Westerman v. Mims , 111 Tex. 29 ( 1921 )

The relators seek by mandamus to compel the respondent, Secretary of State, to instruct the County Clerk of Galveston County to have the name of respondent, Aubrey Fuller, printed in the independent column, under the title of Judge of the 56th Judicial District, on the official ballot in that county, at the general election on November 2d 1920.

It was averred and admitted that the respondent Fuller participated and voted in the democratic primary in Galveston County, on July 24, 1920, at which the respondent Robert G. Street was a candidate and was nominated for Judge of the 56th Judicial District; that the official primary ballot had printed on it the words: "I am a democrat and pledge myself to support the nominees of the primary;" that the American Party of Galveston County nominated respondent Fuller, on July 31st, 1920, as a candidate for Judge of the 56th Judicial District; that on October 2, 1920, he filed with the County Clerk of Galveston County a declination of the nomination; that on August 21st, 1920, the relators presented and delivered to the respondent Secretary of State their written application, requesting that the name of respondent Fuller be printed on the official ballot at the general election in Galveston County, as an independent candidate for Judge of the 56th Judicial District; that relators were all qualified voters, constituting more than three per cent. of the votes cast in the county in the general election of 1918; that none of the relators signing the application participated in a primary which nominated a candidate for said office, and that the application was verified by the statutory affidavits of each relator; that on July 24th, 1920, respondent Fuller filed with the Secretary of State his written consent to become an independent candidate for Judge of the 56th Judicial District; that respondent Fuller was a citizen and a qualified voter of the County of Galveston and State of Texas, was more than twenty-five years of age, was a citizen of the United States; and, that he had been a practicing attorney in the State of Texas and in Galveston County for more than four years, had resided in Galveston County for more than two years next preceding November 2, 1920, and now resides in said county, of which he has been an actual, bona-fide citizen for more than six months.

The contention of the relators is that since the application of relators and the consent of respondent Fuller conformed to the requirements of articles 3164, 3165 and 3166 of the Revised Statutes, it became the duty, enforceable by mandamus, of the Secretary of State, under article 3167, to issue his instructions to the county clerk, directing that the name of respondent Fuller be printed in the independent column of the official ballot.

On the other hand, the respondents, save Fuller, contend: first, that relators show no such interest as authorizes them to maintain this proceeding; second, that respondent Fuller's nomination, on July 31, 1920, by the American Party for the office of Judge of the 56th Judicial District, rendered him ineligible to become an independent candidate, at the time relators' application was presented and for more than thirty days after July 24, 1920, the date of the primary election, and that the subsequent declination of the nomination by Fuller was ineffectual to render him eligible to become an independent candidate; and, third, that relators were not entitled to maintain this suit by reason of respondent Fuller's participation in the democratic primary at which respondent Street was nominated.

It is clear to us that if this suit could be maintained by respondent Fuller it can likewise be maintained by relators. The objection that respondent Fuller is alone affected by the action of the Secretary of State is not tenable. The right asserted by relators is to present an independent candidate, designated by themselves, for the consideration of each voter through the official printed ballot. Such a right is conferred by statute on certain groups of qualified voters, under certain conditions. The precise question to be determined is whether the conditions exist which entitle relators, as such a group, to enforce by mandamus the right stated. The statement of the question is sufficient to disclose the interest of relators and their privilege to have the question adjudicated, notwithstanding respondent Fuller may not also join as relator in seeking the adjudication.

Article 2970 of the Revised Statutes forbids the name of any candidate appearing more than once upon the official ballot, except as a candidate for two or more offices permitted by the Constitution to be held by the same person. Article 3172 authorizes a nominee for other than city offices to "decline and annul" his nomination by delivering to the officer with whom the certificate of his nomination is filed, twenty days before the election, a written declaration of his declination, signed before some officer authorized to take acknowledgments. While article 2970 warranted the Secretary of State to refuse to issue instructions for the printing of respondent Fuller's name on the official ballot as an independent candidate, during the time he was the nominee of the American Party, yet that nomination wasannulled when respondent Fuller declined the nomination in the mode prescribed by article 3172. After the nomination was thus annulled, it furnished no further warrant for the refusal to instruct the placing of respondent Fuller's name on the ballot as an independent candidate, in compliance with an application filed in season. By this holding we simply recognize that the nominee has the time allowed by the terms of article 3172 for the exercise of his option to annul his nomination.

It is not the law that the writ of mandamus must be granted in every case upon a showing by relators that articles 3164, 3165 and 3166 of the Revised Statutes have been complied with. If the court were under any such compulsion, then the writ would have to be awarded though the candidate named were confessedly ineligible to hold the designated office. It is elementary that a mandamus will not be issued to compel the doing of that which the law forbids, and chapter 13, of the General Laws of the 36th Legislature, p. 17, expressly forbids the placing of the name of an ineligible person on the ballot at a primary or general election. Manifestly, one who seeks relief through this extraordinary proceeding must show himself entitled thereto under all applicable law, no matter where embodied.

