Holzschuher v. Wurzbach

• Decision Date: 05 July 1926
• Docket Number: (No. 7673.)
• Parties: HOLZSCHUHER et al. v. WURZBACH.
• Court: Texas Court of Appeals

Page 289

286 S.W. 289

HOLZSCHUHER et al. v. WURZBACH.

(No. 7673.)

Court of Civil Appeals of Texas. San Antonio.

July 5, 1926.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Application by Harry Wurzbach against A. R. Holzschuher and others for mandamus to compel the county Republican executive committee to place his name on the ballot and to enjoin them from making an assessment against him. From judgment granting writ, defendants appeal. Affirmed.

Eskridge & Williams, of San Antonio, for appellants.

Powell & Green and Cunningham & Moursund, all of San Antonio, for appellee.

FLY, C. J.

It is disclosed by the facts that the Republican executive committee of Bexar county, endeavoring to comply with the law as to primaries, appointed a committee of five to apportion the cost of the primary of the Republican party among its candidates for nomination to different offices. Only two candidates applied for a place on the Republican ballot, and both of those, aspirants for the nomination to Congress in the Fourteenth congressional district. The sum of $7,499.50 was apportioned to each of the candidates. Appellee refused to pay the part apportioned to him, and the committee determined that his name could not be placed on the ticket in the absence of payment of the assessment on or before June 28, 1926. Appellee applied for a mandamus to compel the executive committee to place his name on the ballot and to enjoin them from making an assessment against him. The writ was granted by the district court.

It is provided in article 3108, Vernon's Annotated Revised Civil Statutes of 1925, that at the meeting of the county executive committee, provided for in article 3117, that is, on the third Monday in June preceding the general primary, the cost of the primary, items of which are enumerated, shall be apportioned; and —

Such committee "shall apportion such cost among the various candidates for nomination for county and precinct offices only as herein defined, and offices to be filled by the voters of such county, or precinct only (candidates for state offices excepted), in such manner as in their judgment is just and equitable, giving due consideration to the importance and emoluments of each such office for which a nomination is to be made, and shall, by resolution, direct the chairman to immediately mail to each person whose name has been requested to be placed on the official ballot a statement of the amount of such expenses so apportioned to him, with the request that he pay the same to the county chairman on or before the fourth Monday in June thereafter."

That article was enacted in 1905 and has never been changed or amended, and, eliminating the utterly unnecessary and uncalled for parenthetical phrase as to state officers, is thoroughly plain and simple. It authorizes the levy of assessments by the county executive committee on "the various candidates for nomination for county and precinct offices only, * * * and offices to be filled by the voters of such county, or precinct only." There is no room for construction of the language of the statute, and unless supplemented by additional authority to the executive committee to apportion parts of the cost of primaries to other officers than those specifically mentioned, the executive committee has no power or authority to apportion and demand costs from other candidates. Prior to 1923, there was a provision of the statute, article 3104, which provided that "no candidate for a state or district office, unless such district is composed of one county only, shall be required to pay any portion of such cost, unless the executive committee of the county shall so direct; but in no event shall more than one dollar a piece be assessed against any such candidate for a state or district office, unless such district is composed of one county only." That article taken in connection with the old article 3094, now article 3108, left no doubt as to the powers granted county executive committees in fixing the amounts to be paid by each...