Leslie v. Griffin

• Decision Date: 20 December 1929
• Docket Number: (No. 7425.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 23 S.W.2d 535
• Parties: LESLIE et al. v. GRIFFIN.
• Court: Texas Court of Appeals

23 S.W.2d 535

LESLIE et al. v. GRIFFIN.

(No. 7425.)^*

Court of Civil Appeals of Texas. Austin.

December 20, 1929.

Rehearing Denied January 8, 1930.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by Gordon Griffin against J. E. Leslie and others. From the judgment rendered, defendants, other than the election officers of the Weslaco precinct, appeal. Modified, and, as modified, affirmed.

See, also, 23 S.W.(2d) 534.

E. A. McDaniel, of McAllen, D. W. Glasscock, of Mercedes, J. R. Dougherty, of Beeville, Jas. A. Graham, of Brownsville, B. D. Tarlton, of Corpus Christi, and E. F. Smith, of Austin, for appellants.

Ramsower & Seawell, of McAllen, Hart, Patterson & Hart, of Austin, B. D. Kimbrough, of McAllen, Geo. G. and M. E. Clough, of Houston, and Don A. Bliss, of San Antonio, for appellee.

BAUGH, J.

At the general election of 1928, J. E. Leslie and Gordon Griffin were candidates for district judge of the Ninety-Third district, a district wholly within Hidalgo county, Tex. Leslie then held the office. The name of neither candidate was printed on the official ballot. Each voter wrote the name of the candidate of his choice on his ballot. The county composing said district contained 22 election precincts. After said election was held, the canvassing board, consisting of the county judge and the commissioners' court, refused to canvass the returns from precinct No. 14, known as the Weslaco box. The total vote in the district judge race, excluding the Weslaco box, showed that Leslie received 3,498 votes, and that Griffin received 3,484 votes, a majority for Leslie of 14 votes. The returns from the Weslaco box showed that in that box Leslie received 93 votes, and that Griffin received 689 votes. If the Weslaco box had been counted, Griffin would have received a majority in the district of 582 votes.

The canvassing board omitted the Weslaco box, and the county judge certified returns to the secretary of state showing that Leslie had been elected by a majority of 14 votes. This suit was thereupon filed in the district court of Travis county against the secretary of state, Judge Leslie, the county convassing board of Hidalgo county, and the election officers of the Weslaco precinct, alleging, amongst other things, that the returns sent to the secretary of state were false and fraudulent, asking that the secretary of state be restrained from counting same and from issuing a certificate of election to Leslie, and for a mandatory injunction compelling the county canvassing board to reconvene, recanvass the returns of said election, include therein the Weslaco box, and to certify correct returns of said election to the secretary of state. A temporary injunction was granted against the secretary of state, pleas of privilege of the county canvassing board and of Judge Leslie to be sued in Hidalgo county were overruled, and, in a hearing upon the merits, the district court of Travis county dismissed the election officers of the Weslaco precinct, and granted the relief prayed for as to the canvassing board and the secretary of state.

The trial was to a jury, but at the close of the evidence the court peremptorily instructed a verdict for the plaintiff. Separate appeals from the trial court's order overruling said pleas of privilege, and from the final judgment after a hearing upon the merits, have been prosecuted; but both appeals were submitted and argued together in this court. Further facts will be given in discussing the issues presented.

The election in question followed a heated campaign in which it appears that the appellee opposed what was known as the "administration ticket" in Hidalgo county, composed of the incumbent district judge, Leslie, the sheriff, county judge, county commissioners, and other county officials. It appears that during that campaign the appellee had charged the county judge and county commissioners with numerous derelictions, including squandering and waste of large county funds; and pledged the voters that, if elected, he would immediately convene a grand jury of white citizens and direct them to investigate the financial condition of the county and would endeavor to secure an audit of the county's books. It appears also that a ranger was on duty constantly during said election at the Weslaco box and accompanied the returns from that box to the county seat, and saw that same were there delivered to the county judge. It also appears that, unless the Weslaco box be excluded, Gordon Griffin was elected district judge, and that the chief, if not the only, ground for excluding the returns from that box was that the envelope in which same were transmitted to the county judge by the election judge was not sealed. In all other respects the returns were regular, duly signed, and certified, and reflected the true will of the voters of that precinct, 1,060 in number.

