*1 against runs judgment far as trial court In so driver, (she has since married respondent dost widow of the judgment Seitt), again appears the record as Mrs. sought Appeals is sustained the Court of Civil community ground survivor that, she was sued as further while judgment liability accordingly limited trial court and her might nonexempt community in her property as to such being there hands, proof property as to such general community (Our description this suit homestead. against beginning including opinion as a claim at the merely by way abbreviation.) of Mr. “the estate” dost was judgment of the contention must overrule. The This also we rights surviving clearly protects the wife and trial court preferable judgment pro likewise a form of that would might plaintiffs. develop to her be unfair to tect but positive perceive justice no reason of or law that violated We judgment kind of here rendered. judgment of Civil reversed and trial that of the court is affirmed.
Opinion delivered 1958.
Rehearing overruled dune 1958. Maurice
Grover Cantrell Et Al Carlson A-6884. Decided June No. (314 286) 2d Series *2 Reagan McNicholas, Dallas, Albert and Joe for relator Currie, Ralph Kohen Freeman Currie, Dallas, & W. all of respondents. delivered the of the Court.
Mr. Justice Calvert original In an proceeding in filed this Court Grover Cantrell, seeks a compel writ of respondents mandamus to accept application his and to his name on the Republican Primary be used in the Election to held in Dallas County July. in petition A similar writ of mandamus filed in the Supreme Court of Civil for the Fifth Judicial District of Texas was that court denied. 313 Relator filed with request to have his name placed on the ballot to used in the Primary elec- tion as a candidate Congress for nomination for Member of Congressional from the Fifth District. The proper is in requirements prescribed form and meets all 13.12, Vernon’s Annotated Texas Election Code. He tendered in due filing required seeking time the Republican fee of those nomination as the Congress. candidate for petition His shows that he eligible to hold the office he seeks. In his filed in this Court relator swears that where- past years as in awas member of the Party, Democratic Republican Party. is now a member of the And if separate taking support of an oath to the nominees selected at Republi- have Primary prerequisite to the election is
can require- ballot,1 relator has fulfilled his name he will petition a in statement ment. He has included petition support Republican Party primary nominees. The charge In perjury. support fashion as to sworn to such addition, separate instrument petition he has attached to his my Republican, under oath: “I am a states support I the nominee oath I state that will Representative, 5th Primary Con- for the office of United States are nominated District, candidates who ressional and all other Republican Primary.” refusing by respondents for reason offered filing it that time of is that he stated *3 Party felt really a but member of the Democratic securing by the nomination had a Party. chance of better made, it does Assuming statement to have been the good put of relator. than in issue the faith more provisions Article 13.12 for of A made under imports primary present party place as a candidate on a ballot present good Past or with the faith intention of ques may open to doubt and or intention words conduct may not party officers and Executive Committees tion. But deciding against refuse candidate so decide the issue so place party primary ballot. This his on the to name 525, 515, 256, Wilcox, 2d in v. 28 held Love 119 Texas S.W. power pass on the that “The to A.L.R. 1484. there said 70 We sincerity pledge and to or condemn candidate’s endorse of the party by party exercised voters.” past his record is Further, quoted approval of the At we from an application torney proper as “If is made follows: General place candidate on the ballot should the name Committee party themselves —would be and the members of the voters —the judges fidelity party and make deci to the best polls.” sion question did not settle this
If our decision Love v. Wilcox Calhoun, all, surely for our decision in McDonald once and v. 232, 656, having 2d should as 149 Texas be taken done appeared that case it that Democratic so. In officials were refusing place primary the name of E. J. McDonald a candidate for the Democratic nomination for the as 1 given denying Court of for relator’s One reasons pledge to take he had not offered was that Texas 13.11, Code, requires top all at the election ballots. Election
531 Agriculture. predicated office of Refusal Commissioner acting good finding faith in McDonald “was not pledge support his offer to take the nominees * * past party infidelity were 1950 Instances of entering enumerated that he was not evidence good Party. primary as a faith Democratic This member of the granted mandamus, stating that “All McDonald writ of the issues raised are foreclosed the decision of this thus Wilcox, Court in 70 Love 119 Texas A.L.R. rendered in 1930.” restraint, l,egal moral,
There is no or of a change affiliation, year year, citizen to from from one political party to another for reason whatever seems to him may sufficient. His evidently may reason well be selfish. He feel —as may judge does relator if we from his statement —that affiliation will enhance his own personal cials, political party voters, fortunes. It is for not their offi judge whether a candidate for nomination should be rejected candidacy because his is motivated selfish con siderations. Respondents are, May were, and on legal duty under a and to his name on the
Republican Party primary ballot aas candidate the nomi holding nation seeks. comport No other would with sound public policy. *4 guided assume We will opinion this and will application file relator’s place his name on so, ballot. If do not do writ of mandamus will issue. rehearing
No motion for will be entertained. Rule Texas Rules of Civil Procedure.
