Sterling v. Ferguson

• Decision Date: 08 October 1932
• Docket Number: No. 6327.,No. 6328.,6327.,6328.
• Citation: 53 S.W.2d 753
• Parties: STERLING v. FERGUSON et al. FERGUSON et al. v. McCALLUM, Secretary of State.
• Court: Texas Supreme Court

Page 753

53 S.W.2d 753

STERLING v. FERGUSON et al.

FERGUSON et al. v. McCALLUM, Secretary of State.

No. 6327.

No. 6328.

Supreme Court of Texas.

October 8, 1932.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Original proceeding in mandamus by Mrs. Miriam A. Ferguson, joined pro forma by her husband, James E. Ferguson, against Honorable Jane Y. McCallum, Secretary of State, and another, and an election contest by R. S. Sterling against Miriam A. Ferguson and another. The trial court dismissed the election contest, dissolved an injunction theretofore issued, and contestant appealed to the Court of Civil Appeals, which certified a question to the Supreme Court.

Certified question answered, and ordered certified and mandamus awarded.

M. M. Crane, of Dallas, C. S. Bradley, of Groesbeck, Sam McCorkle, of Mexia, R. L.

Arterbury, of Houston, and C. S. Slatton, of San Antonio, for Sterling and McCallum.

Ocie Speer, of Austin, Luther Nickels, of Dallas, and John H. Bickett, Jr., of San Antonio, for Ferguson and another.

PER CURIAM.

This is an original proceeding by Mrs. Miriam A. Ferguson, joined pro forma by her husband, James E. Ferguson, to procure the issuance of a writ of mandamus to compel Mrs. Jane Y. McCallum, as secretary of state, to certify Mrs. Ferguson's name as the nominee of the Democratic Party of Texas as a candidate for Governor at the forthcoming general election. Governor R. S. Sterling, in his private capacity, is also named as a party respondent in the petition for mandamus, because of his personal interest in the subject-matter of the controversy.

The facts leading up to this proceeding will be briefly stated in their chronological order.

The relator Mrs. Miriam A. Ferguson and the respondent R. S. Sterling were contending candidates at the second state Democratic primary held on the 27th day of August, 1932. The State Democratic Convention, which met at Lubbock on the 13th day of September, 1932, upon the certificate of the state committee after a canvass of the election returns, declared that Mrs. Ferguson was the nominee of the Democratic Party for the office of Governor, and her nomination was duly certified by the chairman and secretary of that convention to the respondent Mrs. McCallum, as secretary of state. On the 22d day of September, 1932, the respondent Governor R. S. Sterling filed in the district court of Travis county, 126th district, an original petition, the purpose of which was to contest the election by virtue of which Mrs. Ferguson had been certified to the secretary of state. In that petition he seeks a judgment of the district court declaring that Mrs. Ferguson is ineligible to hold the office of Governor, and asks relief, we assume under Revised Statutes, arts. 2927 and 2929, which authorize the district court to enjoin the placing of the name of an ineligible person on a ballot at a general election. He likewise seeks a contest of the election, and proposes to show that Mrs. Ferguson received many illegal votes at the election which should not be counted, and that if properly counted, he, the respondent R. S. Sterling, should be declared the nominee of the Democratic Party, and should be certified to the proper election officers as its nominee as provided by the election contest statutes.

At about 12:30 o'clock a. m. on September 28, 1932, there was presented to the Honorable W. F. Robertson, judge of the 126th district court, without notice to the relators in this cause at the home of said judge, in the city of Austin, an application for an injunction or injunctive order in the case above referred to. It is stated in relators' pleading that Judge Robertson granted the injunction, effective until the further orders of his court, enjoining the relators Miriam A. Ferguson and James E. Ferguson, and the respondent Jane Y. McCallum, from certifying, publishing, posting, or printing or causing or aiding or directing the certifying, publishing, posting, or printing the name of Mrs. Ferguson as the Democratic candidate for the office of Governor upon the official ballot to be used, or which "is used at the general election in this State November 8, 1932," etc. Service of the injunctive order, as well as in the original case, was had on the relators on the evening of September 29, 1932, as we understand the record.

