Dick v. Kazen

Mr. Justice Griffin

delivered the opinion of the Court.

C. B. Dick and other duly qualified candidates for nomination for various district and county offices to be determined at a primary election to be held by the Democratic Party in Webb County, Texas on July 28, 1956, filed this original application for a writ of mandamus against Mrs. Abraham Kazen, Jr., as chairman, Victor C. Woods, as secretary, and all the other members of the County Democratic Executive Committee, hereinafter called the Committee, of Webb County, Texas. The relief sought was to compel the Committee to prepare the official ballot to be used at such primary election by determining by lot the order in which the names of all the candidates for each district and county office should appear on said ballot, as is required by Article 13.17, V.A. T. S. Election Code of this State; and to prepare the official ballot for such primary election by placing each candidate’s name for each office upon the official ballot in the order so determined by lot. It was alleged that the Committee held its meeting at 8:30 a.m., June 18, 1956, and determined the placement of the names of all candidates for all district and county offices on the official ballot for such primary election in a manner different than “by lot,” and in violation of Article 13.17, V.A. T. S. Election Code. By an affidavit accompanying this application it is made to appear that the Committee had met in a public meeting on the day provided by Article 13.17 of the Election Code, and determined the order in which the various candidates for the various offices would appear on the official ballot “by lot by slate.”

Respondents, with commendable frankness, answer that in all contested State offices, and for the State Representative (where there were three candidates) the relative positions on the ballot were determined by drawing by lot individually the names of the respective candidates. In all the rest of the contested county and district offices there were only two candidates for each position; that one candidate had the endorsement of a local organization known as the Reform Party and that the other candidate had the endorsement of the Independent Club; that such endorsements had been widely publicized in Webb County and were well known throughout said county; that there were several candidates of the same name on the two “slates” and also instances of several candidates of the same name on only one “slate,” but, of course, for different offices; that the Executive Committee discussed these facts, and in order to avoid confusion between various candidates of the same name, and in order to give the voters a clear cut choice between the candidates endorsed by the Independent Club and those endorsed by the Reform Party, it was decided to place the candidates of each faction in a definite position on the official ballot. To accomplish this result and in fairness to both factions, it was decided to determine by lot by “slate” this position. In this manner each candidate would have a 50% chance to be the first on the ballot under the listing of the office for which he was a candidate, and a 50% chance to be in second place on said ballot. That such procedure to so determine by lot the order of the candidates was made in good faith and in a sincere effort to be fair, and afforded to each candidate a 50-50 chance, avoided confusion, and gave each voter, where so desired, a clear opportunity to vote a “straight ticket,” and thus to support either the Reform Party and its endorsed candidates or the endorsed candidates of the Independent Club. Further, it was alleged, such decision was made only after being advised by legal counsel that such determination would be a determination “by lot,” as provided for in Article 13.17 of the Election Code. Acting on such advice and for the purposes as above set out, the Committee did determine the position of the candidates for the contested district and county offices by drawing- by lot the names of the two factions, and the faction first drawn was the Independent Club and the Reform Party was the second name drawn. In accordance with this determination by lot, the Committee had placed the Independent Club candidates first under each contested district and county office, and the Reform Party candidates in second place. These facts were not controverted and we therefore have the jurisdiction under Article 13.41, V.A. T. S. Election Code and Article 1735a, V.A.C.S. to issue the writ of mandamus. It is elementary and requires no citation of authority that we cannot issue a writ of mandamus if a fact issue is raised by the pleadings and affidavits filed.

We hold that the determination of the order in which the names of the candidates for the district and county offices shall appear on the official ballot has not been determined “by lot” as required by Article 13.17. The good intentions and honest sincerity of the respondents is no defense to the requirements of the law; nor may such failure to follow the statute be excused because of the local situation existing in Webb County due to the fact that a number of candidates for various offices have the same names and that confusion on the part of the voters might arise therefrom. The Election Code establishes a uniform procedure to be followed throughout the State of Texas. Our Election Code places on each voter the responsibility of determining those candidates for which he wishes to cast his ballot and marking his ballot accordingly.

