austin & Arnett, Fitzhugh H. Pannill, Jr., and Bertrand C. Moser; Hastings Pannill, Houston, for respondents.

DANIEL, Justice.

This is a mandamus proceeding which arises out of a suit filed by Ron Paul against Robert Alton Gammage in the 151st Judicial District Court seeking to contest the election in which Gammage has been declared to be the winner over Paul for Congressman for the 22nd Congressional District of Texas.

Relator Gammage seeks to have this Court mandamus the Respondent, Honorable John L. Compton, Judge of said Court, to vacate certain orders relating to further deposing of Gammage by counsel for Respondent Paul, to grant such further relief as the Court deems requisite and proper and to direct the Respondent Paul to cease and desist from pursuit of this election contest under State court procedures. The principal question is whether the district court has jurisdiction over the contest under Article 9.01 of the Texas Election Code. ¹

At the general election on November 2, 1976, Gammage was declared winner over the incumbent, Paul. A recount was requested by Respondent Paul and it was conducted under the general observation of inspectors from the office of the Texas Secretary of State and counsel from the Privileges and Elections Subcommittee of the United States House of Representatives. The recount showed Gammage to be the winner by 268 votes, and on November 22, 1976, Gammage was certified by the Governor as having won the election. Thereafter, Paul filed this contest in the District Court of Harris County as well as a notice of contest with the United States House of Representatives under the Contested Elections Act, 2 U.S.C. § 381, et seq.

On January 4, 1977, Gammage was unconditionally sworn in as a member of the House. He then filed a motion to dismiss this court proceeding, and it was denied on January 12, 1977. On January 25th, this Court refused Gammage's motion for leave to file a petition for writ of mandamus to order a dismissal of the suit. Thereafter the trial court ordered Gammage to appear on February 12, 1977, to be further deposed by counsel for Paul. Whereupon, Gammage sought and was granted permission to file this petition for writ of mandamus and writ of prohibition.

Relator's principal contention is that Article 9.01, if interpreted as applying to members of Congress, is violative of Article I, § 5, of the Constitution of the United States. The pertinent portion of Article 9.01 reads:

"The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, except elections for the offices of Governor, Lieutenant Governor, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, Attorney General, and Members of the Legislature." (Emphasis supplied.)

Respondent Paul insists that "federal offices," as used in the foregoing quotation from Article 9.01, includes members of Congress. His interpretation is as though the Article read:

"The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, including members of each House of the United States Congress . . . ." (Emphasis supplied.)

Article I, § 5, of the Constitution of the United States, on the other hand, provides that:

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ."

Both federal and state courts have recognized that the foregoing provision gives final and exclusive jurisdiction to each House of Congress to determine election contests relating to its members. Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929); Manion v. Holzman, 379 F.2d 843 (7th Cir. 1967); Rogers v. Barnes, 172 Colo. 550, 474 P.2d 610 (1970); Burchell v. State Board of Election Commissioners, 252 Ky. 823, 68 S.W.2d 427 (1934); Belknap v. Board of Canvassers of Ionia County, 94 Mich. 516, 54 N.W. 376 (1893); McLeod v. Kelly, 304 Mich. 120, 7 N.W.2d 240 (1942); In re Williams' Contest, 198 Minn. 516, 270 N.W. 586 (1936); Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963); Laxalt v. Cannon, 80 Nev. 588, 397 P.2d 466 (1964); Smith v. Polk, 135 Ohio St. 70, 19 N.E.2d 281 (1939).

In Barry v. Cunningham, supra, the Supreme Court of the United States referred to this power of each House of Congress as "sole authority under the Constitution to judge of the elections, returns and qualifications of its members . . .", 279 U.S. at 619, 49 S.Ct. at 457. In Rogers v. Barnes, supra, the Colorado Supreme Court, speaking of the jurisdiction of the House and Senate in such contests, stated:

"Such jurisdiction being exclusive, no other body, including this Court, has the jurisdiction to hear and determine an election contest arising out of a general election for those two national offices." 474 P.2d at 612.

In Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963), the contestant in an election for the United States House of Representatives sought to enjoin the Secretary of State of the State of Minnesota from issuing a certificate of election to the contestee. The court denied such petition, stating:

"While the state legislature may regulate the conduct of elections subject to the limitations expressed in the U.S. Const., art. I, § 4, it should be conceded that under the provisions of art. I, § 5, each house of Congress is the sole judge of the election returns and qualifications of its members, exclusive of every other tribunal, including the courts." 119 N.W.2d at 719.

Article 9.01 of the Texas Election Code, as interpreted by Respondent Paul, is in diametrical conflict with and contrary to Article I, § 5, of the United States Constitution. Because of this clear and obvious conflict, it is reasonable to believe that the Legislature did not intend for the term "federal offices" to apply to members of Congress. Predecessor election contest statutes did not include federal offices. ² The term was first used in the election contest statute enacted in 1951 as part of a 95 page revision of the entire election code. ³ The revised election code was drafted by a commission of nine persons appointed under authority of the Fifty-first Legislature in 1950, with Judge Abner McCall as chairman and Dr. A. P. Cagle as counsel. ⁴ It was introduced as House Bill 6 of the Fifty-second Legislature in 1951. However, the inclusion of "federal offices" in Section 129 (now Art. 9.01) was not a recommendation of the revision commission and neither was the term included in House Bill 6 as introduced. The term "federal offices" was inserted in Sec. 129 of the committee substitute for H.B. 6 when the substitute was adopted by the House Committee on Privileges, Suffrage, and Elections. The committee substitute was enacted in both Houses without a separate vote of any nature relating to the term "federal offices." None of this legislative history is helpful in determining the meaning and intent of the term, but it does reveal that its inclusion was not a studied recommendation of the revision commission and that it was not one of the major items of consideration by the Legislature in adopting the revised election code.

In any event, as to members of Congress, Article 9.01 is unconstitutional and inapplicable. In this connection, it is significant that since 1951 there is no other reported case in which a party sought to contest a general or special election for the House or Senate of the United States under the terms of this statute.

Respondent Paul argues that the Supreme Court's decision in Roudebush v. Hartke, supra, sanctions this type of election contest in a State court so long as it does not interfere in any manner with a final determination of the contest by the United States House of Representatives. There are many differences between this case and the Hartke case. In the first place, Indiana's recount statute and procedure was all that was involved in Hartke. Indiana was not operating under a statute which attempted to vest in its courts "original and exclusive jurisdiction of all contests of elections" to the House and Senate of the United States Congress. Furthermore, Hartke had been conditionally seated by the Senate "without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order. . . ." Gammage had already been through a somewhat similar recount in accordance with Texas law before he was certified as the duly elected Congressman, and he was seated by the House unconditionally.

A portion of the Indiana election process (the statutory recount) was not finished when Hartke was conditionally seated in the Senate, while the election process, including the recount, had been completed in Texas before Gammage was unconditionally seated in the House. This is important because the Constitution of the United States leaves the manner of holding elections for United States Senators and Representatives up to the States, subject to change by Congress. ⁵ The Supreme Court made it quite clear that the question in Hartke was not to which of the candidates the office belonged. ⁶ The Court said:

". . . Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question a question that would not have been the business of this Court even before the Senate acted. The...