I do not agree with the views expressed in the majority opinion in this case, and I feel impelled by a sense of duty to dissent therefrom, and to record my views.
The confusion of opinion among attorneys and courts in this case upon one of the questions involved grows out of the construction of article 3173, Vernon's Sayles' Civil Statutes, which is a part of the very voluminous Act of 1905, regulating primary elections of political parties. According to my view, there should be no difficulty, and no disagreement, if we should apply the rules of construction provided by standard text-writers, and announced by the various Supreme Courts of the United States. My first impression was that the courts would not be permitted or authorized to give the section of the statute referred to any construction different from the literal meaning of the words employed in that section. But upon investigation of the authorities I find the rule to be uniform among the courts and text-writers to the effect that where a section of a statute, in the meaning of the literal words employed, is in conflict with the general intent and purport of the entire Act, the language of such section which is in conflict with the general intent and purport of the entire statute will be so reformed as to make it harmonious with such intent of the Legislature; that other words may be added to such section, or words may be taken therefrom to make the section harmonious in meaning with the intent and purport of the general Act. I think when that rule of construction is followed in this case, article 3173 would not be rendered void, but would be binding and enforceable as so reformed; and that when so reformed to conform to the intent and purport of the general primary election law, as shown by its context, its provisions would not be prohibitory of the power of the State Democratic executive committee to make nominations in cases of sudden emergency where it is impossible or *Page 186 impracticable for the nomination to be made by primary election, under the provisions of the primary election law.
Rightly construed, it is plain from the meaning of the words employed in the general primary election law, and from the context thereof, that the Legislature intended to accomplish at least four reforms: (1) It intended to prohibit the nomination of candidates by the precinct convention system which had been employed prior to its enactment, and to adopt in lieu thereof a plan which would allow every voter in the party to vote directly in primary elections his choice for a candidate, and that the majority or plurality candidate, according as fixed by its provisions, should be the nominee of the party for the office for which he was a candidate, entirely independent from the will of conventions or executive committees; (2) that said primary election law was not intended to be applied to instances of sudden emergency arising too near the general election to render practicable, for want of sufficient time, for the will of the party to be ascertained in time for the name of the nominee to be printed on the official ballot for the general election; (3) that there was no intention to prohibit a political party from making a nomination in a case of sudden emergency, such as is presented in this case, where the emergency arose too late for the primary election to be held; (4) that the intention of the Legislature is clearly indicated, to the effect that in cases of sudden emergency happening too late for primary elections to be held, that the State executive committee of each party would not be prohibited from making a nomination for the party whose interest and welfare had been entrusted to its keeping. The Act specifically provides for the State executive committee of the parties to make such nomination in cases of sudden emergency arising from the death of a nominee or from the resignation of the nominee. Can it be believed that the Legislature intended to prohibit the executive committee of the party from making nominations in instances of other emergencies of a similar kind? What reason could exist for the Legislature to intend to authorize the executive committee of political parties to make nominations in cases where the nominee resigned, or where he died, but to forbid the executive committee from making a nomination in the same kind and character of emergency such as arises upon the death of an officer who was not the nominee of the party? This would be to prohibit one party from having a nominee for the office vacated by the death of the occupant, and to thus force the party into unfair competition with the other political parties by refusing to allow its members to concentrate upon one candidate, thereby compelling it to hazard its chances in the election by several candidates of the same political persuasion running in the election, and perhaps against only one candidate of parties of opposite political persuasion. It is plain from the entire Act that no such advantage was intended to be given to any political party; that no such disadvantage should be visited by law upon any political party, for if there is one thing plainly shown in the entire *Page 187 Act, it is that each political party should have the same fair opportunity by the law to concentrate the power of such party in favor of one certain candidate of its own faith. The plain intent of article 3173 is to enforce the other provision of the primary election law which gives the public the right to nominate directly by primary vote, and to forbid executive committees of political parties from thwarting the will of the people in this particular, and from usurping their right to elect by primary election, by themselves making nominations for the party. The intention is very plain, to prohibit nominations in any other way except by primary election, except in cases of sudden emergenciesarising too late for the primary election to be held.
Article 3173 meant only to prohibit executive committees from usurping the right of the people to elect in primary elections, except that it did not intend, any more than the general primary election law intended, to prohibit the executive committee from making nominations in cases of sudden emergencies arising too late for the primary election to be held. The insertion of any two or three words appropriately used in article 3173 would conform it to the general plan and intention of the primary election law on the points involved. Article 3173, referred to, is as follows:
"No executive committee shall ever have any power of nomination, except where a nominee has died or declined the nomination as provided in article 3172."
Now, suppose this article of the law should be reformed so as to make it prohibitive only of the power of executive committees to make nominations, except in cases of sudden emergency arising too near the election for the primary election to be held. This would give it the plain intent of the Legislature, and would make it harmonize with the other provisions of the Act. Clearly, as judged from the words employed in the entire Act, and their context, the Legislature did not have in mind, and did not intend to legislate at all on the subject of the right and power of the executive committee to make nominations to fill vacancies caused by the death of officers who were not nominees. This being true, and giving this effect to article 3173, would leave no law upon the subject, and, therefore, would leave the executive committee with full, unabridged power to act in such instances as the trustees of the party which they represented, and to make a nomination, or not to do so, according to their own best judgment and discretion. If effect should be given to the literal words of article 3173, this general intention of the Legislature could not prevail, but would be stricken down. Giving the literal meaning of the words employed in said article full effect leaves it in glaring conflict with the whole plain scheme and intention of the entire Act, and in such a case the rule of statutory construction is that the court should reform article 3173, either by adding to it, or by striking from it such words as would make it harmonize with the general intent of the Legislature.
There are some words that might be omitted from it which would *Page 188 leave it in harmony with the intent of the Legislature as arrived at from the words employed, their context and plain meaning. As illustrative of the thought, suppose there should be inserted certain words so as that the article would read as follows:
"No executive committee shall ever have any power of nominationwhere nominations are authorized herein except where a nominee has died or declined the nomination, as provided in article 3172, but shall have such power where a nominee has died or declined the nomination, as provided in article 3172."
This would harmonize article 3173 so as to preserve the intent of the general Act to prohibit executive committees from making nominations provided for by primary elections, and from usurping the power of the people in that way. It would confer full power on the committee to make nominations where the nominee either died or resigned, and it would leave the committee uncontrolled as to what action to take if a vacancy occurred by the death of an officer not a nominee and too late to hold a primary election. The language inserted as indicated above is, of course, purely illustrative, and any other language taken from the section, or added to it, would do as well, or, perhaps, better, if it merely conformed the article to the general scheme, plan and intent of the entire Act.