If one is under obligation, legal or moral, to support a nominee of a party primary, the act of becoming a candidate against the nominee necessarily involves the breach of that obligation. Those who invite the breach cannot escape responsibility for the wrong it may involve. We are therefore of the opinion that if respondent Fuller could not maintain this action, under the averments of relators' petition, neither can the relators.

The relators and the contesting respondents differ as to the nature of the obligation imposed on a participant in a party primary. The latter contend that the obligation to support a nominee is a legal obligation, rendering the participant ineligible to become an opposing candidate. The former deny that any obligation is imposed on the participant save such as binds his honor and his conscience, and assert that no cognizance should be taken by the court of an obligation of that kind in awarding or withholding the writ of mandamus.

In support of the view last stated, the declarations in Koy v. Schneider, 110 Tex. 369, 218 S.W. 483 221 S.W. 916, are cited, to the effect that the voter was not bound legally but was bound morally to support the nominees of the primary wherein he voted. While those declarations were not necessary to the decision in that case and are not regarded as conclusive on the question here presented, a majority of the court, on careful consideration, are of the opinion that it cannot be properly said that the voter does become bound otherwise than morally to support primary nominees.

Article 3096 prescribes "a primary test" to be printed on each ballot as follows: "I am a * * * * * * * (inserting the name of the political party or organization of which the voter is a member) and pledge myself to support the nominees of this primary."

For many years such a test was required in party primaries while under no statutory regulation. The object of the test, when so required by party managers, was simply to determine the voter's qualifications to have a part in choosing the candidates of the party or in dictating its policies.

It is not believed that the Legislature can in reason be said to have had a different object in the enactment of article 3096. The purpose of the Legislature was the same as the pre-existing purpose of the party managers, and that was to exclude from party action all persons save those holding a present party allegiance and having a bona-fide present intention to support the party nominees.

If the entire purpose be not accomplished in determining whether the voter is a member of the party, having a subsisting intent to support the nominees, still we cannot say that the pledge imposes an executory legal obligation. The specific, statutory pledge is to "support" the primary nominees. As stated by Webster to "support" is "to uphold by aid or countenance." The Legislature must have given such an interpretation to the pledge, if they considered it binding on future conduct, in exacting it of women voters, when extending suffrage to them in primaries and conventions only.

The vital distinction between a legal obligation and a moral obligation is that it is practicable to enforce the former and impracticable to enforce the latter. To give effect to the distinction is to deny that the pledge imposes a legal obligation on the voter. It is utterly impracticable to enforce an obligation to uphold another by aid or countenance through either a decree for specific performance or an award of damages.

Of the decisions relied on by the contesting respondents to sustain the view that the pledge imposes a legal obligation on the voter, the case of State ex Rel. Labauve v. Michel, Secretary of State, 121 La. 374, 46 So. 434, seems nearest in point. In disposing of the objection that the statute requiring the voter to declare his affiliation with the party holding the primary violated the article of the Constitution of Louisiana which secured the voter the right to prepare his ballot in secrecy, the court said: "The answer to this is that the voter, by participating in the primary, impliedly promises and binds himself in honor to support the nominee, and a statute which exacts from him an express promise to that effect adds nothing to his moral obligation, and does not undertake to add anything to his legal obligation. The man who cannot be held by a promise which he knows he has impliedly given will not be held by an express promise."

We do not regard this opinion as contrary to our conclusion. The court affirmed that the primary voter, with or without the statute, incurred a moral obligation, binding on his honor. The court concluded that the obligation was no greater with, than without, the statute. In our opinion, the court did not declare or mean to declare that there is any legal obligation, with or without the statute. On the contrary, the court found that there had been no attempt by the Legislature, in enacting the statute, to impose on the voter anything in the way of a legal obligation.

In our opinion, a voter cannot take part in a primary or convention of a party, to name party nominees, without assuming an obligation binding on the voter's honor and conscience. Such obligation inheres in the very nature of his act, entirely regardless of any express pledge, and entirely regardless of the requirements of any statute. The obligation, like the promise exacted by the statute, when treated as governing future conduct, is for co-operation in good faith to secure the success of the nominee. There is no reasonably certain measure of bona-fide co-operation in matters of this sort. The voter's conduct must be determined largely by his own peculiar sense of propriety and of right. It is for such reasons that the courts do not undertake to compel performance of the obligation. Being unenforceable through the courts, the obligation is a moral obligation. Herriott v. Potter, 115 Iowa 648, 89 N.W. 91, 92. As stated by the Supreme Court of Pennsylvania: "A moral obligation in law is defined as one which cannot be enforced by action but which is binding on the party who incurs it in conscience and according to natural justice." Bailey v. Phila., 167 Pa. St., 569, 573, 46 Am. St. Rep., 693.

