Stanford v. Butler

• Citation: 181 S.W.2d 269
• Decision Date: 22 June 1944
• Docket Number: No. A-222.,A-222.
• Parties: STANFORD et al. v. BUTLER et al.
• Court: Supreme Court of Texas

Page 269

181 S.W.2d 269

STANFORD et al. v. BUTLER et al.

No. A-222.

Supreme Court of Texas.

June 22, 1944.

Original application to Supreme Court by W. T. Stanford and others for writ of mandamus against George A. Butler and others, constituting the Democratic Executive Committee of the state, and others, to compel the executive committee to certify petitioners' names to the county chairman of the Democratic Party as candidates for the Democratic nomination for the position of presidential electors for the State of Texas.

Petition refused.

James V. Allred, of Houston, Herman Jones, of Austin, Johnson & Rogers, of San Antonio, Jesse Andrews, of Houston, John Davis, of Dallas, Paul Donald, of Bowie, Ernest Guinn and Robert L. Holliday, both of El Paso, Bert King, of Wichita Falls, and Everett Looney, Geo. E. Shelley, and A. J. Wirtz, all of Austin, for petitioners.

T. D. Kimbrough, of Midland, and E. M. Davis, Gib Callaway, and Woodruff & Holloway, all of Brownwood, for respondent W. H. Rampe.

John Wheeler, of San Antonio, John H. Crooker, of Houston, and T. G. Tilford, of Nacogdoches, pro se, Whitaker, Turpin, Kerr, Smith & Brooks, and Stubbeman, McRae & Sealy, and T. D. Kimbrough, all of Midland, Henry Russell, of Pecos, J. E. Quaid, of El Paso, Ashby & FitzGerald, of Midland, and S. J. Isaacks, of El Paso, for respondent Thomas J. Pitts.

Andrews, Kelley, Kurth & Campbell, R. H. Kelley, McDonald Meachum, Frank A. Liddell, Lewis Fisher, Fulbright, Crooker, Freeman & Bates, and John H. Freeman, all of Houston, for respondent John H. Crooker.

W. Alvis Parish, James L. Shepherd, John P. Bullington, Wm. M. Ryan, and Walter Walne, all of Houston, John Redditt, of Lufkin, and McAlister & Tucker, and C. C. Denman, all of Nacogdoches, for respondent T. G. Tilford.

Turner & Seaberry, of Eastland, W. O. Gross, of Mineral Wells, James G. Harrell, of Breckenridge, George E. Smith, of Comanche, Chas. E. Coombes, of Stamford, and Joseph A. Chandler, of Stephenville, for respondent Fred Brown.

Frank J. Knapp and Butler & Binion, all of Houston, for respondents Butler and others.

A. B. Culbertson, of Ft. Worth, C. C. Renfro, of Dallas, and C. C. Small, of Austin, for respondents Neth Leachman and others.

William Pannill, Sidney Samuels, B. B. Stone, Tom James, Thompson, Walker, Smith & Shannon and Homa Hill, all of Ft. Worth, Irwin T. Ward, of Cleburne, and Lloyd E. Price, of Ft. Worth, for respondent Arch Rowan.

Perkins & Floyd, of Alice, for respondent H. J. Mosser.

W. H. Walne, James L. Shepherd and John Bullington, all of Houston, T. H. McGregor, of Austin, A. B. Culbertson and Rice Tilley, both of Ft. Worth, John C. Townes, of Houston, R. J. Boyle, of San Antonio, C. C. Renfro, of Dallas, C. C. Small, of Austin, and J. Hart Willis, Gabe Allen, Roy C. Coffee, and M. N. Chrestman, all of Dallas, for respondents E. B. Germany and others.

ALEXANDER, Chief Justice.

W. T. Stanford and twenty-two others have filed in this court an original application for writ of mandamus against the Democratic Executive Committee of the State of Texas, and the members thereof, and others, to compel said Executive Committee to certify petitioners' names to the County Chairman of the Democratic Party in each county in the State as candidates for the Democratic nomination for the position of Presidential Electors for the State of Texas.

The Supreme Court has jurisdiction to issue a writ of mandamus to require the party executive committee to place the name of an applicant on the primary ballot in a proper case. Vernon's Ann.Civ.St. Art. 1735a, Acts 1930, 41st Leg., 4th C.S., p. 4, ch. 4, § 1; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484. However, under a well-established rule the writ will not be granted unless petitioners show a clear right thereto. Wortham v. Walker, 133 Tex. 255, 128 S. W.2d 1138, and authorities there cited.

