C. A. Booker, appellee, brought this suit in the Forty-Fifth judicial district court of Bexar county, Tex., "for himself and others in the same class and like situation, under similar circumstances and conditions, as this plaintiff," against the county Democratic executive committee in and for Bexar county, Tex., John K. Weber, chairman of the Bexar county Democratic executive committee, C. O. Wolfe, secretary of the Bexar county Democratic executive committee in and for Bexar county, Tex., and Adolph Lassner, presiding judge of the Democratic precinct primary election, to be held on July 23, 1932, in election precinct No. 73, in the city of San Antonio, Bexar county, Tex., and their successors in office.
He alleges he is a member of the negro race, a native-born American citizen, a resident citizen of San Antonio, Bexar county, Tex., a qualified voter and elector under the Constitution and laws of the United States and the state of Texas, a member of the Democratic Party, and entitled to vote at election precinct No. 73, in San Antonio, Tex., in the primary elections, to be held July 23 and August 27, 1932; that he will be deprived of his right to vote at said primary elections by reason of the following resolution adopted by the state Democratic convention at Houston, Tex., May 24, 1932, to wit: "Be It Resolved: That all white citizens of the State, who are qualified to vote under the Constitution and laws of Texas, shall be eligible for membership in the Party and as such, eligible for participation in the primaries," in violation of his rights under the Fourteenth and Fifteenth Amendments to the Constitution of the United States. He prays for injunction, etc.
The trial court granted the injunctive relief prayed for, and the case is here on appeal to review the decree of the district court.
In Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 487, 76 L. Ed. 984, a similar resolution passed by the state executive committee was held to have been passed under the *Page 124 authority of article 3107 (chapter 67, Acts 1927 [Vernon's Ann.Civ.St. art. 3107]), and the reasoning is that the State Executive Committee acted as a state agency and not as a political agency, and therefore its resolution came within the inhibitions of the Fourteenth and Fifteenth Amendments. The court said: "The pith of the matter is simply this, that, when those agencies are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the state itself, the repositories of official power. They are then the governmental instruments whereby parties are organized and regulated to the end that government itself may be established or continued. What they do in that relation, they must do in submission to the mandates of equality and liberty that bind officials everywhere. They are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly." This decision, however, is expressly limited in its scope.
We are confronted with a different state of facts. The resolution complained of by appellee was adopted by the state convention of the Democratic Party in convention assembled at Houston, Tex., May 24, 1932, as its free and voluntary act, expressing the will of the Democratic Party in Texas, with respect to who shall be eligible for membership in the party, and, as such, eligible for participation in the primaries. In Nixon v. Condon, supra, the court said:
"In Nixon v. Herndon, 273 U.S. 536, 71 L. Ed. 759, 47 S. Ct. 446, decided at the October term, 1926, this court had before it a statute of the state of Texas (article 3093a, Revised Statutes * * * afterwards numbered 3107 [Vernon's Ann.Civ.St.]) whereby the Legislature had said that `in no event shall a negro be eligible to participate in a Democratic party primary election (held in that State),' and that, `should a negro vote in a Democratic primary election, such ballot shall be void,' and election officials were directed to throw it out. While that mandate was in force, the negro was shut out from a share in primary elections, not inobedience to the will of the party speaking through the party organs [italics ours], but by the command of the state itself, speaking by the voice of its chosen representatives. * * *
"We recall at this point the wording of the statute invoked by the respondents. `Every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.'Whatever inherent power a state political party has to determine thecontent of its membership resides in the state convention. [Italics ours.] Bryce, Modern Democracies, vol. 2, p. 40.
"There platforms of principles are announced and the tests of partyallegiance made known to the world. What is true in that regard ofparties generally is true more particularly in Texas, where the statute isexplicit in committing to the state convention the formulation of theparty faith (article 3139). [Italics ours.] The state executive committee, if it is the sovereign organ of the party, is not such by virtue of any powers inherent in its being. It is, as its name imports, a committee and nothing more, a committee to be chosen by the convention and to consist of a chairman and thirty-one members, one from each senatorial district of the state (article 3139). To this committee the statute here in controversy has attempted to confide authority to determine of its own motion the requisites of party membership and in so doing to speak for the party as a whole. Never has the state convention made declaration of a will to bar negroes of the state from admission to the party ranks. Counsel for the respondents so conceded upon the hearing in this court. Whatever power of exclusion has been exercised by the members of the committee has come to them, therefore, not as the delegates of the party, but as the delegates of the state. [Italics ours.] * * * The most that can be said for the respondents is that the inherent powers of the committee are still unsettled in the local courts. Nothing in the state of the decisions requires us to hold that they have been settled in a manner that would be subversive of the fundamental postulates of party organization. The suggestion is offered that in default of inherent power or of statutory grant the committee may have been armed with the requisite authority by vote of the convention. Neither at our bar nor on the trial was the case presented on that theory. At every stage of the case the assumption has been made thatauthority, if there was any, was either the product of the statute or wasinherent in the committee under the law of its creation." (Italics ours.)
The Democratic Party in Texas is a voluntary political association, and, assembled in convention, has the power to determine who shall be eligible for membership in the party, and, as such, eligible for participation in the primaries. A study of the election laws of Texas and their history can lead to no other conclusion.
Nixon v. Condon, supra, was decided May 2, 1932. The state convention of the Democratic party was held at Houston, Tex., May 24, 1932. In our opinion, the adoption of the resolution complained of by appellee, by said *Page 125 convention, was the expression of the will of the Democratic Party in Texas, with respect to who shall be eligible for membership in the party and as such eligible for participation in the primaries, in line with the opinion of the Supreme Court of the United States in Nixon v. Condon.
The judgment of the district court should be reversed, and the suit dismissed. It is so ordered.