Untitled Texas Attorney General Opinion ( 1942 )

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Honorable Luther C. Johnson
County Attorney
Anderson County
Palestine, Texas
Opinion No. O-4914
Re: Is a ,voteof a majority of the members
of the county executive committee re-
quired to select the demoop%tfC-nominee
to be placed upon the ballot oflthe
general election or would a vote of a
majority of the members of the committee
present at the meeting be sufficient to
select the party nominee where the nomi-
nee selected by voters at the primary
election declines the nomination prior
to the general election?
Dear Sir:
We have your telegram oftOctober 13, 1942, requesting
the opinion of this department on the above stated question.
Article 3165, Vernon's Annotated Civil Statutes, pro-
vides:
"A nominee may decline and annul his nomina-
tlon'by delivering to the officer with whom the
certificate of his nomination is filed, ten days
before the elec.tion,if it be for a city office,
and twenty days in other cases, a declaration in
writing, signed by hlm.before some officer au-
thorized to take acknow,ledgements. Upon such de-
clination (or in case.of death.of a nominee), the
executive committee of a party, or a ma~jorltyof
them for the State, district or county, as the
office to be nomina,tedmay require, may nominate a
candidate to supply the vacancy by filing with the
Secretary of State in the case of ,Stateor district
officers, or with the county judge in the case of
county or precinct officers, a certificate duly
Honorable Luther C. Johnson,,page 2 (O-4914)
signed and acknowledged by them, setting forth
the cause of the vacancy, the name of the new
nominee, the office for which he was nominated
and when and how he was nominated. No executive
committee shall ever have power of nomination,
except where a nominee has died or declined the
nomination as provided in this article.”
We have failed to find any case,by any of the Appellate
Courts construing the above mentioned statute wherein the ques-
tion herein involved has been discussed or passed upon. However,
the case of Walker, et al v. Hopping, 226 S.W. 146, construing
a similar provision of Article 3107, Revised Statutes, 1911,
(now Article 3118, Vernon's Annotated Civil Statutes),among other
thlw , holds In effect that a statute providing that a vacancy
in the office of chairman'or member of the county committee of a
party shall be filled by a majority vote of the executive commit'
tee, contemplates an act of the committee as a body, ,and,In the
absence of some provlsion of law to the contrary, it would take
a majority of the members of such committee to constitute a
quorum which could act as the committee.
It is stated in Words and Phrases, Permanent Edition,
Volume 26, page 103:
,"In construing a party rule giving the exe-
cutive committee of the party the power to fill
vacancies on the county ticket by a majority vote
of all the executive committee, it was said by the
court that it seems clear, taking the whole rule
together, tha'tthe provisions for filling vacancies,
on the ticket by a 'majority of all the executive
committee' means, at the least, a majority vote of
all the persons who are in fact members of the com-
mittee at the time the vacancy is filled. Ordi-
narily the phrase quoted might not receive such
construction. We have so decided in two cases re-
cently beforeus, but, of,course, the question in
every case is, What do the words mean in a par-
ticular connection, and under the particular
circumstances? In general, they mean a majority
of the quorum (the quorum being a majority of the
whole,body), but when the rule provides for a :
different test, such decisions ceased to apply."
In view of the foregoing, it is our opinion that in
the absence of some provision of law to the,contrary, a majorl-
ty of the members of an executive committee of a party con-
stitutes a quorum which can act as the committee. In other
Honorable Luther C. Johnson, page 3 (O-4914)
words, if a majority of the members of the executive committee
of a party are present, it will take a majority vote of those
present to nominate a candidate.
Trusting that the foregoing
- fully answers your in-
quiry, we are -
Very truly yours
ATTORRRY GENERAL OF TEXAS
BY
S/ Ardell Williams
Ardell Williams
Assistant
APPROVED Ott 14, 1942
S/ Grover Sellers
First Assistant Attorney General
AW:db:bt
Approved Opinion Committee
by RWF, Chairman