Westerman v. Mims

• Decision Date: 05 January 1921
• Docket Number: (No. 3386.)
• Citation: 227 S.W. 178
• Parties: WESTERMAN et al. v. MIMS, Secretary of State.
• Court: Texas Supreme Court

Page 178

227 S.W. 178

WESTERMAN et al. v. MIMS, Secretary of State.

(No. 3386.)

Supreme Court of Texas.

January 5, 1921.

Dissenting Opinion January 10, 1921.

Original petition for mandamus by H. Westerman and others against C. D. Mims, Secretary of State. Writ denied.

See, also, 224 S. W. 888.

Frank S. Anderson, of Galveston, for relators.

C. M. Cureton, Atty. Gen., C. L. Stone, Asst. Atty. Gen., and James B. Stubbs, of Galveston, for respondent.

GREENWOOD, J.

The relators seek by mandamus to compel the respondent, secretary of state, to instruct the county clerk of Galveston county to have the name of respondent Aubrey Fuller printed in the independent column, under the title of judge of the Fifty-Sixth judicial district, on the official ballot in that county, at the general election on November 2, 1920.

It was averred and admitted that the respondent Fuller participated and voted in the Democratic primary in Galveston county, on July 24, 1920, at which the respondent Robert G. Street was a candidate and was nominated for judge of the Fifty-Sixth judicial district; that the official primary ballot had printed on it the words, "I am a Democrat and pledge myself to support the nominees of the primary;" that the American party of Galveston county nominated respondent Fuller on July 31, 1920, as a candidate for judge of the Fifty-Sixth judicial district; that on October 2, 1920, he filed with the county clerk of Galveston county a declination of the nomination; that on August 21, 1920, the relators presented and delivered to the respondent secretary of state their written application, requesting that the name of respondent Fuller be printed on the official ballot at the general election in Galveston county, as an independent candidate for judge of the Fifty-Sixth judicial district; that relators were all qualified voters, constituting more than 3 per cent. of the votes cast in the county in the general election of 1918; that none of the relators signing the application participated in a primary which nominated a candidate for said office, and that the application was verified by the statutory affidavits of each relator; that on July 24, 1920, respondent Fuller filed with the secretary of state his written consent to become an independent candidate for judge of the Fifty-Sixth judicial district; that respondent Fuller was a citizen and a qualified voter of the county of Galveston and state of Texas, was more than 25 years of age, and was a citizen of the United States; and that he had been a practicing attorney in the state of Texas and in Galveston county for more than 4 years, had resided in Galveston county for more than two years next preceding November 2, 1920, and now resides in said county, of which he has been an actual, bona fide citizen for more than six months.

The contention of the relators is that, since the application of relators and the consent of respondent Fuller conformed to the requirements of articles 3164, 3165, and 3166 of the Revised Statutes, it became the duty, enforceable by mandamus, of the secretary of state, under article 3167, to issue his instructions to the county clerk, directing that the name of respondent Fuller be printed in the independent column of the official ballot.

On the other hand, the respondents, save Fuller, contend: First, that relators show no such interest as authorizes them to maintain this proceeding; second, that respondent Fuller's nomination on July 31, 1920, by the American party for the office of judge of the Fifty-Sixth judicial district rendered him ineligible to become an independent candidate at the time relators' application was presented and for more than 30 days after July 24, 1920, the date of the primary election, and that the subsequent declination of the nomination by Fuller was ineffectual to render him eligible to become an independent candidate; and, third, that relators were not entitled to maintain this suit by reason of respondent Fuller's participation in the Democratic primary at which respondent Street was nominated.

It is clear to us that, if this suit could be maintained by respondent Fuller, it can likewise be maintained by relators. The objection that respondent Fuller is alone affected by the action of the secretary of state is not tenable. The right asserted by relators is to present an independent candidate, designated by themselves, for the consideration of each voter through the official printed ballot. Such a right is conferred by statute on certain groups of qualified voters, under certain conditions. The precise question to be determined is whether the conditions exist which entitle relators, as such a group, to enforce by mandamus the right stated. The statement of the question is sufficient to disclose the interest of relators and their privilege to have the question adjudicated, notwithstanding respondent Fuller may not also join as relator in seeking the adjudication.

