Spears v. Davis
| Decision Date | 31 January 1966 |
| Docket Number | Nos. A-11215,A-11224,s. A-11215 |
| Citation | 398 S.W.2d 921 |
| Parties | Franklin SPEARS, Relator, v. Will D. DAVIS, Chairman of the State Democratic Executive Committee, Respondent. Galloway CALHOUN, Jr., Relator, v. Will D. DAVIS, Chairman of the State Democratic Executive Committee, Respondent. |
| Court | Texas Supreme Court |
Cofer, Cofer & Hearne, Austin, William L. Garwood, Austin, for relator spears.
Dan Moody, Jr., John E. Clark, Austin, for relator Calhoun.
Tom Sealy, Midland, Joe M. Kilgore, Austin, for respondent.
Relators, Franklin Spears and Galloway Calhoun, Jr., presently State Senators, have filed separate petitions for original writs of mandamus ordering Will D. Davis, Chairman of the State Democratic Executive Committee, to place their names upon the primary ballot as candidates for the Democratic nomination for the office of Attorney General of Texas. Article 1735a, Vernon's Ann.Tex.Stats., Appellate Procedure in Texas, § 1.4(1). While the causes were argued and submitted separately, they may be disposed of by one opinion. We will hereinafter note some factual distinctions relating to the positions of the two relators.
The Texas Election Code provides that:
'No person ineligible to hold office shall ever have his name placed upon the ballot at any general or special election, or at any primary election where candidates are selected under the primary laws of this State; and no such ineligible candidate shall ever be voted upon, nor have votes counted for him at any such general, special, or primary election.' Article 1.05, Vernon's Texas Election Code; Purcell v. Lindsey, 158 Tex. 541, 314 S.W.2d 283 (1958).
Upon the presentation of applications for a place upon the primary ballot, Article 13.12. Vernon's Texas Election Code, it becomes the duty of the State Chairman of the party executive committee, regardless of the wishes of candidates or prospective candidates, to ascertain and make sure that those filing such applications are, if nominated, eligible to go on the general election ballot. A failure so to do could result in a party's primary nominee being declared ineligible after the primary and before the general election; or, if the question were raised after the general election, a successful party nominee might be precluded from qualifying and assuming the duties of office because of such ineligibility. Article 1.06, Vernon's Texas Election Code.
The eligibility of both Senator Spears and Senator Calhoun to hold the office of Attorney General for the two year term beginning January 1, 1967 having been questioned, the respondent Davis refused to accept their applications for a place upon the Democratic primary ballot for the election to be held on May 7, 1966. The filing of these actions followed. The causes being cast in an adversary mold, able counsel appeared for both sides and vigorous, well-prepared and helpful arguments were presented relating to the question of eligibility.
It is conceded that both relators are legally qualified to hold the office of Attorney General of Texas and have taken all required actions entitling them to a place upon the primary ballot unless they are rendered ineligible by Article 3, § 18 of the Texas Constitution, Vernon's Ann.St., which provides that:
'No Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased during such term, * * *.' 1
At the general election to be held on November 8, 1966, the qualified voters of Texas will choose an Attorney General for a term of office beginning on January 1, 1967. Article 4, §§ 2 and 22, Texas Constitution, Article 17, Vernon's Ann.Tex.Stats. Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948). Kothmann v. Daniels, 397 S.W.2d 940 (Tex.Civ.App., Original Proceeding in Mandamus, 1965). 2
Relator Spears was elected Senator on November 6, 1962 and received a certificate of election on November 23, 1962. Relator Calhoun was elected Senator on November 3, 1964 and received his certificate of election on November 20, 1964. Because of a reapportionment of the Legislature, an entirely new Senate will be chosen at the general election to be held on November 8, 1966. Both relators were members of the 59th Legislature which raised the salary of the Attorney General from $20,000 to $22,500 per annum, effective with the biennium beginning September 1, 1965.
It is contended that Senator Spears' term of office commenced with the convening of the 58th Legislature on January 8, 1963 and hence the term of State Senator overlaps that of the Attorney General for a period of approximately eight days. A similar contention is made with reference to Senator Calhoun. In other words, it is respondent's position that a State Senator's term commences from the date of the convening of the first Regular Session of a Legislature following his election.
In respondent's original brief, the controlling question with reference to Senator Spears is stated as follows:
'The question of whether his Senate term conflicts with the term of the Attorney General turns on whether the four-year Senate term commenced the previous November 23, when petitioner's election was completed and certified, or on January 8, 1963, when the Senate convened and petitioner was sworn and assumed the office and its emoluments.'
However, by means of a post-submission brief, respondent asserts, in the alternative, that if the day the election process is completed, that is, the canvassing of the election returns, be taken as the beginning date of the term of office of a State Senator, both relators would be ineligible by reason of a 1965 amendment to the Election Code which provides that a canvass of the returns of an election for a member of the House of Representatives or State Senate would take place on the Monday before the second Tuesday in January following the election. Acts, 1965, 59th Leg., p. 199, ch. 83, Article 8.41, Vernon's Election Code. It is also urged that an election is not complete until the returns thereof have been canvassed; Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948); Leslie v. Griffin, 25 S.W.2d 820 (Tex.Comm.App.1930); and that in Kirk v. Gordon, 376 S.W.2d 560 (Tex.Sup. 1964), it was indicated that a term of office would begin after the canvass of returns had been completed.
We will first dispose of this alternative contention. A reading of the Kirk case discloses that the exact day upon which a term of office commenced was not in issue as the decision of the case did not turn on whether the commencement of the term of office involved was the day of election or the day upon which the election process was completed.
However that may be, we do not attribute to the Legislature an intention to lengthen the terms of either Senator Spears or Senator Calhoun some 45 to 60 days, or more, and thus create an overlap and render them ineligible for the office of Attorney General. The amendment to Article 8.41 of the Code was clearly intended to operate prospectively and any holding over by Senators Spears and Calhoun for a period of time in excess of the constitutional term of office would be by virtue of the provisions of Article 16, § 17 of the Texas Constitution and Article 17, Vernon's Ann.Tex.Stats.
It is relators' primary contention that the term of office of a State Senator begins on the day of the general election. In order to evaluate the contentions of the parties, it is necessary to examine in some detail the pertinent constitutional provisions relating to the terms of office of both Senators and members of the House. Sections 3 and 4 of Article 3 of the present Constitution (1876) read as follows:
Professor S. S. McKay's Reports of the 'Debates of the Constitutional Convention of 1875', as well as a comparison of the wording of the various Texas Constitutions, discloses a substantial continuity of provisions which extends from the Constitution of the Republic through the 1845 Constitution (first state constitution), the Constitution of 1861 (Confederate), the Constitution of 1866 (Presidential Reconstruction), the Constitution of 1869 (Congressional Reconstruction), to the Constitution of 1876. It seems that the framers of the latter Constitution took the Constitution of 1845 (the first State Constitution) as their primary model and working basis.
The constitutional term of office for the members of the House of Representatives of the Texas Congress was stated as follows in the Constitution of the Republic:
'The members of the house of representatives shall be chosen annually, on the first Monday of September each year, until congress shall otherwise provide by law, and shall hold their offices one year from the date of their election.' Art. 1, § 3, Constitution of the Republic of Texas, 1 Gammel's Laws of Texas, 1069.
The provision of the Republic Constitution relating to Senators provided that:
'The senators shall be chosen for the term of three years on the first Monday in September; * * * At the first session of congress after the adoption of this constitution, the senators shall be divided by lots into three classes, as nearly equal as practical; the seats of the senators of the first class shall be...
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