Ramsey v. Dunlop

• Decision Date: 12 November 1947
• Docket Number: No. A-1341.,A-1341.
• Parties: RAMSEY v. DUNLOP.
• Court: Texas Supreme Court

205 S.W.2d 979

RAMSEY v. DUNLOP.

No. A-1341.

Supreme Court of Texas.

November 12, 1947.

Certified Question from Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by P. E. Dunlop against Bladen Ramsey to recover the office of county commissioner.

From a judgment in favor of the plaintiff, the defendant appeals to the Court of Civil Appeals, which reversed the trial court's judgment and rendered judgment for the defendant. The case is in the Supreme Court on certified questions from the Court of Civil Appeals.

Questions answered in the negative.

Hill D. Hudson, of Pecos, for appellant.

Stubbeman, McRae & Sealy, of Midland, for appellee.

BREWSTER, Justice.

This case is here on certified questions from the Court of Civil Appeals at El Paso.

Dunlop sued Ramsey to recover the office of County Commissioner of Precinct No. 4, of Loving County. In a trial without a jury, Dunlop recovered, and Ramsey appealed. The court of civil appeals reversed the trial court's judgment and rendered judgment for Ramsey. However, pending its consideration of Dunlop's motion for rehearing, that court has certified two questions to this court.

In the general election of 1946 Ramsey and Dunlop were the only candidates for county commissioner. Ramsey got 12 votes and Dunlop got 2. Ramsey was given a certificate of election, filed his oath and bond and is holding the office.

On August 30, 1943, the Commissioners' Court of Loving County entered an order changing the commissioner's precinct lines of that county. If the order was valid, Ramsey was not a resident of Precinct No. 4 and was not eligible to hold the office; on the other hand, Dunlop was a resident of the precinct and was eligible.

Ramsey and Dunlop agreed in the trial court that the only issues for decision were their respective residences, the true location of the precinct lines of Loving County, and the validity of the order of the Commissioners' Court on August 30, 1943, changing the precinct lines.

So, in his appeal there was no point of error in Ramsey's brief urging that Dunlap was not elected to the office of county commissioner because he had received only 2 of the 14 votes cast. Nevertheless the court of civil appeals held that Dunlop was in no event entitled to the office because it affirmatively appears from the record that he received neither a majority nor a plurality of the votes cast and was therefore not legally elected. In his motion for rehearing Dunlop urged that the court erred in so holding because it had no authority to reverse the trial court's judgment on an error not assigned. With Associate Justice Sutton insisting on the correctness of the original holding and the other members of the court in doubt, the court of civil appeals has certified the following questions:

"Did we err in determining this cause on a point not assigned as error in the brief of appellant?

"If the foregoing question be answered in the negative, then we desire to submit this additional question: Did we err in holding that regardless of whether appellant (Ramsey) was eligible or ineligible that appellee (Dunlop) was not entitled to the office not having received either a majority or plurality of the votes cast at the election for the office in question? In connection with this last question, we most respectfully call attention to Articles 2927 and 3032, R.S.1925, to the case of Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731, and 20 C.J., p. 207, par. 267; 29 C.J.S., Elections § 243."

In view of our conclusions, it seems proper to answer the second question first.

In Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731, cited in the certificate, Allen and Braly were candidates in the second primary of 1928 for the democratic nomination for district attorney. Braly got a majority of the votes, whereupon Allen, suing the proper officers, sought an injunction to restrain the certification of Braly's name and to require the certification of his own. He alleged that Braly did not reside in the district concerned either when the petition was filed or at any time theretofore, which fact was known to the voters at the time of the election: and that, therefore, Braly was ineligible for the office and disqualified to be nominated. The court of civil appeals certified the following question: "If it is required that Braly be a resident of the Thirty-first judicial district * * * in order to be such eligible candidate or nominee * * we ask whether or not the next highest candidate at such (July primary) election should be declared the nominee?" In answering "No," this court said: "Under the provisions of Article 3102 of the statutes (R.S.1925), no candidate for the office of district attorney is entitled to have his name go on the official ballot at the general election in November, as the nominee of the Democratic party, unless, in the primary election held by that party, he receives a majority of the votes cast for all the candidates for said nomination. The allegations of the plaintiff's petition show that the plaintiff, as candidate for the nomination for district attorney, did not receive such a majority in either the July or August primary election. Regardless, therefore, of whether Braly is eligible or not, the plaintiff cannot be declared the democratic nominee for that office. For, notwithstanding a candidate be ineligible to the office he seeks, and thereby disqualified to be nominated therefor, and is known by the voters to be so, the votes cast for him must be taken into account in determining whether or not his opponent has received a majority of the votes cast."

