Stevenson v. Sherman

• Decision Date: 12 May 1950
• Docket Number: No. 14218,14218
• Citation: 231 S.W.2d 506
• Parties: STEVENSON et al. v. SHERMAN et al.
• Court: Texas Court of Appeals

Page 506

231 S.W.2d 506

STEVENSON et al. v. SHERMAN et al.

No. 14218.

Court of Civil Appeals of Texas, Dallas.

May 12, 1950.

Rehearing Denied June 16, 1950.

Chrestman, Brundidge, Fountain, Elliott & Bateman, Dallas, for appellants.

Robert W. Finklea, Will Wilson, Jr., District Attorney, and Philip Silverberg, all of Dallas, for appellees.

YOUNG, Justice.

This suit was filed January 29, 1949 by appellee Sherman, a candidate for office of Dallas County Commissioner No. 1, 1948 Democratic Primaries, on behalf of himself and all other candidates similarly situated, against appellants Stevenson and Wynes, Chairman and Secretary-Treasurer, respectively, of the Dallas County Democratic Executive Committee; alleging that the candidates had paid to defendants sums of money (more than $40,000) in proportionate assessments for defraying expenses of holding such primaries, as provided by Art. 3108, Vernon's Ann.Civ.Sts.; that defendants had made no accounting of said funds but were illegally expending same, praying for injunction against further disbursements, for an accounting and return to all candidates of any surplus money remaining after deduction of lawful expenses of aforesaid primary elections.

Defendants (appellants here) answered by general denial and bill of interpleader, naming plaintiff and 13 others as representatives of the whole class of such candidates, also bringing in the County of Dallas; alleging that after cost of said primaries had been estimated, the various candidates had paid in the total sum of $43,824. Expenditures from such fund were then listed of $39,789.50, leaving a balance of $4,034.50 which they tendered into court for apportionment among those entitled thereto, subject to a claim of Dallas County for rental of voting machines.

The case went to trial on amended pleadings of all parties, plaintiff and cross-defendants detailing items aggregating $6,310.49 spent by Stevenson and Wynes allegedly in excess of amounts authorized by law, and praying for accounting and judgment in such amount against said defendants jointly and severally; and, in further defense to the claims of Sherman and associates, defendants interposed an agreement appearing in the body of application signed by all candidates for office, whereby 25% of each fee or payment was to be retained by the Dallas County Democratic Executive Committee for services rendered and costs incident to said primaries and not subject to refund; appellees by trial amendment attacking the proviso just mentioned as illegal and unauthorized under Arts. 3108 and 3022a of the Statutes. Upon hearing, judgment was rendered as of October 20, 1949 in favor of all 1948 candidates at the Dallas County Democratic Primaries and against appellants in amount of $3,139.36 with interest and costs, from which this appeal has been duly prosecuted.

Issues raised and decided are sufficiently reflected in various findings and conclusions of the trial court made a part of above judgment, as consolidated in appellants' brief, viz: (1) That the County of Dallas should recover the sum of $1,820.75; (2) that certain expenditures by the defendants (appellants) out of funds contributed by the 1948 candidates, which were listed in the total sum of $5,076.48, were unlawfully expended by said defendants; (3) that defendants were trustees of all sums paid in by said candidates in the sum of $43,824.00, less any amounts lawfully or legitimately expended by them for defraying costs and expenses of said 1948 Primaries, for the benefit of all candidates who contributed and to whom should have been refunded any excess of funds contributed by them after such legitimate costs and expenses had been paid; (4) that prior to payment of any assessments by the candidates, there was on hand in possession of said defendants the sum of $1,937.12 which should be deducted from the aforesaid sum found by the court to have been illegally and unlawfully expended by them; (5) that defendants have tendered into court $4,034.50, the amount of cash remaining on hand out of funds paid in by candidates in the 1948 Democratic Primaries; (6) that the 1948 Democratic Primary candidates should have refunded to them the balance remaining on hand in the registry of the court after paying the County of Dallas' claim of $1,820.75 and $400 attorney's fees, and that such candidates should have refunded to them the amount of this judgment, if and when paid, in proportion to the amounts originally contributed; (7) that 'an instrument which candidates in the 1948 Democratic Primaries were required to sign, agreeing to contribute up to 25% of the assessments to the Democratic Executive Committee of Dallas County, was illegal, void, and against public policy; that the signatures of candidates to such agreements contravened the laws of the State of Texas governing Democratic Primary assessments'; (8) that attorney for defendants was entitled to a reasonable attorney's fee of $400 for tendering into court the sum of $4,034.50. (No complaint is made by anyone of above award to Dallas County of $1,820.75 nor of attorney fees.)