This is but the common rule advanced by able text-writers, and as employed by the courts of the country generally, in giving effect to the legislative intent, by harmonizing the language thereto and therewith. Perhaps there is no better treatise on statutory construction than the very able text-book of Mr. Sutherland on that subject. The rule for which I contend is upheld in the strongest terms by this very clear, conservative and forceful treatise, in which he cites numerous authorities from everywhere to sustain the position. Sections 260-261 speak as follows:
"Mistakes may be corrected by aid of the context. Legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors or omissions, provided the intention of the Legislature can be collected from the whole statute; and the title and preamble may be referred to for this purpose. Where a law possessing all of the requisites of a valid statute is passed, containing clear requirements capable of being carried into effect, in connection with other statutes on the same subject, a mistaken reference to them will not defeat the will of the Legislature and render it void. Thus, where an Act purporting to be an amendment of another Act describes it truly except that it incorrectly states the date, the erroneous statement will be treated as surplusage or corrected by construction. So references to other sections or statutes incorrectly made will be corrected where the context or other particulars identifies the statute or provision intended and enables the court to follow the reference with certainty. Where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper *Page 189 word will be deemed substituted or supplied. This is but making the strict letter of the statute yield to the obvious intent. So words which are meaningless or inconsistent with the intention otherwise plainly expressed in an Act have sometimes been rejected as redundant or surplusage. If a condition or qualifying clause has been misplaced so that in the connection where it is inserted it is absurd or nonsensical, the court will apply it to its proper subject and give it effect if the statute affords the proper clues, and it can be done in furtherance of its obvious intent. But where the language read in the order of clauses as passed presents no ambiguity, courts will not attempt to qualify it by any transposition of clauses and from what it can be ingeniously argued was a general intent. Where the provisions ofa law are inconsistent and contradictory to each other, or theliberal construction of a single section would conflict withevery other following or preceding it, and the entire scope andmanifest intent of the Act, it is certainly the duty of thecourts, if it be possible, to harmonize the various provisionswith each other; and to effect this it may be necessary, and isadmissible, to depart from the literal construction of one ormore sections. "To enable the court to insert in a statute omitted words orread it in different words from those found in it, the intentthus to have read it must be plainly deducible from other partsof the statute." (Italics mine.)
In section 262 of said treatise, Mr. Sutherland says:
"Not only are words and provisions modified to harmonize with the leading and controlling purpose or intention of an Act, but also by comparison of one subordinate part with another; that is to say, the sense of particular words or phrases may be greatly influenced by the context, or the association with other words and clauses."
Again, in section 279 of Sutherland on Statutory Construction, it is said:
"In cases coming within the reach of the principle just illustrated, general words are read not according to their natural and usual sense, but are restricted to persons and things of the same kind or genus as those just enumerated; they are construed according to the more explicit context. This rule can be used only as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention or of confining the operation of a statute within narrower limits than was intended by the law-maker. It affords a mere suggestion to the judicial mind that where it clearly appears that the law-maker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense."
In section 219 it is said:
"Not only may the meaning of words be restricted by the subject matter of an Act or to avoid repugnance with other parts, but for like reasons they may be expanded. The application of the words of a single provision may be enlarged or restrained to bring the operation *Page 190 of the Act within the intention of the Legislature, when violence will not be done by such interpretation to the language of the statute. The propriety and necessity of thus construing words are most obvious and imperative when the purpose is to harmonize one part of an Act with another in accord with its general intent. The statute itself furnishes the best means of its own exposition; and if the intent of the Act can be clearly ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids for construction. The intentionof an Act will pravail over the literal sense of its terms. (Italics mine.) So general words in one part may be controlled and restrained by particular words in another, taken as expressing the same intention with more precision. The true meaning of any clause or provision is that which best accords with the subject and general purpose of the Act and every other part."
Again he says in section 215:
"Therefore it is an elementary rule of construction that all parts of an Act relating to the same subject should be considered together, and not each by itself. By such a reading and consideration of a statute its object or general intent is sought for, and the consistent auxiliary effect of each individual part. Flexible language which may be used in a restricted or extensive sense will be construed to make it consistent with the purpose of the Act and the intended modes of its operation as indicated by such general intent, survey and comparison — ex antecedentibuset consequentibus fit optima interpretatio."
Mr. Sutherland announces the same doctrine in section 218 of his said treatise, as follows:
"It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all its intricacies; — general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered or supplied so as to obviate any repugnancy or inconsistency with such intention."
In support of this text, among the authorities cited by Mr. Sutherland are the following: Greenhow v. James, 80 Virginia, 636, 56 Am. Rep., 603; Mongeon v. People, 55 New York, 613; Reiche v. Smythe, 13 Wall., 162, 20 L. Ed., 166; Silver v. Ladd, 7 Wall., 219, 19 L. Ed., 138; Orange, etc., R.R. Co. v. Alexandria, 17 Gratt., 176; State v. Clark, 5 Dutcher (29 N.J.L.), 96; Commonwealth v. Loring, 8 Pick., 370; Murray v. Gibson, 15 How. (U.S.), 421; Butts v. Vicksburg, etc., R.R. Co.,63 Miss. 462; 2 Daniel on Neg. Instruments, sec. 1684; Kimbro v. Bank of Fulton, 49 Ga. 419; United States v. Kirby, 7 Wall., 482, 19 L. Ed., 278.
In the Eureka case Mr. Justice Field said:
"Instances without number exist where the meaning of words ina statute has been enlarged or restricted and qualified to carryout the *Page 191 intention of the Legislature. The inquiry, where any uncertaintyexists, always is as to what the Legislature intended, and whenthat is ascertained it controls." 4 Sawyer, 302, 317. (Italics mine.)
In the case of Robinson v. Varnell, 16 Tex. 382, Mr. Justice Wheeler, of the Texas Supreme Court, refused to give a statute a strict literal interpretation where the meaning of the literal words employed was in conflict with the object of the statute:
"We have seen that the expression in the statute, `actions of debt.' can not receive a strict literal interpretation, without defeating the provision altogether; for we have no actions which come strictly and technically within that denomination. It must, then, receive such a reasonable and liberal interpretation as will give it effect according to the spirit and intention of the statute. To do this, we must disregard the technical distinctions of forms and terms, and look to the substance and manifest objects of the statute."