Moreover, we think the legislative intent ought to be plain before ballots are held forbidden, which reflect conscientious changes in party fealty. Grave doubt might arise as to interference with the privilege of free suffrage, guaranteed by our Constitution, should the statute be construed as invariably requiring the casting of certain ballots. In rejecting that construction, we avoid any serious question of the validity of the statute, and follow the rule "that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such question are avoided, our duty is to adopt the latter." United States v. Del. H. Co., 213 U.S. 408, 53 L.Ed., 849, 29 Sup. Ct., 536.

We do not say that circumstances might not arise under which one who had participated in a primary would be relieved of the moral obligation which is ordinarily incurred not to undertake the nominee's defeat. The present case does not call for the determination of the effect of extraordinary circumstances.

Relators admit that the candidate proposed by them did vote in the primary, and they apply for a mandamus to get his name on the ballot, in order to defeat the nominee, without disclosing any fact tending to excuse the breach of good faith and conscience, which they invite. Are they entitled to the writ on these admissions.

It is generally held by the courts of last resort in America that the writ of mandamus is a discretionary writ, and it is frequently stated that it is not a writ of right. Smith v. Commissioner, 215 Mass. 353, 102 N.E. 362; Hill v. Mayor,193 Mass. 574, 79 N.E. 825; Ross Township v. Michigan United R. Co., 165 Mich. 35, 130 N.W. 358; Van Akin v. Dunn, 117 Mich. 423,75 N.W. 938; People v. City of Rock Island, 215 Ill. 493, 106 Am. St., 179, 74 N.E. 437; Hooper v. Rooney, 293 Ill. 370,127 N.E. 713; State v. Graves, 91 Ohio St. 38, 109 N.E. 590; State v. Winterrowd, 174 Ind. 592, 30 L.R.A. (N.S.), 887,91 N.E. 956, 92 N.E. 650; Board of Excise of Okla. Co. v. Board of Directors of School District 27 of Okla. Co., 31 Okla. 558, Ann. Cases, 1913 E, 369, 122 P. 520; Wiedwald v. Dodson, 95 Cal. 453,30 P. 580.

This court announced in an opinion of Chief Justice Gaines that mandamus "is an extraordinary writ and rests largely in the discretion of the court." Munson v. Terrell, 101 Tex. 220,105 S.W. 1114.

None of these cases can be rightly construed as affirming that the remedy afforded by the award of a mandamus depends upon arbitrary action by the court. On the contrary, the discretion referred to is a judicial discretion to be exercised in the application of fixed principles. It is because these principles require the determination of the existence of many incidents, some of which are of an unusual nature, as well as the non-existence of others, as conditions precedent to the writ's issuance, and because such determination is impossible without the exercise of judicial discretion, in the light of the peculiar facts of each proceeding, that the writ is correctly classified as discretionary. 26 Cyc. 143 to 145.

Our statute empowers this Court to issue writs of mandamus "agreeable to the principles of law regulating such writs." Art. 1526, Vernon's Sayles' Texas Civil Statutes.

Among the principles regulating the issuance of writs of mandamus, which cannot be regarded otherwise than as clearly settled, is one which is thus stated in section 1380 of Spelling's Extraordinary Relief: "While the remedy by mandamus is not equitable but strictly legal, yet by analogy to the principles prevailing in courts of equity, it is a uniform requirement that the relator in seeking this remedy must come into court with clean hands." To the same effect, see sec. 26, High's Extraordinary Legal Remedies.

Justice Lamar, speaking for the Supreme Court of the United States, announces the rule to be that "mandamus will not be granted in aid of those who do not come into court with clean hands," since the writ issues "to remedy a wrong and not to promote one." Turner v. Fisher, 222 U.S. 209, 56 L.Ed., 165, 32 Sup. Ct., 38. See also Nevell v. Terrell, 99 Tex. 356,87 S.W. 659, 89 S.W. 971; Hale v. Risley, 69 Mich. 598, 37 N.W. 570; United States ex Rel. Stevens v. Richards, 33 App.D.C. 418, 419.

The rule that he who seeks a mandamus must present his application with clean hands has no different meaning from the general maxim in equity that "he who comes into equity must come with clean hands." Professor Pomeroy states the meaning of the maxim as follows: "It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere in his behalf, to acknowledge his right, or to award him any remedy." He adds: "It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose foundation is good conscience." I Pomeroy's Equity Jurisprudence, secs. 397, 404.

Having concluded that the petition of relators is grounded on conduct amounting to an invitation to, and hence participation in an act violative of good faith and of conscience, it follows that relators did not come into court with clean hands, as required to entitle them to the relief prayed for, and hence the mandamus is denied.

Opinion delivered January 5, 1921.

(Chief Justice Phillips concurs in the refusal of the mandamus, but not the holding of the opinion, and will file a separate opinion.)