Opinion delivered June joined by Mr. Justice Smith, Griffin dissenting Justice respectfully I dissent. is uncontroverted and uncontradicted that at the time application
Relator filed his for placed his name to be on the Republican Party ballot of the as Congressman, candidate for he made the he statement thinks was “A Democrat who opposite I cannot subscribe can on the ticket.” be nominated the time a Democrat at that one states he is doctrine who placed on ballot he files his to have his name any place on that party is entitled to a ballot. other chairman, county nor the execu- agree that neither the I do right has other committee tive committee nor person files when such deprive person on the ballot party and un- application on the forms furnished an qualifiedly party. But for affiliation with himself submits seeking undisputed fact that it is an in this case says of a is member he of another place on the ballot agree have he is entitled to party, and I cannot different name be requiring that his of mandamus writ he is not a member. which states of such agreed sides, argument, Further, in oral both 5, 1958, the date which as of were fixed of Relator might anything have done application, and that filed his rights. away from these take not add to or that time could since 11, 1958. Opinion delivered June dissenting. Mr. Justice Smith disenting opinion he has joined I have Justice Griffin my necessary that I written, write I feel that it is but
this expressed by Justice Griffin. in addition those views al., I deem to filed what et have respondents, Maurice Carlson and, question, view prepared abe well brief ready delivery by Wednes- must be this fact dissenting my 11, 1958, adopting the day, I brief am opinion. controversy concerning are relative- material facts virtually uncontroverted. It is believed ly and are few number upon summary following is an accurate factual depend: to relief must *5 Party organized political party whose Republican is an general polled at the latest election for
candidate Governor therefore, governed by 200,000 is, pro- votes. more than Thirteen, Chapter Texas Election of section visions Code, dealing 200,000 parties just of over as is Party. Democratic agree qualifica- Respondents possesses the relator Constitution, specified in the tions United States hold the Constitution and statutes this state to office Congressman. May filing applica- On last for an ballot, place primary tion for a relator tendered to Carlson, respondent capacity in his as chairman of the Dallas County Committee, Republican application Executive an for a place Republican Primary July primary on for the ballot Congress. Republican primary in said for as candidate filing At the time he tendered such he volun- teered information that he was not a Republican Party,
the get but was “Democrat who thinks he can opposite
nominated on ticket”. At already time the an- Committee had as a policy persons affiliating nounced matter of those with primary on were entitled to Republican Party. ballot of the The matter of rela- attempted filing tor’s respondent reported by respondent was Carlson to meeting
committee at a of the Committee held on May 12, attempted filing rejected by 1958. Relator’s was res- pondent ground was, committee on the that relator both time he meeting offered to file and at the time of the committee May 12th, a Democrat and one not then and there affiliated Republican Party. with the
Thereupon sought remedy of mandamus under Stat., 1735a Vernon’s Texas Civ. from the Appeals Civil hearing at Dallas. A full had. The uncontro- presented verted hearing facts at that that relator showed still Democrat, an presented avowed and the issue and deter- mined was whether political party one a member of had the legal right compel placing his name Appeals of the other held that relator had no such and the writ was refused. The decision of the Court of Civil was rendered on 30, 1958. Monday, 2, 1958,
On relator filed his Petition for Writ of Mandamus in this petition Court. In he asserted was, date, Republican, of that and for the first time offered prescribed pledge to take the test Article 13.11. light Construed in the most favorable to changed does no more than to assert that he affiliation *6 2, 1958, Republican is for there from Democrat nothing affiliation with in it that avers an prior any thereto. time times, answer, all Respondents, by state that at their sworn 2, 1958, Demo- an avowed up until June and at least who, Party and of that proclaimed himself member crat who Democrat, sought a candidate for office aas become Party. of the Election By provision of Article 14.01 virtue of the (the Congressman, of Texas Code, Fifth District the office office, involved) county it is one to be office since here relating county. by The statute one filled requests the voters go portion of Article 13.12 is that on the ballot provisions are county pertinent pertains offices. reproduced as follows: here any request the name of to have
“The
general primary
any
the official ballot for
with
*
* *
such
for the nomination
candidate
* *
* * *
*
following:
governed by the
county
shall
office
be
***
writing,
request
be in
“1.
