JACK CARTER ET AL V. HOMER TOMLINSON ET AL.
No. A-2261
Supreme Court of Texas
February 22, 1950
Rehearing overruled March 29, 1950
227 S.W. 2d Series, 795
Inasmuch as there is nothing in the side-bet made by Clarence and Bennie in the crap-game connected with the employer‘s business of highway construction, the claim is non-compensable and the insurer is not liable. The judgments of the courts below are therefore reversed and set aside and, inasmuch as the alleged cause of action appears to have been fully developed, judgment is here rendered in favor of petitioner.
Opinion delivered February 15, 1950.
Rehearing overruled March 29, 1950.
It was error for the court to hold that the primary election statutes, including
Thompson, Walker, Smith & Shannon, Rawlings, Sayers &
District court had jurisdiction of suit for damages at law and ancillary jurisdiction to temporarily enjoin defendants to prevent further injury until case could be heard on merits. Federated Ind. Texas Unions v. International Assn., 79 Fed. Supp. 554; Nixon v. Herndon, 273 U. S. 536, 71 L. Ed. 759; Sinclair Refining Co. v. McElree, 52 S. W. 2d 679; City of Dallas v. Wright, 120 Texas 190, 36 S. W. 2d 973; Staples v. State, 244 S. W. 1068; State v. DeGress, 72 Texas 242.
MR. JUSTICE SHARP delivered the opinion of the Court.
This cause involves certain proceedings at the State Democratic Convention held in Fort Worth in September, 1948, whereby the State Convention seated a delegation favorable to petitioners over one favorable to respondents. The convention elected the petitioners Jack Carter and Mrs. J. W. Douglas as Democratic Executive Committeeman and Committeewoman, respectively, from the Tarrant County district. The convention also required each precinct chairman to take a pledge to support the democratic nominees for president and vice-president. Respondents Neville G. Penrose and Mrs. Bennett L. Smith, together with certain parties elected as delegates to the State Convention and certain Tarrant County precinct chairmen, brought suit for an injunction against the petitioners here. The Court of Civil Appeals at Fort Worth affirmed the trial court‘s judgment granting to certain respondents a temporary injunction. The material facts of this case are set out in the opinion of the Court of Civil Appeals, reported in 220 S. W. 2d 351, and there is no need to further burden this record with a recitation of such facts.
At the very outset we must decide if this cause presents a justiciable matter for the courts, or if the Legislature has taken such jurisdiction away from the courts and lodged the jurisdiction over contests of this character solely within the party convention and other party machinery.
This Court has heretofore passed on the power of the State Democratic Convention to manage its own affairs. Stanford et al. v. Butler et al., 142 Texas 692, 181 S. W. 2d 269, 153 A. L. R. 1054; Seay v. Latham, 143 Texas 1, 182 S. W. 2d 251, 155 A. L. R. 180. The issue involved there was whether the electors
The State Democratic Convention held on September 12, 1944, adopted the following resolution:
“Be it resolved that the State Executive Committee direct the presiding officer of each precinct convention and each county convention to require all persons who desire to participate in said conventions to pledge themselves that they will support the nominees of the Democratic party for all National, State and County officials. And if any person declines to so pledge himself, then he shall not be allowed to participate in the convention.
The State Democratic Convention in May, 1948, adopted the following resolution:
“RESOLVED that all members of this Convention, officers and electors, shall be pledged to support all the nominees of the Democratic Party.”
In the course of the Democratic Convention in September, 1948, a resolution was adopted, from which the following is quoted:
“(Each) County Chairman shall communicate with each Precinct Chairman in his county, either by registered mail or in person, and secure from such Precinct Chairman a written statement, signed by such Precinct Chairman, stating that such Precinct Chairman is supporting and will continue to support the nominee of the Democratic Party for President and Vice-President, to-wit: Hon. Harry S. Truman and Senator Alben W. Barkley, in the coming general election; and such Precinct Chairmen are hereby required to file such written, signed statement with the chairman of such County Democratic Executive Committee within one week after receipt of such communication from the County Chairman.