On September 29, 1932, the relators filed in the Supreme Court a motion for leave to file a petition for mandamus now before us. Upon the filing of this motion we set the same for argument on Saturday, October 1, 1932. Mrs. McCallum filed an answer, in which she stated that she had been advised by the Attorney General that in his opinion it was her duty to certify the names of the candidates for state offices to the various county clerks of the state not later than October 1, 1932, but that in the meantime the injunction which we have just described had been issued, and she had been restrained from certifying the name of Mrs. Ferguson as the nominee of the Democratic Party. She then said: "Now she is advised that this Honorable Court has the matter in hand, and she deems it her duty to await and abide the will and orders of this Court which may reconcile the differences, if she does or does not certify the name of Mrs. Miriam A. Ferguson, in obedience to the orders of this court, and thus protect her by the orders of this Honorable Court, as she has no personal interest in the matter and no purpose to refuse to discharge her official duties when the Courts shall have advised her what such duties are."

Governor Sterling answered by plea of intervention filed in this court, in which he pleaded that a contest of the election by which Mrs. Ferguson claimed to be the nominee of the Democratic Party had been filed by him in the district court; and which we have heretofore described. He averred that the injunction previously mentioned herein was sued out for the purpose of protecting the jurisdiction of the district court where his contest was pending. He averred that this court, the Supreme Court, is without jurisdiction to issue a mandamus to compel the secretary of state to certify Mrs. Ferguson as the nominee of the Democratic Party, because of the pending contest.

All parties to this proceeding appeared at the hearing by able counsel on last Saturday, and after full argument the motion for leave to file was submitted us for consideration.

Upon the foregoing facts briefly stated from the record as it existed at the time of the argument, this court had substantially completed its opinion when other events transpired which rendered the presentation of additional facts to this court necessary. At the close of the submission of this case last Saturday we had announced from the bench that the pendency of this proceeding in the Supreme Court was not to be regarded as any cause for delaying the trial of the contest suit in Judge Robertson's court, unless and until we issued orders to that effect, and that the 126th district court was at liberty to proceed. Judge Robertson did proceed with the trial of the contest case, and on the morning of October 5, 1932, in quite an able opinion, held that the district court had no jurisdiction of primary election contests involving the office of Governor, but that such contests, like those arising out of general elections, were confided to the exclusive jurisdiction of the Legislature. As will be shown later, we have not found ourselves able to agree with Judge Robertson's conclusion; but that he gave the parties to the contest a fair and patient hearing, and prepared and filed an opinion evidencing great learning, is not to be gainsaid. Upon that opinion Judge Robertson dismissed the contest in his court, dissolved the injunction theretofore issued by him, and overruled the motion of the contestant to continue the injunction in effect pending an appeal. Governor Sterling as contestant excepted to the dismissal by Judge Robertson, and appealed the case to the Court of Civil Appeals at Austin. He filed what he terms a "supersedeas bond" for the purpose of superseding the judgment of dismissal of the trial court and the vacation of the injunction referred to above; but the supersedeas was not allowed by that court nor by the Court of Civil Appeals, and therefore did not suspend the judgment of dismissal nor reinstate the dissolved injunction. Upon the filing of the record from the district court in the Court of Civil Appeals, that court has certified to us the single question: "Did the trial court err in sustaining said plea and motion for want of jurisdiction in the court to hear and determine the contest and proceeding, and in entering the judgment of dismissal?"

Upon the filing of the certified question in this court we consolidated that case with the mandamus case heretofore described, permitted the petition for mandamus to be filed, and took, as we were authorized to do, a summary submission of the two cases together, and at the close of this opinion will give directions to the respondent secretary of state and answer the certified question with directions to the Court of Civil Appeals.

Relator denies that jurisdiction ever attached in the district court of any contest in behalf of respondent Sterling of the nomination by the Democratic Party of relator Mrs. Miriam A. Ferguson for the office of Governor of Texas, on the ground that respondent's petition challenging the primary election for fraud and illegality, though filed within ten days, was not filed within five days after the result of the primary had been declared.

In our opinion, the contest was inaugurated within the time required by the statutes.

Article 3146 gave the state Democratic executive committee and the district court concurrent jurisdiction, and further gave the option to a contestant of the nomination for a state office, when the contest was "based on charges of fraud or illegality in the method of conducting...