San Antonio General Drivers, Helpers Local No. 657 v. Thornton

Mr. Justice Calvert delivered the opinion of the Court. This is an original proceeding in this Court in which relators seek a writ of mandamus to compel the respondent as Presiding Judge of the First Administrative Judicial District to grant their motion for the appointment of a substitute judge to hear all proceedings in Cause No. 5711-B pending on the docket of the District Court of the 44th Judicial District of Dallas County. The respondent, Thornton, is also Judge of the District Court of the 44th Judicial District. — 643 — Cause No. 5711-B was filed in the District Court of the 44th Judicial District by Southwestern Motor Transport, Inc., against International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A.F.L. et al. In the suit the plaintiff charged the defendants with unlawful labor practices which it alleged were resulting in actual damages through loss of business and profits in the sum of approximately $1,000 per day, and damages to its good will of approximately $1,000,-000. It prayed for recovery of the sum of $1,198,000 and for temporary and permanent injunctions restraining and enjoining the defendants from continuing the unlawful acts and practices. Four days after the filing of Cause No. 5711-B some of the defendants in the suit filed a motion therein by which they sought the appointment of a substitute judge to hear all proceedings in the suit. The motion recited that it was made pursuant to the provisions of “S.B. No. 46, Chapter 388, Acts of 54th Legislature, Regular Session (1955) ; Vernon’s Ann. Civ. St., Article 1995 (17-A).” The motion was opposed by the plaintiffs in the case and was by Presiding Judge Thornton refused. This proceeding was thereupon filed in this Court. The first question to be decided in the case as it has been presented to this Court is whether the motion filed by relators with Presiding Judge Thornton is governed by the provisions of Section 6 of Article 5154g, Vernon’s Annotated Texas Statutes . (Acts 1955, 54th Leg., p. 1029, ch. 387), to be referred to hereafter as Senate Bill 45, or by the provisions of Article 1995-17a, Vernon’s Annotated Texas Statutes (Acts 1955, 54th Leg., p. 1031, ch. 388, Sec. 1), to be referred to hereafter as Senate Bill 46. If the motion is governed by the provisions of Section 6 of Senate Bill 45 it must have been filed “within two (2) days after notice of the institution of said cause,” but if governed by the provisions of Senate Bill 46 it was timely if filed “within •five (5) days after notice of institution of suit.” We hold that the motion is governed by Senate Bill 46 and that Section 6 of Senate Bill 45 is not at all applicable. Omitting the saving and emergency clauses, Senate Bill 45 contains six sections. Section 1 declares it to be the public policy of this state that the right of persons to work shall not be abridged because of membership or non-membership in a labor union and that the exercise of the right shall be free from threats, force, intimidation or coercion. Section 2 makes strikes or picketing to compel an employer to recognize or bargain with, — 644 — or employees to join or select as their representative, a union which does not represent a majority of the employees of the employer, a violation of the rights vouchsafed by Section 1. Section 3 authorizes the trial judge, in suits filed under Section 2, to order an election to determine whether the union represents a majority of the employees of the employer, such election to be held “within twenty (20) days after the institution of such proceeding or suit.” This Section also contains provisions regulating the holding of the election. Section 4 imposes liability for damages on any person violating the provisions of the Bill and authorizes the granting of injunctive relief. Section 5 authorizes the Attorney General or any District or County Attorney to seek injunctive relief on behalf of the State against violations of the provisions of the Bill. Section 6 reads as follows: “Sec. 6. Any party to any suit or cause of action arising under this Act may make, within two (2) days after notice of the institution of said cause, application to the Presiding Judge of the Administrative Judicial District within which the suit is filed who shall immediately assign a District Judge from within said Administrative Judicial District who shall then hear all proceedings in the cause.” Aside from the saving and emergency clauses, Senate Bill 46 contains only one section. It adds a new subsection to Article 1995 to be known as subdivision 17a dealing with labor disputes and reading in part as follows : “17a. Labor Disputes. Suits to enjoin strikes or picketing for an unlawful purpose or conducted in an unlawful manner may be brought in (1) the county where the strike or picketing is alleged to have occurred; or in (2) the county of the residence of the defendant or any one of the defendants, if there be more than one; or in (3) Travis County when suit is brought by the State of Texas, and the State, its agencies or a political subdivision thereof is a party to the suit. Provided however, that where suit is filed in a county authorized by the provisions of clauses (1) or (2) above, any party thereto may, within five (5) days after notice of institution of suit, make written application to the Presiding Judge of the Administrative Judicial District within which the suit is filed for the appointment of a substitute judge in the court where suit is filed, whereupon such Presiding Judge of such administrative Judicial District immediately shall assign another District Judge from such Ad — 645 — ministrative Judicial District who shall thereafter hear all proceedings in such suit. The judge of the court in which such suit is filed shall have full power to act in the case until receipt by him of a copy of an order of the Administrative Judge removing the case or appointing a substitute judge, and the provisions of this Act shall be cumulative of existing rights of the parties to a change of venue authorized by law. * * *.” The remaining sentence of the Section relates to the subpoenaing of out-of-county witnesses. It seems obvious from the foregoing analysis of Senate Bills 45 and 46 that they do not operate in the same general field or relate to the same general subject matter. Senate Bill 46 deals principally with the forum in which and the judge before whom suits to enjoin unlawful strikes and picketing are to be tried. It is primarily a