Love v. Wilcox

• Decision Date: 17 May 1930
• Docket Number: No. 5651.,5651.
• Citation: 28 S.W.2d 515
• Parties: LOVE v. WILCOX et al.
• Court: Texas Supreme Court

28 S.W.2d 515

LOVE v. WILCOX et al.

No. 5651.

Supreme Court of Texas.

May 17, 1930.

Rehearing Denied June 4, 1930.

Original application by Thomas B. Love for mandamus to be directed to D. W. Wilcox and others, members of the State and County Democratic Executive Committees.

Writ granted.

Thos. B. Love, of Dallas, Walter C. Woodward, of Coleman, W. R. Cousins, of Beaumont, Chas. H. Jenkins, of Brownwood, Frank C. Davis, of San Antonio, Robert L. Cole, of Houston, Maco Stewart, of Galveston, Cato Sells, of Fort Worth, John M. Henderson, of Daingerfield, W. E. Spell, and Alva Bryan, both of Waco, John J. Foster, of Del Rio, John Perkins, of Alpine, E. J. Mantooth, of Lufkin, and W. M. Taylor, Cullen F. Thomas, J. W. Hassell, George O. Wallace, W. J. Rutledge, Jr., H. Bascom Thomas, Jr., and Reuben W. Gray, all of Dallas, for relator.

F. A. Williams, of Galveston, H. M. Garwood, of Houston, Wm. H. Burges, of El Paso, Rice Maxey, of Sherman, V. W. Taylor, of Brownsville, C. C. Renfro, of Dallas, and Davenport, West & Ransome, of Brownsville, for respondents.

GREENWOOD, J.

Relator seeks by mandamus from this court, in the exercise of its original jurisdiction, to compel the State and County Democratic Executive Committees to cause his name to be printed on the official ballot in the approaching primary of the Democratic Party as a candidate for the nomination for Governor. Relator also asks that the court, under its writ of mandamus, compel the State and County Democratic Executive Committees to desist and refrain from enforcing certain resolutions adopted by the State Committee on February 1, 1930.

Disregarding mere conclusions, the facts on which relator seeks relief are undisputed. Relator possesses all qualifications specified in the Constitution and statutes for one to hold the office of Governor. He has for many years been a member of the Democratic Party, and active in his affiliations therewith holding important offices in Democratic state and national administrations. At this time he holds the office of State Senator as a nominee of the Democratic Party. He has voted for all nominees of the Democratic Party for all offices at every election since he became a voter in 1892, except that he voted for the Republican nominee for Governor of Texas in 1924 and for the Republican Presidential Electors in 1928. Relator not only voted for the Republican Presidential Electors in 1928, but actively participated in the 1928 campaign to defeat the Democratic Presidential Electors. Relator participated in all 1928 precinct and county Democratic conventions and primaries, taking the pledge which the State Committee had prescribed for participation therein, which read as follows: "I am a Democrat, and agree to support the nominees of the Party." The Democratic State Convention held at Beaumont in May, 1928, to elect delegates to the Democratic National Convention, excluded relator from participation therein, together with all others who failed or refused to take a pledge to support all nominees of the party or who stated they would not vote for the 1928 Democratic Presidential Electors. Relator offers "to take the test prescribed by article 3110, Revised Civil Statutes, and to comply with the pledge contained in that test to the utmost of conscience and good faith."

The State Democratic Executive Committee on February 1, 1930, adopted resolutions which the Committee deems it its duty to enforce, as follows:

"First. Be it resolved, That this committee hereby extends an invitation to all qualified voters, regardless of previous political views or affiliations, to enter and participate as voters in its nominating primaries and conventions who are willing to and do take the statutory party pledge.

"Second. Be it resolved, That the Executive Committee prescribes the following qualifications in addition to those now prescribed by law, for candidates for State offices in the Democratic primaries of 1930, and that no applicant or candidate for the Democratic nomination for State office who does not possess the following qualifications shall appear on the official ballot or be certified as a candidate in the Democratic primaries, to-wit:

"1. That in the last preceding general election he must not have voted against any nominee or presidential elector of the Democratic Party, if he participated either in the primary elections or conventions of the Democratic Party in 1928, and took a pledge to support the nominees of the Democratic Party.

