Johnson v. Stevenson

Decision Date07 October 1948
Docket NumberNo. 12529.,12529.
Citation170 F.2d 108
PartiesJOHNSON et al. v. STEVENSON.
CourtU.S. Court of Appeals — Fifth Circuit

Raymond Buck, of Fort Worth, Tex., Dallas Scarborough, of Abilene, Tex., B. D. Tarleton and Luther E. Jones, Jr., both of Corpus Christi, Tex., John H. Crooker, Sr., of Houston, Tex., Alvin J. Wirtz, John Cofer and Everett L. Looney, all of Austin, Tex., and James V. Allred, of Houston, Tex., for appellant Lyndon B. Johnson.

A. W. Moursund, of Johnson City, Tex., and Everett L. Looney, of Austin, Tex., for appellants Streigler and others.

T. R. James, of Fort Worth, Tex., Dan Moody, of Austin, Tex., C. C. Renfro, of Dallas, Tex., and Josh H. Groce, of San Antonio, Tex., for appellee.

Before HUTCHESON, Chief Judge, and SIBLEY and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

On September 15, 1948, Appellee Stevenson filed this suit in the district court against Appellant Johnson and others to stop by injunction the certifying by the officers of the Democratic Party in Texas of the name of Johnson as the nominee of that party for United States Senator as a result of a Democratic primary election; to prevent his name as such being placed on the official ballots for the general election to be held November 2, 1948; and for a cancellation of such certification if made; and a declaration that Stevenson is the true nominee. The other defendants are the party officers who are charged with the duty of certifying; the Secretary of State to whom the certificate is addressed and who prepares the form of ballot; and the members of the election board of Tarrant County, who are alleged to be proper representatives of all the board members in the 253 other counties of the State who are too numerous to be brought before the Court. A restraining order was at once granted and a hearing set for a temporary injunction. At the hearing Johnson filed a motion to dismiss on various grounds, including these: that the relief sought is in essence a contest of the primary election and the Court has no jurisdiction to hear and determine such election contest; that the Court has no jurisdiction to determine the right and title to the Democratic nomination for United States Senator, and that such jurisdiction is expressly denied by 28 U.S.C.A. § 1344; that no deprivation of a right or privilege secured by the Constitution or laws of the United States is alleged, but only of a right to a party nomination under the election laws of the State of Texas, as to which there is no jurisdiction in the federal district court; and that there is no jurisdiction in equity to nullify a certificate of nomination duly made under the laws of Texas in favor of Johnson, who is a person qualified to hold the office, in order to substitute another as nominee. Johnson also filed under oath what he calls an opposition to the temporary injunction which takes issue with some of the factual allegations of the petition and proposes at a proper time and in a proper forum to show illegal votes in larger numbers which were counted for Stevenson than those Stevenson claims were fraudulently counted for Johnson. The other defendants filed motions to dismiss as to them and answers, but none of these has any real interest in the result or is charged with any personal misconduct, and they need not be further noticed. The motions to dismiss were overruled. Evidence was introduced by both Stevenson and Johnson tending to support their contentions of fact. The Court made no specific findings of fact, but held generally that the facts were with the plaintiff and granted a temporary injunction on September 22, 1948, "for the reason that there was evidence of fraud in the official returns from certain election officials in Jim Wells, Zapata, and possibly other counties, to the State Democratic Executive Committee, without which there would have been a change in the official certification by the officers of the State Convention as to who was the Democratic nominee for the office of United States Senator." The injunction forbids the certifying and reporting to the election boards of all the counties that Johnson is the Democratic nominee, and forbids the boards to prepare and distribute ballots carrying Johnson's name for use in the election. The appeal is from the grant of this temporary injunction.

We are of opinion that whatever may be the truth as to the fraudulent returns from certain precincts in the named counties, and whatever may be the truth as to illegal votes elsewhere which are claimed as more than an offset, the subject matter is not one to be taken cognizance of by the district court for the exercise of equitable relief. The object to be attained is precisely that of a contest of an election, the evidence so far heard is all appropriate to such a contest, as is that proposed to be taken by one or more masters which the record shows are to be appointed to go to all of the counties in which illegal returns or voting has been or may by amendment be alleged to have occurred. The Texas Statutes afford machinery for such a contest as part of their provision for both party nominations and final elections. It is urged that there is not time to review a statewide primary by such a contest before the general election comes on. But if there were no provision at all for contesting the result of a primary it would not give a district court jurisdiction which it lacks. The Constitution, Art. I, Sec. 5, after all makes each House of Congress the final judge of the qualifications, elections, and returns of their respective members; and if a State, as Texas has done, makes nominations by a primary to be a part of its election machinery, and if, as is alleged here, Democratic nomination insures election, no reason occurs to us why this constitutionally provided judgment of the election should not reach back to the nomination; and we judicially know that such Congressional investigations have included primaries.

The jurisdiction of the district court is limited to those cases within Art. III, Sec. 2 of the Constitution over which an Act of Congress has given it jurisdiction. The petition refers us to Sec. 1343 of Title 28 of the United States Code as recently revised and enacted, 28 U.S.C.A. § 1343, entitled "Civil Rights",...

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26 cases
  • Dyer v. Kazuhisa Abe
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • February 10, 1956
    ...Jeannette, 1943, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324. 28 E. g., Valle v. Stengel, 3 Cir., 1949, 176 F.2d 697; Johnson v. Stevenson, 5 Cir., 1948, 170 F.2d 108, certiorari denied, 1949, 336 U.S. 904, 69 S.Ct. 491, 93 L. Ed. 1069; Kenney v. Hatfield, D.C.W.D. Mich.1955, 132 F.Supp.......
  • Powell v. McCormack
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 30, 1968
    ...of office but excluding the office of Representative in the House, plainly denied jurisdiction in cases like this. See Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948), cert. denied, 336 U.S. 904, 69 S.Ct. 491, 93 L.Ed. 1069 (1949). That statute, however, is limited to election disputes. ......
  • Seibert v. Baptist, 78-3007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 3, 1979
    ...serial numbers of the bills made at the time of the seizure indicated that none of them were sequentially numbered.11 Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948), Cert. denied 336 U.S. 904, 69 S.Ct. 491, 93 L.Ed. 1069.12 See, e. g., Affiliated Ute Citizens of Utah v. United States, 4......
  • WMCA, Inc. v. Simon
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1962
    ...1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; Wood v. Broom, 1932, 287 U.S. 1, 8, 53 S.Ct. 1, 3, 77 L.Ed. 131; cf. Johnson v. Stevenson, 5 Cir., 1948, 170 F.2d 108." (Emphasis added.) See also opinions of Mr. Justice Rutledge in Cook v. Fortson, 1946, 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed.......
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