venue statute as is shown by the fact that it was enacted as a new subdivision of Article 1995, the general venue statute, and by the provisions of the first sentence of the new subdivision which fix venue in any one of three different counties. In addition, the proviso of the Act gives any party to the litigation the right to “strike” the judge of the court in which the suit is filed and obtain a substitute judge through appointment by the Presiding Judge of the Administrative Judicial District. It is certainly not the principal object of Senate Bill 45 to govern either the forum in which or the judge before whom the type of litigation there dealt with is to be tried. On the contrary, the principal object of Senate Bill 45, as is obvious from its terms, is the outlawry of the particular type of strikes and picketing described in Section 2 of the Bill and the prompt holding of an election to determine whether the strike and picketing involved in the particular suit is of the type prohibited by Section 2. Read in this context and considered in connection with this object, it appears rather definite that it was not the purpose of the language of Section 6 of Senate Bill 45 to give the parties a right to “strike” the judge in whose court the suit was filed. It does not command the appointment of a “substitute” or different judge. Giving the language of Section 6 its plain meaning and a meaning in harmony with the general purpose of the Bill, it would seem to be the purpose of the section to provide any party to the litigation with a means of securing the services of a judge immediately upon the filing of suit so that the absence of the regular judge or his occupa — 646 — tion with other matters will not delay putting into operation the election machinery provided for in Section 3. As Senate Bills 45 and 46 are here interpreted, the time for filing a motion to “strike” a judge will be the same in a suit brought pursuant to authority contained in Senate Bill 45 as it is in all other suits to enjoin unlawful strikes or picketing. We construe the language of Senate Bill 46 requiring the motion to be filed “within five (5) days after notice of institution of suit” to mean that the motion must be filed within five days after receipt of legal notice, that is, after service of citation or notice as otherwise provided by the Rules of Civil Procedure or the statutes of this state. The motion was filed in this case within five days after notice of institution of suit and was therefore timely filed. Considering then that the motion filed with Presiding Judge Thornton is governed by the provisions of Senate Bill 46, our next question is whether, under that Bill, relators were entitled to the relief they sought. We hold they were not. The suit filed against relators by Southwestern Motor Transport, Inc., seeks both damages and injunctive relief. There is no reason to assume or believe that either count was included in the petition in bad faith. Is it, then, a suit “to enjoin strikes or picketing” within the meaning of the Bill? Classified on the basis of the relief sought there are, generally speaking, three types of suits growing out of labor disputes: (1) those which seek only injunctive relief, (2) those which seek only damages, and (3) those which seek both damages and an injunction. Keeping in mind this classification of suits, it is perhaps sound to say that according to the plain meaning of the words used therein Senate Bill 46 deals only with suits of the first category and does not apply to suits of the third category such as the instant case. However, it may not be unreasonable to say, as relators would have us do, that the words “suits to enjoin strikes or picketing” are broad enough to encompass any suit in which there is a prayer for injunctive relief even though it also includes a prayer for damages. If this meaning be not unreasonable, the words are subject to two reasonable constructions, are therefore ambiguous, and we may look to the legislative history of the Bill to see which meaning the Legislature intended the words to have. Koy v. Schneider, 110 Texas 369, 396, 221 S.W. 880, 884; Red River Nat’l Bank v. Ferguson, 109 Texas 287, 206 S.W. 923, 926; 11 T.L.R. 562. — 647 — When we look to the legislative history of Senate Bill 46 we find that as introduced in the Senate the Bill applied to “Suits for damages for, suits to enjoin, or suits for damages and to enjoin strikes and picketing.” It thus expressly applied to suits in all three of the categories heretofore noted. On the floor of the Senate an amendment was offered and adopted striking from the foregoing language the following: “for damages for, suits to enjoin, or suits for damages and,” leaving the Bill applicable to “Suits to enjoin strikes or picketing.” The amendment eliminated suits of the second and third categories and left the Bill applicable only to suits of the first category. The legislative history of Senate Bill 46 thus confirms what seems to be the plain meaning of the words themselves, and makes clear the legislative intent. We have no right to give the Bill a meaning that does not comport with that intent even though it may appear to us to operate somewhat unequally on contending litigants. Vaughan v. Southwestern Surety Ins. Co., 109 Texas 298, 206 S.W. 920, 921. In Fire Assn. of Philadelphia v. Love, 101 Texas 376, 108 S.W. 158,160, this Court declared: “It is not permissible for a court, no matter what its opinion might be of the policy of the enactment or of the justice of its effect, to substitute its own opinions with regard to such matters for the plain and clearly stated intention of the legislative department.” Inasmuch as Senate Bill 46 does not authorize the appointment of a substitute judge in suits which seek both damages and injunctive relief, relators are not entitled to a writ of mandamus to compel Presiding Judge Thornton to grant their motion. Respondents have urged before this Court a number of other reasons why the writ of mandamus should be denied, some of which call into question the constitutionality of Senate Bill 46. A court will not pass on the constitutionality of a statute if the particular case before it may be decided without doing so. Waller v. State, Texas Civ. App., 68 S.W. 2d 601, 603, writ refused. Accordingly we have not considered and do not here pass on the constitutionality of Senate Bill 46. Relator’s prayer for a writ of mandamus is denied. Associate Justice Nor veil not sitting. Opinion delivered February 6, 1957.