“In the event any Precinct Chairman fails or refuses to file such statement with the County Chairman within the time and in the manner above prescribed, then his office shall be and is hereby declared to be vacant and shall be filled as hereafter provided and in the manner prescribed by law; * * *.”
In 1891
At various times the Legislature has enacted many articles of the Statutes relating to elections and contested elections. Among the articles enacted are
“Every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party; provided that no person shall ever be denied the right to participate in a primary in this State because of former political views or affiliations or because of membership or non-membership in organizations other than the political party.” (Emphasis ours.)
The action of the Democratic Convention complained of occurred on September 14, 1948, and this suit was filed in the District Court on October 18, 1948. The provisions of
In Love v. Buckner, 121 Texas 369, 49 S. W. 2d 425, this Court held that the State Executive Committee of a political party could require party voters to make a pledge, before being permitted to participate in a precinct or county convention of the party, to support nominees of such party for President and Vice-president. In construing this article this Court also held in Bell v. Hill, 123 Texas 531, 74 S. W. 2d 113, that the right to determine policies and membership of a political party is to be exercised by the State convention of the party, and cannot be conferred on a State or governmental agency by the Legislature. It was also held in that case that in determining the membership of a political party, the will of the party is supreme, and the executive committee is a mere agency, notwithstanding the statute providing that the political party, through the State Executive Committee, shall have power to prescribe qualifications of its members. See also Seay v. Latham, supra. It will be observed that the latter part of
The basic reason for the enactment of
In 1941 the Legislature materially amended certain articles of the Statutes, and repealed others, relating to contested elections. Among the articles amended is
“Except for a place on party tickets for public elective offices, all contests within a political party shall be decided by the State, District, or County Executive Committee, as the nature of the office may require, each such Committee to retain all such powers and authority now conferred by law.”
In the case of Wall v. Currie, 147 Texas 127, 213 S. W. 2d 816, this Court quoted with approval the statement contained in 29 C. J. S., Elections, pp. 121-122, sec. 88, as follows:
“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.”
In the case of Wall v. Currie, supra, Currie claimed that he had been elected chairman of the Dallas County Executive Committee of the Republican party, and that Wall sought to interfere with him in the performance of his duties. The trial court dismissed the cause for lack of jurisdiction. This Court sustained the action of the trial court, and applying the foregoing rule to the facts of that cause held: “It is well established in this state, as well as in a majority of the other states, that officers of a political party, such as members of a party executive committee, are not public or governmental officers, even when provided for by statutory law.”
In this State political parties have not by law been created either State or governmental agencies, and in the absence of a statute covering the matter, committees of any political party in acting for the party‘s interests are not acting as officers of the State. And it is held that officers of a political party, such as chairmen of the County Executive Committees and precinct committeemen, although provided for by election laws, are not regarded as public or governmental officers. Koy v. Schneider, 110 Texas 369, 218 S. W. 479, 221 S. W. 880; Waples v. Marrast, 108 Texas 5, 184 S. W. 180, 1917A L. R. A., 253; Walker v. Mobley, 101 Texas 28, 103 S. W. 490; McCombs v. Stevenson, Tex. Civ. App., 195 S. W. 2d 566; Walker v. Hopping, Tex. Civ. App., 226 S. W. 146; 16 Tex. Jur., pp. 56-59, secs. 47-49.
By
The District Court did not have jurisdiction to try the matters alleged by respondents relating to the political offices they sought to retain, nor did it have jurisdiction to issue the temporary injunction against petitioners; and the trial court and the Court of Civil Appeals erred in holding that it did have such jurisdiction.
This appeal involves only the issuance of a temporary injunction by the trial court. The right of respondents to recover damages as alleged by them was not determined in the trial court nor in the Court of Civil Appeals, and that issue is not involved here. Upon that issue we express no opinion.
The judgments of the trial court and the Court of Civil Appeals are reversed, the injunction issued is dissolved, and respondents’ alleged cause, with the exception of their claim for damages, is dismissed.
Opinion delivered February 22, 1950.
MR. JUSTICE SMEDLEY concurring in part and dissenting in part.
