Pollard v. Speer

• Decision Date: 26 October 1918
• Docket Number: (No. 9114.)
• Citation: 207 S.W. 620
• Parties: POLLARD v. SPEER, Judge, et al.
• Court: Texas Court of Appeals

207 S.W. 620

POLLARD v. SPEER, Judge, et al.

(No. 9114.)

Court of Civil Appeals of Texas. Ft. Worth.

October 26, 1918.

Proceeding by C. O. Pollard, relator, by original application for writ of mandamus against John Speer, Judge of the Sixteenth Judicial District of Texas, and another. Application denied.

Benson & Benson, of Bowie, and Capps, Cantey, Hanger & Short, of Ft. Worth, for relator.

Paul Donald, of Bowie, and C. F. Spencer, of Wichita Falls, for respondents.

CONNER, C. J.

C. O. Pollard, relator, instituted this proceeding by an original application in this court for a writ of mandamus against the respondent, the Honorable John Speer, judge of the Sixteenth judicial district of Texas. It is alleged in the application the relator was a candidate before the democratic primary held by law for the office of commissioner of precinct No. 2, Montague county, Tex., one of the counties of which the Sixteenth judicial district is composed; that one H. E. Overstreet was also a candidate for said office before said primary; that said Overstreet was, on August 31, 1918, declared by the Democratic executive committee of Montague county to be the nominee of said party for said office; that on September 5, 1918, in the manner and time required by law, the relator filed with the chairman of said Democratic committee his complaint and notice for a contest of said nomination; that said contest was legally heard by said committee on September 18, 1918, and decided in favor of said H. E. Overstreet; that on the date last named the relator gave notice in writing of his appeal from the decision of said executive committee to the district court of Montague county, Tex.; that in the time and manner required by law the secretary of said executive committee filed with the said district court his certificate in the form required by law to perfect said appeal; that thereafter, on October 8, 1918, the said John Speer, district judge as aforesaid, at a time when the district court was not in either regular or special session, in vacation, over the written protest and objection of the relator, called said contest for trial, and, regardless of the said written objection to the effect that said judge was without jurisdiction to try said cause in vacation, entered an order and judgment purporting and attempting to dismiss said case, contrary to and in disregard of the relator's right to have said cause tried by the district court of Montague county, and not by the judge thereof in vacation; that although said appeal is now pending in said court said district judge refuses to recognize it as a pending suit, and illegally refuses to set same down for trial at a time when it could be legally tried. It is further alleged that the relator is a Democrat, regularly affiliated with the Democratic party, and is a candidate as a Democrat before the general election to be held on the first Tuesday after the first Monday in November, 1918, for the said office of county commissioner of precinct No. 2, Montague county; and that, although said appeal is now legally pending in said district court, and notwithstanding that there is no legal certificate of nomination issued for any one as the Democratic nominee for the said office, and notwithstanding that there is no legal nominee for said office, I. L. Chandler, county clerk of Montague county, Tex., acting in obedience to said void order and judgment, has ordered the name of the said H. E. Overstreet, as the Democratic nominee, placed on the official ballot for the said general election; that said Chandler, county clerk, E. W. Perryman, sheriff, and Homer B. Latham, county judge, of Montague county, who under the law compose the county election board to provide and furnish supplies to presiding judges of the said general election, also in obedience to said void order and judgment, will deliver to the presiding judges of the election ballots containing the name of said Overstreet as the Democratic nominee of said office of commissioner of precinct No. 2.

It is further alleged that if the said district judge is not commanded and required to set down said cause for trial at a time when it could be legally disposed of, and the other parties named are not restrained, official ballots containing the name of H. E. Overstreet as a nominee of the Democratic party for said office of commissioner would be delivered to the presiding judges of said election, and that such delivery would be equivalent to the election of the said Overstreet, and preclude the relator from being a candidate for said office; that, but for said order and judgment, the name of said Overstreet would not have been placed upon said official ballots. It is further alleged that the precinct named is overwhelmingly Democratic, and that if a delivery of the official ballots with the name of the said Overstreet printed thereon as the Democratic nominee was not prevented, the relator would be deprived of a legal and valuable right, and the prayer in substance was that said district judge be commanded to set the contest down for a hearing at a time when the court of Montague county was in session, and that the said county clerk, sheriff, and county judge be enjoined from delivering or causing to be delivered to any of the presiding judges of the election any official ballots for use in said November election containing the name of said Overstreet as the nominee of the Democratic party for the office in question.

The application was duly set down for a hearing, and the matter submitted to us for a determination on Monday of the present week, and a prompt announcement of our conclusions requested, inasmuch as the election officers, of necessity, must soon issue the official ballots for the coming general election in November.

By our primary election laws (Vernon's Sayles' Stat. art. 3086) party nomination of candidates for office must be made at a primary election ordered by the party executive committee, and contests of nominations so made before the proper executive committee are expressly provided for (Vernon's Sayles' Stat. art. 3147). After indicating the procedure of the committee in determining the contest, it is further provided that:

"When the committee has decided the contest, unless notice of appeal to the district court is given, the executive chairman shall certify its findings to the officers charged with the duty of providing the official ballots; and the name of the candidate in whose favor the executive committee shall find shall be printed on the official ballot for the general election." 2 Vernon's Sayles' Stat. art. 3151.

The next article provides that:

"Where contests are originally filed with the executive committee, either party shall have the right to appeal from the final decision of the executive committee to the district court having jurisdiction; and said contest shall there...