Tag Archives: SCOTEX

The Case of the Precedent for Refusing to Leave Office

The case of the week is Ex Parte Rodriguez, 39 Tex. 705 (Tex. 1873).

Jose Rodriguez was arrested on December 13, 1873, for voting twice in the gubernatorial election of December 2, 1873. Three days later, he filed a petition for writ of habeas corpus. He was represented by former Texas Governor A.J. Hamilton and made a simple argument:

  1. Rodriguez was arrested for voting twice, but
  2. the election of December 2, 1873, was unconstitutional and therefore invalid, so
  3. it could not be a crime to vote twice in that election.

The State was represented initially by Frank Spencer, the district attorney for Harris County. He was not opposed to the relief sought — he agreed that Rodriguez should be released — but his basis was that the arrest was not a real arrest but an engineered ploy to test the constitutionality of the election. He submitted an affidavit from George Goldthwaite to the effect that the former sheriff of Harris County (A.B. Hall) paid Rodriguez to get arrested and paid Hamilton to file the petition. When the court declined to accede to his request, he withdrew and the court appointed Bingham Trigg, the district attorney of Travis County, to take over for the state and defend the constitutionality of the election. Trigg made many of the same arguments as Spencer.

The court ultimately sided with Rodriguez. The Constitution of 1869 provided:

All elections for State, district and county officers shall be held at the county seats of the several counties, until otherwise provided by law; and the polls shall be opened for four days, from 8 o’clock a.m. until 4 o’clock p.m. of each day.

Tex. Const. of 1869 art. 3, § 6 (emphasis added). In March of 1873, the Republican-controlled Legislature passed a statute providing that elections could be held in the justice of the peace precincts (which may or may not be in the county seat), but limiting elections “to one day only . . . from 8 o’clock a.m. to 6 o’clock p.m.” The statute also provided that voting more than once in the same election was a felony.

The court was ok with the first part. The location provision of article 3, section 6 was modified by the phrase “until otherwise provided by law.” The March 1873 statute “otherwise provided by law,” so no problem there.

  • The Legislature undoubtedly have the power to provide for holding the elections at places other than the county seats;
  • but it is equally clear that the Constitution is mandatory, and that the Legislature have no power to limit the time within which the elections must be held;
  • and Section 12 of the act of March 31, 1873, is in open conflict with the Constitution, and for that reason is null and void;
  • and no valid election having been held at the city of Houston, in the county of Harris, on the second day of December, 1873, the relator is not guilty of a felony, and is therefore entitled to his enlargement.

39 Tex. at 774 (bullet points added for clarity). In other words, the semicolon meant that the Legislature could not change the Constitutional mandate of four-day polls, and any election that lasted less than four days was invalid.

But Rodriguez’s release is not quite the end of the story. First, the three judges of that court (Moses B. Walker, Wesley B. Ogden, and John D. McAdoo) collectively came to be called the “Semicolon Court.” Its opinions are generally not considered binding authority on other Texas courts. Second, the case report ends with a note from the reporters:

To the historian, rather than the law reporter, belongs the duty of perpetuating the memory of the events connected with the installment of the State officers chosen at the general election pronounced illegal by this opinion. Those who are not familiar with what followed will find it faithfully detailed in “a lengthy note to Pasehal’s Digest of the Laws of Texas. (Edition of 1874, Vol. 2, page 1398e et seq.) The note contains the dispatches between the President, Attorney-General of the United States, and ex-Governor Davis, in regard to the application made by the latter for military assistance to prevent Governor Coke from occupying the executive office.
We may properly say, that the question before the court in [Ex] Parte Rodriguez received its final practical solution as a political and not a judicial question.

39 Tex. at 776 (reporters’ note).

The sitting governor, Republican Edmund J. Davis, had lost the election of December 2, 1873, to Democrat Richard Coke by something like a 2-to-1 margin. But, following the decision, Davis physically refused to leave office. Coke and the Democrats got the keys to the Capitol and took possession anyway. Davis called in the Travis Rifles (sort of a local militia) to help keep him in office, but they aligned with themselves with Coke. Davis then called on President Grant to send in federal troops, but he too declined. Davis found himself on the bad end of Andrew Jackson’s warning — “John Marshall has made his decision; now let him enforce it!” When Davis realized he couldn’t enforce the Semicolon Court’s judgment, he left the office, locked the door on his way out, and took the keys. Coke was inaugurated as governor the next day, and his first act of office was literally to break down the door with an axe.

After Davis, there wouldn’t be another Republican in the governor’s mansion for 105 years.