As I understand the opinion of the majority it neither intends nor purports to decide the merits of the questions or controversies in this case, but holds merely that neither the district court nor the Court of Civil Appeals had jurisdiction of the questions or controversies, and so holding reverses the judgments of those courts, dissolves the injunction and dismisses the suit except the part of the suit which seeks recovery of damages.
I can agree with that part of the judgment which dismisses the suit brought by respondents of Class 4 against petitioners Carter and Mrs. Douglas and dissolves the injunction as to those petitioners. This because, and solely because, that part of the suit is in my opinion a “contest” within the meaning of
With the following holdings of the majority opinon I do not agree, and from them respectfully dissent: (1) What seems to be the holding that irrespective of
By the suit of respondents of Class 4 and the suit of respondents of Class 5 four distinct questions are presented. They are: (1) Must the question as to the validity of the election by the Convention of petitioners Carter and Mrs. Douglas as members of the State Democratic Executive Committee be submitted, or in the first instance, by reason of
Taking up the first question,
Respondents argue that the contest should not be submitted to the State Executive Committee because that committee, on September 13, 1948, decided in respondents’ favor a contest as to whether Class 3 respondents had authority to represent the Tarrant County Senatorial District in the State Convention and
Respondents further contend that they should not be required to submit the contest to the State Executive Committee, because those who claim membership of the Committee do so by virtue of the Convention held on September 14, 1948, and would be called upon to determine the validity of the very proceedings upon which their own right to sit depends. Under
Believing that the question as to the validity of the election of petitioners Carter and Mrs. Douglas should first be submitted to the State Executive Committee, I express no opinion on the merits of that question.
The sweeping language of the opinion of the majority seems to comprehend a conclusion that the party committee‘s decision in a contest, under
It has long been and is still the settled law of this State, unless the opinion of the majority changes it, that party rights and party nominations and party offices claimed or held under statute law are not merely political rights of which the courts will not take cognizance, but that they are legal rights and that when the action of political parties is regulated by statute law “their action to the extent that it is so governed may be reviewed by the courts as the only means of giving effect to the sovereign law of the State“. Gilmore v. Waples, 108 Texas 167, 174, 188 S. W. 1037; Love v. Wilcox, 119 Texas 256, 28 S. W. 2d 515, 70 A. L. R. 1484; Clancy v. Clough, 30 S. W. 2d 569.
Election to membership in the State Democratic Executive Committee is governed by statute law, the several articles of the statutes as to the selection of delegates to the State Convention, the organization of the Convention and the manner in which members of the State Executive Committee are recommended and elected. This being true, the question whether a member of the committee has been elected in accordance with that legislation is not a political question, but is necessarily a question for court decision. It does no violence to the terms of
The opinion of the majority seems to reach the further conclusion that, regardless of
The following brief quotation from the opinion in Gilmore v. Waples is enough to demonstrate that the settled law so well declared there controls the question here under consideration and to show how far the opinion of the majority herein departs from that settled law:
“With our legislation covering the subject, whether a given nomination has been made in accordance with that legislation or in violation of it, presents, not a political question, but, necessary here to undertake to define either the manner or the 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. If they have no cognizance of rights arising under a civil statute regulating a political party, upon the ground that the body regulated is political, and, therefore, any question affecting it is also political, though in terms governed by an express statute, it must follow that a political party is beyond the control of the law. But political parties are not beyond the control of the law. When regulated by law, their action to the extent that it is so governed may be reviewed by the courts as the only means of giving effect to the sovereign law of the State. In such case the inquiry is judicial because made the duty of the courts; and the
questions presented are likewise judicial because arising under the written law.”
The statutes which regulate the action of the Democratic Party in Texas contain careful and detailed provisions for the method of electing delegates to the state conventions, the organization of those conventions and the recommendation and election of members of the State Executive Committee, and for the election of precinct chairmen by qualified voters of the precincts, the term of office of the precinct chairmen and the duties to be performed by them. The rights arising under those provisions are legal rights and questions whether members of the State Committee have been elected in accordance with that legislation or in violation of it and whether precinct chairmen are entitled to hold and perform the duties of the offices to which they have been elected are judicial questions, questions for determination by the courts, because they arise under the written law.