In the case of McLelland v. Shaw, 15 Tex. 319, the Supreme Court of this State, speaking through Mr. Justice Wheeler, modified and reformed the language used in a statute so as to harmonize with its object and intention. It said:
"Neither was the court, nor the auditor and Comptroller, required to place a construction upon the Act of the Legislature, which would lead to a consequence so repugnant to the common-sense understanding of the provisions of the Act, and so derogatory to the wisdom and sense of justice of the Legislature. They were required to look, not only to the words of the Act, but to the notorious facts which led to its enactment; so to construe its provisions, in reference to those facts, as to carry out and give effect to its well known meaning and intention, in the just and true spirit of the enactment. Because by reason of thegenerality of the language, its most obvious merely literalconstruction might be different from its known object andintention (italics mine), they were not, therefore, to disregard these and adhere to a merely literal construction, which would do violence to the manifest design and object of the provision. They were not required to ignore the well known historic facts to which the Act itself makes express reference. But the language and provisions of the Act are sufficiently suggestive of its true meaning and intention, to place that question beyond a doubt."
In the case of Edwards v. Morton, 92 Tex. 152, 46 S.W. 792, this court, speaking through Mr. Justice Brown, refused to follow the literal meaning of the words employed in the appeal bond statute (Revised Statutes, article 1673) and practically wrote almost an entire sentence into the statute in order to require it to yield to the legislative intent. He did not reform the statute, because to give to it the literal meaning of its words, "involved either an absurdity or a manifest injustice," as contended in the majority opinion, but purely on the ground stated by him, that "courts will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature, and to conclusions inconsistent with the generalpurpose of the Act." *Page 192
That is the identical proposition for which I contend. Article 3173, Vernon's Sayles' Civil Statutes, should be reformed so as to speak the intent and general purpose of the entire Act. Discussing the question, Mr. Justice Brown spoke as follows:
"The intention of the Legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the Act. Judge Moore properly characterized that kind of construction which disregards the intention and adheres to the letter of an Act in the following language: `If the courts were in all cases to be controlled in their construction of statutes by the mere literal meaning of the words in which they are couched, it might well be admitted that appellants' objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been said, would be for the courts in a blind effort to refrain from an interference with legislative authority by their failure to apply well established rules of construction to, in fact, abrogate their own power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to "try out the right intendment" of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.'"
I, therefore, do not think the State executive committee violated the law in making the nomination, but acted entirely within its plain purpose, meaning and intent. If article 3173 is not given this construction, as I think it should be, in order to give it effect, then it should be held to be utterly void as prohibitive of the only method for a party to make a nomination not already prohibited by the primary election Act; and as so ably said by the majority the Legislature has not the power to prohibit political parties from making nominations. In that view, the Act of the State executive committee was not illegal, and the rights contended for by Gilmore were not created by said article. But if I am wrong in this, and article 3173 should be given literal effect, and if it should be held that said committee violated the law, still the right contended for by the plaintiff in error, Gilmore, is only a political right, and a court of equity, to which he has appealed for relief by injunction, has no jurisdiction to grant relief, since courts of equity are only conversant with civil rights, as contradistinguished from political rights.
The effect of the opinion of the majority is to hold that a court of equity may be resorted to for the protection of purely political rights, *Page 193 as contradistinguished from civil rights; that a chancery court is empowered and authorized to issue writs of injunction to restrain political wrongdoers from violating the political rights of others. No court in Texas has ever made such a holding until now. There is precedent in the courts of Texas for the opposite view. The question has often been before the courts of the country, and with almost unanimity they have spoken plainly upon the subject, and have said, with but few exceptions, that courts of equity will not issue writs of injunction to protect political rights. With unanimity, text-writers have declared that a court of equity will not undertake to protect political rights from injury. But a new view, altogether at variance with the great weight of authority, both in this country and in England, is expressed by the majority of this court, which holds that a court of equity will lend its assistance to right political wrongs; that it will take jurisdiction of political rights, and protect them from the acts of the wrongdoer.
The rule is familiar to all that a court of equity will not grant relief against the acts of a wrongdoer where the injured party has an adequate remedy at law, or unless he shows a threatened irreparable injury to his civil rights. The statement of this proposition itself excludes granting relief to one who shows injury, or threatened injury to only his political rights. There is no use for a confusion of terms about it, because the term "civil rights" has a well defined meaning in the current law of the land, and does not include political rights. The plaintiff in error, Gilmore, presents no question affecting his property right, or any other civil right, but comes here alone upon the naked question that his political rights are threatened to be injured by the alleged wrongdoing of the State Democratic executive committee, if it should be permitted to nominate C.H. Hurdleston for the office of Railroad Commissioner, for which place the plaintiff in error, C.E. Gilmore, has announced as a candidate before the people of Texas in the general election to be held November 7, 1916. He does not ask to be afforded any relief in a court of law, but confines his petition and his prayer to a request for relief from a court of equity. We are not permitted, therefore, to go beyond his prayer in this suit and grant him a remedy at law, if it should appear that on proper pleading he would be entitled to have his alleged wrongs redressed in a court of law.
Are his so-called rights, civil rights, or are they political rights? He is making a political race, for a political office, and the right which he claims is his, is to make this political race unhampered by the political action of the State Democratic executive committee in making a nomination for the position which he claims in violation of a section of the primary election law, which regulates the conduct of political parties. The bare statement of his case establishes beyond controversy that the right which he contends has been, or will be injured, if the committee is not restrained, is a political right. But if it is not in this way made plain that his right is a purely political one, then it can be demonstrated *Page 194 by testing whether it is a civil right, which rights have a well defined meaning, and if it is not, it must be a political right. Bouvier, volume 3, page 2961, defines poltical and civil rights as follows:
"Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. These political rights are fixed by the Constitution. Every citizen has the right of voting for public officers, and of being elected; these are the political rights which the humblest citizen possesses.
"Civil rights are those which have no relation to the establishment, support, or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like."
This definition has been approved by the courts of the country. Plaintiff in error, Gilmore, attempts to bring himself within this rule in the allegation in his bill that the office of Railroad Commissioner pays a salary of $4,000 per year, which makes the office property, and a property right is, of course, a civil right. But he fails to show that he owns the office, or is entitled to the salary. He only shows that he has a chance to secure it in the election, if the committee should be restrained from nominating another person. But he fails to show, as, indeed, I presume it is beyond his power to show, that even should the executive committee not make a nomination, he would then secure the office, for the reason that some other candidate might still defeat him. So, instead of owning the salary of the office, he only has at best, should the committee be restrained from making a nomination, a chance to secure the office, which is far different from owning property in the office, or in its salary. In other words, he does not own the office or its salary, but he has only a remote, speculative chance of acquiring it. I know of no case where the courts have granted the equitable relief of injunction, to protect from injury a bare chance to acquire property rights, which is as near the ownership of property rights as the plaintiff in error approaches in his bill for relief.
