The majority of this court, speaking through Special Associate Justice SEARCY (appointed by the Governor because of the disqualification of Associate Justice SMITH) have delivered an opinion upon the questions involved in this case, and it is with some regret that I feel called upon to dissent from the conclusions reached by the majority. That regret is based upon the profound conviction that their decision is unsound, and does violence to the Fourteenth and Fifteenth Amendments to the Constitution of the United States. It is believed that the judgment and opinion of the majority is so out of harmony with the decisions of the United States Supreme Court in Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 159, and Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 76 L. Ed. 984, the decision of our own Supreme Court in Love v. Wilcox,119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484, and the decision of this Court in Briscoe v. Boyle, 286 8. W. 275 (which is cited with approval by our Supreme Court in Love v. Wilcox, supra), that I feel constrained to file this dissenting opinion.
The opinion of the majority in the statement of the allegations of appellee's petition wholly fails to mention the fact that appellee alleged that on June 14, 1932 the state Democratic executive committee, acting under authority of article 3107 of the Revised Civil Statutes of Texas, by resolution, declared the resolution of the convention to be valid to deprive appellee and all other qualified voters of the Negro race similarly situated of the right to vote in the primary elections, and ordered said resolution certified to the county chairmen, and that, in obedience to the mandates of the state Democratic executive committee, the appellants were threatening to do the acts complained of by appellee. The majority fail to mention the numerous allegations in appellee's petition showing that primary elections held in this state are conducted in part at public expense, which bring this case within the decision of the United States Circuit Court of Appeals, for the Fourth Circuit, in the case of Bliley v. West, 42 F.2d 101 (C.C.A. 1930), and the majority also fail to mention the fact that the position of each of the appellants herein is created by statute and that each of said appellants is vested with authority from the state. However, in the view that I take of the matter, it will not be necessary to discuss at length these omissions.
The Legislature, by enacting present article 3107, and therein providing that "every political party in this State through its StateExecutive 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" (italics mine), has designated the agency to determine the requisites of party membership and to speak for the party as a whole, and the mention of this one agency is the exclusion of other agencies. This principle of construction is recognized by our Supreme Court in Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652, where the court, speaking through Mr. Chief Justice Cureton said (loc. cit. 655, of 248 S.W. 112 Tex. 450): "The rule expressio unius est exclusio alterius is a sound one, frequently applied in the construction of statutes, and is applicable here. The inclusion of the specific limitation excludes all others" — citing authorities.
This construction is also sustained by the United States Supreme Court in Nixon v. Condon, supra.
The majority, while quoting from that portion of the opinion in Nixon v. Condon, supra, where the court, speaking through Mr. Justice Cardozo, said: "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" — but the majority omit the portion immediately following the above quotation, where the court, speaking through Mr. Justice Cardozo, further said: "Indeed, adherenceto the statute leads to the conclusion that a resolution once adopted bythe committee must continue to be binding upon the judges of electionthough the party in convention may have sought to override it, unless thecommittee, yielding to the moral force of numbers, shall revoke itsearlier action and obey the party will. Power 80 intrenched is statutory,not inherent." (Italics mine.)
I am therefore constrained to believe that the state convention (which passed the resolution set out in the majority opinion), held under article 3167, which is a creature of the statute and authorized by law to meet only once every four years for the purpose (prescribed by statute) of selecting delegates to *Page 126 the national convention, was without authority to prescribe the qualifications of membership in the Democratic Party and of those who should participate in the Democratic Primary elections, and that whatever inherent power the Democratic Party had prior to the enactment of article 3107 to determine the content of its membership resided in the convention held under article 3139 and not in the convention held under article 3167, and that, by reason of the enactment of article 3107, such inherent power has been taken from such convention and by the state delegated exclusively to the state executive committee, and that said state executive committee, in the passage of its resolution, was necessarily acting under the power conferred upon it by article 3107, and that this action of this agency of the state is violative of the Fourteenth Amendment. Nixon v. Condon, supra.
The majority claimed support for their conclusions in the case of Nixon v. Condon, supra; but I am unable to find comfort there for those conclusions. In that case, the court, speaking through Mr. Justice Cardozo, said (286 U.S. loc. cit. 81, 52 S. Ct. 484, 76 L. Ed. 984):
"The petitioner, a negro, has brought this action against judges of election in Texas to recover damages for their refusal by reason of his race or color to permit him to cast his vote at a primary election.
"This is not the first time that he has found it necessary to invoke the jurisdiction of the federal courts in vindication of privileges secured to him by the Federal Constitution."
And the court further said (286 U.S. loc. cit. 83, 52 S. Ct. 484, 485, 76 L. Ed. 984): "Barred from voting at a primary the petitioner has been, and this for the sole reason that his color is not white. The result for him is no different from what it was when his cause was here before. The argument for the respondents is, however, that identity of result has been attained through essential diversity of method."
And the court further said (286 U.S. loc. cit. 84, 52 S. Ct. 484, 485, 76 L. Ed 984):
"Whatever our conclusion might be if the statute had remitted to the party the untrammeled power to prescribe the qualifications of its members, nothing of the kind was done. Instead, the statute lodged thepower in a committee, which excluded the petitioner and others of his race, not by virtue of any authority delegated by the party, but by virtue of an authority originating or supposed to originate in the mandate of the law." [Italics mine.]
"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.'"