It is to be observed also that the opinion of the majority seeks by citation of Wall v. Currie, 147 Texas 127, 213 S. W. 2d 816, to support its conclusion that the questions in this case are not for judicial determination. Wall v. Currie has no application whatever to this case. As clearly shown by the opinion, the decision there made applies only to party action of the Republican Party, which had less than 200,000 voters in the last preceding general election. It was held that because the controversy in that case was over a party office and not one provided for or regulated by statute, it was a controversy to be determined within the party and not by a court.
This suit by respondents of Class 5 is not a contest within the meaning of
The material facts as to the suit by respondents of Class 5, admitted by petitioners and found by the trial court, are as follows: The substance of the resolution adopted by the State Convention and of which respondents of Class 5 complain is: The county chairman of each county is required to procure from each precinct chairman of his county a written and signed statement that he “is supporting and will continue to support the nominees of the Democratic Party for President and Vice-President, to wit: Honorable Harry S. Truman and Senator Alben W. Barkley, in the coming general election.” In the event any precinct chairman fails or refuses to file the statement within one week after receipt of the communication from the county chairman, “then his office shall be and is hereby declared to be vacant“. The vacancy shall be filed by those members of the County Executive Committee “who have executed and filed such statements of support of the party nominees“. Respondents of Class 5 were elected as precinct chairmen at the general primary election in July, 1948, by citizens of Tarrant County who were “duly qualified voters and Democrats“. A substantial number of those precinct chairmen, respondent of Class 5, have a present intention (that is, when the resolution was passed and this suit was filed) to vote for Truman and Barkley at the general election. Others of them have the present intention of not voting for anyone at the general election, because they have not supported and do not intend to support the nominee of any other party outside of the Democratic Party, and because of what they believe to be an “irreconcilable conflict arising between the avowed course of the national nominees with respect to the invasion of States’ rights through the Civil Rights Program and segregation of races, to which the Democratic Party was committed by tradition as a principal faith of that party, distinguishing it from the Republican Party, as well as on account of the resolution in evidence adopted by the Texas Democratic Party at the May Brownwood State Convention with respect to such matters.” The pledge required of the precinct chairmen by the resolution “was not exacted or sought in good faith” for its recited purpose of securing party loyalty. As was well known to those who sponsored and caused the adoption of the resolution, the precinct chairman had no duties to perform between the time
Petitioners seek to justify the Convention‘s adoption of this resolution by referring to the broad provisions of
The argument that the Convention had the right summarily to remove precinct chairmen from their offices because there is no express prohibition in the statutes of that kind of action is not a valid argument. The statute,
It must be conceded that party action, whether by convention or by committee, when the party is regulated by statute, must be reasonable and in good faith. Seay v. Latham, 143 Texas 1, 8, 182 S. W. 2d 251; Love v. Buckner, 121 Texas 369, 371, 49 S. W. 2d 425.
The resolution seems clearly to be unreasonable in view of the facts of this case and as applied to respondents of Class 5. The resolution is not a direction to the county committees or to the county chairmen to inquire into the party loyalty of the precinct chairmen, giving them opportunity to be heard and to give evidence that they are Democrats or that they intend to support the nominees at the November election. It is not even a warning that they will be removed if they do not make that proof. It does not direct the local committee to remove them. By peremptory terms the resolution prescribes the pledge to be taken and requires it to be signed and filed within a week, and it undertakes to make the resolution self-executing after adjournment of the convention by providing that if any precinct chairman fails or refuses to sign the pledge within the time specified “his office shall be and is hereby declared to be vacant“. The resolution required the pledge of those of Class 5, a substantial number of the class, who had present intentions to vote for Truman and Barkley at the general election but were unwilling to sign a pledge accompanied by threat of removal. The resolution required the pledge of others of Class 5 who did not intend to vote at all in the general election, because they were Democrats and would not vote for the candidates of any other party but were unwilling to vote for Truman and Barkley, for reasons, by them deemed sufficient, growing out of the resolutions and platform adopted at the National Democratic Convention.