The primary election law of 1905, one provision of which the plaintiff in error contends is about to be violated by the State Democratic executive committee, undertakes to regulate by the exercise of the State's police powers the conduct of elections by political parties. It provides in very many instances that certain acts may be done, and in very many instances prohibits the doing of certain acts. It provides at least two methods for its enforcement, one by criminal prosecution, the other by mandamus (article 3143); but it will be noted that it fails to provide that the remedy of injunction may ever be resorted to. The mention of these two remedies should he held to exclude all other remedies not provided for by the act. At the time of its passage the statutes authorizing the courts to grant writs of injunction had application only to the protection of civil rights. They could not have been intended to cover rights arising out of the primary election law of 1905, for they had been in force more than twenty-five years when the primary *Page 195 law was passed. This primary election law did not undertake to extend the equitable right of injunction to its own provisions, but instead, it provided other remedies and methods of enforcement. To that end it denounces every breach of its provisions, including article 3173, as a criminal offense, punishable by fine or imprisonment, or both, and in some instances denounces them as felonies.
Article 3173, referred to, does not create any rights, nor pretend to do so, in Gilmore's favor. That article, if in effect in its literal meaning, is prohibitory of the right of the State Democratic executive committee to make a nomination under the circumstances presented here. It is as follows:
"No executive committee shall ever have any power of nomination, except where a nominee has died or declined the nomination as provided in article 3172."
By its terms there is no pretense of creating any rights in the plaintiff in error, Gilmore, or in any other person, except that it creates a right in favor of the State to enforce the provision by a criminal prosecution. This was ample and adequate remedy for the State to enforce the law by its police powers, which is all that was ever intended by the Legislature, the Act, resting as it does, for constitutional right of existence, entirely upon the police power of the government.
The rule that a court of equity will not grant a writ of injunction to protect purely political rights has been so often decided that the writer has considered it a settled question. In the case of McDonald v. Lyon, 43 Texas Civ. App. 484[43 Tex. Civ. App. 484],93 S.W. 67, the question was definitely decided in accordance with that view by the Dallas Court of Civil Appeals, speaking through Mr. Justice Bookhout. In that case the suit was for an injunction by McDonald to restrain Lyon, who was the chairman of the State executive committee of the Republican party in Texas, from issuing his call as such chairman for the next State convention of said party to be held in El Paso, Texas, which the bill alleged Lyon was about to do in obedience to an order of the executive committee of said party. It was alleged, among other things, that the said State committee was vested with authority to select the place of meeting, but that the law provided that the meeting of the executive committee should be held on the second Monday in June, whereas, in that instance the executive committee which selected the place of meeting had been held in violation of law on the 8th day of May. There was also an allegation that the law provided that no one should act as chairman of such executive committee, or as a member of such committee who held an office of profit, or who was a candidate for an office of profit under the United States, and that said committee violated such provision of the law in that its members who participated in said meeting were all officers or candidates for office of profit under the United States, and that Lyon himself, who was chairman, was disqualified from acting in such position in that he was an officer of the United States, holding an office of profit at the time of said meeting. *Page 196 The right of McDonald to have a court of equity grant a writ of injunction was held to be political even though such right was claimed to be derived from a State statute. Mr. Justice Bookhout, in refusing the injunction, addressing himself to the particular question of issuing injunctions to protect political rights, said:
"Again, there was no error in sustaining the demurrers to the petition and dismissing the cause, for the reason the petition seeks an injunction of rights which are merely political. A court of equity will not undertake to supervise the acts and management of a political party for the protection of a purely political right. As was stated in Fletcher v. Tuttle, 151 Ill. 41,37 N.E. 686, 25 L.R.A., 143, 42 Am. St. Rep., 220, quoting from Kerr on Injunctions: `It is elementary law that the subject of the jurisdiction of a court of chancery is civil property. The court is conversant only with the question of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right of property. Nor do matters of political character come within the jurisdiction to interfere with the public duties of any department of government, except under special circumstances and where necessary for the protection of property rights.' A court of equity will not undertake to supervise the acts of the executive committee of the Republican party of Texas for the protection of a purely political right, such as that alleged in plaintiffs' petition. Winnett v. Adams, 71 Neb. 718, 99 N.W. 681; Fletcher v. Tuttle,37 N.E. 683, 151 Ill. 41, 25 L.R.A., 143, 42 Am. St. Rep., 220; Alderson v. Commissioners, 32 W. Va. 640, 9 S.E. 868, 5 L.R.A., 334, 25 Am. St. Rep., 840; State v. Aloe, 152 Mo., 466,54 S.W. 494, 47 L.R.A., 393; Green v. Mills, 69 Fed., 859, 16 C.C.A., 516, 30 L.R.A., 90; 5 Pom. Eq., 324, 331, 332. If these rights are interfered with the injured party must look to some other source than a court of equity for redress."
The case of Harding v. Commissioners Court of McLennan County,95 Tex. 174, 66 S.W. 44, was a suit by Harding praying for a writ of injunction to enjoin the Commissioners Court of McLennan County from declaring the result of an election under the local option law in a part of the county. Judgment went against him in the trial court and he reached the Supreme Court by writ of error. He alleged in his petition that he was engaged in the sale of beer and other liquors within the limits of a prescribed local option precinct, but he failed to allege that he was legally so engaged. Chief Justice Gaines, speaking for the court, said:
"There is no averment that he was legally so engaged. If such were the fact it should have been alleged. Unless he was a licensed dealer, which is not averred and which we are not at liberty to assume, we are of opinion that he would have no such interest in the question agitated by his suit as would have entitled him to bring the action. Since it does not appear that the effect of declaring that the election had carried *Page 197 in favor of local option was to imperil any pecuniary right of the applicant, the question as to him is merely a political one,and the courts agree that a party can not sue to determine acontroversy of such a character." (Italics mine.)
In the case of Winnett v. Adams, 71 Neb. 817, 99 N.W. 681, the Supreme Court of Nebraska, in denying a writ of injunction to protect a political right, said:
"The doctrine that equity is conversant only with matters of property and the maintenance of civil rights, and will not interpose for the protection of rights which are merely political, is supported by an almost unbroken line of authorities. . . . But we think it is perfectly safe to adopt the doctrine to the extent of holding that a court of equity will not undertake to supervise the acts and management of a political party for the protection of a purely political right. We do not overlook the fact that primary elections have become the subject of legislative regulation, and it may be conceded that each member of a political party has a right to a voice in such primaries, and to seek nominations for public office at the hands of his party. But when he is denied these rights, or unreasonably hampered in their exercise, he must look to some other source than a court of equity for redress. To hold otherwise would establish what could not but prove a most mischievous precedent, and would be a long step in the direction of making a court of equity a committee on credentials, and the final arbiter between contesting delegations in political conventions. The voters themselves are competent to deal with such matters without the guiding hand of the chancellor, and it will make for their independence, self-reliance, and ability for self-government to permit them to do so. It is true they may make mistakes, but courts themselves have been known to err."
