Wright v. Broeter

• Decision Date: 30 August 1946
• Docket Number: No. A-1012.,A-1012.
• Parties: WRIGHT v. BROETER, District Judge, et al.
• Court: Texas Supreme Court

Page 82

196 S.W.2d 82

WRIGHT v. BROETER, District Judge, et al.

No. A-1012.

Supreme Court of Texas.

August 30, 1946.

Original proceeding by Halsey Wright for a writ of mandamus commanding the Honorable L. Broeter, District Judge, and others to proceed to the trial of a case filed by relator.

Writ directed to issue as prayed and right to file motion for rehearing denied.

Sidney P. Chandler and Chandler, Barber & Trimble, all of Corpus Christi, for relator.

Lloyd & Lloyd and E. G. Lloyd, all of Alice, for respondent Broeter.

HICKMAN, Justice.

By this original proceeding Halsey Wright seeks to compel by mandamus the Honorable L. Broeter, Judge of the 79th Judicial District, which district includes Jim Wells County, to proceed to the trial of a case filed by him in that court. Under authority of article 1734, Revised Statutes 1925, this court has jurisdiction to hear the cause and grant the writ, if warranted by the record. Petitioner shows satisfactory reasons for not filing this action in the Court of Civil Appeals in the first instance.

The facts are undisputed and may be briefly stated as follows: H. T. Sain, one of the respondents, is Sheriff of Jim Wells County and was a candidate for renomination in the Democratic primary election held on July 27, 1946. Relator Halsey Wright was the opposing candidate. On the face of the election returns Sain received a majority of the votes and was declared the nominee for the office by the Democratic Executive Committee of Jim Wells County. On August 2, 1946, the executive committee issued a certificate of nomination in favor of Sain. Four days later relator filed suit in the district court of that county contesting the certificate of nomination alleging, among other things, that he had received at least 150 more votes than respondent Sain, but was deprived of the benefit of all the votes cast for him through frauds and illegalities in certain named election precincts. Judge Broeter called a special session of the court to convene on August 15 and set the case for a hearing on that date. The district clerk prepared a copy of the grounds of the contest together with the notice of the date set for hearing and a regular citation to be served upon Sain. These instruments, together with a copy of the order providing for such hearing and a copy of the order calling the special term of court, were placed in the hands of a constable, who executed the citation by leaving copies of the above-named instruments with Ollie Fuller, Deputy Sheriff, a person over the age of sixteen years, at the usual place of business of the contestee, that being the Sheriff's office in the court house of Jim Wells County. Another citation, including copies of the above-named instruments, was placed in the hands of the same constable for personal service upon Sain, but after diligent search by the constable and the relator Sain could not be found or his whereabouts ascertained.

On the day appointed, August 15, the case was called for trial, but the judge, being of the opinion that there had been no legal service of process upon Sain, declined to hear the case. Instead he reset same for trial on August 23 with the requirement that personal service be had upon Sain before the case proceed to trial. It is made to appear that the case has been reset for September 3rd subject to process being served upon Sain.

Judge Broeter has filed an answer to relator's petition in which he presents reasons for his conclusion that the law requires personal service upon Sain, but in that connection he states that he recognizes that it is proper for the court of last resort to determine the legal question presented, and that he will gladly and promptly obey the opinion and mandate of this court whatever our conclusion may be. The question presented, then, is not one of an arbitrary refusal of a trial judge to discharge the duties of his office, but is purely a question of the construction of statutes.

In 1938, in the case of Iles v. Walker, Chief Justice, et al., 132 Tex. 6, 120 S.W.2d 418, it was suggested that it would be wise and proper for the legislature to make some provision for service other than personal service in election contest cases where the contestee cannot be located. Thereafter, the 47th Legislature, in 1941, enacted House Bill No. 203, amending Article 3152, Revised Statutes of Texas, Vernon's Ann.Civ. St. art. 3152, to meet that situation. That article, as amended, together with the emergency clause, reads as follows:

"In State, district, county, precinct, or municipal offices, the certificate of nomination issued by the president or chairman of the nominating convention or chairman of the county executive committee shall be subject to review, upon allegations of fraud or illegality, by the District Court of the county in which the contestee resides, or the Judge of said Court in vacation, or in any county in which contestee was candidate for office; provided, that such allegations are filed in said Court within ten (10) days after the issuance of said certificate; and when said allegations are so filed, or the appeal from the decision of the executive committee is perfected, the Judge of the District Court shall set same down for hearing, either in termtime, or vacation, at the earliest practicable time, not to exceed ten (10) days; and a copy of said grounds of contest, together with the notice of the date set for hearing shall be prepared and issued by the District Clerk and be served upon the contestee five (5) days before the hearing by said Court or Judge, and the parties to said contest shall have the right to summon witnesses; provided, however, that service upon the contestee of a copy of said grounds of said contest, together with the notice of the date set for hearing, may be had by service upon the agent or attorney of such person, or by leaving the same with some person over the age of sixteen (16) years at the usual place of residence or business of the contestee, or his last address. The said Court or Judge shall determine said contest at the earliest time practicable. A certified copy of the judgment of said Court or Judge shall be transmitted by the clerk thereof to the officers charged with the duty of providing the official ballot, and the name of the candidate in whose favor said judgment shall be rendered shall be printed in the official ballot for the general election.

"For good cause shown, supported by affidavit of either party, the trial of said contest may be postponed one time for not exceeding five (5) days.

"Sec. 2. The fact that under existing laws regulating primary election and nomination contests, it is necessary to serve the contestee in person, which may be thwarted by the contestee's leaving his usual place of residence or place of business in order to avoid service, creates an emergency * * *." (Italics ours.)

Service was had upon Sain in compliance with the terms of that article.

The legislature at a later date in the same session enacted House Bill No. 857, Laws 1941, c. 635, Section 5 of which, Vernon's Ann.Civ.St. art. 3130, reads as follows:

"Sec. 5. Article 3130, Revised Civil Statutes, 1925, is hereby amended so as to hereafter read as follows:

"Article 3130.

"The District Court shall have original and exclusive jurisdiction of all contests for nominations growing out of primary elections. Any candidate desiring to contest the declared result of any primary election in which he was a candidate, shall file his suit in the District Court within ten (10) days from the date of declaring the result by the executive committee, and process shall be served upon the opposite party as in other civil suits, except that the return day thereof shall be fixed by the District Judge. However, upon the filing of any such suit, the contestant shall forthwith deliver, or cause to be delivered, a true copy of his petition or complaint to the opposite party. The filing of the suit shall be immediately called to the attention of the District Judge by the Clerk of said Court. If the District Court be then in session, the Judge thereof shall set the said contest for trial at a date not more than ten (10) days from date of the filing of said contest. If the District Court be not in session at said time, the Judge thereof shall order a special term...