Summary
holding that candidate who entered into agreement with rival candidate to set aside result of first primary and resubmit nomination (an action not provided for by applicable law) was estopped to claim nomination under first primary, after result of second proved adverse
Summary of this case from In re MinixOpinion
No. 3641.
October 1, 1928. Rehearing Denied October 1, 1928.
Appeal from District Court, Smith County; J. R. Warren, Judge.
Election contest by D. R. Pendleton against Will D. Pace. Judgment for defendant, and contestant appeals. Affirmed.
This is an appeal from a judgment denying a mandamus as well as restraining injunction. Appellant sought to compel the county chairman of the county Democratic executive committee of Smith county to certify his nomination for county judge in the primary election held on July 28, 1928.
The following facts were agreed to by all the parties, to wit:
"D. R. Pendleton and Will D. Pace were both candidates for the nomination to the office of county judge of Smith county, Tex., at the general primary election held in Smith county on July 28, 1928, and were the only candidates for said office at said election; both had voluntarily filed their applications as such candidates with the county chairman, and paid the assessments made against them by the county executive committee for primary election expense, in due time. On August 4, 1928, the Democratic executive committee of Smith county opened and canvassed the official returns of said election held July 28th, and tabulated the returns and votes shown thereby, and found from said official returns that D. R. Pendleton had received 26 votes majority over Will D. Pace for county judge, and he was by said executive committee declared to be the nominee by said primary for said office, but R. O. Collier, chairman of said executive committee, did not certify the name of D. R. Pendleton to the county clerk of Smith county as said nominee. On August 9, 1928, Will D. Pace filed with R. O. Collier, chairman of the Democratic executive committee of Smith county, his notice and grounds of contest in writing, duly verified, setting out and charging specific grounds of contest, and containing special charges of fraud and illegality in the conduct of said election as set out in said contest; and on August 10, 1928, a correct copy of said notice and grounds of contest was delivered in person to D. R. Pendleton. On August 15, 1928, D. R. Pendleton filed his exceptions and answer to the contest filed by Will D. Pace, duly verified, a correct copy of which was delivered to Will D. Pace. On the morning of August 16, 1928, Will D. Pace filed what is denominated his supplemental petition and complaint in answer to the answer of D. R. Pendleton, alleging additional illegal votes, etc., and to which D. R. Pendleton then filed his objections and exceptions.
"These pleadings were all filed before the convening of the Democratic executive committee of Smith county on August 16, 1928. On August 10, 1928, after notice and a copy of the grounds of contest filed by Will D. Pace with him had been delivered to D. R. Pendleton, R. O. Collier, chairman of the Democratic executive committee of Smith county, called a meeting of said committee to convene at Tyler on August 16, 1928, to hear and determine the contest; and said committee convened in accordance with said call on said date. After some discussion and argument on objections of contestee, D. R. Pendleton, urging lack of jurisdiction in the committee to any hearing of the contest by the committee, it voted to hear and determine the same. Upon consideration by the committee of how it would proceed with the hearing, a motion was made and adopted by the committee that a committe of five members of the committee be selected to act with the chairman and secretary to hear and consider evidence and count the votes and report its findings back to the whole committee for its action thereon, and that contestant select two members of said subcommittee and contestee select two members, and those four select the fifth member. Thereupon contestee, D. R. Pendleton, announced that he would decline to select any member of said committee, and that he did not recognize the power of the committee to require him to select any of the subcommittee. Then contestant, Pace, declined, because of the declination of the contestee, Pendleton, to select any part of the committee; and the executive committee then adopted a motion for the chairman to appoint five members as a subcommittee to act with the chairman and secretary to hear the evidence, etc., on the contest and report to the full committee. The full committee then recessed until 2 o'clock p. m. August 18, 1928, and the subcommittee convened and heard statements of witnesses and examined tally lists, poll lists, and data relating to the issues; and on the morning of August 17, 1928, adopted a motion to open the ballot boxes and recount the votes in all boxes in which charges of illegal votes were made by either party. At this time, and before any ballots had been opened or recounted, the parties, D. R. Pendleton and Will D. Pace, entered into the following written agreement, for the purpose of settling the contest, to wit:
"`Tyler, Tex., August 17, 1928.