The pledge required by the resolution, in purpose and effect, goes well beyond the uniform test which must be printed on every official ballot in primary elections: “I am a (name of the party) and pledge myself to support the nominees of this primary.” If the pledge does not appear on the ballot, it is void and cannot be counted.
The pledge sought to be exacted in the resolution here under consideration is that the precinct chairman is supporting and will continue to support the nominees of the Democratic Party for president and vice-president. It is not a test, as that required by
As above shown, respondents are entitled to judicial action to prevent the enforcement of the resolution against them, because
Love v. Buckner, 121 Texas 369, 49 S. W. 2d 425, relied upon by petitioners, held that it was not beyond the power of the Democratic State Executive Committee to require persons seeking to participate as delegates in county conventions, held to
Petitioners cite Scurry v. Nicholson, 9 S. W. 2d 747, as decided by the Court of Civil Appeals. That court held that the Democratic County Executive Committee had the right to oust Nicholson, who had been elected to membership on that committee and who thereafter refused to take a pledge required of him by the committee that he would support the election of Alfred E. Smith as president and all other nominees of the party. There are at least two important points of difference between that case, as decided by the Court of Civil Appeals, and the instant case. They are, first, that it was shown as a fact in that case that Nicholson admitted and frankly stated that he would not support Governor Smith and that he was a member of a political organization known as “Anti-Smith Democrats“. The second is that in that case the ouster of the local party official was by the local committee. That case came to this Court, which did not pass upon the right of the county committee to oust one of its members. It was held merely that the district court should have sustained a general demurrer to the plaintiff‘s petition because the plaintiff sued only Scurry and complained not of his conduct but only of acts of the county committee. Nicholson v. Scurry, 119 Texas 250, 28 S. W. 2d 512.
If precinct chairman may be removed by party action after they have been elected, the power to remove them should rest in local representatives of the party rather than in the State Convention. These respondents were elected for two-year terms by the Democratic voters of their precincts.
The general rule is that when the term of office is not fixed by law, the power of removal is incident to the power to appoint. 43 Am. Jur., p. 31, Sec. 183; 46 C. J. p. 985, Sec. 146. There is the further rule that appointments for a fixed term of years cannot be terminated except for cause. 43 Am. Jur., p. 32, Sec. 183. And another that when an officer holds for a definite term he is entitled to notice and hearing in order that he may have
The implication from the statutes is that, if there is authority to remove these party officers, it is in the County Committee and not in the State Convention. While this suit by the precinct chairman is not a contest under
These two articles manifest the intention of the legislature to place control of local party officials in local party representatives. The entire plan of the statutes regulating the Democratic Party is to construct the party organization from the bottom upwards, in order that the qualified voters of the party in the precincts and counties may select those who shall act for them as local party officers and as delegates to county and state conventions, instead of permitting party leaders to construct the party organization from the top downwards. Authority in the State Convention summarily to eject party officials who have been duly elected by local party members would be quite inconsistent with the entire plan of the statutes and with the legislative intent manifested by the statutes. 9 R. C. L. p. 1088, Sec. 97; People v. Democratic General Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674.
Several statements in the opinion of the majority may appear to express opinions on the merits of the questions in the case. They are to be taken, however, as intended to support the conclusion that the questions are not for judicial determination and so not within the jurisdiction of the Court, for the Court could not hold that it has no jurisdiction of questions and at the same time express its opinion on them.
The part of the judgment of the trial court and of the Court of Civil Appeals which enjoins petitioners from seeking to declare vacant the offices of the respondents of Class 5, the precinct chairman, from interfering with them in the performance
Opinion delivered Feb. 22, 1950.
Rehearing overruled March 29, 1950.
COMMERCIAL STANDARD INSURANCE COMPANY V. JOHN EBNER ET AL.
No. A-2450
Supreme Court of Texas
Decided March 1, 1950
Rehearing overruled March 29, 1950
228 S. W., 2d Series, 507