
    MORRIS v. MIMS, Secretary of State, et al.
    (No. 6359.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 8, 1920.)
    1. Elections &wkey;>22 — Laws excluding nominees of new parties from ballot would be unconstitutional.
    Though the Legislature may make reasonable regulations as to nominations, it cannot forbid nominations, either by a new party or an old one, or exclude the names of nominees from the official ballot,' so that election laws which exclude from the official ballot the names of nominees of a newly formed party would be unconstitutional.
    2. Elections <&wkey;123 — Nominations by convention of new party are valid.
    Though Rev. St. arts. 3159-3161, 3163, provide only for nominations by parties which cast more than 10,000 votes at the last election) article 3174 recognizes that new party nominees may appear on the official ballot, and such party may make its nominations by any reasonable method not prohibited by law, including nominating conventions held in the manner prescribed for parties which cast between 10,000 and 100,000 votes at the last election.
    Appeal from District Court, Travis County ; Ireland Graves, Judge.
    Suit for injunction by A. T. Morris against C. D. Mims, as Secretary of State, and others. From a judgment sustaining demurrer to the petition, and refusing the temporary injunction prayed, plaintiff appeals.
    Affirmed.
    Page & Jones, of, Bastrop, and Black & Smedley, of Austin, for appellant.
    C. M. Cureton, Atty. Gen,, and C. L. Stone and E. F. Smith, Asst. Attys. Gen., for ap-pellee Mims.
    J. H. Burr, of Houston, A. L. Love, of Eastland, and White, Cartledge & Wilcox, of Austin, for other respondents.
   PER CURIAM.

This suit was brought to restrain the appellee secretary of state from certifying the names of the nominees of the American party to the election officers of the various counties of this state. The trial court sustained a general demurrer to appellant’s petition, and refused to grant a temporary injunction. Prom this action of the court the appellant has prosecuted this appeal.

Por the purpose of this appeal, the admitted facts and conclusions of law as appear from the pleadings are:

(1) The appellee C. D. Mims is the duly appointed,, qualified, and acting secretary of state of the state of Texas.

(2) That it is his duty to certify to the proper election officers of the various counties in this state the names of persons legally nominated for state officers in this state.

(3) That it is the duty of such election officers to place on the official ballot as nominees the names of all persons certified by the secretary of state as having been legally nominated for such offices.

(4) That the names of the candidates of the American party will be placed upon the official ballot to be used in the general election in this .state November 2, 1920, if the same be certified by the secretary of state as having been legally nominated, but not otherwise.

(5) That unless restrained by an order of court the secretary of state will certify to the proper election officers the names of the parties mentioned in appellant’s petition as having been legally nominated as candidates of the American party for the respective offices therein alleged.

(6) That appellant is a citizen of this state, a resident taxpayer of Bastrop county, and the legally nominated democratic candidate for justice of the peace for precinct No. 1 in said county.

If the appellant may maintain this suit as a taxpayer of Bastrop county, he is prob-. ably entitled to the relief sought only as applicable to Bastrop county; but, as we do not think that certification of the nominees of the American party by the appellee is illegal, we do not deem it necessary to decide as to the right of appellant to maintain this suit.

The contention of appellant herein, that no new party can have the names of its nominees placed upon the official ballot, is in effect that no new party can ever be organized in this state. No ballot except the official ballot can be cast at any general election in this state. It is idle to say that a new party may be organized, but it shall not be allowed to present its claims to the voters. If such is the law, if slang may be excused, it may truly be said that all new parties “would die a bornin’.”

Ours is a government by the people. Practically it is a government by political parties, for it is only by voting for or against the nominees of political parties that the people are able to express their will as to how and by whom the offices of government shall be conducted. The fact that one may have his name placed upon the official ballot as an independent candidate does not materially affect this statement.

If appellant’s contention as to the proper construction of our election laws is correct, we believe that they are unconstitutional, in so far as they prevent a new party from having the names of its nominees, as such, placed upon the official ballot. But we do not believe that such construction is cor-reet. The Legislature may make reasonable regulations as to how nominations may be made, but it cannot prohibit such nominations, whether by a new party or an old one (Gilmore v. Waples, 108 Tex. 167, 188 S. W. 1039); and it cannot nullify the effect of such nominations, when legally made, by prohibiting the printing of the names of such nominees upon the official ballot, the same being the only ballot that can be legally voted.

Our election laws provide for the nomination of candidates by political parties whose candidate for Governor received as many as 100,000 votes at the last preceding general election, and also for the nomination of candidates by political parties whose candidate for Governor received, at the last preceding general election, more than 10,000 and less than 100,000 votes. The first must be by a primary election held in the manner prescribed. The second may be by primary election, or by nominating convention, at the option of such party. If such party elects to make its nominations by party convention, it is required to notify the secretary of state of such fact, and thereafter to hold its convention at the time and in the manner prescribed by statute. R. S. arts. 3159, 3100, 3161. Article 3162, in so far as relates to such nomination, reads as follows:

“All nominations so made by a state * * * convention shall be certified by the chairman of the state * * * committee of such party to the secretary of state.”

There are no other provisions of our statute relative as to how nominations shall be made by party conventions, except article 3163, which provides that persons participating in such party primary convention shall have paid their poll tax, and shall not have participated in the convention or primary of any other party held on the same day.

It is admitted that the American party complied with all of the provisions of the statute, with reference to nominating candidates by party convention, prescribed for such nominations by a party whose candidate for Governor received more than 10,000 and less than 100,000 votes at the next preceding general election in this state. But it is said that the American party is not such a party. It being a new party, and having had no candidate for any office at the next preceding general election, this is necessarily true.

That it was not the purpose of the Legislature to prohibit the organization of new parties, but that it anticipated that the same might be legally formed and have the names of its nominees printed on the official ballot, is evidenced by article 3174 of the Revised Statutes, the same being a part of the general election law of this state, passed by the same Legislature and at the same time as the other parts of the election law hereinbefore referred to.- The amendments to the general election law passed in 1905 (Act 29th Leg. [1st Called Sess.] c. 11) are immaterial, for the purposes of this decision. Article 3174 reads as follows:

“No new political party shall assume the name of any pre-existing party; and the party name printed on the official ballot shall not consist of more than three words.” Acts 1905, c. 11, § 101.

The statute prescribes no method by which a new party may make nominations. Such being the case, a new party has the right to pursue any reasonable method in making its nominations, not prohibited by law. As the American party pursued one of the methods prescribed by statute for making nominations by pre-existing parties, we hold that such method was reasonable, and, as there is no law forbidding it to pursue such method, we hold that its nominations of the candidates named in the petition herein were legally made. The same having been properly certified to the secretary of state, it is his duty to certify the names of such candidates to the proper election officers, whose duty it will be to print or cause to be printed the names of such candidates on the official ballots as the nominees of the American party.

Eor the reasons stated, we affirm the judgment of the trial court herein.

Affirmed. 
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