"2. That he must in good faith without any reservations pledge himself in writing filed with the Chairman of the Executive Committee not later than the date set for filing applications, to support all nominees of the Democratic Party during the year 1930.

"3. And that he does not now advocate a voter's entering a party primary or convention and taking the prescribed pledge with reservations mental or otherwise.

"Third. That it is the sense of this Committee that while we cannot legally act on the certification of applicants who desire to have their names placed on the Democratic primary ballot for state offices in 1930,— that it is the sense of this Committee that any present or proposed applicant for certification who voted in the Democratic primary in 1928, or participated in any of the primaries or conventions of the Democratic Party in 1928, and in said primaries or conventions took the prescribed pledge to support the nominees of the party and then broke his pledge and bolted the ticket, and voted for the nominees of any other party that by so doing he forfeited his right to the support of the Democratic Party, and forfeited his right to have his name placed on the Democratic primary ballot in 1930; and it is the further sense of this Committee that any present or proposed applicant who desires to have his name certified and placed on the Democratic primary ballot in 1930, shall be refused such certification who claims the right and intention, though he has participated in a Democratic primary for the nomination of candidates, thereafter, to repudiate the pledge taken and to vote against the party nominee if his judgment or conscience dictates.

"Fourth. Art. 3111 of the R. C. S. of Texas directs that the State Executive Committee shall meet on the Second Monday in June, preceding each general primary, and that, at this meeting, shall take action certifying to County Chairman the names of the various candidates. In view of this law, it is the opinion of the State Democratic Executive Committee that such action could not lawfully be taken at this time, and it is, therefore,

"Resolved That the Committee decline to certify names to the County Chairman or take any action relative thereto prior to said second Monday of June, 1930."

The question here presented is simply whether the law, when applied to these facts, entitles relator to a writ of mandamus from the Supreme Court under which he would obtain all or any part of the relief he seeks?

In view of the holdings of the Supreme Court of Colorado that a judge who was a candidate in a primary was disqualified by his interest to adjudicate matters pertaining to the primary (Cowie v. Means, 39 Colo. 1, 88 P. 485; MacMillan v. Spencer, 28 Colo. 80, 62 P. 849; Phillips v. Curley, 28 Colo. 34, 62 P. 837), Chief Justice Cureton, being a candidate this year for the Democratic primary nomination for the office of Chief Justice of the Supreme Court, declined to participate in the decision of this case until the court could determine the question as to his disqualification. As have many eminent justices of this court (Investment Co. v. Grymes, 94 Tex. 618, 63 S. W. 860, 64 S. W. 778; City of Oak Cliff v. State, 97 Tex. 394, 79 S. W. 1068), Chief Justice Cureton declined to take any part in deciding whether he was disqualified. After careful investigation, the court, acting through the other justices, before the submission of the case, reached the conclusion that there was no doubt that the Chief Justice was qualified to sit under the Constitution of Texas. Some of the grounds for that conclusion will be briefly stated.

The Colorado decisions furnish no reliable guide for the adjudication to be made by this court. The question before the Supreme Court of Colorado in each of the cited cases was whether a judge was disqualified under a statute directing a change of venue "when from any cause the judge is disqualified to try the action." Section 31, Compiled Laws of Colorado (Code Civ. Proc.). These cases, therefore, called for judicial construction of what was meant by disqualification from any cause, while our Constitution not only specifies the grounds for disqualification but such grounds have always been held by the Supreme Court to be exclusive. Investment Co. v. Grymes, 94 Tex. 618, 63 S. W. 860, 64 S. W. 778; Taylor v. Williams, 26 Tex. 586, 587.

Under the Texas Constitution, it is the duty of the judge to sit save "in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case." Section 11, art. 5, Constitution.

Every Constitution of Texas since that of 1845 has forbidden a judge to sit in any case wherein he is interested. City of Dallas v. Peacock, 89 Tex. 61, 33 S. W. 220. So often has this phrase, "case wherein he is interested," been interpreted that its meaning no longer admits of reasonable doubt.

Under the broad language of the Colorado statute, the highest court in that state might have regarded interest in the question to be decided as a good ground for granting a change of venue. In Texas, our constitutional prohibition has been uniformly construed as requiring the judge to sit who is interested in the question to be decided but who has no direct and immediate interest in the judgment to be pronounced.

The court, construing the Constitution of 1...