State v. Court of Civil Appeals

• Decision Date: 02 October 1934
• Docket Number: Motion No. 11544.
• Citation: 75 S.W.2d 253
• Parties: STATE ex rel. CANDLER et al. v. COURT OF CIVIL APPEALS, FOURTH SUPREME JUDICIAL DIST., et al.
• Court: Texas Supreme Court

Page 253

75 S.W.2d 253

STATE ex rel. CANDLER et al. v. COURT OF CIVIL APPEALS, FOURTH SUPREME JUDICIAL DIST., et al.

Motion No. 11544.

Supreme Court of Texas.

October 2, 1934.

Proceeding on motion in the name of the State, on the relation of Ralph Candler and others, for leave to file a petition for mandamus against the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, at San Antonio, and others.

Motion overruled, and clerk directed to file no motion for rehearing.

See, also, 75 S.W.(2d) 148.

Joe Burkett, of San Antonio, for relators.

Charles L. Black, of Austin, and Johnson, Slatton, Rogers & Johnson, of San Antonio, for respondents.

GREENWOOD, Justice.

On the 1st day of October, 1934, the relators, Ralph Candler, Frank Campbell, and J. L. Burd, resident taxpaying citizens and voters of the state of Texas and of Bexar county, filed in the Supreme Court of Texas, by their attorney, in the name of the state of Texas, a motion for leave to file petition for mandamus against the following named respondents and none other: The Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, at San Antonio, Bexar county, Tex., and Maxey Hart, clerk thereof, and the Honorable John H. Bickett, Chief Justice, and Hon. Edw. W. Smith and Hon. W. O. Murray, Associate Justices thereof.

Relators allege that "an information in the nature of a quo warranto" was filed, on September 14, 1934, in the Ninety-Fourth district court of Bexar county, Tex., by the state of Texas, by Hon. Walter Tynan, district attorney of Bexar county, on the sworn application and petition of Ralph Candler, Frank Campbell, and J. L. Burd, against James V. Allred, W. W. Heath, secretary of state, R. G. Waters, campaign manager of the said James V. Allred, R. E. Phillips, Martin Wright, R. B. Stanford, O. H. Allred, Gerald Mann, C. A. Teagle, H. C. Hughes, and W. C. Todd, assistant campaign managers of the said James V. Allred; and James E. Kilday and Albert Sidney Johnston, as former chairman and secretary of the State Democratic Convention recently held at Galveston, Tex., and which adjourned, sine die, on September 11, 1934.

Relators aver that the defendants, except W. W. Heath, James E. Kilday, and Albert Sidney Johnston, grossly violated the Corrupt Practice Act with reference to the excessive expenditures, illegally, of money in furthering the campaign of and securing the nomination of the said James V. Allred, candidate for Governor, during the Democratic Primary campaign and election, and under authority of article 3173, Revised Civil Statutes of Texas, the relators sought injunction from the district court against the defendants Kilday and Johnston, as former chairman and secretary of the State Convention, from certifying the name of the said James V. Allred to the secretary of state, W. W. Heath, on the ground that the State Convention had adjourned on September 11th, and that said defendants Kilday and Johnston were no longer officers of said Convention, and hence were without authority in law to certify the name of the said Allred to the said W. W. Heath, secretary of state. Relators sought to restrain the said W. W. Heath, as secretary of state, from receiving and filing said certification from the said Kilday and Johnston, and sought further to restrain the said Heath from in any manner certifying the name of the said Allred to any of the various election boards throughout the state, pending a hearing on the merits of the case, in order that the name of the said James V. Allred may not appear on the official ballot at the general election as the Democratic nominee for Governor, in case the court found, on a trial on the merits of the case, in October, that the said Allred had, in fact, exceeded the expenditures and had violated the other provisions of the Corrupt Practice Act, articles 3168 to 3173, inclusive, 1925 Revised Civil Statutes of Texas.

Relators aver that their information and application for injunction was duly presented to the Honorable W. W. McCrory, judge of the Ninety-Fourth district court, Bexar county, Tex., on the 14th day of September, 1934, and was ordered filed by him and process issued thereon, and that said judge granted a temporary restraining order against W. W. Heath, secretary of state, and against James E. Kilday and Albert Sidney Johnston, restraining each from the certification of the name of the said James V. Allred, pending a hearing on the merits of the case, and proper process was issued and served on said defendants in due time.