In the court's judgment the following disbursements made by appellants 'out of funds contributed by candidates in the 1948 Democratic Primaries' were found to have been unlawfully expended: 'Stenographic hire prior to the first Democratic Primary of 1948 $214.20; State Association of Democratic County Chairmen $50.00; Furniture and fixtures purchased $350; Expenses of Stenographic reporting for all conventions and committee meetings $427.50; All expenses incident to the May, 1948 Precinct and County Democratic Conventions $510.45; Eleven (11) payments of $150.00 each to Arthur Stevenson $1,650.00; All payments to J. A. Wynes $1,650.00; Travel and incidental expense allowance * * * to Arthur Stevenson $75.00; Bond premium for J. A. Wynes * * * $25.00; Premium for insurance on furniture * * * $10.50; Long distance call by Arthur Stevenson to Austin, Texas * * * $1.38; Office sign on door * * * to T. P. Murphy $5.50; Ventilator repairs * * * $31.50; Cleaning Hall of Records * * * $5.00; Payment for map (precincts) * * * $25.00; Newspaper subscription * * * $2.00; Service charge on air conditioner * * * $5.00; Cleaning service (office) * * * $5.00; Stenographic services in October 1948 * * * $33.00. Total $5,076.48.' The net judgment of $3,139.36 was determined by subtracting from above total of $5,076.48 the sum of $1,937.12, a carry-over of bank balance from previous years.

Appellants assert court errors (1) 'in refusing to give effect to, and holding illegal, void and against public policy, the agreement signed by each of the candidates that an amount not in excess of 25% of his assessment be retained by the Democratic Central Committee for the payment of certain expenses of the committee not specifically authorized by statute'; (2) '* * * in rendering judgment against appellants, for sums paid out as expenses of the Dallas County Democratic Executive Committee, in the face of the express agreement of those in whose favor the judgment was rendered that such expenses be paid out of the funds contributed by them and waiving any right to the refund thereof'; (3) in the holding that sums of money were unlawfully expended by appellants beginning with item one of 'stenographic hire prior to the first Democratic Primary of 1948 ($214.20)' through to the last of 'stenographic services in October, 1948 * * * (Mildred Welch) $33.00,' and in rendering judgment against them for an amount including such items. (With reference to the charge 'Arthur Stevenson $1,650,' appellants merely complain of the finding that same was paid out of 1948 funds. No point is made of this, however, in view of the fact that appellants were given credit in judgment for the sum of $1,937.12 on hand prior to the payment of any assessments by the 1948 candidates.)

All assessments from candidates referred to herein were banked in name of Dallas County Democratic Executive Committee and subject to check of Stevenson, Chairman, and Wynes, Secretary-Treasurer.

Article 3108, V.A.C.S., provides: 'At the meeting of the county executive committee provided in Article 3117, the county committee shall also carefully estimate the cost of printing the official ballots, renting polling places where same may be found necessary, providing and distributing all necessary poll books, blank stationery and voting booths required, compensation of election officers and clerks and messengers, to report the result in each precinct to the county chairman, as provided for herein, and all other necessary expenses of holding such primaries in such counties and shall apportion such cost among the various candidates for nomination for county and precinct offices only as herein defined, and offices to be filled by the voters of such county or precinct only (candidates for State offices excepted), in such manner as in their judgment is just and equitable, giving due consideration to the importance and emoluments of each such office for which a nomination is to be made and shall, by resolution, direct the chairman to * * * mail to each person whose name has been requested to be placed on the official ballot a statement of the amount of such expenses so apportioned to him, with the request that he pay the same to the county chairman on or before the Saturday before the fourth Monday in June thereafter.' This statute has reference to the July (general) and August (run-off) Democratic Primaries, Art. 3102, and the expense necessarily incident thereto. Monies collected under authority of Art. 3108 constitute trust funds, Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074, Small v. Parker, Tex.Civ.App., 119 S.W.2d 609, to be disbursed only as provided therein; the law being accorded a strict construction. 'The authority to require payment of a...