On or prior to the first Monday in June, 1944, petitioners filed with the Secretary of the Democratic Executive Committee their request to have their names placed upon the official ballot for the General Democratic Primary as candidates for the nomination of the Democratic Party as Presidential Electors for the State of Texas for the year 1944. The applicants complied with the provisions of Revised Statutes, Article 3111, which prescribes the procedure to be followed by anyone wishing to have his name placed on the ballot as a candidate for the party nomination for a regular State office. They also paid the filing fee of $100 each as provided by Article 3116. The Executive Committee has refused to certify the names of petitioners as candidates for such nominations.

The record shows that the Democratic Party at its May 1944 Convention (provided for by Article 3167) selected its nominees for presidential electors, and the Executive Committee of the party has certified the names of such nominees to the Secretary of State as the nominees of said party and as candidates for said positions. The petitioners herein were not among those so certified to the Secretary of State as nominees of the Democratic Party.

The question to be determined is whether or not the party nominees who are to have their names placed on the ballots of the general election as candidates for the position of presidential electors may be selected by the Party Convention, as was done in this instance, or whether they must be selected by direct vote of the people at the party primary, as contended for by petitioners.

Article II, Section 1, of the Constitution of the United States, provides for the appointment of presidential electors as follows:

"The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

A careful search of our statutes discloses that there is no express provision which points out specifically how the nominees of a political party for the position of presidential electors shall be selected. Petitioners rely on the provisions of Revised Statutes, Articles 3101 and 2978, as sustaining their contention that such nominees must be nominated in the primary election of the Party.

Revised Statutes, Article 3101, which relates to party nominations, provides as follows:

"On primary election day in 1926, and every two years thereafter, candidates for Governor and for all other State offices to be chosen by vote of the entire State, and candidates for Congress and all district offices to be chosen by the vote of any district comprising more than one county, to be nominated by each organized political party that cast one hundred thousand votes or more at the last general election, shall, together with all candidates for offices to be filled by the voters of a county, or of a portion of a county, be nominated in primary elections by the qualified voters of such party." Acts 1st C.S., 1905, p. 549.

It is conceded, of course, that the Democratic Party cast more than 100,000 votes at the last general election in Texas.

It will be noted that Article 3101 contains no express provision for the party nomination of presidential electors at the primary election, but it is petitioners' contention that the position of presidential elector is a "State office" within the meaning of that article, and hence candidates for party nomination for such positions must be nominated in the party primary election. On the other hand, it is the contention of respondents that the position of presidential elector is not the kind of "State office" referred to in Article 3101, and hence there is no provision in the statute which requires candidates for such positions to be nominated in the party primary.

As above pointed out, the position of presidential elector is created by the Federal Constitution, and not by State authority. It has been held by some courts that the position of presidential elector is not a State office. See Spreckels v. Graham, 194 Cal. 516, 228 P. 1040, and authorities there cited. However, there are many authorities to the contrary. See 65 C.J. 1270; Walker v. United States, 8 Cir., 93 F.2d 383; Todd v. Johnson et al., 99 Ky. 548, 36 S.W. 987, 33 L.R.A. 399; In re State Question No. 137, etc., 114 Okl. 132, 244 P. 806; Donelan et al. v. Bird, 118 Ky. 178, 80 S.W. 796; Hodge v. Bryan, 149 Ky. 110, 148 S. W. 21; McCreary v. Williams, 153 Ky. 49, 154 S.W. 417; Eagle v. Cox, 268 Ky. 58, 103 S.W.2d 682. It may be conceded, for the sake of this discussion, that a presidential elector is a representative of the State in a certain sense; but, even so, we still have for consideration the question as to whether such a position is the kind of "State office" referred to in Article 3101.

Article 3101 provides: "* * * candidates for Governor and for all other State offices * * * and candidates for Congress * * * shall * * * be nominated in primary elections by the qualified voters of such party." It will be noted that the statute names one State office, that of Governor, as an example of what is meant, and then includes "and for all other State offices." It will be seen that words of specific and particular meaning are followed by general words. Under the rule of ejusdem generis, where specific and particular enumerations of persons or things in a statute are followed by general words, the general words are not to be construed in their widest meaning or extent, but are to be treated as limited and applying only to persons or things of the same kind or class as those expressly mentioned. The rule in this respect was...