Again, the Supreme Court of Nebraska, in the case of Phelps v. Piper, 48 Neb. 724, 33 L.R.A., 53, 67 N.W. 755, said:
"Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their will. The voters ultimately must determine every such question. The voters constituting a party are, indeed, the only body who can finally determine between contending factions, or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the court to undertake in any case to investigate either the government, usages, or doctrine of political parties, and to exclude from the official ballot the names of candidates placed in nomination by an organization which a portion, or, perhaps, a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its *Page 198 party government. We doubt even whether the Legislature has the power to confer upon the court any such authority"
In the case of Green v. Mills, 69 Fed., 852, 16 C.C.A., 516, 30 L.R.A., 90, Mr. Justice Fuller said:
"The jurisprudence of the United States has always recognized the distinction between common law and equity as, under the Constitution, matter of substance as well as of form and procedure. And the distinction has been steadily maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How., 481, 484; Thompson v. Railroad Cos., 6 Wall., 134; Cates v. Allen, 149 U.S. 451, 13 Sup. Ct., 883, 977; Mississippi Mills v. Cohn, 150 U.S. 202, 205, 14 Sup. Ct., 75. It is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property, nor in matters merely criminal, or merely immoral, which do not affect any rights of property. In re Sawyer, 124 U.S. 200, 8 Sup. Ct., 482; Luther v. Borden, 7 How., 1; Mississippi v. Johnson, 4 Wall., 475; Georgia v. Stanton, 6 Wall., 50; Holmes v. Oldham, 1 Hughes, 76, Fed. Cas. No. 6643. Neither the legislative nor the executive department, said Chief Justice Chase, in Mississippi v. Johnson, `can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance.' `The office and jurisdiction of a court of equity,' said Mr. Justice Gray, in In re Sawyer, `unless enlarged by express statute, are limited to the protection of rights of property.' To assume jurisdiction to control the exercise of political powers, or to protect the purely political rights of individuals, would be to invade the domain of the other departments of government or of the courts of common law."
In the leading case of Fletcher v. Tuttle, 151 Ill. 41, 25 L.R.A., 143, 42 Am. St., 220, 37 N.E. 683, the Supreme Court of Illinois said:
"The question, then, is, whether the assertion and protection of political rights, as judicial power is apportioned in this State between courts of law and courts of chancery, are a proper matter of chancery jurisdiction. We would not be understood as holding that political rights are not a matter of judicial solicitude and protection, and that the appropriate judicial tribunal will not, in proper cases, give them prompt and efficient protection, but we think they do not come within the proper cognizance of courts of equity. . . . Other authorities of similar import might be referred to, but the foregoing are amply sufficient to show that, wherever the established distinctions between equitable and common law jurisdiction are observed, as they are in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases the remedy, if there *Page 199 is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office; nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property rights, but pertain solely to the political administration of government. If a public officer, charged with political administration, has disobeyed or threatens to disobey the mandate of the law, whether in respect to calling or conducting an election, or otherwise, the party injured or threatened with injury in his political rights is not without remedy. But his remedy must be sought in a court of law, and not in a court of chancery."
In the case of Walls v. Brundidge, 109 Ark. 250,160 S.W. 230, the Supreme Court of Arkansas, speaking directly to the political question involved here, said:
"It is well also to bear in mind that the right of a citizen to vote and to be voted for at an election, or to be a candidate for or to be elected to an office, is a political right in contradistinction of a civil or property right. Gladish v. Lovewell, 95 Ark. 621, 130 S.W. 579; Fletcher v. Tuttle,151 Ill. 41, 37 N.E. 683, 25 L.R.A., 143, 10 Am. St. Rep., 220; In re Sawyer, 124 U.S. 200, 8 Sup. Ct., 482, 31 L. Ed., 402; Giles v. Harris, 189 U.S. 475, 23 Sup. Ct., 639, 47 L. Ed., 909; Green v. Mills, 69 Fed., 857, 16 C.C.A., 516, 30 L.R.A., 90; Winnett v. Adams, 71 Neb. 817, 99 N.W. 681."
Again in said case the Supreme Court of Arkansas stated its views as follows:
"It is contended, however, that appellee is given the right to contest the primary election held under the provisions of Act No. 371, page 342, of the Acts of 1911. It is true that Act does not provide for a contest of the primary elections, but it provides tribunals for the hearing of such contests; in the first instance, the Democratic central committee, with the right of an appeal therefrom to the State convention, and provides that the action of such tribunals shall be final. It is true that section 6 contains this provision: `Provided, nothing in this Act shall be so construed as to prevent any person from pursuing any remedy he may have in any of the courts of this State.' This provision does not attempt to confer any right upon such contestant that he did not already have under the laws of this State before the passage of the Act; and, unless he had such right before its passage, none is given by it. It has been expressly held that the Legislature is absolutely without power under the provisions of our Constitution to give to the chancery court authority to hear election contests, and certainly the authority to hear such contests and adjudicate the rights of the parties can not be implied from this Act that expressly provides tribunals of the party *Page 200 for the determination thereof, and declares that their determination shall be final.
It is suggested, however, that since the Legislature has legalized primary elections for the nomination of candidates to office, and provided a tribunal for contesting such nominations, a court of equity will protect them in the rights given by the statute, and that since an equitable remedy is asked, that the court may grant it, if it shall not extend to trying the contest and declaring the nominee. As already said, no equitable title or right is involved that can give jurisdiction to a court of equity, and, inasmuch as a political organization is an unincorporated, voluntary association, in which no rights of property or liberty are involved, a court of equity has no jurisdiction to interfere by injunction to control its action or those of its officers."
The rule is announced in Cyc. as follows:
"The subject-matter of equitable jurisdiction is civil property and the maintenance of civil rights. Injunctions do not issue to prevent acts merely because they are immoral or illegal or criminal, but only in case the complainant's civil rights are being invaded. So also rights that are purely political in their nature are not within the protection of the court of chancery. This has been made one ground for refusing injunctions in cases involving public office and elections." (22 Cyc., 757.)
The editor of the American English Annotated Cases states the rule as follows:
"It seems to be the uncontroverted rule that a court of equity will not interfere to protect or enforce a purely political right. If a political right is infringed upon, the redress must be sought in a court of common law. Otherwise there would be an invasion of the domain of other departments of the government or of the courts of common law." (See note to U.S. Standard Voting Machine Co. v. Hobson, 10 Ann. Cas., 977.)
High on Injunctions affirms that a court of equity will not interfere by injunction to prevent political wrongs:
"No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election, of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will, in all such cases, leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceeding in the nature of a quo warranto." (High on Injunctions, sec. 1312.)
To the same effect is the holding of Kerr on Injunctions, whose text on the subject is as follows:
"It is elementary law that the subject of the jurisdiction of a court of chancery is civil property. The court is conversant only with the questions *Page 201 of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right of property. Nor do matters of political character come within the jurisdiction to interfere with the public duties of any department of government, except under special circumstances and where necessary for the protection of property rights."
