Love v. Wilcox (28 S.W.2d 515, 1930)

GREENWOOD, J.

Relator seeks by mandamus from this court, in the exercise of its original jurisdiction, to compel the State and County Democratic Executive Committees to cause his name to be printed on the official ballot in the approaching primary of the Democratic Party as a candidate for the nomination for Governor. Relator also asks that the court, under its writ of mandamus, compel the State and County Democratic Executive Committees to desist and refrain from enforcing certain resolutions adopted by the State Committee on February 1, 1930.

Disregarding mere conclusions, the facts on which relator seeks relief are undisputed. Relator possesses all qualifications specified in the Constitution and statutes for one to hold the office of Governor. He has for many years been a member of the Democratic Party, and active in his affiliations therewith, holding important offices in Democratic state and national administrations. At this time lie holds the office of State Senator as a nominee of the Democratic Party. He has voted for all nominees of the Democratic Party for all offices at every election since he became a voter in 1892, except that he voted for the Republican nominee for Governor of Texas in 1924 and for the Republican Presidential Electors in 1928. Relator not only voted for the Republican Presidential Electors in 1928, but actively. participated in the 1928 campaign to defeat the Democratic Presidential Electors. Relator participated in all 1928 precinct and county Democratic conventions and primaries, taking the pledge which the State Committee had prescribed for participation therein, which read as follows: “I am a Democrat, and agree to support the nominees of the Party.” The Democratic State Convention held at Beaumont in May, 1928, to elect delegates to the Democratic National Convention, excluded relator from participation therein, together with all others ,who failed or refused to take a pledge to support all nominees of the party or who stated they would not vote for the 1928 Democratic Presidential Electors. Relator offers '“to take the test prescribed by article 3110, Revised Civil Statutes, and to comply with the pledge contained in that test to the utmost of conscience and good faith.”

The State Democratic Executive Committee on February 1, 1930, adopted resolutions which the Committee deems it its duty to enforce, as follows:

“First. Be it resolved, That this committee hereby extends an invitation to all qualified voters, regardless of previous political views or affiliations, to enter and participate as voters in its nominating primaries ahd conventions who are willing to and do take the statutory party pledge.

“Second. Be it resolved, That the Executive Committee prescribes the following qualifications in addition to those now prescribed by law, for candidates for State offices in the Democratic primaries of 1930, and that no applicant 'or candidate for the Democratic nomination for State office who does not possess the following qualifications shall appear on the official ballot or be certified as a candidate in the Democratic primaries, to-wit:

“1. That in'the last preceding general election he must not have voted against any nominee or presidential elector of the Democratic Party, if he participated either in the primary elections or conventions of the Democratic Party in 1928, and took a pledge to support the nominees of the Democratic Party.

“2. That he must in good faith without any reservations pledge himself in writing filed with the Chairman of the Executive Committee not later than the date set for filing applications, to support all nominees of the Democratic Party during the year 1930.

“3. And that he does not now advocate a voter’s entering a party primary or convention and taking the prescribed pledge with reservations mental or otherwise.

“Third. That it is the sense of this Committee that while we cannot legally act on the certification of applicants who desire to have their names placed on the Democratic primary ballot for state offices in 1930, — ■ that it is the sense of this Committee that any present or proposed applicant for certification who voted in the Democratic primary in 1928, or participated in any of the primaries or conventions of the Democratic Party in 1928, and in said primaries or conventions took the prescribed pledge to support the nominees of the party and then broke his pledge and bolted the ticket, and voted for the nominees of any other party that by so doing he forfeited his right to the support of the Democratic Party, and forfeited his right to have his name placed on the Democratic primary ballot in 1930; and it is the further sense of this Committee that any present or proposed applicant who desires to have his name certified and placed on the Democratic primary ballot in 1930, shall be refused such certification whó claims the right and intention, though he has participated in a Democratic primary for the nomination of candidates, thereafter, to repudiate the pledge taken and to vote against the party nominee if his judgment or conscience dictates.

“Fourth. Art. 3Í11 of the R. C. S. of Texas directs that the State Executive Committée shall meet on the Second Monday in June, preceding each general primary, and that, at this meeting, shall take action certifying to County Chairman the names of the various candidates. In view of this law, it is the opinion of the State Democratic Executive Committee that such action could not lawfully be taken at this time, and it is, therefore,

“Resolved That the Committee decline to certify names to the County Chairman or take any action relative thereto prior to said second Monday of June, 1930.”

