Hall v. Baum, No. B--1956

CourtSupreme Court of Texas
Writing for the CourtCALVERT
Citation452 S.W.2d 699,90 S.Ct. 818
Docket NumberNo. B--1956
Decision Date16 February 1970
PartiesRalph Moody HALL, Relator, v. Elmer C. BAUM, Chairman of the State Domocratic Executive Committee, Respondent.

Page 699

452 S.W.2d 699
Ralph Moody HALL, Relator,
v.
Elmer C. BAUM, Chairman of the State Domocratic Executive
Committee, Respondent.
No. B--1956.
Supreme Court of Texas.
Feb. 16, 1970.
Appeal Dismissed Feb. 27, 1970. See 90 S.Ct. 818.

Henry Akin, Jr., Mark Martin, Dallas, John L. Hill, W. James Kronzer, Houston, for relator.

Small, Herring, Craig, Werkenthin & Shannon, Charles Herring and Fred Werkenthin, Clark, Thomas, Harris, Denius & Winters, Donald S. Thomas, Austin, for respondent.

CALVERT, Chief Justice.

Sec. 18, Art. III, Constitution of Texas, Vernon's Ann.St., provides:

'No Senator or Representative shall, during the term for which he was elected,

Page 701

be eligible to (1) any civil office of profit under this State which shall have been created, or the emoluments of which have been increased, during such term, or (2) any office or place, the appointment to which may be made, in whole or in part, by either branch of the Legislature; * * *.'

The question to be decided in this direct proceeding in this court is whether by virtue of the quoted constitutional provision State Senator Ralph Moody Hall is ineligible to the office of Governor for the two-year term beginning in January, 1971 and ending in January, 1973. We hold that he is.

Senator Hall was elected to a four-year term in the State Senate in November, 1968. For purposes of this decision, we will assume that his current Senate term will end on December 31, 1972. The salary of the office of Governor was $40,000 per annum for each of the fiscal years ending August 31, 1968 and 1969. The salary of the office for the fiscal years ending August 31, 1970 and 1971 was raised to $55,000 per annum at a special session of the Legislature held in August and September, 1969. The salary of the office of Governor was thus increased, during the term of office for which Senator Hall was elected, from the $80,000 paid during the preceding fiscal biennium to $110,000 for the current fiscal biennium. Once we concede that the office of Governor is a 'civil office of profit under this State,' as we must, Willis v. Potts, 377 S.W.2d 622 (Tex.Sup.1964), and that the salary of the office of Governor has been increased substantially during Senator Hall's current term of office, which it has, it would appear that a mere reading of Sec. 18, Art. III of the Constitution should end our search for an answer to our question. But relator insists, for various reasons, that the constitutional provision may not be interpreted to mean what it so plainly says. A matter of such serious import requires that the suggested reasons be considered and examined somewhat in depth.

This proceeding had its origin in the presentation to respondent, Elmer C. Baum, Chairman of the State Democratic Executive Committee, of relator's application for a place on the Democratic Party's May 2d Primary ballot as a candidate for the Party's nomination for the office of Governor. Chairman Baum refused to receive and file the application solely because he was advised by the Committee's legal counsel that the applicant was ineligible for the office of Governor. In refusing to receive and file the application, Chairman Baum acted in strict accordance with his statutory duty. Art. 1.05, Vernon's Texas Election Code, V.A.T.S.; Spears v. Davis, 398 S.W.2d 921, 922 (Tex.Sup.1966). Promptly thereafter, relator sought and obtained permission to file in this court a petition for writ of mandamus, directed to Chairman Baum and requiring that he accept and file relator's application. He is entitled to have the writ issue only if he is eligible for the office of Governor.

All possible side issues should be eliminated at the outset. Senator Hall possesses all of the qualifications--age, citizenship, etc.--required by the Constitution of the Governor of the State. His application was in statutory form and he tendered the required filing fee. He does not seek the office for personal economic gain. In participating in the vote in the August-September, 1969, special legislative session to increase the salary of the Governor, he did not case his vote for reasons of personal gain or profit, nor was he guilty of wrongful conduct, connivance or impropriety in connection with his vote. In sum, relator's motives in participating in the vote by which the salary of the office of Governor was raised were of the highest order and in the interest of sound government.