shall
Such
*
* *
county
Any
request shall
filed
“2.
such
be
officers;
county
precinct
such re-
in the case of
chairman
Monday May pre-
first
quest
ceding
filed not later than the
shall be
* * *”
supplied).
primary,
(Emphasis
such
shall made
provides that the
Article 13.14
requests
county
are
from the
up,
offices
concerned
so far as
pointed
Roy
county
out in
v.
chairman. As
filed with the
Drake,
848,851,
applicant
an
could
the name of
accepted
put
unless his
on the ballot
not be
requests
filed
County
and included
Chairman
filing
mandatory.
The time for
the Chairman.
then,
Obviously,
if
Roy Drake, supra, and case therein cited.
attempted filing
any duty
respondents
under
were
it was tendered
rela-
arose
day.
means,
course,
tor,
being
This
the deadline
same
wrong
or
must be measured
were
whether
then existed.
the facts as
Indeed,
requisites for the issuance of writ
it is one of the
*7
legal
exists
that
relator show
there
the
of mandamus
entitled to
respondent. He is not
duty
the
then due at the hands of
Wilcox,
Love
119 Texas
otherwise.
v.
writ
515,526,
tor tendered to his affiliating Republi- person with same time can was not on thinks he can be nominated but “a Democrat who ticket”, duty opposite under a and there was Carlson then by “imposed upon law”, him the meanin of Article within 1735(a) accept request? added). (Empasis and file said question
Relator would have this answer the above important in the affirmative. It is here that observe relator’s upon theory respondents’ duty is based accept request his duty May 5, 1958, awas due request by was tendered. his Examination us of petition and anywhere theory fails brief to disclose that re- subsequent lator’s Republican affiliation from Democrat to gave him which he did not theretofore possess. already respondent was, If 5,May Carlson 1958 under imposed by accept law to request, imposed what law duty? says Relator it is Article 13.12 of the Election Code. pertinent provision of this Article have been heretofore quoted. apparent It is reading this Article relator has simply omitted the words emphasized which we have foregoing quotation. To me plain it sems require so as to no extended discussion that says when the request statute that the person “to have the name of a any party” placed ballot, on the it means that has an enforceable placed to be on the ballot of a unless he be then and there affiliated party. with the say least, To applies, Article 13.12 its own terms persons
to those who at request the time the is made are then and there affiliated political with the in whose participate desire to as a candidate. Relator own pronouncement removed himself persons from that class of whose benefit the law was provisions enacted. Since the law’s apply do not relator, respondent legal duty violated no then owing by refusing to relator request. follow, course, that the construction
It does not necessarily that a means which I here- advocate 13.12 Article from prohibited by of this virtue committee would be and there affiliated accepting one not then mutually exclusive. For are not The two situations (er. Dancy Hunt, ref. example 2d 159 it held not com could primary candidate n.r.e.) a defeated that while general elec of his name pel placing mandamus the the clean-hands doc independent, tion ballot trine, an because not maintain man could candidate the successful person’s name from compel of such removal damus to general despite the there it had when been election ballot obligation. of the moral existence *8 by person statutory a provides method a
Articl 13.12
may
affiliating
political party
insure that
a
there
then and
candidate for the
primary
as a
is
his name
any
at that
voted on
office to be
of such
nomination
provision
in the laws of this
primary.
is made
party’s
such
No
affiliating
person
and there
of a
not so then
for the benefit
state
Hence,
“duty
political party.
there is
particular
with
imposed
meaning
by
1735(a)
of Article
bind-
within
law”
accept
political party to
such
from
ing
a
officers of
except
there
with that
any person
then and
one
a
is
law in this state
in
absence
statute
settled
poli-
a
regulating
party shall select its nominees
how a
chooses, agreeably
it
tical
is free to select
method
pursue
usages,
long
as it does not
customs and
so
with its
Germany,
Kilday
by
expressly prohibited
law.
v.