"`Whereas, on a hearing of the contest between us for the nomination to the office of county judge of Smith county, which is now being heard and investigated by the Democratic executive committee, the investigation up to this time has disclosed quite a number of illegal votes, and irregularities in some precincts to such an extent that to pursue the investigation by the committee to a final determination by them would entail such length of time and such burden on the committee as should be avoided; and would further disclose such irregularities in some precincts as would probably render the correct determination of legal votes impossible; and to avoid such burdens and delays, we, D. R. Pendleton and Will D. Pace, candidates for county judge and parties to this contest, do hereby agree that the executive committee do now declare the result as shown by the primary on July 28, 1928, on the office of county judge, void, and set aside the result thereof, and that our names be placed on the official ballots as candidates for county judge to be voted on in the second primary election for all precincts in Smith county for August 25, 1928, and the result of that primary be accepted as making the nomination for said office.
"`And we do now request the executive committee to accept this agreement and order our names printed on the official ballots for August 25th, in all precincts.
"`[Signed] D. R. Pendleton.
"`Will D. Pace.'
"Said agreement was then presented to the subcommittee hearing the contest, and was by them indorsed and signed as follows:
"`August 17, 1928. The foregoing agreement having now been signed by the parties and submitted to us, we, the subcommittee, do hereby agree to accept said agreement and close this hearing and recommend to the full committee that it be accepted and acted upon as agreed by the parties. [Signed] J. C. Hale, W. A. Allen, Jno. Y. Lawhon, W. E. Beaird, M. F. Meadows, Members Subcommittee Executive Committee of Smith County, Texas.'
"On August 18, 1928, the Democratic executive committee of Smith county adopted and approved the agreement, and ordered the result of the primary of July 28th set aside and the names of the two candidates printed on the ballots for the second primary election to be held on August 25, 1928, by a resolution as follows:
"`Tyler, Tex., August 18, 1928.
"`Be it resolved by the Democratic executive committee of Smith county, Tex., in special session:
"`I. That the agreement signed by Hon. D. R. Pendleton and Hon. Will D. Pace, parties to the contest pending before this committee contesting the primary election for nomination to the office of county judge of Smith county, held July 28, 1928, agreeing that their names be printed on the official ballots as candidates for county judge in the run-off primary to be held August 25, 1928, next, and thereby avoid the burden of further hearing of the contest; and the report of the subcommittee therewith, be and the same is hereby accepted and approved.
"`II. That because of the matters set forth in said agreement and report of said subcommittee, it is hereby declared that no election result in the primary held on July 28, 1928, on the office of county judge of Smith county, Tex.; and the result of said election on the office of county judge as heretofore declared is set aside; and the names of Hon. D. R. Pendleton and Hon. Will D. Pace, as candidates for the nomination of said office, are hereby directed to be printed on the official ballot for the primary election to be held in Smith county, on August 25, 1928, to be voted on at said election in the same manner and to the same effect as if their names had been certified to go on said ticket originally.
"`Adopted by the committee this Aug. 18, 1928. R. O. Collier, Chairman,
"`J. A. Mallory, Secretary.'
"Immediately after the agreement above set out, which had been signed by the parties and approved by the subcommittee, had been signed and filed, on August 17, 1928, both parties, D. R. Pendleton and Will D. Pace, began to solicit votes and to enlist their friends in their support; and Will D. Pace was induced by said agreement to abandon the further prosecution of his contest, before said Democratic executive committee, and to rely on, and did thereafter rely on, said agreement, and the campaign for the office thereafter and the results of the election on August 25, 1928. Their names were printed on the official ballots for said election of August 25, 1928, and voted on in said election, and the official returns of said election of August 25, 1928, were duly canvassed by the executive committee on September 1, 1928, and the returns shown by said election officers show that Will D. Pace received a majority of 156 votes. When the agreement had been made between the parties, it was found that the chairman had already had the tickets printed for the run-off primary election, and that they would have to be reprinted in order to have the names of the candidates for county judge appear thereon for the election August 25th; and that the cost for reprinting them would be $22.50; and D. R. Pendleton and Will D. Pace then and there agreed to pay that expense, and each did then and there pay to R. O. Collier, chairman, the sum of $11.25 to cover expense of reprinting the tickets in order to have their names printed thereon to be voted on in accordance with their written agreement. Prior to the general primary election of July, and at the time fixed by law, the committee had ordered that nominations for county and precinct offices in Smith county be made by majority vote, and that a second primary be held on August 25, 1928, to determine all nominations where no candidate received a majority of the votes cast for such office in the first primary; and a second primary was made necessary on other county and precinct offices, and was to be held, regardless of the agreement to run off the contest for county judge."
Butler, Price Maynor and Gentry, Gray Gentry, all of Tyler, for appellant.
Brooks Arnold and Edwards Hughes, all of Tyler, for appellee.