Relator's reasons for contending that he is not rendered ineligible for the office of Governor by Sec. 18, Art. III of the Constitution are: (1) the provision was not intended to apply to the office of Governor when it was included in the Constitution of 1876, and subsequent amendment

Page 702

of the Constitution does not make it apply; (2) the raise in the Governor's salary does not constitute an increase of the 'emoluments' of the office; and (3) if held to render relator ineligible for the office, the provision is discriminatory and void as to him and others similarly situated because it denies to them equal protection of the laws as guaranteed by the Constitution of the United States. We will examine the contentions in the order in which they are listed. They will be examined with an awareness that constitutional and statutory provisions which restrict the right to hold public office 'should be strictly construed against ineligibility.' Willis v. Potts, 377 S.W.2d 622, 623 (Tex.Sup.1964).

Relator argues that inasmuch as the office of Governor was created by Sec. 1, Art. IV of the Constitution of 1876, 1 and the annual salary of the office was fixed by Sec. 5, Art. IV at 'four thousand dollars and no more,' the Legislature was powerless to create the office or to increase its emoluments; ergo, the proscriptions of Sec. 18, Art. III could not have been intended to apply to the office of Governor. The argument is not without a measure of logic; but to accept it would so limit the meaning of the broad phrase, 'any 2 civil office of profit,' as practically to denude it of meaning. If the proscriptions were not intended to apply to the office of Governor, neither were they intended to apply to the offices of Lieutenant Governor, Comptroller of Public Accounts, Secretary of State, Attorney General, Chief Justice or Associate Justice of the Supreme Court or District Judge, since each of these offices...

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19 practice notes
  • Wentworth v. Meyer, No. D-2662
    • United States
    • Supreme Court of Texas
    • September 16, 1992
    ...chairman may refuse to receive and reject the application to be placed on the primary ballot of one who is ineligible. See Hall v. Baum, 452 S.W.2d 699 (Tex.1970). One who has filed for an office without resigning a current office with an overlapping term risks disqualification which later ......
  • Vreeland v. Byrne
    • United States
    • United States State Supreme Court (New Jersey)
    • February 11, 1977
    ...(1858); Baskin v. State ex rel. Short, 107 Okl. 272, 232 P. 388 (1925); Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898); Hall v. Baum, 452 S.W.2d 699 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Romney v. Barlow, 24 Utah 2d 226, 469 P.2d 497 (1970); State e......
  • Warwick v. State ex rel. Chance, No. 2712
    • United States
    • Supreme Court of Alaska (US)
    • March 25, 1976
    ...P. 864, 867 (1914); State v. Ostroot, 75 S.D. 319, 64 N.W.2d 62 (1954); Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898); Hall v. Baum, 452 S.W.2d 699 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Spears v. Davis, 398 S.W.2d 921 (Tex.1966); Kothmann v. Daniel......
  • In re Francis, No. 06-0040.
    • United States
    • Supreme Court of Texas
    • January 27, 2006
    ...S.W.2d 444, 448 (Tex. 1992); Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex.1990); Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990); Hall v. Baum, 452 S.W.2d 699, 702 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Willis v. Potts, 377 S.W.2d 622, 623 (Tex. 35. See Dav......
  • Request a trial to view additional results
19 cases
  • Wentworth v. Meyer, No. D-2662
    • United States
    • Supreme Court of Texas
    • September 16, 1992
    ...chairman may refuse to receive and reject the application to be placed on the primary ballot of one who is ineligible. See Hall v. Baum, 452 S.W.2d 699 (Tex.1970). One who has filed for an office without resigning a current office with an overlapping term risks disqualification which later ......
  • Vreeland v. Byrne
    • United States
    • United States State Supreme Court (New Jersey)
    • February 11, 1977
    ...(1858); Baskin v. State ex rel. Short, 107 Okl. 272, 232 P. 388 (1925); Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898); Hall v. Baum, 452 S.W.2d 699 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Romney v. Barlow, 24 Utah 2d 226, 469 P.2d 497 (1970); State e......
  • Warwick v. State ex rel. Chance, No. 2712
    • United States
    • Supreme Court of Alaska (US)
    • March 25, 1976
    ...P. 864, 867 (1914); State v. Ostroot, 75 S.D. 319, 64 N.W.2d 62 (1954); Palmer v. State, 11 S.D. 78, 75 N.W. 818 (1898); Hall v. Baum, 452 S.W.2d 699 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Spears v. Davis, 398 S.W.2d 921 (Tex.1966); Kothmann v. Daniel......
  • In re Francis, No. 06-0040.
    • United States
    • Supreme Court of Texas
    • January 27, 2006
    ...S.W.2d 444, 448 (Tex. 1992); Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex.1990); Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990); Hall v. Baum, 452 S.W.2d 699, 702 (Tex.1970), appeal dismissed, 397 U.S. 93, 90 S.Ct. 818, 25 L.Ed.2d 79 (1970); Willis v. Potts, 377 S.W.2d 622, 623 (Tex. 35. See Dav......
  • Request a trial to view additional results

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