Article 13.17 provides:

“The various county committees of any political party, on the third Monday in June preceding each general primary, shall meet at the county seat and determine by lot, in open meeting, the order in which the names of all candidates for all offices, including state-wide races, requested to be printed on the official ballot shall be printed thereon.”

The legal requirement that the Committee shall determine the order in which the names of the candidates shall appear on the official ballot has been in our statutes since 1903. The first law covering primary elections by ballot was passed by the Legislature in 1903. Prior to the effective date of such law all nominations had been made by conventions held by the respective parties, and not by election ballot. Sec. 94, General Laws, 28th Leg., 1903, Ch. 101, p. 150, provides, in part: “The vote in all primary elections shall be by official ballot, which shall have printed at the top thereof the name of the party, and under it the names of all candidates, those for each office being arranged in alphabetical order beneath the title of the office for which they are candidates, * * *.” (Emphasis added).

In 1905, the so-called “Terrell Election Law” came into effect. It repealed the 1903 Act. Section 113 of the “Terrell Law,” Acts, 29th Leg., 1905, 1st C.S., p. 521, et seq., provided that it was the duty of the various county committees of any political party to meet on the date provided by such law to determine the order in which the names of the various candidates for the various offices should appear on the official ballot, “and said order shall be determined by lot so no preference shall be given to any candidate.” (Emphasis added). Section 111 of this law also provides, in part ,that the county committee on the third Monday in June of each election year “* * * shall meet at the county seat and determine by lot the order in which the names of all candidates for each nomination or position requested be printed on the official ballot shall be printed thereon * * *.” (Emphasis added). This same provision was carried forward into the 1911 revision as Article 3106. In the 1925 revision this became Article 3117, Vernon’s Annotated Civil Statutes, and remained in the same verbiage until the enactment of the Election Code in 1951, when it was changed to read as Article 13.17 above set out. The language of the old law reading, “all candidates for each nomination, * * *” now reads “all candidates for all offices * * Taking into consideration the whole of the Election Code and the spirit of the enactment, we do not believe the Legislature intended to change the method of determining the order in which the names of the candidates should appear on the official ballot from what it was under the preexisting statutes; i.e., that the order of the names of all candidates for each office on the ballot shall be determined by lot as to each office. “Lot,” as used in this provision quoted, is defined in 54 C. J.S. 839 as follows: “The word ‘lot,’ used in one sense, signifies the existence of the element of chance, and in this sense is defined as a contrivance to determine a question by chance or without the action of a man’s choice or will; anything used in determining a question by chance, or without a man’s choice or will; the use of lots as a means of deciding anything, as to choose by lot. Also, that which causes, falls, or happens; chance, fortune, hazard.”

The respondents raised the question that each and every candidate for each contested district and county office is a necessary party to this proceeding, and since relators have not made such candidates parties to this proceeding, the mandamus should be refused. We overrule this contention. The holding of elections and the election procedure is a part of the political power of the State, and except as provided by statute, the judiciary has no control over them. Wall v. Currie, 147 Texas 127, 213 S.W. 2d 816, 817, wherein this court quotes with approval from 29 C.J.S., Elections, Sec. 88, pp. 121-122, the following:

“* * * ‘Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, to determine disputes within a political party as to the regularity of the election of its executive officers, or their removal, or to determine contests for the position of party committeemen or convention delegates.’ 29 C.J.S., Elections, Sec. 88, pp. 121-122.”

See also Waples v. Marrast, 108 Texas 5, 184 S.W. 180; L.R.A. 1971A 253; Carter v. Tomlinson, 149 Texas 7, 227 S.W. 2d 795, 799. It has been stated that an election contest is a political and not a judicial question and that the courts have no jurisdiction in such proceedings save as given by statute. Prior to the constitutional amendment of 1891 (Art. 5, Sec. 8) it had been held that courts had no jurisdiction to try an election contest and that the Legislature was not authorized to confer such jurisdiction. State ex rel Jennett v. Owens, 1885, 63 Texas 261; 15-B Texas Jur. 535, Sec. 157.

Article 13.41, V.A. T. S. Election Code provides as follows:

“Any executive committee or committeeman or primary officer, or other person herein charged with any duty relative to the holding of the primary election, or the canvassing, determination or declaration of the result thereof, may be compelled by mandamus to perform the same in accordance with the provisions of this Code.”