It is believed that this court has jurisdiction to determine the appeal. The judgment was in final determination of the right of appellant to a mandamus as well as restraining injunction as prayed in the petition. Under the statute an appeal would lie from such judgment because the record warrants the conclusion that there was trial by consent of the parties before the district judge in vacation. Article 1915, R.S.; Glenn v. Milam, 114 Tex. 160, 263 S.W. 900; Doeppenschmidt v. City of New Braunfels (Tex.Civ.App.) 289 S.W. 425.
It is believed that the trial court correctly decided the case, and that the judgment should be affirmed. It appears that after the county Democratic executive committee had canvassed the result of the Democratic primary election held on July 28, 1928, and before the chairman of the committee had certified nomination to the county clerk of the county, as required of him by article 3125, R.S., the appellee timely entered a contest of the primary election before the county executive committee. The contest was made under article 3146, providing therefor. After the committee had entered upon a hearing of the contest, and before the executive committee had decided the same, the contesting parties entered into a written agreement providing, in purpose and effect, for the immediate abandonment of the contest proceeding and to otherwise have another and a different relief. As neither the appellant nor the appellee were under any legal duty to enter into such agreement, the act of so doing must be regarded as a purely voluntary one. Both parties would be held to know of their legal rights in such matters and respects. The agreement was that —
"The executive committee do now declare the result as shown by the primary on July 28, 1928, on the office of county judge, void, and set aside the result thereof."
Continuing, as agreed —
"That our names be placed on the official ballots as candidates for county judge to be voted, on in the second primary election for all precincts in Smith county for August 25, 1928, and the result of that primary be accepted as making the nomination for said office."
The county executive committee assented to the agreement of the parties and acted upon its terms. Thereupon the appellant and appellee both actively entered into the second primary of August 25, 1928, and incurred expenses incident thereto, and their names appeared on the official ballots, and they were voted upon by the party electors throughout the county. It is clear that the order of the executive committee of August 18, declaring that there was "no election result in the primary held on July 28, 1928, on the office of county judge of Smith county, Tex.," and directing the names of appellant and appellee "to be printed on the official ballot for the primary election to be held in Smith county on August 25, 1928," was in pursuance only of the agreement of the parties and merely to carry out its terms. The agreement of the parties was in the purpose, and had the effect, to withdraw contest proceeding and decision thereon by the executive committee, and to otherwise provide and assent to an independent procedure, and another and different relief. As made, the order of the committee was not intended and does not purport to be a pure decision of the executive committee as such in a contested election case. The executive committee did not undertake the exercise of authority independent of the agreement of making final adjudication of a contest of election under the statute. Hence no question properly arises for decision of the authority of the executive committee to entertain and determine a contest of election. And if it could be conceded for the moment that the executive committee assumed the authority to enter the order as made in the terms of the agreement, still that assumed authority was consented to in writing by the parties, and they abided by and accepted the award and benefits from it.
It is concluded that in the special circumstances the agreement of the two opposing candidates for nomination to renounce or annul the "result of the first primary" and to submit their nomination to the electors of the party in the second primary is binding on them, and that they may not now withdraw such agreement. In agreeing to set aside and make void "the result of the first primary" of July 28 as to county judge, or, which is practically the same thing, to create a default or omission of nomination, there is clearly indicated the intent on the part or the appellant, as well as the appellee, to withdraw from or decline any legal position or claim or right of nomination in virtue of that primary election. That is the effect of the agreement; and such effect was acted upon and made operative by the parties. It is quite competent for contesting parties to agree to withdraw and abandon contest proceedings. It is quite as competent for candidates to decline or annul a nomination or any claim or right to a nomination in the first primary. Although the proceedings were independent of and not strictly in the mode prescribed by statute, yet the same were by express consent in writing of the parties, and they were not void, as being prohibited by statute or as against public policy. It would follow that appellant, as well as appellee, were concluded and estopped from resorting to or insisting upon any former status or claim or right of nomination possessed in virtue of the first primary, and that appellant cannot now maintain a mandamus to restore him to the position of a nominated candidate in the first primary. The doctrine of equitable estoppel is applicable to the particular circumstances. Bigelow on Estoppel (6th Ed.) pp. 746, 749; 21 C.J. p. 1202 et seq.; 9 R.C.L. p. 1174. There is similarity in principle between this case and the case of O'Malley v. Lesueur, 103 Mo. 253, 15 S.W. 539. The present facts are unlike those of State v. Goff, 129 Wis. 668, 109 N.W. 628, 9 L.R.A. (N.S.) 916, in that there was not in that case the element of withdrawal or declination of nomination or any right to nomination.
The foregoing are the reasons, briefly stated, inducing us to announce our conclusion affirming the judgment denying the peremptory writ.