Gilmore v. Waples

• Decision Date: 04 November 1916
• Docket Number: (No. 2895.)
• Parties: GILMORE v. WAPLES et al.
• Court: Texas Supreme Court

Page 1037

188 S.W. 1037

GILMORE v. WAPLES et al.

(No. 2895.)

Supreme Court of Texas.

November 4, 1916.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by C. E. Gilmore against Paul Waples and others. An injunction issued by the district court against defendants was reversed by the Court of Civil Appeals, and plaintiff brings error. Determination of Court of Civil Appeals reversed, and that of district court affirmed.

Wynne & Wynne, of Wills Point, and Lattimore, Bouldin & Lattimore, of Ft. Worth, for plaintiff in error. Capps Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, for defendants in error.

PHILLIPS, C. J.

The action was one by C. E. Gilmore, alleging himself to be a Democrat, regularly affiliated with that party, and an announced candidate in the ensuing general election for the office of State Railroad Commissioner, against Hon. Paul Waples as Chairman and the other members of the State Democratic Executive Committee to restrain them from making a nomination for the same office. The petition declared it to be the purpose of the committee, unless restrained, to make such a nomination and to declare Mr. C. H. Hurdleston the nominee of the Democratic party for the office, in contravention, it was claimed, of the statutes of the State denying any such authority to the committee.

The basis of the suit is the right of the plaintiff, as he contends, to contest for the office as a Democrat in the general election without being subjected to the disadvantage of being opposed by a Democratic nominee whose nomination is prohibited by law.

It is recited in an agreed statement of facts, a part of the record, that Mr. Williams the former incumbent of the office, was not at the time of his recent death a nominee of the Democratic party for the office, having been duly elected to it in the year 1912 for a term extending until the year 1918; and that the salary of the office is $4,000 per year. Also, that the plaintiff is a Democrat and has always been affiliated with the party organization. And further, that the placing of the name of Mr. Hurdleston on the official ballot in the general election as the nominee of the Democratic party will be equivalent to his election, and will preclude the plaintiff from being a candidate for the office as a Democrat, since he would withdraw his candidacy rather than assume the attitude of opposing one declared to be the nominee of the party.

An injunction restraining the committee from making any nomination for the office was issued by the District Court. This order was reversed and the injunction dissolved by the honorable Court of Civil Appeals, Associate Justice Buck dissenting.

The case presents two questions for decision, one as to the power of the committee to make a nomination under the existing condition, and the other as to the right of the plaintiff to invoke the equitable remedy of injunction.

The determination of the latter question depends upon the decision of the first.

If there is no provision of law interdicting the proposed action of the committee, no legal right of the plaintiff can be said to be threatened with impairment, and the case presents merely a party dispute which the courts will remit to the party forum. On the other hand, if the proposed action of the committee is prohibited by law, a judicial question is presented; and if such action threatens a legal right of the plaintiff and the infliction upon him of a material injury for the redress of which no adequate legal remedy exists, his right to equitable relief cannot be denied.

An inspection of the statutes makes it manifest that the Legislature has omitted to provide any method for the making of a party nomination for an office to be filled at the general election where the vacancy in the office occurs between the dates fixed by law for the holding of the general primary election and the ensuing general election, and for which office there has been no previous nomination of a candidate to be voted upon in the general election — the condition which the case discloses. Other than the provision for an original nomination in the general primary election, nowhere is there provided any method for the nomination of a party candidate for a State office to be voted upon in the general election except where there has been a previous nomination and a vacancy in the nomination, caused either by a declination of the nomination or the death of the nominee. Mr. Williams, the former incumbent of the office in question, was not a nominee at the time of his death, which occurred after the time fixed by law for the general primary election. There was consequently no vacancy in a nomination. There was simply a vacancy in the office, calling for an original nomination if the party proposed nominating a candidate for the office in the general election.

Under this condition was the State Democratic Executive Committee prohibited by law from making a nomination? The powers of a State executive committee in respect to making nominations for its party are dealt with in Articles 3172 and 3173 of the Revised Statutes. It is provided in Article 3172 that in case of the death of a nominee for a State office, or the declination of such a nomination by a nominee, the State Executive Committee of the party may nominate a candidate to supply the vacancy. The succeeding article, Article 3173, declares:

"No executive committee shall ever have any power of nomination, except where a nominee has died or declined the nomination as provided in Article 3172."

There is nothing ambiguous about these two articles. Nor is their intention in any wise obscure. They very plainly confer upon a State committee the power of nominating a candidate for a State office in instances where there has been a previous nomination and the nominee has either declined the nomination or has died. Just as unequivocally they deny such power to the committee in all other instances. The language of Article 3173 is pointed, clear and certain, and there is nothing about it or its context that would warrant a court in setting it aside. A statute so plain and unmistakable leaves nothing for interpretation or construction. All that courts may do with such a statute is to observe it and enforce it. There is an omission in the law, it is true. But it is not the business of courts to supply omissions in laws. Particularly are they without any authority to supply an omission in a law by holding that a certain body is empowered to do a certain thing when the Legislature has emphatically declared that such body shall not have the power to do that thing. To say that the Legislature's failure to prescribe any method for the making of a party nomination under the conditions here shown warrants a holding that an executive committee may nominate under such conditions, means only that the courts may themselves provide the method, and, in this case, a method the use of which for the purpose the Legislature has expressly forbidden.

It has been argued in behalf of the committee that the whole law discloses an intention on the part of the Legislature not to prohibit the committee's acting in such a contingency as the case presents, and that Article 3173 should be so construed notwithstanding its literal terms. The intention of a law is the essence of the law, and from this it follows that the primary rule of construction is to ascertain and give effect to that intention. While the purpose of all rules upon the subject is simply to ascertain the legislative intent, and the context of a statute will be consulted in that effort, yet, in the language of a distinguished author on statutory construction, "the intent which is finally arrived at must be an intent consistent with, and fairly expressed by, the words of the statute themselves." Sutherland on Stat. Cons. § 388. There can be no intent of a statute not to be found in its words, and certainly there can be none that is expressly negatived by its words.

The argument that the Legislature did not intend in the enactment of Article 3173 to prohibit a nomination by an executive committee under the contingency here involved, rests alone upon the grant of such power to the committee in the case of the declination of a nomination or the death of a nominee, as provided in Article 3172, and the omission to provide any method whatever for the making of a nomination under such other condition. But the grant of such power to the committee in a particular instance cannot imply an intention to allow its exercise in another in the face of a positive statute that except in the instance particularized the committee shall not possess the power. The only intention deducible from such a statute and consistent with its terms is a denial to the committee of the power except as expressly granted. Nor is an intention that the committee should have the power in an instance like that here presented supplied by the omission of the Legislature to provide any method for a nomination under such a condition, in the teeth of the plain negation of that intention found in the declaration of Article 3173, that except in the case of a nominee's death or the declination of a nomination no committee should ever have the power of nomination.

There is but one intention to be drawn from this statute or its context that is consistent with the provisions of the statute. It is the intention which lies on the face of the words themselves — that except in the case of the declination of a nomination or the death of a nominee, no committee shall have any power of nomination. As is said by the author above quoted:

"Courts are not at liberty to speculate upon the intentions of the Legislature where the words are clear, and to construe an act upon their own notions of what ought to have been enacted. The wisdom of a statute is not a judicial question; nor can courts correct what they may deem excesses or omissions in leg...