Walker v. Hopping

• Decision Date: 20 October 1920
• Docket Number: (No. 1728.)
• Citation: 226 S.W. 146
• Parties: WALKER et al. v. HOPPING.
• Court: Texas Court of Appeals

226 S.W. 146

WALKER et al. v. HOPPING.

(No. 1728.)

Court of Civil Appeals of Texas. Amarillo.

October 20, 1920.

Dismissed on Rehearing November 24, 1920.

Appeal from District Court, Lamb County; R. C. Joiner, Judge.

Suit by R. C. Hopping against H. G. Walker and others, to restrain persons claiming to act as a party executive committee from determining a contest of the result of a primary election. From an order denying defendant's motion to dissolve the temporary injunction, defendants appeal. Case dismissed on motion for rehearing because the questions had become moot.

Kinder & Russell and Williams & Martin, all of Plainview, for appellants.

S. G. Bratton, of Clovis, N. M., and H. C. Randolph and P. B. Randolph, both of Plainview, for appellee.

BOYCE, J.

This is an appeal from an order of the district court, overruling a motion to dissolve a temporary injunction, by the terms of which injunction certain persons, who were purporting to act as the Democratic executive committee of Lamb county, Tex., in the matter of determining a contest of the result of the primary election of July 24th, as to the nomination of the party's candidate for county judge of said county, were restrained from proceeding with the determination of said contest.

The plaintiff, R. C. Hopping, brought the suit against L. S. Kennedy, W. B. Eby, M. E. Cleavenger, J. E. Brazeal, and H. G. Walker, alleging in his original petition that at the primary election of July 24, 1920, he was duly elected as the Democratic nominee for the office of county judge of said Lamb county; that the said H. G. Walker was the rival candidate for such nomination and thereafter filed a contest with the defendant L. S. Kennedy, as chairman of the executive committee of said county, and that the said L. S. Kennedy, claiming to act as such chairman, and W. B. Eby, M. E. Cleavenger, and J. E. Brazeal, claiming to act as executive committeemen from precincts 1, 2, and 3 of said county, were proceeding, over plaintiff's protest, to hear and determine such contest; that such persons had no right to act in such capacity and determine such contest, because of the following facts: That they had each been elected, to the respective offices stated, in the primary election of 1918; that at the primary election of 1920 K. K. Simpson had been duly elected, and his election certified as county chairman of the Democratic party, and had, upon the assembling of said committee to hear said contest, appeared before it and testified that he was ready and willing to proceed with the trial as county chairman; that R. P. Stripe was elected committeeman from precinct No. 3, and the defendant Brazeal was willing to desist from further action as committeeman from said precinct; that at said election of 1920 no committeemen were elected from precincts 1 and 2, to succeed the said Eby and Cleavenger; and that their offices were vacant and should be filled by appointment by the said Simpson and Stripe. Plaintiff further alleged that he would be greatly damaged and harassed by the unlawful action of said parties in the hearing and determination of said contest, etc. The court issued a temporary writ of injunction on the presentation of the petition, restraining the defendants from proceeding with the hearing of said matter. The defendants, except Brazeal, answered, by general demurrer and special answer, in which they set out in substance the same facts as to the election of the defendants Kennedy, Eby, and Cleavenger, at the 1918 primaries, and the failure to elect committeemen from precincts 1 and 2 at the 1920 election as were alleged in plaintiff's petition; that the said Simpson was elected county chairman but had refused to act and had not accepted said office. The defendants thereupon moved to dissolve the injunction, supporting the motion to dissolve by affidavits setting out facts in detail in support of the allegations made in the special answer. The plaintiff, prior to the hearing of the motion, filed a supplemental petition, in which it was alleged that the said K. K. Simpson had finally, upon the granting of the injunction, refused to serve as county chairman, and that since such time a duly constituted executive committee from Lamb county had been appointed, as required by law, and had qualified, and were serving in such capacities; that said committee was composed of H. B. Maxey, J. O. Crawford, R. P. Stripe, C. E. Cooper, and E. B. Andrews; and that said executive committee had elected L. B. Seaton as county chairman.

A hearing was had on the motion to dissolve and affidavits and evidence introduced thereat, the substance of which we will detail later, the motion was overruled, and this appeal is from this order of the court.

The questions presented for decision on this appeal are: (1) As to the right of the district court to interfere by injunction with the proceedings of said parties, purporting to act as the executive committee of the Democratic party in passing on said contest. (2) As to the right of the old committeemen to hold over until the election or appointment of and acceptance of the office by a successor. (3) A determination of the issues of fact as to the acceptance or refusal of the office by K. K. Simpson, who had been elected as county chairman. (4) Whether the committee alleged to have been appointed after the issuance of the injunction were lawfully appointed and the effect of such proceeding on this suit.

As to the first question, we think, if it be true, as the appellee claims, that the members of the so-called executive committee were usurpers, acting in violation of law, the appellee would have the right to invoke the aid of the courts to prevent such persons from acting so as to injuriously affect the plaintiff's rights secured by law. The power of the courts in such cases was thoroughly considered by the Supreme Court, in the case of Gilmore v. Waples, 108 Tex. 167, 188 S. W. 1037, and we do not consider it necessary to add anything to what was there said. If, as held in the case referred to, the courts will lend their protection against an unauthorized act of a duly constituted executive committee of a party, we think it follows that they could act to protect the rights of a party against the acts of an unlawful or unauthorized committee. It seems to us to be a question as to whether it could be said under the provisions of the law these persons were not really committeemen at all, but were usurpers, acting in violation of law. The provision of the statute relied on by the appellee, in support of his contention that such persons were mere usurpers, furnishes the basis of the decision of the second question suggested and will be further discussed in the consideration of said issue.

To the appellant's suggestion that an injunction will never be allowed by the courts to be used to determine the right of a party to an office, we think it a sufficient reply to say that the right of the acting committeemen to hold the offices in question in this suit is merely an incident in the determination of the plaintiff's rights, the purpose of the suit itself not being to determine the title of the respective parties to the office of executive committeemen, except as that matter incidentally affects the rights of the plaintiff. In such cases the courts will determine whether the persons purporting to act in some official capacity are really entitled to act as such, or are mere usurpers, without any right to act so as to affect any of the plaintiff's rights. High on Injunctions (4th Ed.) vol. 2, par. 1315a; Hurley v. Levee Commissioners, 76 Miss. 141, 23 South. 580; Callaghan v. Tobin, 40 Tex. Civ. App. 441, 90 S. W. 328. This brings us to the consideration of the concrete question as to whether the persons acting as committeemen were acting in violation of the law, and this may be appropriately considered under the discussion of the second issue.

The only provision of the statutes to which our attention has been called relative to the election, appointment, term of office, etc., of the executive committeemen of the county, is article 3107, which is as follows:

"There shall be for each political party required by this law to hold primary elections for nomination of its candidates, a county executive committee, to be composed of one member from each voting or justice precinct in such county, as the party executive committee may direct, the members of which county executive committee as well as county chairmen and the precinct chairman for each voting or justice precinct, as the case may be, shall be elected by the qualified voters of the county on primary election day; provided, that, in case of a vacancy occurring...