Although that case deals with a primary election wherein Art. 3102, supra, requires that a candidate for district attorney must get a majority of the votes cast for all candidates for that nomination before he can go on the general election ballot as the democratic nominee, whereas we are here considering Art. 3032, R.S.1925, which declares that after the general election the county judge "shall deliver to the candidate * * * for whom the greatest number of votes have been polled for * * * precinct officers a certificate of election," we see no difference in the principle to be applied. If public policy, as declared in Art. 3102, requires that the votes cast for an ineligible primary candidate be counted to determine whether his rival has received a majority of the votes cast, we think it follows that the public policy declared in Art. 3032, that a certificate of election be delivered to the candidate for whom the greatest number of votes have been polled, likewise requires that the votes cast for an ineligible general-election candidate be taken into account in order to determine whether his opponent has received the greatest number of votes.

That is clearly the import of 29 C.J. S., Elections, § 243, wherein it is said: "It is a fundamental idea in all republican forms of government that no one can be declared elected * * *, unless he * * receives a majority or a plurality of the legal votes cast in the election. Accordingly, the general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election does not entitle the candidate receiving the next highest number of votes to be declared elected." To the same effect is 20 C.J., p 207, par. 267. See, also, 18 Am. Jur., p. 353, sec. 263.

Our holding in no way limits the force of Art. 2927, R.S.1925, as amended by Acts 50th Leg., Reg.Sess.1947, p. 778, Vernon's Ann.Civ.St. art. 2927, cited in the certificate, which declares that no ineligible candidate shall ever have votes counted for him, at any general, special or primary election. We are not holding that the votes cast for Ramsey must be counted for him but only that they must be taken into account in determining whether or not Dunlop received the greatest number of votes cast.

There being no question as to the legality of the 12 votes cast for Ramsey other than that he was ineligible to hold the office, it is quite evident that the 2 votes cast for Dunlop did not constitute a plurality of the total votes polled. Therefore, we answer the second question "No."

The first question certified arises because of the repeal of Art. 1837, R.S.1925, by the Texas Rules of Civil Procedure, Acts 1939, 46th Leg., p. 201, Sec. 1, Vernon's Texas Rules Civ.Proc.1942, p. 628.

Art. 1837 provided that a trial in a court of civil appeals shall be: "* * * upon an error in law either assigned or apparent upon the face of the record." It first appeared in our statutes in 1846 as Section 24, of an Act to Organize the Supreme Court of Texas. Gammel's Laws of Texas, Vol. 2, p. 1562; Art. 1581, Paschal's Annotated Digest, 4th. Ed., Vol. 1. It read: "In all cases of appeal to the Supreme Court, the trial shall be * * * on an error in law either assigned or apparent on the face of the record." (Italics ours.) As Art. 1033, R.S.1879, Art. 1014, R.S.1895, and Art. 1607, R.S.1911, it remained without change until repealed in 1939, except that when our courts of civil appeals were organized by Acts of 22d Leg., 1st C.S., 1892, c. 15, p. 29, Sec. 24, Gammel's Laws of Texas, Vol. 10, p. 393, Art. 1014, R.S.1895, it was applied to those courts rather than to the Supreme Court.

In 1850, by Acts 3rd Leg., Sec. 9, of an Act Concerning Proceedings in the Supreme Court, it was provided, "The appellant or plaintiff in error, shall in all cases file with the clerk of the court below, an assignment of errors, distinctly specifying the grounds on which he relies, * * *; and all errors not so distinctly specified, shall be considered by the Supreme Court as waived." Gammel's Laws of Texas, Vol. 3, p. 611. (Italics ours.) As Art. 1037, R.S.1879, Art. 1018, R.S.1895, Art. 1612, R.S.1911, and Art. 1844, R.S.1925, it remained, in the same or substantially the same language, until it was superseded in 1941 by the adoption of Rule 374, T.R.C.P., except that in 1892 it was made...