Eades v. Drake , 160 Tex. 381 ( 1960 )

Mr. Justice Norvell

delivered the opinion of the Court.

Eric Eades, Jr., a practicing attorney of Dallas County, Texas, possessing the constitutional qualifications required of 'a district judge, has petitioned this Court for a writ of mandamus ordering the Dallas County Democratic Executive Committee and its Chairman, Edward J. Drake, to place his name upon the ballot for the Democratic Party primaries as a candidate for the nomination for the office of District Judge of the 160th Judicial District of Dallas County, Texas. Our jurisdiction is based upon Article 1735-a, Vernon’s Ann. Texas Stats, and Article 13.14, Vernon’s Ann. Texas Election Code.

Mr. Eades contends that as the Act which created the 160th District Court provided that the term of office of the judge of said court should expire on December 31, 1960, a judge should be elected at the coming November general election. If this position be tenable, then it would follow that a Democratic nominee for such judgeship should be chosen in accordance with the statutes regulating primary elections.

The Dallas County Democratic Executive Committee has not accepted Eades’ application for a place upon the primary ballot and the Honorable Claude Williams, judge of the 160th District Court and a party to this action,¹ has filed an answer in which he says that:

“This Respondent respectfully submits that the Act of the Legislature creating the 160th Judicial District was invalid insofar as it attempted to limit the term of the first Judge elected to the Court to a two (2) year term ending December 31, 1960. It follows that a nomination of a candidate by the Democratic Party to fill such office would be a nullity and that Relator is not entitled to the relief sought.”

An examination of the applicable statutory and constitutional provisions is called for.

The 160th Judicial District was created by an Act of the 55th Legislature and came into existence on the effective day of the Act, that is, ninety days after May 23, 1957, the day upon which the Legislature adjourned. Acts 1955, 55th Leg., p. 1487, ch. 510, Article 199-160, Vernon’s Ann. Texas Stats. Sections 1 and 2 of the Act read as follows:

“Section 1. There is created hereby in and for Dallas County, Texas, one (1) additional district court, the limits of which district shall be coextensive with the limits of Dallas County; said court shall be known as the 160th District Court, Judicial District of Texas.

“Sec. 2. The 160th District Court shall have and exercise the powers conferred by the Constitution and Laws of the State of Texas on the judges of the District Courts of Dallas County, Texas. The jurisdiction shall be concurrent with that of the existing district courts of Dallas County, Texas.”

Section 4 of the Act relates to the appointment, election and terms of office of the judge of the 160th District Court and provides that:

“Sec. 4. The Governor shall appoint a suitable person as Judge of said court herein created, who shall hold office until the next General Election and until his successor has been duly elected and qualified. At the first General Election after the creation of the one (1) district court numbered herein, the Judge of the said court shall be elected for a term of two (2) years and at the next General Election after the expiration of the first two (2) year term of said judge of the numbered court herein, the Judge of the numbered court herein shall thereafter be elected for a four (4) year term. Such person so appointed and elected shall have the qualifications provided by the Constitution and the Laws of this State for District Judges. The Judge of the court created by this Act shall draw the same compensation that is provided by the Laws of the State of Texas for District Judges of Dallas County.” (Italics supplied.)

Since the 160th District Court as created by the Legislature is a permanent constitutional district court, the subject matter of Section 4 above set out is fully covered by constitional enactment. The section is in a sense redundant. The Act would be fully effective and operative without it.

1 Under the Texas Constitution, the office of district judge is an elective position, with the exception that the Governor may fill vacancies by appointment until the next general election. As a usual thing when a district court is created there is a vacancy in the office of judge to be filled by gubernatorial appointment. However, when and after a general election takes place, the term of a district judge is fixed at four years by the constitution.

Article 5, Sec. 7 of the Constitution prescribes the qualifications and elective terms of district judges in the following definite language:

“The State shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by law. For each district there shall be elected by the qualified voters thereof, at a General Election, a Judge, who shall be a citizen of the United States and of this State, who shall be licensed to practice law in this State and shall have been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who shall have resided in the district in which he was elected for two (2) years next preceding his election, who shall reside in his district during his term of office, who shall hold his office for the period of four (4) years, and shall receive for his services an annual salary to be fixed by the Legislature. * * *².

Article 5, Sec. 28 provides that:

“Vacancies in the office of Judges of the * * * District Courts shall be filled by the Governor until the next succeeding general election; * * *”

When the Act creating the 160th District Court became effective, there existed a vacancy in the office of judge of said court until such position was filled by gubernatorial action. This power of appointment is vested in the executive department by the plain terms of our Constitution. State ex rel McCall v. Manry, 118 Texas 449, 16 S.W. 2d 809.

2 Article 16, Sec. 17 provides that:

“All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.”