The question here presented is simply •whether the law, when applied to these facts, entitles relator to a writ of mandamus from the Supreme Court under which he would obtain all or any part of the relief he seeks?

In view of the holdings of the Supreme Court of Colorado that a judge who- was a candidate in a primary was disqualified by his interest to adjudicate matters pertaining to the primary (Cowie v. Means, 39 Colo. 1, 88 P. 485 ; MacMillan v. Spencer, 28 Colo. 89, 62 P. 849; Phillips v. Curley, 28 Colo. 34, 62 P. 837), Chief Justice Cureton, being a candidate this year for the Democratic primary nomination for tile office of Chief Justice of the Supreme Court, declined to participate in the decision of this case until the court could determine the question as to his disqualification. As have many eminent justices of this court (Investment Co. v. Grymes, 94 Tex. 618, 63 S. W. 860, 64 S. W. 778; City of Oak Cliff v. State, 97 Tex. 394, 79 S. W. 1068), Chief Justice Cureton declined to take any part in deciding whether he was disqualified. After careful investigation, the court, acting through the other justices, before the submission of the ease, reached the conclusion that there was no doubt that the Chief Justice was qualified to sit under the Constitution of Texas. Some of the grounds for that conclusion will be briefly stated.

The Colorado decisions furnish no reliable guide for the adjudication to be made by this court. The question before the Supreme Court of Colorado in each of the cited cases was whether a judge was disqualified under a statute directing a change of venue “when from any cause the judge is disqualified to try the action.” Section 31, Compiled Laws of Colorado (Code Civ. Proc.). These cases, therefore, called for judicial construction of' what was meant by disqualification from any cause, while our Constitution not only specifies the grounds for disqualification but such grounds have always been held by the Supreme Court to be exclusive. Investment Co. v. Grymes, 94 Tex. 618, 63 S. W. 860, 64 S. W. 778; Taylor v. Williams, 26 Tex. 586, 587.

Under the Texas Constitution, it is the duty of the judge to sit save .“in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.” Section 11, art. 5, Constitution.

Every Constitution of Texas since that of 1845 has forbidden a judge to sit in any case wherein he is interested. City of Dallas v. Peacock, 89 Tex. 61, 33 S. W. 220. So often has this phrase, “case wherein he is interested,” been interpreted that its meaning no longer admits of reasonable doubt.

Under the broad language of the Colorado statute, the highest court in that state might have regarded interest in the question to be decided as a good ground for granting a change of venue. In Texas, our constitutional prohibition has been uniformly construed as requiring the judge to sit who is interested in the question to be decided but who has no direct and immediate interest in the judgment to be pronounced.

The court) construing the ,Constitution of 1869, in an opinion of Chief Justice Roberts, 'said: “The fact that the presiding judge was the person from whom the property was alleged to be 'stolen in an indictment for theft, is not a good ground of disqualification, because he is not thereby shown to be ‘interested’ in the ‘case,’ not being a party thereto or liable to any loss or profit therefrom, otherwise than as any other person in the body politic.” Davis v. State, 44 Tex. 524.

Soon after the adoption of the present Constitution, the judge of the district court of Jefferson county announced that he was embarrassed to' proceed with a trial because “of his personal interest adverse to the appellants in the questions involved in this cause.” The objection to the judge’s qualification to determine the cause was overruled by the Supreme Court in an opinion by Judge Bonner, stating:

“The constitution prohibits a judge from sitting in a ease in which he may be interested. Const. 1876, art. V, sec. 11.

“The statute is to the same effect, ft. S., art. 1090.

“The interest of the learned judge presiding, however, was simply in the question involved, and not in the result of the suit. This was not such disqualifying interest as would prevent him from trying the.cause, or would authorize the appointment of a special judge.

“The presiding judge not having been disqualified, it was his duty, however embarrassing, to have proceeded with the trial. Taylor v. Williams, 26 Tex. 583; Railway Co. v. Ryan, 44 Tex. 426; Davis v. State, 44 Tex. 523; 1 Greenl. Ev., § 389.” McFaddin v. Preston, 54 Tex. 406.

When our present judicial amendment was adopted in 1891, without change of verbiage with respect to disqualification of judges, the court could not rightly give the language a meaning different from that ascribed to the same language in the previous constitutional provisions. Therefore the rule announced in McFaddin v. Preston, supra, was reaffirmed in decisions as recent as Hubbard v. Hamilton County, 113 Tex. 552, 261 S. W. 990, and Robbins v. Limestone County, 113 Tex. 542, 261 S. W. 994.

