Sartin v. Hudson

• Decision Date: 01 October 1940
• Docket Number: No. 14210.,14210.
• Citation: 143 S.W.2d 817
• Parties: SARTIN v. HUDSON et al.
• Court: Texas Court of Appeals

143 S.W.2d 817

SARTIN v. HUDSON et al.

No. 14210.

Court of Civil Appeals of Texas. Fort Worth.

October 1, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit by B. D. Sartin against C. C. Hudson, as chairman of the Democratic Executive Committee of Wichita County, and others, for injunctive relief and for a writ of mandamus. From an adverse judgment, relator appeals and respondents made cross-assignments of error.

Reversed and remanded.

C. C. McDonald, of Wichita Falls, for appellant.

John Davenport and J. R. Wilson, both of Wichita Falls, for appellees.

SPEER, Justice.

This suit was instituted by B. D. Sartin, hereinafter referred to as relator, against C. C. Hudson, as chairman of the Democratic Executive Committee of Wichita County, Julian McFall, county clerk of that county, and Guy McNeely, to whom we shall refer as respondents, for certain injunctive relief and for a writ of mandamus.

Because of the conclusions we have reached in the disposition of this appeal, we shall state fully the allegations of relator.

It is alleged that he was a candidate for the office of County Judge of Wichita County, at the July 24, 1940, primary, and was opposed by Guy McNeely, J. Ralph Schoolfield and Bruce Greenwood; that said primary was duly and legally held on said date, and that relator received 4,807 votes, McNeely 4,276, Greenwood 2,570 and Schoolfield 1,657 votes; that there was no decision reached by the Democratic Executive Committee of Wichita County requiring a majority vote for the nomination in said primary election of July 27, 1940, for county officers; that relator having received a plurality of the votes cast at said primary, he became the duly elected Democratic nominee for the office of County Judge of said county, and is entitled to be certified as such nominee by the chairman of the Democratic Executive Committee, and to have his name duly and regularly printed on the official ballot in the general election of November, 1940, by the county clerk of said county.

It is further alleged that respondent C. C. Hudson, without legal right or authority and without the sanction or approval of a majority of said Democratic Executive Committee, after canvass of the votes cast at the July primary, as above mentioned, had the names of relator and Guy McNeely printed on a run-off ballot for August 24, 1940, "and that after such so called election, the votes again were canvassed by said chairman and by three members of the said Democratic Committee and the said Guy McNeely was declared the nominee at said primary and is being unlawfully certified as such legal nominee to the county clerk of such county, and the county clerk will so post and print his name as required by law upon the official ballot, unless this Honorable Court restrains such unlawful procedure on the part of these respondents." It was alleged that all said acts of Hudson, chairman of the said committee, were wholly void and without lawful authority; that the act of canvassing the returns of the second primary by the chairman and three members of the committee, which is composed of 46 members, was unlawful and void, for the reason there was no quorum present for the dispatch of business of any kind; that the chairman had no legal right to certify the name of McNeely as the nominee for county judge, and that all acts of the chairman or the minority members of the committee in attempting to hold said second primary in the race for county judge, or in canvassing the results of said second primary in said race, were illegal and void; that there is no authority of law to hold such second primary for county officers without a decision made and entered by a majority vote of said Executive Committee before the first primary and before the canvass of the votes cast thereat and that a canvass of such votes must be by a majority of said committee. "That no such decision (to require a majority vote for nomination) was ever reached by such committee before said first primary or after such primary wherein a quorum of such committee was present." That by reason of the facts alleged, relator is the duly elected nominee of the party for the office of county judge, and is entitled to have his name certified as such by the chairman of the Democratic Executive Committee, to the county clerk of said county. That he has made demand upon the chairman to so certify his name and his request has been refused; that relator has no complete or effectual remedy at law and will suffer irreparable damage unless the court shall grant its writ of mandamus directing said officials to so certify his name as such nominee and to post and print it on the official ballot. Prayer was for the relief last mentioned and for costs of suit.

