Thomason v. Seale, 6329.

• Citation: 53 S.W.2d 764
• Decision Date: 14 October 1932
• Docket Number: No. 6329.,6329.
• Parties: THOMASON v. SEALE et al.
• Court: Supreme Court of Texas

Page 764

53 S.W.2d 764

THOMASON v. SEALE et al.

No. 6329.

Supreme Court of Texas.

October 14, 1932.

Original action by Lee Thomason against Abb Seale, W. H. Hill, County Clerk of Leon County, and the Honorable S. W. Dean, Judge of the Twelfth Judicial District Court, for a writ of mandamus.

Petition refused as against respondent Hill, and mandamus issued as against respondent Dean.

J. T. Ryan, of Centerville, M. L. Bennett, of Normange, and Bradley & Bradley, of Groesbeck, for relator.

Seale & Seale, of Centerville, and M. E. Gates and L. M. Cox, both of Huntsville, for respondents.

CURETON, C. J.

This is an original action by Lee Thomason, relator, against Hon. S. W. Dean, judge of the Twelfth judicial district court, W. H. Hill, county clerk of Leon county, and Abb Seale, respondents. The relator Thomason and the respondent Seale were rival candidates for the nomination of the Democratic Party as its candidate for the office of sheriff of Leon county at the first Democratic primary, held on July 23d of this year. Thomason was declared the nominee by the proper election authorities, and a certificate of nomination awarded him. The respondent Seale filed a suit on August 9, 1932, in the district court of Leon county, of which the respondent S. W. Dean is the judge, for the purpose of contesting the election by virtue of which Thomason was declared the Democratic nominee. This election contest suit has been in process of trial since August 30, 1932, and has not yet been decided by the trial court. The purpose of this proceeding is to secure a writ of mandamus directing Judge Dean to dismiss the contest because the case is moot, and to compel the respondent Hill, county clerk, to perform his statutory duties with reference to posting the name of the relator as provided by law, and placing his name as the nominee of the Democratic Party on the general election ballots. The impediment to the performance of these duties by the clerk is a restraining order issued by Judge Dean in the case above named, which on August 23, 1932, was continued in effect "until the determination at the trial of said cause in this court." The pleadings in the election contest case are not before us, but it sufficiently appears from the petition filed in this cause that in those pleadings the qualification and disqualification of many voters was involved. The contestant and the contestee in the district court each set out the names of many alleged disqualified voters with the grounds of their disqualification. In addition to the specified voters, when the case came on for hearing in the district court the parties were permitted to file amendments to their pleadings, setting up additional challenges and additional grounds, and offer testimony with respect thereto, of several hundred additional voters challenged by the parties. The trial in the district court began on August 30, 1932, and extended, with some recesses, through a period of some three weeks, but the taking of testimony actually took twelve days time. During this period of time the court heard the testimony of approximately 342 witnesses, the evidence being introduced for the purpose of contesting the legality and eligibility of approximately 300 voters. There was evidence likewise challenging the legality of approximately 1,000 votes cast in various boxes under various and sundry irregularities in addition to the 300 individual votes above mentioned. The case, however, was not decided by the trial court on September 16th, when the testimony to which we have made reference was closed; but, apparently without adjourning the special term of court which had been called to try the contested election case, the judge repaired to Grimes county to hold a term of the district court in that county. Afterwards, on September 30th, the district judge returned to the county seat of Leon county, and there stated that he had not determined the case which he had had under advisement since the close of the evidence on September 16th. So, on that date he requested counsel to present oral argument on the legal questions involved, which was done. The court, according to the allegations in the petition, "then stated that the time remaining before the general election was too short for either party to appeal the case from any decision he might make, and that he was holding a term of court in Groveton, Trinity County, Texas, and would go back and work on this election contest at odd times, and would render his decision as soon as he worked the matter out."

There are other matters stated in the petition and answer, but the above appears to us to be sufficient for a determination of the questions before us.

We think it apparent that on September 30, 1932, when the court last sat in the case and announced that he would devote further time to its consideration, the case was moot, and that the injunction should have been dissolved and the cause dismissed for that reason. The general election must be held on November 8, 1932. It is, therefore, apparent that the time intervening between September 30, 1932, and November 8, 1932, was 37 days. The absentee voting statutes of this state contemplate that the county clerks shall have on hand ballots ready for distribution to absentee voters 20 days before election day; and willful disobedience of the law is punishable by severe penalties. R. S. art. 2956, as amended by Acts 42d Legislature (1931), chap. 105, § 1 (Vernon's Ann. Civ. St. art. 2956); Penal Code, art. 230; Sterling v. Ferguson (Tex. Sup.) 53 S.W.(2d) 753. The county clerk is directed to order the ballots printed after he has posted the names of the nominees certified to him for 10 days prior to ordering them printed. For a willful failure to perform the duties specified in the statute the clerk would be liable to punishment. Penal Code, art. 206; Sterling v. Ferguson (Tex. Sup.) 53 S.W.(2d) 753. In addition to the cumulative time specified in the statutes cited, some time would be required to prepare, print, and distribute the ballots. A substantial compliance with these statutes is embraced within the right given the holder of a certificate of nomination. It is obvious that a case of this magnitude, involving the legality of votes of hundreds of primary electors and the testimony of more than 300 witnesses, could not have been prepared and carried to the Court of Civil Appeals in time for an orderly disposition of the case, to be followed by any substantial compliance by the county clerk and the county election board with the statutes with reference to posting notices of the nomination and printing of ballots in time for absentee voters. We think it plain, as a matter of law, that Judge Dean could not, even on September 30, 1932, have rendered a judgment which would have become final in time to be of any avail to the contestee or contestant, in view of the statutory right of appeal, which is guaranteed to both parties. Love v. Wilcox, 119 Tex. 256, 271, 28 S.W.(2d) 515.

We have heretofore shown that Judge Dean himself determined that sufficient time did not intervene between September 30th and election day for the judgment rendered by him to be reviewed on appeal, under a proper presentation of the record, involving a lengthy statement of facts, to be agreed on by the parties or prepared by the judge. The fact that an injunction has been issued, which might prevent the name of the relator going on the ticket, would not avail to preserve the subject matter of the litigation after the time arrived when it was the duty of the county clerk and other election officers, as a matter of law, to comply with the relevant statutes and post the name of the relator as provided by law and print the same on the ballots. Sterling v. Ferguson, supra.

When Thomason received the certificate of nomination, it gave him a certain definite standing, and endowed him with a valuable right, which could be enforced. This right was not only to have his name printed on the...