And the court further said (286 U.S. loc. cit. 85, 52 S. Ct. 484, 486, 76 L. Ed. 984): "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. Indeed, adherence to the statute leads to the conclusionthat a resolution once adopted by the committee must continue to bebinding upon the judges of election though the party in convention mayhave sought to override it, unless the committee, yielding to the moralforce of numbers, shall revoke its earlier action and obey the partywill. Power 80 intrenched is statutory, not inherent." (Italics mine.)
And the court further said (286 U.S. loc. cit. 88, 52 S. Ot. 484, 487, 76 L. Ed. 984):
"We do not impugn the competence of the Legislature to designate the agencies whereby the party faith shall be declared and the party discipline enforced. 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. Whether in given circumstances parties or their committees are agencies of government within the Fourteenth or the Fifteenth Amendment is a question which this court will determine for itself. It is not concluded upon such an inquiry by decisions rendered elsewhere. The test is not whether the members of the executive committee are the representatives of the state in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as *Page 127 representatives of the state to such an extent and in such a sense that the great restraints of the Constitution set limits to their action.
"With the problem thus laid bare and its essentials exposed to view, the case is seen to be ruled by Nixon v. Herndon [273 U.S. 536, 71 L. Ed. 759, 47 S. Ct. 446], supra. Delegates of the state's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. Ex parte Virginia [100 U.S. 339, 25 L. Ed. 676, 3 Am.Crim.Rep. 547], supra; Buchanan v. Warley, 245 U.S. 60, 70, 77, 62 L. Ed. 149, 161, L.R.A. 1918C, 210, 38 S. Ct. 16, Ann.Cas. 1918A, 1201. The Fourteenth Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the court to level by its judgment these barriers of color."
It will be noted that the Supreme Court in Nixon v. Condon, supra, held that the statute granting the power to the state executive committee to fix the qualifications of membership was a statutory grant of power, while it was the contention of the minority that this was merely a statutory recognition of inherent authority. But even the minority opinion in Nixon v. Condon, supra, concedes that the conclusions reached by the majority in the case at bar cannot find support in that opinion of the United States Supreme Court, because Mr. Justice McReynolds, speaking for the minority, in the course of his opinion, said (286 U.S. loc. cit. 103, 52 S. Ct. 484, 493, 76 L. Ed. 984): "If statutory recognition of the authority of a political party through its executive committee to determine who shall participate therein gives to the resolves of such party or committee the character and effect of action by the state, of course the same rule must apply when party conventions are so treated," etc.
The majority, in their opinion in the case at bar, say: "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."
In the case of Briscoe v. Boyle, supra, this court considered at length the legislative situation with respect to primary elections, and held that, since the state of Texas had legislated in detail concerning the qualifications of voters at such elections, the political parties themselves no longer had any power to prescribe qualifications not made under authority of statute, and, while there are expressions in the opinion not necessary to the decision, and not material now, which are not in accord with the later case of Nixon v. Herndon, supra, yet I believe what we held there to be applicable here, and contrary to the aforementioned conclusions of the majority, for we there said (loc. cit. 276 of 286 S.W.):
"Before the legislative department invoked the province of party government, and assumed control and regulation of party machinery, the right to say who should and who should not participate in party affairs was exercised by the party governments, with which the courts would not concern themselves.
"But the Legislature has taken possession and control of the machineryof the political parties of the state, and, while it permits the partiesto operate that machinery they do so only in somewhat strict accordancewith the rules and regulations laid down in minute and cumbersome detailby the legislative body. The statute designates the official positions to be occupied in the parties, and, while it permits the members of the parties to select such officials, they can do so only in the manner prescribed by the statutes, which define the powers and duties of those officials, beyond which they cannot lawfully act. The statute prescribes the time, place, and manner of holding primary elections. It prescribes the forms of the ballots to be used, and the process by which the election officials shall identify and hand out the ballots and by which the voters shall mark and deposit the ballots when voted. It prescribes the declaration to be made by the voter, and the obligation to be assumed by him as a condition precedent to the validity of his ballot. In fine, the Legislature has in minute detail laid out the process by which political parties shall operate the statute-made machinery for making party nominations, and has so hedged this machinery with statutory regulations and restrictions as to deprive the parties and theirmanagers of all discretion in the manipulation of that machinery. * * *
"By excluding negroes from participating in party primary elections, and by legislating upon the subject of the character and degree of party fealty required of voters participating in such elections, theLegislature has assumed control of that subject to the exclusion of partyaction, thus depriving the party of any power to alter, restrict or enlarge the test of the right of the voter to participate in party primaries." (Italics mine.)
I am of the opinion that, in view of the recent pronouncements of the United States Supreme Court and our primary election laws and the decisions of the courts of our state construing the same, particularly our own decision in Briscoe v. Boyle, supra, the state executive committee, the state convention, and each of the appellants herein are to be classified as representatives of the state to such an extent and in such a sense that the restraints of the Constitution set limits to *Page 128 their action, and that the threatened acts of each of the appellants are in violation of appellee's rights guaranteed to him under the Fourteenth Amendment to the Constitution of the United States, and in violation of the federal penal statutes enacted pursuant thereto, and that the trial court did not err or abuse his discretion in granting the injunction prayed for, and that the judgment of the trial court should be in all things affirmed. Nixon v. Condon, supra; Nixon v. Herndon, supra; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S. Ct. 7, 52 L. Ed. 78, 79, 87, 12 Ann.Cas. 757; Home Telephone Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S. Ct. 312, 57 L. Ed. 510, 515; Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S. Ct. 1064, 30 L. Ed. 220.
I cannot agree with my brethren in the conclusions they have reached, and therefore dissent.