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WITHROW 
v. 
GLAZENER et al.
No. 2146.
Court of Civil Appeals of Texas. Waco.
September 30, 1938.
        Original mandamus proceeding by L. H. Withrow against J. E. Lott, Chairman, and other members of 
the Democratic Executive Committee of Freestone County, Mrs. E. R. Glazener, County Clerk, and 
another, to compel such committee to declare relator the Democratic nominee for the office of County 
Commissioner in and for Precinct No. 2 of such county and certify his name to respondent clerk as such 
nominee and to compel respondent clerk to post relator's name as nominee and have it printed on the 
official ballot for the general election.
        Application for writ dismissed.
        Williford, Williford & Bond and H. H. Vibrock, all of Fairfield, for relator.
        Geppert, Geppert & Victery, of Teague, for respondents.
        PER CURIAM.
        This is an original mandamus proceeding instituted in this court by L. R. Withrow, relator, against J. 
E. Lott, County Chairman of the Democratic Executive Committee of Freestone County, Texas, and against 
all the other members of said committee, Mrs. E. R. Glazener, county clerk, and T. E. Martin, respondents, 
to compel the Freestone County Executive Committee to declare relator the nominee of the Democratic 
Party for the office of County Commissioner in and for Precinct No. 2, Freestone County, Texas, and to 
certify relator's name to Mrs. E. R. Glazener as the nominee of said party for said office, and to compel 
Mrs. Glazener to post the name of relator as such nominee, and to further compel her to print or have 
printed the name of relator on the official ballot for the general election, etc.
        As a basis for the relief sought, relator alleged that the County Democratic Executive Committee had 
failed, prior to the July primary election, to decide whether the nomination of county officers should be by 
majority or plurality vote, and that he, having received a plurality of the votes cast in the primary election 
held on July 23, 1938, thereby became the nominee of the Democratic Party under the provisions of 
Articles 3102 and 3106, Revised Civil Statutes, and became entitled to be so certified to the county clerk.
        There were four candidates for the nomination to the office of County Commissioner, Precinct No. 2, 
Freestone County, Texas, in the primary election held on July 23, 1938. Relator received the highest 
number of votes cast in that election and respondent Martin received the second highest number of votes. 
The names of these two candidates were placed on the ballot for the primary to be held on August 27, 
1938, and in this election respondent Martin received the highest number of votes and his name was 
certified to the county clerk as the nominee.
        The members of the committee in their answer said that they, in their regular meeting on June 20, 
1938, decided that nominations for county and precinct officers should be by majority vote, and the 
pertinent testimony in support thereof, given by affidavit, is as follows: That the Democratic Party of 
Freestone County had nominated its candidates by a majority vote for over twenty years; that they had 
always decided that county and precinct officers should be by a majority vote, but that they had never 
made such decision by actually voting on same; that they had always been in favor of nomination by a 
majority vote and had always before the first primary made arrangements for the holding of a second 
primary for county and precinct officers in those races
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where no one candidate received a majority in the first primary; that they, as such committee, did 
unanimously decide that nominations for county and precinct officers would be by a majority vote; that J. 
E. Lott, the chairman, a few days before the committee meeting, discussed with Mr. Kirgan, the Fairfield 
printer, the cost of having the ballots printed and talked about how many runoffs there would likely be in 
county and precinct races in order to arrive at the length of the ballot of the second primary; that when 
the committee met in regular session at Fairfield on June 20, 1938, he discussed with the members of the 
committee who were present his conversation with Mr. Kirgan relative to the printing of the ballots for the 
first and runoff primaries; that they estimated the cost of holding a first and second primary and assessed 
the various candidates amounts sufficient to defray such expenses; that in apportioning this amount 
between the various county and precinct candidates they discussed among themselves the fact that the 
candidate who did not have an opponent should be required to pay a larger amount than those who had 
opponents; that they further discussed among themselves the fact that in those county and precinct races 
where there were more than two candidates and a runoff would likely be required that they should not 
assess those candidates as high as they would those who had only one opponent, and that in assessing 
the various county and precinct candidates and apportioning the expenses between the various county 
and precinct candidates they took into consideration the fact whether or not such candidates were 
opposed and whether or not they would be nominated without the necessity of a runoff primary; that they 
did not actually vote on the question of whether or not the county and precinct officers would be 
nominated by a plurality or majority vote but that there was no question but what they all, both 
individually and as a committee, decided that such nominations would be by a majority vote.
        We must accept the material allegations of the answer of respondents and the relevant statements 
in the filed affidavits as true for the purposes of determining our jurisdiction. Rogers v. Lynn, 121 Tex. 
467, 49 S.W.2d 709, 51 S.W.2d 1113. The testimony hereinabove set out is susceptible of the reasonable 
and fair interpretation that the members of the committee present at the June 20, 1938, regular meeting 
reached the conclusion that nominations for county and precinct officers should be by a majority vote and 
that in making arrangements for the holding of the primary elections to be held on July 23rd and August 
27th, 1938, they acted in fulfillment of such decision, and thus a doubtful question of fact is presented for 
determination. It therefore becomes our duty, under the holdings of our Supreme Court in the hereinafter 
set out cases, to dismiss relator's application for mandamus. Teat v. McGaughey, 85 Tex. 478, 22 S.W. 
302; Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484; Rogers v. Lynn, 121 Tex. 467, 49 
S.W.2d 709, 51 S.W.2d 1113. See, also, 28 Tex. Jur. 597, § 46.
        The application for mandamus is dismissed.