Skelton v. Yates , 131 Tex. 620 ( 1938 )

This is an application to file what relator, James R. Skelton, designates as a petition for mandamus. The petition accompanies the application to file. By such petition the relator complains against H. L. Yates, County Chairman of the Democratic Executive Committee of the Democratic Party of Cameron County, Texas, and against all the other members of said committee. The petition represents that the relator received a plurality of the votes for Democratic Precinct Chairman for Election Precinct No. 12 at the Democratic primary election held on July 23, 1938. He represents that the committee has certified his name together with that of Harry L. Faulk for the runoff primary to be held on August 27, 1938. Relator contends that since he received a plurality of the votes cast at the election on July 23, 1938, he has been elected Precinct Chairman for such precinct by a plurality vote.

The prayer of the petition is as follows:

"WHEREFORE, PREMISES CONSIDERED, Relator respectfully prays that this honorable court set this application down for hearing upon the earliest practicable date, causing notice to be served upon each and all Respondents and particularly upon the Respondent H. L. Yates, as County Chairman of the Democratic Executive Committee of Cameron County, Texas, and the Respondent Harry L. Faulk, as precinct chairman of voting and/or election precinct number 12, of the Democratic Executive Committee in and for Cameron County, Texas, in such manner as to this court may seem just and proper; that upon such hearing, this honorable court direct the issuance of its writ of mandamus to the respondents in their official capacities as aforesaid, and particularly to the honorable H. L. Yates, as County Chairman of the Democratic Executive Committee of Cameron County, Texas, commanding Respondents to refrain and desist from printing the names of your Relator, James R. Skelton, and Respondent, Harry L. Faulk, upon the official ballot of the Democratic Party in and for Cameron County, Texas, for the second and/or runoff primary of said party, to be held on the 27th day of August, A.D. 1938, as candidates for the office of precinct chairman of voting and/or election precinct number 12 of the Democratic Executive Committee in and for Cameron County, Texas, and that this honorable court further command in said writ of mandamus said Respondents and each of them to certify to the County Clerk of Cameron County, Texas, the name of your Relator, James R. Skelton, as being the duly elected and qualified precinct chairman of voting and/or election precinct number 12 of the Democratic Executive Committee in and for Cameron County, Texas, as having been duly elected by the votes cast in his behalf and as shown by the certified copy of the minutes of the Democratic Executive Committee of Cameron County, Texas, at the general primary election day heretofore held in Cameron County, Texas, by the Democratic Party on the 23rd day of July, A.D. 1938, and Relator prays for all such other and appropriate writs, process and relief to which he may be entitled."

Under the various statutes of this State it is evident that this case is moot. Under the law absentee balloting has begun. R. S., Art. 2956. The election therefore is already in progress, and no order which this Court might enter could be effective at this late date to govern such election. The application to file the petition for mandamus is accordingly overruled. Sterling v. Ferguson et al., 122 Tex. 122, 53 S.W.2d 753.

The only question of law decided by this Court is that this case is already moot. Any other question of law involved herein is expressly pretermitted.

Opinion delivered August 11, 1938.

Associate Justice CRITZ absent.