Article 2970 of the Revised Statutes forbids the name of any candidate appearing more than once upon the official ballot, except as a candidate for two or more offices permitted by the Constitution to be held by the same person. Article 3172 authorizes a nominee for other than city offices to "decline and annul" his nomination by delivering to the officer with whom the certificate of his nomination is filed, 20 days before the election, a written declaration of his declination, signed before some officer authorized to take acknowledgments. While article 2970 warranted the secretary of state to refuse to issue instructions for the printing of respondent Fuller's name on the official ballot as an independent candidate during the time he was the nominee of the American party, yet that nomination was annulled when respondent Fuller declined the nomination in the mode prescribed by article 3172. After the nomination was thus annulled, it furnished no further warrant for the refusal to instruct the placing of respondent Fuller's name on the ballot as an independent candidate, in compliance with an application filed in season. By this holding we simply recognize that the nominee has the time allowed by the terms of article 3172 for the exercise of his option to annul his nomination.

It is not the law that the writ of mandamus must be granted in every case upon a showing by relators that articles 3164, 3165, and 3166 of the Revised Statutes have been complied with. If the court were under any such compulsion, then the writ would have to be awarded, though the candidate named were confessedly ineligible to hold the designated office. It is elementary that a mandamus will not be issued to compel the doing of that which the law forbids, and chapter 13 of the General Laws of the Thirty-Sixth Legislature, p. 17, expressly forbids the placing of the name of an ineligible person on the ballot at a primary or general election. Manifestly one who seeks relief through this extraordinary proceeding must show himself entitled thereto under all applicable law, no matter where embodied.

If one is under obligation, legal or moral, to support a nominee of a party primary, the act of becoming a candidate against the nominee necessarily involves the breach of that obligation. Those who invite the breach cannot escape responsibility for the wrong it may involve. We are therefore of the opinion that, if respondent Fuller could not maintain this action, under the averments of relators' petition, neither can the relators.

The relators and the contesting respondents differ as to the nature of the obligation imposed on a participant in a party primary. The latter contend that the obligation to support a nominee is a legal obligation, rendering the participant ineligible to become an opposing candidate. The former deny that any obligation is imposed on the participant save such as binds his honor and his conscience, and assert that no cognizance should be taken by the court of an obligation of that kind in awarding or withholding the writ of mandamus.

In support of the view last stated, the declarations in Koy v. Schneider, 218 S. W. 483, 221 S. W. 916, are cited, to the effect that the voter was not bound legally, but was bound morally to support the nominees of the primary wherein he voted. While those declarations were not necessary to the decision in that case and are not regarded as conclusive of the question here presented, a majority of the court, on careful consideration, are of the opinion that it cannot be properly said that the voter does become bound otherwise than morally to support primary nominees.

Article 3096 prescribes "a primary test" to be printed on each ballot as follows:

"I am a ____ (inserting the name of the political party or organization of which the voter is a member) and pledge myself to support the nominees of this primary."

For many years such a test was required in party primaries while under no statutory regulation. The object of the test, when so required by party managers, was simply to determine the voter's qualifications to have a part in choosing the candidates of the party or in dictating its policies.

It is not believed that the Legislature can in reason be said to have had a different object in the enactment of article 3096. The purpose of the Legislature was the same as the pre-existing purpose of the party managers, and that was to exclude from party action all persons save those holding a present party allegiance and having a bona fide present intention to support the party nominees.

If the entire purpose be not accomplished in determining whether the voter is a member of the party, having a subsisting intent to support the nominees, still we cannot say that the pledge imposes an executory legal obligation. The specific, statutory pledge is to "support" the primary nominees. As stated by Webster, to "support" is "to uphold by aid or countenance." The Legislature must have given such an interpretation to the pledge, if t...