To the same effect is the holding of Joyce on Injunctions: "It is not within the general powers of a court of equity to supervise the conduct of public officers in the performance of their official duties, or to prohibit such officers from acting, or to compel them to act, in matters which concern political and personal rights, as distinguished from rights of property and ministerial duties." (Sec. 1373.) (Also see sections 1386a, 1386b and 1386c, same author.)
In the case of United States Standard Voting Machine Co. et al. v. Hobson, 132 Iowa 38, 7 L.R.A. (N.S.), 512, 119 Am. St., 539, 10 Ann. Cas., 972, decided by the Supreme Court of Iowa, the same view is expressed, that is, that a court of equity will not interfere to protect or enforce a purely political right. They said:
"The right to vote is a political and not a civil right, and a court of equity will not exercise its extraordinary power of injunction to protect a mere political right as distinct from a civil right. The plaintiff in the injunction case, as a taxpayer, could no doubt have relief by injunction to prevent the board of supervisors and the county auditor, defendants in that action, from attempting to carry out a contract which would impose an unlawful indebtedness upon the county; but as a taxpayer he had no interest in the question whether or not the November election in the county should be held by means of voting machines, and as a voter he had no interest in the method of conducting the election which would entitle him to control that method by the assistance of a court of equity. Some remedy at law he would, no doubt, have, if his right to vote were interfered with; but a court of law would not give him relief as against a mere anticipated wrong. It is to be noticed that the want of jurisdiction of the lower court to grant relief in equity was not on account of the want of right of the plaintiff in the injunction suit to maintain the action, but on account of the absence of any equitable right to relief on the part of anyone, and, therefore, the want of jurisdiction did not grow out of the incapacity of the particular plaintiff, but out of the incapacity of any plaintiff, to have such remedy. Therefore the question is not as to the capacity of the plaintiff to sue, but the power of the court to give the attempted relief. That courts of equity can not interfere by injunction to protect a claimed political right is too well settled to require extended discussion."
In the case of the State v. Aloe, 152 Mo., 466, 47 L.R.A., 393,54 S.W. 494, the Supreme Court of Missouri said: *Page 202
"The real and only purpose of the suit in the Circuit Court was to bar the entrance to the office of board of election commissioners by injunction, and to obtain a decree of a chancery court declaring relators' title to the office invalid. That is a subject over which a chancery court has no jurisdiction. The courts of law are open to all persons who have rights of that nature which have been violated, and ample means are afforded in those courts for the vindication of such rights and the redress of their wrongs. High, Inj., sec. 312; In re Sawyer,124 U.S. 200, 8 Sup. Ct., 482, 31 L.Ed., 402; Hunter v. Chandler, 45 Mo., 452; State v. Vail, 53 Mo., 98; State v. May, 106 Mo., 488,17 S.W. 660. . . . The powers of the chancery court are there plainly invoked to protect by injunction purely political rights. No such jurisdiction has ever been conceded to a chancery court, either in the Federal or State judiciary. The political rights of a citizen are as sacred as are his rights to personal liberty and property, but he must go into a court of law for them. A court of equity is a one-man power, wielding the strong force of injunction, often issued at chambers and on an ex parte hearing. Neither in England nor America has this power been suffered to extend to political affairs."
The case of Kearns v. Howley, 188 Pa., 116, 42 L.R.A., 235, 68 Am. St., 252, 47 A. 273, decided by the Supreme Court of Pennsylvania, was to the effect that a court of equity had no jurisdiction to restrain a chairman of a county committee of a political party from changing the names of duly elected members of the committee, or from filling vacancies on such committee with the names of persons not elected. Speaking through Mr. Justice Dean, the court said:
"The court below, we think, was misled into claiming for the courts of Pennsylvania enlarged chancery powers because of the tendency of our late legislation to regulate primary elections and prevent fraud and corruption by the election officers. It may be, if this bill had aimed to prevent a threatened violation of law by any of these officers, it could have been maintained. But there is no statutory injunction or prohibition directed to chairmen and secretaries of county committees. They are amenable alone to their party, which is purely political. The authority of the courts in such a case is thoroughly discussed by the New York Court of Appeals in Mc3Kane v. Adams, 123 N.Y. 609, [20 Am. St., 475], 25 N.E. 1057. In that case McKane filed a bill to enjoin the Democratic committee of Kings County from denying his membership. The court dismissed it, saying in the course of an elaborate opinion: `His status, therefore, is that, though his own association elected him as a delegate to the general committee of the county organization, the members of that body have refused to admit him to associate with them in their office. And, if they would and will not associate with him, upon what reasoning and principle should they be compelled to, and the aid of a court of justice invoked? The right to be a member is not conferred by any statute, nor is it derivable as in the case of an incorporate body. It is by reason of the action and of *Page 203 the assent of members of the voluntary association that one becomes associated with them in the common undertaking, and not by any outside agency, or by the individual's action. Membership is a privilege which may be accorded or withheld, and not a right which can be gained independently, and then enforced. So when, as by the plaintiff's own showing, the committee refused to admit him as a member, or to confirm his election, he was remediless against that refusal. No rights of property or of person were affected, and no rights of citizenship were infringed upon.' We adopt this language as expressing our opinion in this case, without referring to and citing the many cases to which counsel on both sides have called attention, for none of them is of such authority as to move us from our previous decisions. The Constitution and statutes of the commonwealth guarantee to all citizens the right of self-government, by protecting them in the exercise of the elective franchise for all officers voted for at State and local elections; and lately the law has gone further, and has so far recognized political parties as to pass an Act prescribing the duties of officers at primary elections, and imposing severe penalties for misconduct. But beyond this political parties and party government are unknown to the law. They must govern themselves by party law. The courts can not step in to compose party wrangles, or to settle factional strife. If they attempted it, it may well be doubted whether they would have much time for anything else. We reverse the decree, and direct that the bill be dismissed at costs of appellee." (41 A. 274.)
In the case of State ex rel. v. Dunbar, decided by the Supreme Court of Oregon, reported in 48 Ore., 109, 85 P. 337, the court said:
"The question involved in this appeal is purely a political one and affects no property or civil rights, and, as stated by Chief Justice Fuller in Green v. Mills, 69 Fed., 852 (16 C.C.A., 516, 30 L.R.A., 90), `it is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances and when necessary to the protection of the rights of property, nor in matters merely criminal, or merely immoral, which do not affect any right of property.'"
In the case of Sheridan v. Colvin, 78 Ill. 237, the Supreme Court of Illinois held that political questions are not within the jurisdiction of a court of chancery. They said:
"It is elementary law, that the subject of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal, or merely immoral, which do not affect any right of property. Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction *Page 204 to interfere with the public duties of any department of the government, except under special circumstances and where necessary for the protection of rights of property."
