Gammage v. Compton

548 S.W.2d 1, 20 Tex. Sup. Ct. J. 206, 1977 Tex. LEXIS 216

• Court: Texas Supreme Court
• Decided: March 2, 1977
• Docket: B-6542
• Status: Published

Opinions

DANIEL, Justice.

This is a mandamus proceeding which arises out of a suit filed by Ron Paul against Robert Alton Gammage in the 151st Judicial District Court seeking to contest the election in which Gammage has been declared to be the winner over Paul for Congressman for the 22nd Congressional District of Texas.

Relator Gammage seeks to have this Court mandamus the Respondent, Honorable John L. Compton, Judge of said Court, to vacate certain orders relating to further deposing of Gammage by counsel for Respondent Paul, to grant such further relief as the Court deems requisite and proper, and to direct the Respondent Paul to cease and desist from pursuit of this election contest under State court procedures. The principal question is whether the district court has jurisdiction over the contest under Article 9.01 of the Texas Election Code.¹

At the general election on November 2, 1976, Gammage was declared winner over the incumbent, Paul. A recount was requested by Respondent Paul and it was conducted under the general observation of inspectors from the office of the Texas Secretary of State and counsel from the Privileges and Elections Subcommittee of the United States House of Representatives. The recount showed Gammage to be the winner by 268 votes, and on November 22, 1976, Gammage was certified by the Governor as having won the election. Thereafter, Paul filed this contest in the District Court of Harris County as well as a notice of contest with the United States House of Representatives under the Contested Elections Act, 2 U.S.C. § 381, et seq.

On January 4, 1977, Gammage was unconditionally sworn in as a member of the House. He then filed a motion to dismiss this court proceeding, and it was denied on January 12, 1977. On January 25th, this Court refused Gammage’s motion for leave to file a petition for writ of mandamus to order a dismissal of the suit. Thereafter the trial court ordered Gammage to appear on February 12,1977, to be further deposed by counsel for Paul. Whereupon, Gam-mage sought and was granted permission to file this petition for writ of mandamus and writ of prohibition.

Relator’s principal contention is that Article 9.01, if interpreted as applying to members of Congress, is violative of Article I, § 5, of the Constitution of the United States. The pertinent portion of Article 9.01 reads:

“The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, except elections for the offices of Governor, Lieutenant Governor, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, Attorney General, and Members of the Legislature.” (Emphasis supplied.)

Respondent Paul insists that “federal offices,” as used in the foregoing quotation from Article 9.01, includes members of Congress. His interpretation is as though the Article read:

“The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, including members of each House of the United States Congress . . . (Emphasis supplied.)

Article I, § 5, of the Constitution of the United States, on the other hand, provides that:

“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .”

Both federal and state courts have recognized that the foregoing provision gives final and exclusive jurisdiction to each House of Congress to determine election contests relating to its members. Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929); Manion v. Holzman, 379 F.2d 843 (7th Cir. 1967); Rogers v. Barnes, 172 Colo. 550, 474 P.2d 610 (1970); Burchell v. State Board of Election Commissioners, 252 Ky. 823, 68 S.W.2d 427 (1934); Belknap v. Board of Canvassers of Ionia County, 94 Mich. 516, 54 N.W. 376 (1893); McLeod v. Kelly, 304 Mich. 120, 7 N.W.2d 240 (1942); In re Williams’ Contest, 198 Minn. 516, 270 N.W. 586 (1936); Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963); Laxalt v. Cannon, 80 Nev. 588, 397 P.2d 466 (1964); Smith v. Polk, 135 Ohio St. 70, 19 N.E.2d 281 (1939).

In Barry v. Cunningham, supra, the Supreme Court of the United States referred to this power of each House of Congress as “sole authority under the Constitution to judge of the elections, returns and qualifications of its members . . . 279 U.S. at 619, 49 S.Ct. at 457. In Rogers v. Barnes, supra, the Colorado Supreme Court, speaking of the jurisdiction of the House and Senate in such contests, stated:

“Such jurisdiction being exclusive, no other body, including this Court, has the jurisdiction to hear and determine an election contest arising out of a general election for those two national offices.” 474 P.2d at 612.

In Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963), the contestant in an election for the United States House of Representatives sought to enjoin the Secretary of State of the State of Minnesota from issuing a certificate of election to the contestee. The court denied such petition, stating:

. “While the state legislature may regulate the conduct of elections subject to the limitations expressed in the U.S. Const., art. I, § 4, it should be conceded that under the provisions of art. I, § 5, each house of Congress is the sole judge of the election returns and qualifications of its members, exclusive of every other tribunal, including the courts.” 119 N.W.2d at 719.

Article 9.01 of the Texas Election Code, as interpreted by Respondent Paul, is in diametrical conflict with and contrary to Article I, § 5, of the United States Constitution. Because of this clear and obvious conflict, it is reasonable to believe that the Legislature did not intend for the term “federal offices” to apply to members of Congress. Predecessor election contest statutes did not include federal offices.² The term was first used in the election contest statute enacted in 1951 as part of a 95 page revision of the entire election code.³ The revised election code was drafted by a commission of nine persons appointed under authority of the Fifty-first Legislature in 1950, with Judge Abner McCall as chairman and Dr. A. P. Cagle as counsel.⁴ It was introduced as House Bill 6 of the Fifty-second Legislature in 1951. However, the inclusion of “federal offices” in Section 129 (now Art. 9.01) was not a recommendation of the revision commission and neither was the term included in House Bill 6 as introduced. The term “federal offices” was inserted in Sec. 129 of the committee substitute for H.B. 6 when the substitute was adopted by the House Committee on Privileges, Suffrage, and Elections. The committee substitute was enacted in both Houses without a separate vote of any nature relating to the term “federal offices.” None of this legislative history is helpful in determining the meaning and intent of the term, but it does reveal that its inclusion was not a studied recommendation of the revision commission and that it was not one of the major items of consideration by the Legislature in adopting the revised election code.