McFall, the clerk, made no appearance. Respondents Hudson and McNeely filed pleas in abatement, because all members of the Democratic Executive Committee were not made parties; being overruled, they filed general demurrer and several special exceptions, which were likewise overruled, to which ruling exceptions were taken. Subject to these, they filed answers to the merits. We shall have occasion to mention these special pleas later.

A jury trial was had. Two special issues were submitted. The verdict was, in effect, that (1) at a meeting of the Democratic Executive Committee, held on June 17, 1940, not as many as 24 members were present; and (2) a majority of those present at that meeting reached the conclusion that nominations for county and precinct officers should be by a majority vote. Upon this verdict the court entered judgment denying relator the relief prayed for. Motion for new trial was overruled and appeal perfected.

It is not out of place to state just here that the pleas in abatement, based upon the contention that all members of the Executive Committee should have been made parties to the suit, were properly overruled. No relief is sought against any member of the committee except the chairman, who is by law an ex-officio member. The chairman alone certifies the name of the nominee and he is the only member of the committee against whom relief is sought. Article 3125, R.C.S., Vernon's Ann.Civ.St. art. 3125.

Relator presents this appeal on assignments of error which raise questions substantially as contended for by him in the trial court. The substance of his assignments is: (1) The Democratic Executive Committee did not at any time prior to the first primary decide to require nominations of county officers to be by a majority vote, and therefore, under the statute Article 3106, nominations were to be made by a plurality vote; (2) at the meeting of the Executive Committee on June 17, 1940, less than a majority of the 46 members were present, and there being less than a quorum present, no business of the Committee could be lawfully transacted.

In the view we take of this case, it becomes unnecessary for us to discuss the points raised by relator's assignments of error. We think the trial court should have sustained respondents' general demurrer to the petition. The ruling of the court, when the general demurrer was presented, is complained of by respondents and brought forward alternatively, by cross assignments of error. Whether such cross assignments are necessary or not in such cases as this, they certainly have not been waived by repondents, even if they could do so; we seriously doubt if respondents could waive any necessary element of relator's right to the writ.

The writ of mandamus is an extraordinary remedy. At all times since the days of statehood our Constitution and laws have recognized the necessity for the remedy it affords; our earliest Constitution and each subsequent revision, together with our statutory laws, have recognized it; the Constitution and laws of this State were patterned, in the main, from the laws of England.

In the early case of Arberry v. Beavers, 6 Tex. 457, 55 Am.Dec. 791, it was held that to entitle a party to have applied the remedy afforded by mandamus, he must show a clear legal right in himself and a corresponding obligation on the part of the officer against whom he seeks the writ. To the same effect is the holding of our Supreme Court in Bledsoe v. International Ry. Co., 40 Tex. 537, 564 et seq. The principles there announced have been uniformly followed by our courts. In the last cited case a general demurrer to relator's petition was involved, and even though the case was tried below on its merits, the Supreme Court determined relator's rights by testing his petition as against the general demurrer urged in the trial court. That rule was followed in Watkins v. Huff, Tex. Civ.App., 63 S.W. 922, writ dismissed 94 Tex. 631, 64 S.W. 682.

In Houston Tap & B. Ry. Co. v. Randolph, Treasurer, 24 Tex. 317, 329, a demurrer was sustained to relator's petition for writ of mandamus and the court, speaking through Judge Roberts, said: "It is well settled, that to entitle a party to the extraordinary remedy of mandamus, the petition must state facts, which show, if true, that the plaintiff has a clear right to the performance of the thing demanded, and that it is plainly the duty of the officer proceeded against, to perform such thing."

On page 333 of 24 Tex., this rule is announced: "The circumstances under which the applicant claims the right, should be positively and distinctly stated, and objections which might be anticipated should be met and answered."

On appeal from an order denying a writ of mandamus, in Johnson v. Elliott, Tex. Civ.App., 168 S.W. 968, at page 972, error refused, this was said:

"There is still another reason which we think justified the court below in dismissing the application for this writ of mandamus. Such writs are extraordinary remedies, and, when invoked for the purpose of compelling the performance of some official duty enjoined by law, it must clearly appear from the petition that the applicant is...