By paraphrasing the constitutional wording but retaining its meaning in every particular, we can say that as applied to the 160th District Court, the Constitution of Texas provides that:

As the Legislature created a constitutional district court, the Governor shall appoint a qualified person to the position of judge of such court who shall hold such office until the next succeeding general election and until his successor shall be duly qualified; that at the next general election there shall be elected by the qualified voters of the district a judge who shall be a citizen of the United States and of this State who shall hold his office for the period of four (4) years, and shall receive for his services an annual salary to be fixed by the Legislature.

This holding covers the subject matter of Section 4 of Article 199-160 in the words of the Constitution. Insofar as the provisions of the statute are at variance with the terms of the constitution, such provisions are ineffective and void. The constitution provides for elective four-year terms for judges of permanent constitutional district courts and there can be no elective two-year terms for judges of said courts by virtue of legislative enactment. We are not here concerned with temporary courts or with elections for unexpired terms.

In our opinion, the proposition asserted by Judge Williams’ answer is correct. Under the constitution, he was elected for a four-year term in 1958. Accordingly, there cannot be a legal election for the position of judge of the 160th District Court in the General Election of 1960. State ex rel McCall v. Manry, 118 Texas 449, 16 S.W. 2d 809; Manry v. McCall, Texas Civ. App., 22 S.W. 2d 348.³

This view seems to be in accord with the decisions of the other American jurisdictions which have come to our attention. In People ex rel Westbrook v. Rosborough, 14 Cal. 180, the Supreme Court of California held that:

“The Act of the Legislature organizing the County of Siskiyou, therefore, was void in that part of it which limited the period to two years’ tenure; but this does not hurt that part which was constitutional, and the election held under that Act vested the title to the office in the incumbent for four years.” —The constitutional term.

This case was made the basis of the following text statement in Throop, Public Officers, Sec. 311, viz:

“Where the Constitution fixed the term of an office at four years, an act of the legislature, providing for an election to fill the office, and limiting the term of the office to be elected to two years, is void as to the limitation, but constitutional and valid as to the residue; and the person so elected holds for four years.”

This statement has been expressly approved in at least two cases by the Supreme Court of Alabama. Clark v. State ex rel Graves, 177 Ala. 188, 59 So. 259; Springer v. State ex rel Williams, 229 Ala. 339, 157 So. 219.

Similarly, in Russell v. State ex rel Crowder, 171 Ind. 623, 87 N.E. 13, 16 the Supreme Court of Indiana said:

“It is conceded that the Legislature can neither abridge nor lengthen the term of a constitutional office. Griebel v. State, 111 Ind. 369, 12 N.E. 700; Douglas v. State, 31 Ind. 429; Howard v. State, 10 Ind. 99.”

See also, Meacham on Public Officers, Sec. 387; 67 C.J.S. 198, officers, Sec. 44b; 11 Am. Jur. 862, Constitutional Law, Sec. 167.

3 It is no answer to the proposition stated by these authorities to say that the electorate did not intend to elect Judge Williams to a four-year term. This would involve an assertion that in exercising his right of suffrage, the voter had the statute in mind which provided for a two-year term. It could with equal logic be argued that the voter cast his ballot fully cognizant of the four-year term provision of the constitution. There is no presumption that the citizen knows the contents of the Revised Statutes but is ignorant of constitutional provisions.

4 The Act creating the 160th District Court contains a severance clause, that is, a provision that if any portion of the Act be declared unconstitutional, such invalidity shall not affect the remaining provisions of the Act. In view of this clause the rule of construction employed by this Court in Jordan v. Crudgington, 149 Texas 237, 231 S.W. 2d 641, will be applied here. We disregard the invalid provisions of the statute providing for an elective two-year term and read into the Act the constitutional provision setting a four-year term of office for elected district judges. 231 S.W. 2d 641, 1.c. 647.

The petition for writ of mandamus is denied.

Opinion delivered February 17, 1960.

1 . — James F. McCarthy, a practicing attorney who also possesses the constitutional qualifications for district judge, is likewise made a party to this action and has answered. McCarthy also has filed an application for a place on the primary ballot,, but from his brief, it appears that he has grave doubts as to the constitutional validity of the two-year elective term provided for in the Act creating the 160th District Court.

2 . — Article 5, Section 30 of the Constitution adopted in 1954 would also seem apapplicable to the 160th District Court as a court of county-wide jurisdiction. This section provides:

“The Judges of all Courts of county-wide jurisdiction heretofore or hereafter created by the Legislature of this State, and all Criminal District Attorneys now or hereafter authorized by the laws of this State, shall be elected for a term of four years, and shall serve until their successors have qualified.”

3 . — The Attorney General has also construed the Constitution as prohibiting an elective term other than one for four years. In Opinion V-1055, rendered in 1950, it was said:

“The Legislature has the exclusive authority to create district courts in this State and to determine the number of such courts authorized to exist * * * . However, the term of the District Judges as fixed by the Constitution cannot be shortened or extended by the Legislature.”