Willey v. Fennell , 1954 Tex. App. LEXIS 2627 ( 1954 )

PER CURIAM.

This is an original petition for a writ of mandamus to compel the Chairman and members of the County Democratic Executive Committee of Presidio County to place the name of John C. Epperson as a candidate for nomination of Judge of the 83rd Judicial District upon the official ballot for the primary election to be held July 24, 1954. The petitioners are citizens and qualified voters of the 83rd Judicial District.

Article 8.22, Election Code, Vernon’s Annotated Civil Statutes, provides that if a candidate in the first primary dies after the deadline for filing, his name shall be printed on the primary ballot and votes cast for him shall be counted and returned for him.

The respondents attack the constitutionality of the statute and also contend that relators have no such interest in the matter as authorizes them to file a petition for mandamus. The duties imposed upon the chairman and members of the County Democratic Executive Committee of Pre-sidio County are public duties in which any citizen of the district here involved has an interest and is qualified to bring this suit. McLaughlin v. Smith, Tex.Civ.App., 140 S.W. 248.

We have carefully examined the authorities cited by petitioners in their brief and those submitted by respondent, and the • applicable provisions of the Constitution, and we find no conflict between art. 8.22 and the constitutional provisions referred to or any other statutory provision. In our opinion the constitutional qualifications provided for a nominee for the general election were not intended to apply to the situation here. The statute in question does not provide for the nomination of a deceased candidate, but provides a procedural method by which a nominee may be selected by the proper executive committee if the name of deceased candidate receives the most votes.

It is therefore ordered that a writ of mandamus issue commanding the respondents, H. M. Fennell as Chairman, and Ernest Williams, C. E. McFarland, H. M. Greenwood, Irvin Ridout, David Fuentes, James E. Walker and Raul Madrid as members of the Presidio County Democratic Executive Committee, and their successors in office, to accept the $25 assessment heretofore tendered to the Chairman as the assessment levied against the candidate for the office of Judge of the 83rd Judicial District, and to place the name of John C. Epperson upon the official ballot for the primary election to be held on July 24, 1954.

Because of the shortness of time in which the primary ballot must be made up no motion for rehearing will be entertained.