Lydick v. Chairman of Dallas County Republican Executive Committee, 17524

• Decision Date: 05 June 1970
• Docket Number: No. 17524,17524
• Citation: 456 S.W.2d 740
• Parties: Howard LYDICK and Larry G. Slay, Relators, v. CHAIRMAN OF the DALLAS COUNTY REPUBLICAN EXECUTIVE COMMITTEE, et al., Respondents.
• Court: Texas Court of Appeals

Page 740

456 S.W.2d 740

Howard LYDICK and Larry G. Slay, Relators, v. CHAIRMAN OF the DALLAS COUNTY REPUBLICAN EXECUTIVE COMMITTEE, et al., Respondents.

No. 17524.

Court of Civil Appeals of Texas Dallas.

June 5, 1970.

Rehearing Denied June 26, 1970.

Howard Lydick, Richardson, for relators.

Robert M. Hill, Dallas, for respondents.

BATEMAN, Justice.

The relators have with our permission filed their original application for declaratory judgment, for mandamus and for injunction. The relator Howard Lydick avers that, being a voter in the Republican Party primary election of May 2, 1970, he wrote in the name of a qualified person as a candidate for the office of Attorney General of Texas, that being an office printed on the ballot. The relator Larry G. Slay avers that he was also a voter at the same primary election and wrote in the name of an office not printed on the ballot, to-wit, Justice of the Peace, Precinct 1, Place 2, Dallas County, and the name of a qualified person as a candidate for that office. Relators complain because their votes for those write-in candidates were not counted and because the person so nominated as the Republican candidate for Justice of the Peace was not certified by the Chairman of the Executive Committee to the County Clerk as the Republican nominee for that office. They concede that these failures of party officials, who are the respondents here, were in compliance with Article 13.09(b) of the Texas Election Code, V.A.T.S., which prohibits write-in votes at a primary election except for county chairman and precinct chairman.

They first petition us to declare Article 13.09 of the Texas Election Code, unconstitutional on numerous grounds, saying we have authority to render such a declaratory judgment under Vernon's Ann.Civ.St., Article 2524-1, the Uniform Declaratory Judgments Act. Before undertaking a discussion of the various grounds upon which this action is requested, we note that the respondents have filed a plea to the jurisdiction of this court, based upon our decision upon a very similar plea in Donald v. Carr, 407 S.W.2d 288 (Tex.Civ.App., Dallas 1966, no writ). It was held in that case, and we now hold, that this appellate court has no authority or jurisdiction to render declaratory judgments in cases filed originally in this court.

Relators contend that we have jurisdiction to grant the writ of mandamus against the Republican election judges in relators' respective voting precincts, ordering them to count all write-in votes cast in the Republican primary election of May 2, 1970, including those of the relators, and report the same to the Chairman of the Dallas County Republican Executive Committee. They way we are given such jurisdiction by Article 1735a, V.A.C.S., the pertinent portion of which is:

'* * * any court of civil appeals shall have jurisdiction and authority to issue the writ of mandamus, or any other mandatory or compulsory writ or process, against any public officer or officer of a political party, or any judge or clerk of an election, to compel the performance, In accordance with the laws of this state, of any duty imposed upon them, respectively, by law, in connection with the holding of any general, special, or primary election or any convention of a political party.' (Italics ours.)

That portion of Article 13.09, of the Texas Election Code, under which the respondents were admittedly acting, and which relators ask us to strike down as unconstitutional, in as follows:

'(b) Write-in votes shall not be permitted in primary elections for any office other than the party offices of county chairman and precinct chairman, and a write-in vote for any other office shall be void and shall not be counted for any purpose.'

The contention that we have authority under Article 1735a to grant the writ of mandamus is without merit. That statute gives us jurisdiction and authority to compel election officials by mandamus to perform any duty imposed upon them by law, 'in accordance with the laws of this state.' According to the complaint, the respondents did perform their duties in accordance with the law of the state, to-wit, Article 13.09(b), of the Texas Election Code; but relators say the pertinent part of Article 13.09, quoted above, violates certain of their constitutional rights and should therefore be held to be unconstitutional and void. They are therefore in the position of saying we have jurisdiction to grant the writ to compel the performance of duties, not in accordance with the laws of this state, as enacted, but in defiance thereof, on the ground that those laws are unconstitutional. While we doubtless have power, under certain circumstances, to declare an act of the legislature unconstitutional, we are now considering the matter of jurisdiction, not to pass on the constitutionality of a law, But to grant the writ of mandamus; and we are not persuaded that the legislature intended to give us jurisdiction to grant the writ of mandamus under these circumstances.

Moreover, as pointed out in our opinion in Donald v. Carr, supra, since we have no facilities or authority to try disputed fact issues, we could not in any event render a declaratory judgment under Article 2524-1, V.A.C.S., or grant the writ of mandamus under Article 1735a, V.A.C.S., 'unless the facts are established beyond dispute.' These facts, relating to the qualifications of the relators as voters and their write-in candidates, as such, are attempted to be shown by affidavits, but with one exception* these are not affidavits. There is no jurat on either of them, only a certificate by a notary public that the signer of the statement 'acknowledged to me that...