Seale v. McCallum

• Citation: 287 S.W. 45
• Decision Date: 06 October 1926
• Docket Number: (Motion No. 7258.)
• Parties: SEALE v. McCALLUM, District Judge.
• Court: Supreme Court of Texas

Page 45

287 S.W. 45

SEALE v. McCALLUM, District Judge.

(Motion No. 7258.)

Supreme Court of Texas.

October 6, 1926.

Motion by Allen Seale for leave to file an application for mandamus against Claude M. McCallum, District Judge, and others. Motion overruled.

Jed C. Adams, Arch C. Allen, and W. B. Harrell, all of Dallas, for relator.

CURETON, C. J.

This proceeding is an original one for mandamus, brought by Allen Seale against Hon. Claude M. McCallum, District Judge, the Justices of the Court of Civil Appeals for the Fifth District, and certain other parties, including Schuyler B. Marshall, Jr. Seale and Marshall were candidates for nomination to the office of sheriff of Dallas county at the recent Democratic primary election. The party authorities declared Seale the nominee whereupon Marshall contested the primary election in the 101st district court of Dallas county, of which Claude M. McCallum is the judge. After a trial in that court, Marshall was declared the nominee and judgment accordingly entered. To this judgment Seale excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth District. The district judge entered the notice of appeal, but declined to set the amount of the supersedeas bond. The relator here applied for relief to the Court of Civil Appeals for the Fifth District, at Dallas, by asking for a writ of mandamus against the district judge, requiring him to fix the amount of the supersedeas bond. The Court of Civil Appeals denied this relief on the ground that it did not have appellate jurisdiction of the cause, and that the judgment of the district court, under the statute, was final. The prayer here is for a writ of mandamus directed to the Justices of the Court of Civil Appeals, at Dallas, directing them to proceed with the hearing and determination of the relator's appeal to that court from the decree of the district court, and also for a writ commanding the judge of the 101st district court to fix the amount of the supersedeas bond. Prayer is also made for a writ of injunction against Schuyler B. Marshall and other parties, consistent with the objects of the appeal, and to preserve, as it were, the subject-matter of the litigation.

The election contest was instituted and tried under the provisions of Revised Statutes (1925), art. 3152, which, while providing for a contest of primary elections, declared that the decision of the district court or judge trying the contest should be "final as to all district, county, precinct, or municipal offices." The plain purpose of the clause quoted was to deny appellate jurisdiction to the Courts of Civil Appeals over contested elections of the character here involved.

Other questions have been ably discussed in the briefs filed in this proceeding, but the only one necessary to be considered by us is whether or not the Legislature had the constitutional power to prescribe the limitation above named on the right of appeal.

That a contested election case is one cognizable by the district court is not now debatable. This is expressly provided for in section 8, article 5, of the Constitution. It is therefore unnecessary for us to discuss the more or less confusing question as to whether it is a suit proper or a special proceeding. The case here involved was one over which the district court had jurisdiction, and the Legislature could have provided for an appeal from the decision of the trial court; but, as we have just seen, it has not done so. In declaring that the decision of the district court should be final, and therefore that no appeal lies, we think the Legislature was within its constitutional power.

Section 6, of article 5, of the Constitution, in defining the jurisdiction of Courts of Civil Appeals, declares:

"Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal of error."

It will be noted that, while the Constitution has generally conferred appellate power on Courts of Civil Appeals over all civil cases of which the district courts or county courts have original or appellate jurisdiction, yet the exercise of this power is "under such restrictions and regulations as may be prescribed by law."

The jurisdiction of the Supreme Court, as set forth in section 3 of article 5, uses the same language of limitation. Under that section the appellate jurisdiction of the Supreme Court is made to extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction, "under such restrictions and regulations as the Legislature may prescribe." The meaning of this phrase was before the Supreme Court in the case of Maddox Bros. & Anderson v. Covington, 87 Tex. 454, 458, 29 S. W. 465, 466. The insistence was there made that the legislative act denying the jurisdiction of the Supreme Court in a boundary case was unconstitutional. This court in an opinion by Chief Justice Gaines held that the limitation made by the legislature was within the constitutional power of that department, and held that the language used, which is the same as that used in that section dealing with the jurisdiction of Courts of Civil Appeals, was sufficient warrant to authorize the Legislature to limit the right of appeal. In part, Chief Justice Gaines said:

"The provisions under consideration are as follows: `The Supreme Court shall have appellate jurisdiction only, except as herein specified, which shall be coextensive with the limits of the state. Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction,...