Kauffman v. Parker
| Decision Date | 20 November 1936 |
| Docket Number | No. 13580.,13580. |
| Citation | 99 S.W.2d 1074 |
| Parties | KAUFFMAN et al. v. PARKER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Ben W. Boyd, Special Judge.
Suit by W. R. Parker and others against B. Frank Kauffman and another for mandamus and an injunction. From an adverse judgment, the defendants appeal.
Affirmed.
S. C. Rowe, Edgar L. Bradford, Jr., and Everett B. Comer, all of Fort Worth, for appellant B. F. Kauffman.
Rogers & Spurlock, of Fort Worth, for appellant Hugh L. Small.
Cantey, Hanger & McMahon and J. A. Gooch, all of Fort Worth, for appellees W. R. Parker et al.
This suit had its origin in the filing of a suit for mandamus and injunction by W. R. Parker and seventeen others, in their behalf, and for all others similarly situated. The plaintiffs being candidates for office before the Democratic primary elections held in Tarrant county during the summer of year 1936. Hugh L. Small and B. Frank Kauffman being named party defendants. Appellants were, at different times during the summer campaign, county chairman, and, as such, chairman of the Tarrant county executive committee. Appellees Parker and many others were candidates running for various offices before said primaries as held in Tarrant county. It is claimed by appellees that appellant Hugh L. Small was first county chairman of the Democratic Committee of Tarrant county, and resigned as such on or about June 23, 1936, at which time appellant B. Frank Kauffman was elected as his successor and took the position of county chairman of the Democratic Committee of Tarrant county, Tex.
Pursuant to and by authority of article 3108, Revised Civil Statutes of 1925, as amended Acts 1931, 42nd Legislature, c. 105, § 2 (Vernon's Ann.Civ.St. art. 3108), appellees as candidates for office and offering to run before said primaries, were assessed certain sums of money in proportion to the emoluments of office, such assessments ranging from district attorney $650, down to and including constable and public weigher at $5; in all it is claimed that some $23,000 (or to be exact, $22,905) assessed and collected and in possession of the appellants for the purpose of defraying the expenses of the first and second primaries.
It is shown by the record that the total expenses of the first, or July primary is $8,798.02, and the total expense second primary, or August primary, is $4,352.35, and the 20 per cent. remitted to candidates is $4,483.
Total expenses and remittances . . $17,633.37
Leaving a balance on hand undisposed
of 5,271.63
In connection with the above and foregoing figures, we desire to set out the following itemized statement as taken from the statement of facts at page 28 of this record:
On page 32 of the statement of facts, we quote as follows:
"[Signed] A. H. Sanders, Chairman
"Dr. C. E. Walker
"O. E. Tunstill."
On page 33 of the statement of facts, we quote from same:
On same page of the statement of facts a similar statement and request is made by Jewel E. Dycus, secretary of the Tarrant County Democratic Executive Committee for the sum of $316.63 as services from June 23, 1936, to present.
On pages 34, 35, and 36 of the statement of facts, we find that the auditing committee approved each and all of the foregoing reports, and application for money allowed appellants and the secretary Jewel E. Dycus, leaving the sum of $1,000 set aside by the chairman to be used in conducting the affairs of the said committee until the primaries of July and August, 1938.
Article 3117 of the Revised Civil Statutes provides the time of meeting of the various county committees of any political party, and the order in which the names of the candidates are printed on the official ballot.
Article 3108 of the Revised Civil Statutes, as amended (Vernon's Ann.Civ.St. art. 3108), provides for the expenses of the primary. As both attorneys for appellants and appellees cite this article on expenses, we here quote same as follows:
"At the meeting of the county executive committee provided in Article 3117, the county committee shall also carefully estimate the cost of printing the official ballots, renting polling places where same may be found necessary, providing and distributing all necessary poll books, blank stationery and voting booths required, compensation of election officers and clerks and messengers, to report the result in each precinct to the county chairman, as provided for herein, and all other necessary expenses of holding such primaries in such counties and 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 Saturday before the fourth Monday in June thereafter."
The money when collected and placed in the hands of the appellants became a trust fund, and could only be disbursed and paid out as provided by statute; certainly it could not be spent by the chairman of the executive committee, these appellants, for salaries and services performed by the chairman, nor could it be spent for unnecessary expenses, but must be spent for the purposes intended by the statute and under the provisions of the statutes authorizing such expenditures.
If there is a surplus of money on hand and with the chairman after all the expenses of the campaign, the first and second primaries, are paid in August, it rightfully belongs to the donors, those who intrusted it to the chairman, and it should be returned to those who put it up in proportion to what they each contributed. This was recognized by the appellants when they refunded or paid back 20 per cent. of the funds they had on hand after the second primary. It is without authority of law to spend it for back rents for former years time, and for salary to the chairman and/or for any purpose not provided for in the...
To continue reading
Request your trial
-
United States v. Beard
...entity (described in Art. 1534 of the Texas Penal Code) capable of holding title to funds subject to embezzlement. Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074 (1936); Daniel v. State, 128 Tex.Cr.R. 660, 83 S.W.2d 335 (1935). It developed at trial that a Mr. McMillan was the legal custo......
-
Tucker v. Northcutt
...appears to us that he thereby waived his right to complain of the court's action in overruling his special exceptions. Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074, pt. 6; Pounds v. Jenkins, Tex.Civ.App., 157 S.W.2d 173, pt. Finding no reversible error in the record, each of appellant's......
-
Stevenson v. Sherman
...and the expense necessarily incident thereto. Monies collected under authority of Art. 3108 constitute trust funds, Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074, Small v. Parker, Tex.Civ.App., 119 S.W.2d 609, to be disbursed only as provided therein; the law being accorded a strict cons......
-
Pounds v. Jenkins
...to establish such facts was admitted without objection by appellant that there were no proper pleadings to support it. Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074; 3 Tex.Jur. p. 1254, Sec. 878, and authorities cited in support of the text. No complaint of surprise is made respecting th......