Relators show that on September 17, 1934, all defendants duly appealed to the Honorable Court of Civil Appeals of the Fourth Supreme Judicial District at San Antonio, and afterwards, on September 20, 1934, the case was submitted and orally argued by both sides; that the relators were not furnished briefs of the appellants "until immediately before said cause was set for argument on the morning of September 20th, hence had no opportunity to present brief supporting their contentions, and called the matter to the attention of the Court, asked two days allowed by statute to file answer to Appellants' brief, but this request was refused," and relators, after oral argument, were allowed only one day in which to prepare and file their briefs, which was done.

Relators allege that on September 22d, late in the evening, the Honorable Court of Civil Appeals rendered judgment dissolving and reversing the temporary restraining order of the court below, by a divided court; thereafter, on September 25, 1934, a supplemental decision was filed therein by the two associate justices, Honorables Ed. W. Smith and W. O. Murray, 75 S.W.(2d) 148.

Relators further show that within six days after the rendition of judgment and within three days after the filing of supplemental opinions, on September 28, 1934, "the relators presented their motion for rehearing to the clerk of the Court of Civil Appeals," who advised counsel for relators, by letter, that the court had directed that the motion for rehearing be not filed on account of the refusal of the district attorney to join in same, but that the court directed him further to say they would consider a motion to file the motion for rehearing. Thereupon counsel for relators telephoned one of the justices of the Court of Civil Appeals an inquiry as to whether the court had authorized the clerk's letter, when the justice informed him the letter reflected the court's action; that he himself had dictated the letter.

Relators finally allege that the errors assigned in their motion for rehearing are such as to show, on proper application for writ of error, after disposition of the motion for rehearing in the Court of Civil Appeals, jurisdiction in the Supreme Court of various questions involving determination of the constitutionality of statutes, of the construction of statutes, and involving the determination of whether the decision of the Court of Civil Appeals conflicted with decisions of the Supreme Court and whether the Court of Civil Appeals erred in deciding that the district court was without jurisdiction of this controversy.

The ground for issuance of mandamus by the Supreme Court to compel the clerk and judges of the Court of Civil Appeals to receive, consider, and determine their motion for rehearing, in the language of relators' petition, is that "it is the plain, legal and statutory right of these Petitioners—Appellees in the Court of Civil Appeals—to file, within fifteen days after the rendition of judgment, a motion for rehearing, have same presented to and passed upon by the Court; that it is, likewise, the plain, legal and statutory duty of the Clerk of said Court, to file Appellees' Motion for Rehearing, when presented within the said fifteen day period, and it is also the plain, legal and statutory duty of the Court of Civil Appeals and the Judges thereof, to consider same, pass upon the merits thereof, and render decision thereon, which said Clerk and said Court of Civil Appeals for the Fourth Supreme Judicial District, and the respective Judges and Members thereof, have failed and refused to do and still fail and refuse to do, which amounts to a refusal, on the part of said Clerk and said Court and the respective members thereof, to perform a plain, obvious and legal and statutory duty." And, "that the said refusal of the Clerk to file, and the Court of Civil Appeals to hear, consider and decide said Motion for a Rehearing, timely presented to be filed by Appellees, has denied and will deny these Petitioners of their valuable, substantial and statutory and constitutional right to be heard by and before the Courts of the land, and will deprive them of their right to procure a writ of error from the decision of the Court of Civil Appeals—the errors assigned in their Motion for Rehearing being the necessary and legal grounds upon which to predicate their Application for Writ of Error to the Supreme Court of Texas, as made and provided by law and the rules of said Supreme Court of Texas."

The above hurried statement, almost wholly in the words of relators' counsel, will suffice. This opinion is being written within a few minutes after the submission of relators' motion and accompanying exhibits. Time forbids unnecessary delay in order to fulfill the commands of the statutes invoked by relators.

The established principles of law requiring relators' motion to be overruled by the Supreme Court are so numerous that we can undertake to state only a few.

First. The motion must be refused for want of a necessary party plaintiff.

Staples v. State, 112 Tex. 65, 245 S. W. 639, 643, is decisive here. In that case three private citizens, such as relators, invoked the same statute now relied on to prevent the name of Earle B. Mayfield from appearing on the official ballot in the general election as Democratic nominee for United States Senator. They brought their quo warranto suit as qualified voters...