Currie v. Wall

¶1 (dissenting).

¶2 “Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, to determine disputes within a political party as to the regularity of the election of its executive officers, or their removal, … 29 C.J.S., Elections, § 88, pages 121, 122; Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037; Scurry v. Nicholson, Tex.Civ.App., 9 S.W.2d 747, affirmed Supreme Court, Nicholson v. Scurry, 119 Tex. 250, 28 S.W. 2d 512; Couch v. Hill, Tex.Civ.App., 10 S.W.2d 170; Pulliam v. Trawalter, Tex. Civ.App., 120 S.W.2d 108.

¶3 The foregoing principle is one of general acceptance, appellant arguing and the majority opinion apparently holding that the office in controversy is “provided for by statute.” If, on the other hand, the manner of election and duties of such office (Chairman, Dallas County Republican Executive Committee) are not regulated by statute, the trial court quite properly held itself without jurisdiction to adjudicate an inter-party dispute. It is with -this ruling of Judge Cramer that I agree.

¶4 Contrary to the contention that the Dallas County Republican Executive Committee is regulated by statute, appellant’s organization, under the stipulation that it is a party receiving as much as 10,000 and less than 200,000 votes at the 1946 general election, is governed by arts. 3154 to 3158, Rev. Civ.Sts., Vernon’s Ann.Civ.St. arts. 3154 to 3158, where a County Executive Committee (Republican) is not even mentioned, much less required. The statement just made is easily susceptible of demonstration.

¶5 A casual glance at Title 50, R.C.S., is all that is necessary to see that chapter 13 on “Nominations” is divided into six separate sections, viz.: (1) By parties of 100,000 and over (amended to 200,000 in 1945), taking in arts. 3100 to 3153 inclusive; (2) by parties of 10,000 and less than 200,000 votes (1945 amendment), arts. 3154 to 3158 inclusive ; (3) nonpartisan and independent candidates, arts. 3159 to 3162; (4) parties without State organization, art. 3163; (5) city and town elections, art. 3164, and (6) Miscellaneous, arts. 3165 to 3167 inclusive.

¶6 The only political party in Texas that is required to nominate candidates by primary election is that numbered in bracket (1) above, polling more than 200,000 votes at the last general election, arts. 2978, 3101. The only statute in Texas pertaining to County Executive Committees is art. 3118, chapter 13 of Title 50; and to make out his case appellant surely must bring himself within the provisions of such article. It reads in part: “There shall be for each political party required by this law to hold primary elections for nomination of its candidates, a county executive committee, to be composed of a county chairman, and one member from each election precinct in such county; the committeeman from such election precinct shall be chairman of his election precinct, and the said county chairman shall be elected on the general primary election day; the county chairman by the qualified voters of the whole county, and the precinct chairman by the qualified voters of their respective election precincts.” (Emphasis mine.)

¶7 It was agreed and stipulated at the hearing that the trial court should take “in connection with other pertinent matters,” judicial knowledge of the fact that the Republican candidate for Governor of Texas in 1946 received more than 10,000 and less than 200,000 votes. And thereby art. 3118 has no application to appellant’s controversy for two reasons: (1) The article-itself is found only in section 1 of chapter 13, *969 bearing on political parties polling over 200,000 votes; and (2) by its very terms, having reference to political parties “required by this law to hold primary elections for nomination of its candidates.” It would therefore follow that another organization such as the Republican Party, polling less than 200,000 votes, is expressly exempted from holding such primary elections for nomination of its candidates. In other words, appellant’s Party, coming under sec. 2, is governed by arts.- 3154 to 3158, and is not subj ect to any of the articles under sec. 1, with particular reference to art. 3118. Appellant concedes that the voting bracket determines the applicability of two of these five articles under sec. 2 (3155 and 3156), in view of which no logical reason is perceived why such bracket does not likewise determine the inapplicability of art. 3118. It may be that Dallas County Republicans maintain a County Executive Committee patterned after the last mentioned article; if so, the setup is consequent upon Party regulation and practice and not upon any requirement of the law. *

¶8 The majority opinion infers that there might be “some merit in appellees’ contention” if we were but privileged to inspect defensive pleadings; holding that (a) in passing on a plea to the jurisdiction prior to a hearing on the merits, both trial and appellate courts are limited to a consideration of plaintiff’s pleading (taken as true) ; and (b) the issue of a contest between two members of a political party is not raised by the allegations of such petition.

¶9 With all due respect, I submit that the foregoing majority conclusions are erroneous on both counts:

¶10 First, the pleading of all parties to a suit may be considered in determining the question of jurisdiction. In Galley v. Hedrick, Tex.Civ.App., 127 S.W.2d 978, 980, the order of dismissal for want of jurisdiction followed a hearing on the pleadings alone, the court observing “ … Ithas long been the established law in this state that in adjudicating questions of jurisdiction, courts are not bound by the allegations of the plaintiff’s petition.” In Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S. W.2d 677, 678, our Supreme Court said in part: “ … the pleadings of all parties could be looked to for the purpose of-determining whether or not the court had jurisdiction of the case.” See also Treaccar v. City of Galveston, Tex.Civ.App., 28 S.W.2d 276.

¶11 Second: Even on basis of his amended petition the issue was squarely raised of whether plaintiff or defendant Wall is rightfully Chairman, County Republican Executive Committee; petitioner alleging that he had been elected thereto in July 1946, confirmed in the position by vote of the Executive Committee later in November> ⅛ tenure extending to July 1948. Appellant admits, both in petition and brief, that George C. Hopkins as Chairman, Republican State Executive Committee, had directed the removal of his (Currie’s) name from the list of County Chairmen, appointing Wall as successor, who has since assumed the duties of such office. Thus the instant controversy is again shown to be inter-party, not regulated by statute and with no clear legal right of property involved. In short, the only statute .controlling of the instant record is one embodying into law the principle first above quoted; and, as applied thereto is adverse to appellant’s claim of jurisdiction. Art. 3146, Vernon’s Ann.Civ. St., provides: “Except for a place on party tickets for public elective offices, all contests within a political party shall be decided by the State, District, or County Executive Committee, as the nature of the office may require, each such Committee to retain all such powers and authority now con-ferre(l by law.

¶12 The question of judicial jurisdiction to determine controversies within political parties is made the subject of thorough discussion in Commonwealth v. Dunkle, 355 Pa. 493, 50 A.2d 496, 169 A.L.R. 1277, Annotations beginning p. 1281. The court there quotes from an earlier Supreme Court case (Kearns v. Howley, 188 Pa. 116, 122, 41 A. 273, 275, 42 L.R.A. 235, 68 Am.St.Rep. 852), *970 the statement being equally pertinent here, viz.: “(Political Parties) must govern themselves by party law. The courts cannot step in to compose party wrangles, or to settle factional strife. If they attempted it, it may well be doubted whether they would have much time for anything else.” [3SS Pa. 493, 50 A.2d 498.]