It is obvious that the Chief Justice, who is not a party to this suit and who has neither violated any pledge taken in 1928 nor voted during that year against any Democratic nominee or presidential elector, can have no interest other than an interest in the questions to be determined, no matter how they may be decided. Much the same sort of interest affects the associate justices. Hence, under the settled interpretation of the Constitution, it is his duty to participate in this decision.

There are numerous decisions in other jurisdictions like that of the Supreme Court of Alabama, wherein it is said: “The interest which will disqualify must be a pecuniary one, or one affecting the individual rights of the judge. * * * Moreover, ‘the liability of pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely, in the future, from the general operation of law upon the status fixed by the decision.’ 12 Amer. & Eng. Enc. Law, p. 45 et seq.” Ex parte Alabama State Bar Association, 92 Ala. 113, 8 So. 768, 770, 12 L. R. A. 136; Foreman v. Marianna, 43 Ark. 324; Long v. Watts, 183 N. C. 99, 110 S. E. 765, 22 L. R. A. 279.

The only conceivable interest of the Chief Justice in the questions here to be adjudicated is indirect, uncertain, conjectural, contingent, and remote. No man can say other than speculatively whether the court’s judicial act, whatever it may be, will redound to his advantage or detriment. On such a state of facts, the law is too well settled in this court to be open to dispute.

In Judge Brown’s carefully considered opinion in the ease of the City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068, it is said: “In his treatise on Courts, Mr. Work expresses the result of the authorities upon the question thus: ‘The interest which will disqualify a judge must be direct and immediate, and not contingent and remote.’ Page 396.”

After reviewing the Texas cases relied upon as sustaining a contrary conclusion, Judge Brown’s opinion continues with the statement: “It is apparent from these authorities that in each ease the interest of the presiding judge was directly and immediately affected by the judgment that he entered — it acted immediately upon the subject without the interposition of other authority — and each came strictly within the rule laid down by Mr. Work.”

Finally, Judge Brown’s opinion definitely and positively approves the declaration in a cited New York case (In re Ryers, 72 N. Y. 1, 28 Am. Rep. 88) that the true rule is “that where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, * * * then he may sit.”

In accordance with the court’s decision that the Constitution, rightly construed, does not disqualify him, the Chief Justice has participated in the decision of all other questions in this case save that relating to his disqualification.

If the Supreme Court has original jurisdiction to adjudicate this case, it is derived from Senate Bill No. 16, approved February 14, 1930. By this bill the Legislature undertakes, to confer original jurisdiction on the Supreme Court or any Court of Civil Appeals to issue the writ of mandamus or any other mandatory or compulsory writ or process, against any chairman or member of any executive committee or primary committee or primary election officer of any political party, to compel the performance in accordance with the laws of this state of any duty imposed upon them respectively by law.

The respondents move to dismiss relator’s suit on the ground that the bill is void because it attempts to confer on the Supreme Court and on the Courts of Civil Appeals power wholly political; and because it attempts to give concurrent jurisdiction to the Supreme Court and to the Courts of Civil Appeals in such a way that neither alone has jurisdiction ; and because it attempts to confer on other courts a jurisdiction which the Constitution vests exclusively in the district court.

By section 8, article 5, the Constitution gives to the district court power to issue writs of mandamus. This is a broad, general grant of original jurisdiction, not dependent on the necessity to enforce a jurisdiction otherwise acquired. By section 6, of article 5, the Courts of Civil Appeals are given “such other jurisdiction, original and appellate, as may be prescribed by law,” in addition to specified appellate jurisdiction. In section 3, of article 5, of the Constitution, after declaring that the jurisdiction of the Supreme Court shall be appellate only except as specified, it is provided: “The legislature may confer original jurisdiction on the supreme court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the governor of the state.”

This court has heretofore laid down cextain limitations on the power of the Legislature to specify classes of cases which may be brought within the court’s original jurisdiction. One is that the right to the duty required to be performed by mandamus shall not be “dependent upon the determination of any doubtful question of fact.” Teat v. McGaughey, 85 Tex. 486, 487, 22 S. W. 302, 303. Another limitation is that the writ of quo warranto or mandamus be a proper or necessary process for enforcement of the right asserted. Pickle v. McCall, 86 Tex. 218, 24 S. W. 265. A third is there must be some strong and special reason for the exercise of this extraordinary original jurisdiction by a court designed primarily as the court for the correction by appellate review of errors of inferior courts in determining questions of law. In this connection, the court found no objection to the Legislature requiring it to exercise original jurisdiction by mandamus, where the proceeding “involves questions which are of general public interest and call for a speedy determination.” Betts v. Johnson, 96 Tex. 363, 73 S. W. 4, 5.