In refusing to open and estimate the returns from the Weslaco box, the county judge and county commissioners were guided, among other things, by the provisions of article 3026, R. S. 1925, providing, in part, that the returns here involved "shall be sealed up in an envelope and delivered by one of the precinct judges to the county judge of the county"; and by article 3031, which provides that "no election returns shall be opened or estimated, unless the same have been returned in accordance with the provisions of this title."

In title 50 of the Revised Statutes the Legislature has undertaken in detail to provide the machinery and procedure governing elections and election contests and to prescribe the qualifications of voters. Articles 2923 to 3099 of that title relate to general elections. Articles 3100 to 3173 deal with nominations. This title clearly discloses that the state is vitally interested not only in preserving the purity of the ballot, and in restricting the suffrage to its bona fide citizens, but that the Legislature has undertaken to regulate specifically by statute the steps which must be taken to accomplish those ends. Very little is left to the discretion of such officials, and nothing is left in the general election to the control of parties, as is true of primary elections. Bearing this in mind, we proceed to a consideration of the issues here presented.

The first contention made by appellants is that the trial court was without jurisdiction to try this case because the matters and things complained of were a part of the political administration of the government, not subject to review in a judicial proceeding. The case chiefly relied upon to sustain their contention is City of Dallas v. Street Ry. Co., 105 Tex. 337, 148 S. W. 292; followed in Winder v. King (Tex. Com. App.) 1 S.W.(2d) 587; and cited and applied in numerous Courts of Civil Appeals' decisions. In both of the cases above cited, however, the entire election proceeding was challenged on the grounds that the results of the election, if carried, would be void in the one case, in that the ordinance sought to be passed would be invalid; and in the other on the ground that the law under which the election was sought to be held was invalid. Those cases held that the questions raised were political, not judicial. But the question of whether or not election officials have complied with the written law regulating in detail their conduct presents not a political but a judicial question. Rights accruing to a candidate under and by virtue of express statutes become legal rights which he is entitled to protect in the courts of the state. This principle is forcefully stated by Chief Justice Phillips in Gilmore v. Waples, 108 Tex. 174, 188 S. W. 1037, 1040 (the same judge who wrote the opinion in Dallas v. St. Ry. Co.), as follows: "The contention of the committee upon this phase of the case is that there is presented but a political question and at most but a political right, and for the protection of such a right equity will not extend its aid. This would be true as to the character of question and right involved, but for the fact that the making of party nominations in this State is regulated by law. With our legislation covering the subject, whether a given nomination has been made in accordance with that legislation or in violation of it, presents, not a political question, but necessarily, a judicial question. For what purpose and to what end, it may appropriately be inquired, have the various statutes in relation to party nominations been enacted in this State if the rights and duties therein defined and the matters they purport to govern still present mere political questions, to be settled alone by party law and in the party forum, and are therefore beyond the cognizance of the courts? The very purpose of this legislation was to relieve these matters of their mere political character, as was their nature aforetime, and subject them to the regulation of the statute law. The courts exist only to enforce the law. This includes the statute law. If they have no cognizance of rights arising under a civil statute regulating a political party, upon the ground that the body regulated is political and therefore any question affecting it is also political, though in terms governed by an express statute, it must follow that a political party is beyond the control of the law. But political parties are not beyond the control of the law. When regulated by law, their action to the extent that it is so governed may be reviewed by the courts as the only means of giving effect to the sovereign law of the State. In such case the inquiry is judicial because made the duty of the courts; and the questions presented are likewise judicial because arising under the written law."

The above language relates to the primary election laws, involving party nominations. Much more should it be applicable to general elections in which the state, the candidates, and the entire suffrage are all vitally interested.

In the instant case it...