139
method
184;
Butler,
380,
142 Texas
2d
Stanford v.
Texas
692,
163 S.W.
269,
2d
the effect Republican Primary had except one affiliated with the for office selecting Republican Party. is a I method of submit pro- expressly is no and that there law nominees Therefore, hibiting respondents were such action. within their declining request. in Wilcox, supra, is, course, a landmark cáse. Love v. Senator He offered to take the Love was at all times Democrat. 3110, by appearing pledge prescribed then and now test Article without as Article 13.11 of Election Code. This Court
537 277-278, (119 256, page 2d at said in that Texas 525) :
“* * * authority wanting utterly in The Committee statutory pledge, or add to words of the subtract from light of its terms which is to of the definition be taken fully re- complies with law’s this Court. The relator quirements political action promises his future so far about prescribed test is concerned when he offers to take ‘the 3110, Statutes, comply Article pledge and to Revised Civil good conscience and contained therein to the utmost of ” faith.’ Calhoun, In McDonald v. Texas Here, too,
this Court Mc- followed Love Wilcox. tendering Donald asserted he was Democrat and the time plede, prescribed offered to take the now Article 13.11. This said that when he good required made that offer had done all that was and the beyond power faith character of the offer was the com- mittee to determine. implication
In these plain. cases the The relators there required were to do no more than to assert their affiliation and declare their supporting intention of its nominees at the they sought get time ballot, apparent but it is that this *9 they required Here, Court felt were that do much. we have only a siuation relator where Cantrell not failed to offer to take primary pledge prescribed by test openly Article 13.11. He Republican that Party. stated he was not affiliated with the every In subject case where the has mentioned the been recognized Courts of this power political parties state have of to confine persons activities to those who were then mem- political party bers of the affected. See in this connection the several cases cited page 5 Civil [313 2d 30, its S.W. handed down 1958 627] brought by against mandamus suit this same relator these same respondents.
In Love, his brief relator admits that Senator both Love McDonald, v. Wilcox and Commissioners in McDonald v. Cal houn, offered to take the pledge test and that relator argues, however, did not. He pledge that test longer omitted quired. therefore, from the Election Code and is re 13.11, Article 3110 was re-enacted as Article without 538 Legislature that change. intended presumed is have given meaning
unchanged effect words should have the Supreme Love v. previous Court. them decisions of the Wilcox, supra. the situation before factual distinction between Appeals is presented and the one to the Court 1958, time 2, first
that on declared for the June relator he was Republican”. “he is was made now No statement in- is Republican any prior The conclusion time thereto. changed therefore, party affiliation escapable, his change in 1958. Relator makes no contention rights. con- gave any On affiliation him additional willing though com- trary he now states in his brief that is Party, Elec- ply provisions all require tion him do so. Code does not very strict proceeding is held to In mandamus relator cer- accountability so concerned. far as averments are Greater pleading rule is tainty required. 634. The 28 Texas Jur. allege every affirmatively fact settled that must well relator necessary recovery therefor. No intend- to his and the basis Walker, indulged. ments are to Texas Wortham any Thus, appear it that since relator does not base would recovery affilia- upon subsequent tion, may do this Court not so. uniting subsequent
Does his act in in their make difference? If were correct original action, imposed upon law have what them obey has asked for failed to since that time? Relator nothing Republican. He has at their hands since became nothing filing. Ordinarily, a tendered to them for demand refusal must is entitled a writ of be shown before Moreover, mandamus. 28 Texas Jur. 638. it well settled doing impediment must show that there is no to the *10 sought Jur. 639. Relator of the act to be enforced. 28 Texas following: would, therefore, (1) have to show the That after again Republican Party he tendered became affiliated with the or, alternative, ready, request, and that able willing respondents they announced would refuse to tender but request; (2) such and were under re-tendered duty imposed request, there a to the re-tendered filing. law is, being legal showing such impediment to its No no course, Further, date, made. re- at this second of the two filing quirements could not deadline for be made because the requests 5,May is, there- expired of this nature on There fore, legal acceptance re- impediment this a time quest, filing mandatory since the time for under the staute.