In the case of Anthony v. Burrow, 129 Fed., 782, District Judge Pollock stated:
"The right to become the nominee of a political party for a public office, whether national or State, and as such nominee to receive the votes of the qualified electors voting to fill such office, is a purely political right as contradistinguished from a civil or property right."
He then quotes from the opinion by Mr. Justice Gray of the United States Supreme Court, in In re Sawyer, 124 U.S. 200, 31 L.Ed., 402, 8 Sup. Ct., 482, as follows:
"The office and the jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property.
"Political rights consist in the power to participate, directly or indirectly, in the establishment or management of the government. These political rights are fixed by the Constitution. Every citizen has the right to vote for public officers, and of being elected. These are the political rights which the humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. They consist in the power of acquiring and enjoying property, or exercising the paternal and marital powers, and the like. It will be observed that everyone, unless deprived of them by sentence of civil death, is in the enjoyment of the civil rights, which is not the case with political rights, for an alien, for example, has no political, although in full enjoyment of the civil, rights."
In the case of Shoemaker v. Des Moines, 129 Iowa 244, 3 L.R.A. (N.S.), 386, 105 N.W. 520, the Supreme Court of Iowa refused an injunction to protect political rights. The court said:
"To again recur thereto, it will be remembered that plaintiff claims no rights, except as a voter and a taxpayer. If, therefore, he is entitled to any relief at the hands of a court of equity, it must be because the threatened invasion of such matters of right, one or both, are properly cognizable in equity, and, this being established, that substantial grounds to apprehend irreparable injury have been made to appear. The contention of plaintiff predicated upon his capacity as a voter may be disposed of in a word. The right to vote at any election is a political right pure and simple; and equity does not interfere to protect or enforce political rights which are unconnected with any individual or property rights. Upon this all the authorities are agreed."
In the case of Dickey v. Reed, 78 Ill. 261, it was held that a court of chancery has no power to restrain by injunction a board of canvassers from canvassing the returns of an election, where the law under which the election was held neither in terms nor by implication confers such power. The Supreme Court in that case said:
"If the court may exercise this jurisdiction in cases of doubt, or even where there is no doubt, of the result, a few . . . persons might, *Page 205 and probably would, be induced from the heat and strife always engendered in such elections, to resort to a bill and injunction, and thus for years thwart the will of the people. . . . Public policy does not require such a jurisdiction, even if it could sanction it. If the power were admitted, where would its jurisdiction end? . . . Sanction the power in this case as inherent in the court of chancery, could any ingenuity suggest reasons which should forbid the application of the same rule to every case we have above supposed, or any election case where fraud is alleged? In this case alleged fraud is the ground on which the power is urged. So would it be in those cases, and the fraud would be precisely the same in each."
Other Supreme Court decisions to the same substantial effect as are the authorities already quoted from are as follows: Hardesty v. Taft, 23 Md. 512, 87 Am. Dec., 584; People v. Rose, 21 Ill. 252,71 N.E. 1124; Annapolis v. Gadd, 97 Md. 734, 57 A. 941; Weaver v. Toney, 107 Ky. 419, 50 L.R.A., 105, 54 S.W. 732; Parler v. Fogle, 78 S.C. 570, 159 S.E. 707; Ogborn v. Elmore,121 Ga. 72, 48 S.E. 702; Vickery v. Wilson, 40 Colo. 490,90 P. 1034; Giles v. Harris, 189 U.S. 475, 47 L.Ed., 909, 23 Sup. Ct., 639; People v. District Court, 18 Colo. 26,31 P. 339; Shields v. Jacob, 88 Mich. 164, 13 L.R.A., 760,50 N.W. 105; Stephenson v. Boards of Election Commissioners, 118 Mich. 396, 42 L.R.A., 214, 74 Am. St., 402, 76 N.W. 914; Potter v. Deuel, 149 Mich. 393, 112 N.W. 1071; Alderson v. Commissioners,32 W. Va. 640, 5 L.R.A., 334, 25 Am. St., 840, 9 S.E. 868; McKane v. Adams, 123 N.Y. 609, 20 Am. St., 785, 25 N.E. 1057; State v. Foster, 111 La. 939, 36 So. 32; Muhler v. Hedekin,119 Ind. 481, 20 N.E. 700; Taylor v. Kercheval, 82 Fed., 497; Peck v. Weddell, 17 Ohio St. 271, and Fleming v. Guthrie, 32 W. Va. 1, 3 L.R.A., 53, 25 Am. St., 792, 9 S.E. 23.
The courts of the country, as shown, have almost unanimously held that courts of equity have no jurisdiction over political questions, and can not grant relief to protect political rights. The effect of the majority opinion is to hold that courts of equity have jurisdiction over political questions, and may grant relief to protect political rights. This conclusion appears to be drawn from the premise that legal rights were conferred upon Gilmore as a candidate by article 3173, Vernon's Sayles' Civil Statutes, and from the maxim "For every wrong there is a remedy." That maxim is as old as the law itself, but it applies only to property rights, and to other civil rights, and not at all to political rights. It is within the knowledge and experience of every one conversant with the history of politics among a self-governing people, that for most political wrongs there is no remedy except in party conventions or at the ballot box. From time out of mind candidates for office and their friends have been treated with injustice, and with brazen wrong, but in very many instances the maxim "For every wrong there is a remedy" has not been a relief, and the reason is plain that the *Page 206 maxim is impossible of enforcement without giving the courts jurisdiction of all political questions.