This article makes no requirement for the joinder of any opposing candidate as a party.

The Dallas Court of Civil Appeals in Blankenship v. Little Motor Kar Co., Texas Civ. App., 1920, 224 S.W. 210, 211, no writ history, held the adverse parties to a pending suit were not necessary parties to an application for mandamus to require the district judge to fix the amount of a supersedeas bond upon an appeal. We think what was there said applies here.

“We do not concur in this position, (that proper parties were not present) and accordingly overrule the motion to abate, preliminary to expressing our views upon the application itself. We are unable to perceive any soundness in respondent’s contention, embodied in the motion to abate, because the application presents only the question of ascertaining whether or not the judge of the district court has refused to do an official act involving only official power and duty arbitrarily laid upon him by law, and the performance of which, impairment of any legal right, which might be asserted to circumvent such legal requirement. Where application for a writ of mandamus is sought to compel a trial judge to do what is alleged to be a duty mandatorily enjoined upon him by law, and as to which, if it thus exists, he could have no discretion, a case of that nature, which has been held to require parties litigant adverse to the relator to be brought into the proceeding, is not presented.

“The proceeding here invokes only a question of absolute and rigid inherent duty of the judge to follow an unalterably fixed and prescribed official course, excluding the exercise of discretion, and the writ, if granted, could run only against him. The writ is sought only on the ground that he is under the clear legal requirement, incidental to the appeal, to fix the amount of the supersedeas bond, so that relators may exercise a defined legal right, also incidental to the appeal, by executing such bond, regardless of the merits of the appeal itself Cland of the rights of the parties in relation to the subject-matter of the controversy. The proper parties, we think are before the court.”

We notice that in the cases of Love v. Wilcox, 119 Texas 256, 28 S.W. 2d 515 and Ferguson v. Wilcox, 119 Texas 280, 28 S.W. 2d 526, both of which actions were mandamus proceedings to require the Secretary of State to certify the name of each respective relator, no opposing candidates for governor were joined as parties. Neither was any complaint made of such failure to join.

In Monk v. Crooker, Texas Civ. App., 1918, 207 S.W. 194, no writ history, it was held the city was not a necessary party in a mandamus suit to compel the city judge and clerk of the corporation court to permit relator (as criminal district attorney of Harris County) to prosecute all criminal cases in the city court and to tax the costs in favor of relator, although the city officers were acting in accordance with a city ordinance.

In the case of Wright v. Peurifoy, et al, Texas Civ. App., 1953, 260 S.W. 2d 234, it was held that the court reporter and the district clerk were not necessary parties in a mandamus proceeding to compel the district judge to sustain an affidavit of inability to pay costs of appeal, and set aside his order sustaining a contest to such affidavit. See also Friberg v. Scurry, Texas Civ. App., 33 S.W. 2d 762, dism. w.o.j., 119 Texas 463, 32 S.W. 2d 637. While we have been unable to find a case that is exactly in point on the facts we have before us, we think a part of the reasoning in the cases cited on the question of necessary parties to this mandamus action is applicable here.

We believe the County Executive Committee were the only necessary parti es-respondent to this action. It is the Committee against which relief is sought. We are asked to direct them to comply with the legal requirements of Article 13.17 in preparing the official ballot. Under the Election Code the Committee are the only persons who may lawfully prepare the official ballot, and no candidate can lawfully do anything toward preparing, printing and distributing the official ballot. This action does not seek to deny any candidate who has duly filed and is qualified under the Election Code a place on the official ballot, or in any manner prevent such candidates from offering themselves to the voters of Webb County. No candidate has any right to a place on the official ballot except the position chosen for him by the County Executive Committee, as provided by statute.

Upon submission respondents stated they would obey the judgment of this Court without the necessity of serving them with a writ. We are informed that respondents have already complied with our order previously issued, and have drawn the names of the various candidates for each office by lot. Therefore, no further action by this Court is necessary at this time.

Writ granted in accordance with this opinion. No motion for rehearing will be entertained.

Order granting Writ of Mandamus entered June 27, 1956.

Opinion filed July 10, 1956.