Had request, made the at the time he tendered the party affiliation statement the first time on that he made for 2nd, question presented. different would have been might any time even be that had made such declaration at midnight might May 5, 1958, before However, question exist. a different things.
he did none of remained an avowed those He Appeals Democrat until after the Court of had determined Civil legal right placed he had no clear to be Primary ballot when he was still a Democrat. anyone right legal time has a clear ballot of is when the officials are legal corresponding
under the duty They clear are under act. filing expired. no to act after the time for has When deadline passed, relator was He then had still Democrat. compel respondents no perform duty imposed by By one, law. the time he chaned affiliation no not even party member, compel part respon- could action on the dents. argument
Under the Statement of the and the Case under One, Point appear I have discussed the facts as to me based pleadings. on all the I believe construed I have construed them, really my However, facts are if not controverted. disputed by relator, submitted, version be respectfully then it is respondents say that the are stated. facts as herein If there any dispute, recovery. the existence thereof is fatal to relator’s opinion Kazen, As stated this Court in the recent of Dick v. 915: elementary requires “It is authority citation we cannot by issue writ of mandamus if a fact is raised issue pleadings affidavits filed.” sought advantage
The relator has to take of the concurrent jurisdiction of this Court and the —as jurisdiction that Railway is announced in this Court’s Dallas Watkins, Terminal
& Co. v. 126 Texas way 2d 1081—in a that was never intended. Here he has souht try piecemeal. his case He refused to affiliate himself with *11 540 Appeals, of Civil the Court while before
the ruling respon- hope could secure no doubt with the accept requests to duty imposed law to dents were under theory go the of Under from Democrats. case, supra, he pronouncement could this Court’s Watkins them he stated apply only under the facts as to this but Court per- litigants Appeals. are to be If before the Court of Civil ruling change at the hands mitted the facts an adverse to after pro- Appeals, for the Court’s the basis of Court of Civil likely de- to be in the case and others nouncement Watkins stroyed. require this to
It not believed that the decision of Court litigants remedy to exhaust in the Court Civil first their Appeals applying this to Court ever intended before this permit litigant of re- present different theories Court theory covery petitions different courts. The successive before this will exer- as we understand the case is that Court Watkins original grant jurisdiction its writ after the Court cise and judg- so, provided Appeals has to do Civil declined Court, Appeals should have of this ment granted Court of Civil case, affilia- it. In the instant relator’s fact of 2, material, 1958, if was never before tion since June deemed Appeals at all. Court Civil alleging If that he can construed as Republican, at all material times a is in worse then relator even position. having represented guilty In such event would be Republi- himself a and a Democrat to Court of Civil pos- can to as it is this Court same time. our law Under day may sible affiliations as often from possible be desired. is not member of both parties day. same grave bring importance.
To me this is matter of I cannot agree myself majority is a matter view was an Democrat voters to settle. This relator avowed May 5, remained so until after time, Then, Appeals rejected plea. for the first on June swearing Republican. is a into this that he comes court should such conduct whether relator be No tolerate Republican. Republican party has set certain or Democrat he can must meet before a would-be candidate standards which relator admits affiliated with that become deliberately standards, per- up refused to measure to those doing until sisted in so *12 This denied. should be of mandamus for writ people safeguard has the failed candidate has clearly it is shown that a would-be when upon entered an official name clear to have his
to show right. deny him that ballot, hesitate to should not nothing officials indicate that There is in this record to Republican Party arbitrarily relator a denied the good question faith on the ballot. The record shows it is not a part of the relator. No such issue exists in this case. Opinion delivered June 1958. Lindsey, Chairman, Purcell v. Jim
Graham Et Al No. A-6898. Decided (314 283) S.W. 2d Series