But it is contended that Gilmore had the legal right to run unopposed by a Democratic nominee, and that article 3173 gave him that right, which made it a legal right, and that, therefore, it presents a judicial question, and not a political question. For the sake of argument, admit that said article granted to Gilmore a legal right, though I think in fact it did not, then how does it follow that since his legal right had been violated it was not a political question? All political questions present legal rights. The right of every citizen to vote and to be voted for presents a legal right, — it presents a constitutional right where a country, like this, is self-governed. It is the constitutional right of every citizen, from the highest to the lowest, to exercise his citizenship in a self-governed country by voting or being voted for, as he desires, but how could it be contended that because of such constitutional right, or because of Gilmore's alleged legal right, that it was not a political right because it was legal or constitutional? The statutes and the constitutions may and do confer purely legal rights upon citizens. But the quality of the right enjoyed does not derive its nature from its creator, but derives its nature from the kind and character of right conferred. It does not close the argument, or touch the issue, to say that the right conferred was a legal or was a judicial right, and, therefore, was not a political right, since the Legislature and the Constitution have full power to create political rights, and their action in so doing makes them legal rights, but does not change their political quality. To say that the right was a legal right, and to conclude that, therefore, it was cognizable in a court of equity, would mean to assert that every legal right is cognizable in a court of equity. My conception is, that legal rights are cognizable in courts of law only, and that equitable rights are cognizable in courts of equity only. So that if Gilmore had legal rights he should have gone to a court of law for his remedy instead of into a court of equity. Every legal right violated presents a judicial question, whether it presents an equitable question or a law question. So that though the majority opinion may be convincing to everyone that Gilmore's right was a legal right, the question still remains, was it also an equitable right? If so, a court of equity would have jurisdiction to redress his wrong. If it was not an equitable question, but only a legal question, his remedy is not to be had in a court of equity, but in a court of law. If it should be argued that a law court could furnish no remedy, on what basis could it be argued except upon the basis that in a law court he could not prove any damage for the alleged wrong in a suit against the committee? And why could he not? Not because there is no legal remedy in a court of law for the act done, but because he has no facts to show anything but a speculative interest in a chance to secure an office; and he would be unable to prove that he could secure it. This is not a failure of remedies, as that term is used, but a failure to make the necessary *Page 207 proof to entitle him to the remedy in a court of law. Certainly if the members of the committee committed fraud against him, which is the substance of the allegation in Gilmore's bill, and if he suffered damage from such fraud, he could recover that damage in a court of law, and would not need a court of equity to protect him. Or if it be argued that the executive committee should have ordered a primary election, and failed to do so, then I would point to the article in the primary election statute referred to herein, giving him the power to mandamus the committee to order such election and to refrain from doing any act contrary to their duty in ordering a primary election. This remedy, if sought, would be sought in a court of law, and not in a court of equity. But because Gilmore is unable to present the quantum of proof necessary to establish his damage in a court of law does not entitle him to equitable relief in a chancery court. It is not provided in the rules of equity courts that in all instances where the injured party is unable to produce in a court of law sufficient evidence to prove his damage, he may bring his suit in a court of equity, and there have it maintained. Yet this seems to be the only basis for this alleged equitable suit.
It is contended in the majority opinion that only one of the leading cases cited by the defendants in error sustains the proposition that courts of equity will not take jurisdiction of political questions, for the reason it is stated that only one of said cases presented the breach of a right derived from a statute. It is specially stated that the case of McDonald v. Lyon, supra, decided by the Dallas Court of Civil Appeals, was not a case where the primary election law governed, and that it rested entirely upon the rules ordained by the Republican party, and did not rest upon a violation of a statute. With all due respect for this truly great opinion by the majority, I beg to call attention to the error in this statement. The case of McDonald v. Lyon, supra, was based exactly as this one is based, on a violation of the primary election law of 1905, as shown from the statement of the case, which shows that the suit was rested in part on a violation of the primary election law of 1905, and upon articles 2922 and 3137. The same error of statement by the majority relates to most all of the other cases cited and relied upon by the defendants in error, Waples et al., and especially is this true of the cases of Fletcher v. Tuttle, supra; Winnett v. Adams, supra, and Alderson v. Commissioners, supra, each of which plainly shows that the alleged equitable right was claimed to have been created by statute; and such will be found to be true on a careful reading of the great majority of the numerous cases cited by me in this minority opinion.
The cases quoted from by the majority opinion in opposition to the view herein contended for are the cases of Eagan v. Grewe,112 Ky. 232, 65 S.W. 437; Brown v. Committee, 119 Ky. 720,68 S.W. 662; Neal v. Young (Ky.), 75 S.W. 1082; Brown v. Cole, 104 N Y Sup., 109, and Walling v. Lansdon, 15 Idaho 282,97 P. 396. They *Page 208 throw no light upon the question involved, unless a bare ruling adverse to the great weight of authority, without a discussion of the question involved, would be considered illuminating, for none of them pretend to discuss the question, and all of them ignore the great line of decisions to the contrary as if they had no existence. The case of Eagan v. Grewe, 112 Ky. 232,65 S.W. 437, cited, relied upon, shows to have been at least in part a mandamus proceeding, which, of course, is not an equitable proceeding. The case of Brown v. Committee, 119 Ky. 720,68 S.W. 622, cited, contains no discussion of the question, but a bare ruling. The case of Neal v. Young, 75 S.W. 1082 (Ky.), cited, was not by the Supreme Court of Kentucky, but the case was submitted to only one member of the court, presumably when the court was in vacation, and the opinion relied upon is his opinion, and not the opinion of the Supreme Court of Kentucky. The case of Brown v. Cole, 104 N.Y. Sup., 109, cited, was not before the court of last resort, which is the Court of Appeals in the State of New York, as is well known, but was before what is denominated in that State a Supreme Court, which is a trial court similar to the District Courts in Texas, except that they are given some appellate jurisdiction. The case of Walling v. Lansdon, 15 Idaho 282, 97 P. 396, cited, was not an injunction suit. It was an application for a writ of mandamus to compel the Secretary of State to certify the names of certain alleged nominees to the various election officers. Of course, this was but a legal proceeding, and did not involve any equitable question; if the court expressed any view upon the jurisdiction of a court of chancery over political questions it was obiter dicta, and would not be an authority upon the question here presented. If the majority opinion should become the final opinion in this case when the motion for a rehearing is presented, if one should be, then the constitutional and statutory jurisdiction of the County, District and appellate courts, in my opinion, and with all due respect and deference to my brethren, will be so enlarged with political injunction suits, all of which would have priority over other litigation pending, that during a campaign year, in particular, it is, indeed, questionable whether any time at all would be left for the transaction of the other business in the courts. For the effect of this opinion, as I view it, is to clothe the courts with jurisdiction of all questions arising out of the violation of primary election laws, whether conferred directly or by implication. These statutes are numerous, and regulate most every conceivable act of parties participating in primary elections, from the precinct to the general State convention. All contesting delegations claiming to have been mistreated in violation of the law, instead of appealing to the State convention, as has been the custom, will then appeal to the courts, and all questions of irregularity which have in the past been settled by conventions, will be tried in the courts. There will be nothing left for the credentials committee to do. The disputes will be settled in court. All the frauds perpetrated in the State of Texas in an election will find their redress *Page 209 in the courts instead of in the conventions, or in another election, as has been the custom in the past. If this were the law, then our duty would be to so hold, regardless of the disrespect thereby resulting for the courts in general; but if it is not the law that the courts should take jurisdiction of these questions, unless it has been plainly conferred upon them, which I believe it has not been, then the duty is at least equally plain to so hold. Convinced that the conclusion reached by the majority is erroneous, I have written, though hurriedly, at length, the reasons for my dissent. I thing the honorable Court of Civil Appeals at Fort Worth reached the correct conclusion in holding that the injunction proceedings should be dismissed.
Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.