The statute under consideration, in so far as it relates to mandamus proceedings, comes within every one of these limitations. Before one can be entitled to a mandamus from this court under the statute, he must establish his case on uncontroverted facts, as under the other statutes already upheld. When the un-contradicted facts show that a relator has the right to exact performance by public functionaries of duties imposed on them by law, his appropriate remedy is the writ of mandamus. No questions could arise of wider public interest or of graver importance to the state than those involving abridgment of rights of citizens to participate in government through the selection of those who may become public officials by means of party nominations. A speedy, final determination of such questions is at times possible only through the exercise of jurisdiction elsewhere than in the district court.

Is the statute void because it seeks to confer political instead of judicial power on the appellate courts?

Since Marbury v. Madison, 1 Cranch, 166, 167, 2 L. Ed. 60; the courts of last resort of the several states have almost universally followed the opinion of Chief Justice Marshall to the effect that it is clear that: “Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, * * * the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. * * ⅜ The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.”

The precise question- now before us was presented in Gilmore v. Waples, 108 Tex. 167-176, 188 S. W. 1087, 1040. The question was whether the power to be exercised by the courts would be political or judicial in restraining action of the State Democratic Executive Committee violative of the primary statutes and prejudicial to the legal rights of a candidate for a primary nomination. Affirming that the courts, in ordering such restraint, would exercise judicial power, the profound opinion of Chief Justice ¡Phillips says:

“The contention of the committee upon this phase of the case is that there is presented but a political question and at most but a political right. * * * For what purpose and to what end, it may appropriately be inquired, have the various statutes in relation to party nominations been enacted in this State if the rights and duties therein defined and the matters they purport to govern still present mere political questions, to be settled alone by party law and in the party forum, and are therefore beyond the cognizance of the courts? The very purpose of this legislation was to relieve these matters of their mere political character, as was their nature aforetime, and subject them to the regulation of the statute law. The courts exist only to enforce the law. This includes the statute law. ■■■ * *

“We do not -believe there is 'any appreciable conflict in the authorities upon the proposition that where the making of party nominations by political parties is once regulated by the statute law the rights created and protected by a statute are legal, as distinguished from political, rights.”

In Cook v. Houser, 122 Wis. 556, 100 N. W. 964, 970, the court declares that “the time has long since passed for serious controversy as to whether in this class of cases judicial questions are involved.”

Does the provision invalidate the bill which undertakes to make concurrent the jurisdiction of the Supreme Court and of the Courts of Civil Appeals?

Precisely similar concurrent jurisdiction has for years been conferred on these courts to compel a judge of the district court to proceed to trial and judgment. Yet, this court held in G., C. & S. P. Ry. Co. v. Muse, 109 Tex. 353, 207 S. W. 897, 4 A. L. R. 613, as shown by the headnote, that: “The power given Courts of Civil Appeals, by article 1595, Rev. Stats., to require, by mandamus, a district judge to proceed to the trial of a causo does not preclude the Supreme Court from action in the same matter through the power conferred ⅜ ⅜ * under article 5, section 3, of the Constitution, by article 1526, Rev. Stats.” G., C. & S. F. Ry. Co. v. Muse, 109 Tex. 353, 207 S. W. 897, 4 A. L. R. 613. The very fact that the jurisdiction of the Court of Civil Appeals had -been invoked and exhausted without securing the performance of a duty imposed by statute made a case peculiarly appropriate for the exercise of the authority of the Supreme Court by mandamus in Muse’s Case. State v. Woodbury, 74 Kan. 878, 879, 87 P. 701.

In Houtchens v. Mercer, District Judge, 27 S.W.(2d) 795, decided May 7, 1930', this court recognizes that possession by an inferior court of concurrent original jurisdiction with, a court of last resort does not defeat the jurisdiction of the latter court.

A sound interpretation of constitutional provisions conferring or authorizing the ¡Legislature to confer original jurisdiction on the court of last resort of a state where other constitutional provisions confer concurrent jurisdiction on inferior courts) is that declared by the Supreme Court of Illinois after an elaborate review of the authorities, as follows: ‘‘First. That the jlurisdiction