In any event, as to members of Congress, Article 9.01 is unconstitutional and inapplicable. In this connection, it is significant that since 1951 there is no other reported case in which a party sought to contest a general or special election for the House or Senate of the United States under the terms of this statute.

Respondent Paul argues that the Supreme Court’s decision in Roudebush v. Hartke, supra, sanctions this type of election contest in a State court so long as it does not interfere in any manner with a final determination of the contest by the United States House of Representatives. There are many differences between this case and the Hartke case. In the first place, Indiana’s recount statute and procedure was all that was involved in Hartke. Indiana was not operating under a statute which attempted to vest in its courts “original and exclusive jurisdiction of all contests of elections” to the House and Senate of the United States Congress. Furthermore, Hartke had been conditionally seated by the Senate “without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order. . . . ” Gammage had already been through a somewhat similar recount in accordance with Texas law before he was certified as the duly elected Congressman, and he was seated by the House unconditionally.

A portion of the Indiana election process (the statutory recount) was not finished when Hartke was conditionally seated in the Senate, while the election process, including the recount, had been completed in Texas before Gammage was unconditionally seated in the House. This is important because the Constitution of the United States leaves the manner of holding elections for United States Senators and Representatives up to the States, subject to change by Congress.⁵ The Supreme Court made it quite clear that the question in Hartke was not to which of the candidates the office belonged.⁶ The Court said:

“. . . Which candidate is entitled to be seated in the Senate is, to be sure, a non justiciable political question — a question that would not have been the business of this Court even before the Senate acted. The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State’s power, under Art. I, § 4, to prescribe the times, places, and manner of holding elections, or is a forbidden infringement upon the Senate’s power under Art. I, § 5.” 405 U.S. at 19, 92 S.Ct. at 808.

The Court then held that “a recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4,” but it hastened to recognize the Senate’s power to make a final decision by adding: A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.” 405 U.S. at 25-26, 92 S.Ct. at 810-811. The Court had previously said that the limited responsibilities involved in the recount did not constitute a “court proceeding” within the meaning of Title 28 U.S.C. § 2283, stating with reference to the Indiana procedure:

“When it grants a petition [for recount if correct in form], the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana Court has no other responsibilities or powers.” 405 U.S. at 21, 92 S.Ct. at 808.

Thus the Hartke case lends no support to the validity of Article 9.01 or to the all-out election contest which Respondent Paul seeks to wage thereunder for a determination of “to whom the office belongs.” This does not mean that Paul is without an adequate and constitutional remedy to press his contest. Congress has enacted a comprehensive procedure in 2 U.S.C.A. § 381 et seq., by which he can obtain evidence, depose witnesses, and have every allegation heard by the House of Representatives. Although termed the “federal Contested Elections Act,” the procedures apply only to contests of elections to the House of Representatives. Respondent Paul has filed his contest under this Act and it is now pending in a House Committee. He concedes that the House will make the final decision of the contest even if the State court had jurisdiction to try the contest.

We hold that Article 9.01 of the Texas Election Code is inapplicable to contests of elections of members of Congress, and any attempt to apply it to congressional elections would be in violation of Article I § 5 of the Constitution of the United States.

Accordingly, it is the judgment of this Court that the Judge of the 151st District Court of Harris County should dismiss the election contest pending in Cause No. 1,103,064 between Ron Paul and Robert Alton Gammage, and the Respondent, Ron Paul, should be prohibited from pursuing this election contest in the courts of this State under Article 9.01 et seq. of the Texas Election Code. The clerk of this Court will issue a writ of mandamus to the Honorable John L. Compton and a writ of prohibition to Ron Paul, if, and only if, either should be necessary to enforce the judgment of this Court. Because of the time element involved, no motion for rehearing will be entertained.

Dissenting opinion by REAVLEY, J., in which DENTON, J., joins. Dissenting opinion by YARBROUGH, J., in which STEAKLEY, J., joins.

1 . All statutory references are to Vernon’s Annotated Texas Election Code, unless otherwise noted.

2 . See Acts 1895, p. 58; R.S.1911, Art. 3046; R.S.1925, Art. 3041.

3 . Acts 1951, 52nd Leg., ch. 492, pp. 1097-1194. Article 9.01 was enacted as Section 129 of the Act.

4 .See McCall, “History of Texas Election Laws,” 9 Vernon’s Annotated Texas Election Code (1952), XVII, XXVIII-XXXVI, for an explanation of the background of the commission’s appointment, its activities, and major changes recommended and enacted.

5 . U.S. Const., Art. I, § 4, provides in pertinent part:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

6 . In the present case Respondent Paul seeks such an election contest decision under Article 9.01 et seq. after the election process was over. Art. 9.14, for instance, directs the trial judge, after hearing the contest, to “decide to which of the contesting parties the office belongs.”