concurring.
*648This is an original mandamus proceeding by the San Antonio General Drivers & Helpers Local No. 657 and other members of that Union against Honorable W. L. Thornton et ah, to require Judge Thornton, as Presiding Judge of the First Administrative Judicial District, to grant their motion for the appointment of a substitute judge to hear all proceedings in Cause No. 5711-B. This cause is now pending in the 44th District Court of Dallas County whose presiding judge is also Judge Thornton. The Southwestern Motor Transport, Inc. brought Cause No. 5711-B to the 44th District Court of Dallas County alleging many counts of damages and a prayer for damages and an injunction against the labor union defendants. Four days after the filing of the suit, the defendants filed a motion1 requesting respondent, Thornton, to assign another District Judge pursuant to Senate Bill 46. Judge Thornton, acting in his capacity as Presiding Judge of the First Administrative Judicial District, and after a hearing, entered an order denying the motion and the defendants filed this petition for Writ of Mandamus.
It is contended by the relators that Senate Bill 46 applies to this situaiton, whereas, the respondents take the position that Senate Bill 45 is the applicable statute. Senate Bill 45 has become Article 5154g of Vernon’s Annotated Civil Statutes of the State of Texas, under Title 83 designated “Labor.” Senate Bill 46 is designated as Subdivision 17a of Article 1995, Vernon’s Annotated Civil Statutes of the State of Texas, under Title 42 designated “Venue.” The pertinent sections of these two Senate Bills are as follows:
“STRIKES AND PICKETING---REGULATION
“S. B. No. 45
“Sec. 2. It shall be a violation of the rights set forth in *649Section 1 for any person or persons, or associations of persons, or any labor union or labor organization, or the members or agents thereof, acting singly or in concert with others, to establish, call, maintain, participate in, aid or abet any strike or picketing, an object of which is to urge, compel, force or coerce any employer to recognize or bargain with, or any employee or group of employees to join or select as their representative, any labor union or labor organization which is not in fact the representative of a majority of the employees of an employer or, if the employer operates two or more separate and distinct places of business, is not in fact the representative of a majority of such employees at the place or places of business subjected to such strike or picketing.
“Sec. 4. Any person, organization or association who violates any of the provisions of this Act shall be liable to the person suffering therefrom for all resulting damages, and the person subjected to strike or picketing in violation of this Act is given right of action to redress such wrong or damages, including injunctive relief, and the District Courts of this State shall grant injunctive relief when a violation of this Act is made to appear.
“Sec. 6. Any party to any suit or cause of action arising under this Act may make, within two (2) days after notice of the institution of said cause, application to the Presiding Judge of the Administrative Judicial District within which the suit is filed who shall immediately assign a District Judge from within said Administrative Judicial District who shall then hear all proceedings in the cause.”
>:« * * ❖ %
“SUITS TO ENJOIN STRIKES OR PICKETING “S. B. No. 46
“Sec. 1. That a new subdivision be added to Article 1955 of the Revised Civil Statutes of the State of Texas, of 1925, to be designated as Subdivision 17a, reading as follows:
“17a. Labor Disputes. Suits to enjoin strikes or picketing for an unlawful purpose or conducted in an unlawful manner may be brought in (1) the county where the strike or picketing is alleged to have occurred; or in (2) the county of the residence of the defendant or any one of the defendants, if there be more than one; or in (3) Travis County when suit is brought by the State of Texas, and the State, its agencies or a political subdivision thereof is a party to the suit. Provided, however, *650that where suit is filed in a county authorized by the provisions of clauses (1) or (2) above, any party thereto may, within five (5) days after notice of institution of suit, make written application to the Presiding Judge of the Administrative Judicial District within which the suit is filed for the appointment of a substitute fudge in the court where suit is filed, whereupon such Presiding Judge of such Admiinstrative Judicial District immediately shall assign another District Judge from such Administrative Judicial District who shall thereafter hear all proceedings in such suit. The judge of the court in which such suit is filed shall have full power to act in the case until receipt by him of a copy of an order of the Administrative Judge removing the case or appointing a substitute judge, and the provisions of this Act shall be cumulative of existing rights of the parties to a change of venue as authorized by law.” (Emphasis supplied.)
Cause No. 5711-B is a suit for damages and injunction. Relators vigorously contend it is not. The petition filed by respondent, Southwestern Motor Transport, Inc., alleged a conspiracy and unlawful combination, and that for the purpose of effectuating the terms of such unlawful agreement and conspiracy, design and combination, the relators committed many overt acts. It further alleged that such activities were for the purpose of compelling plaintiff to agree to a “closed shop,” and for the purpose of compelling plaintiff to become a party to an illeg-al “hot cargo” clause in the proposed contract. The petition contained an allegation of a complete absence of a labor dispute between “International and its constituent Locals Nos. 657, 745 and 968 and other constituent Locals and the Truck Line Defendant.” And that “No labor dispute exists between plaintiff and its employees.” The petition further alleged that the proposed contract and agreement, containing the “hot cargo” or “unfair goods” clause was void and unenforceable, and that the legality or illegality of such contract is neither dealt with nor determined by the National Labor Relations Act, or by applicable State laws.
There was not only a reasonable basis for holding this to be a suit for damages, but, in my opinion, the pleadings clearly show it is one for damages. Action in “bad faith” on the part of respondent company does not enter into the picture. Therefore, the allegations in the petition alleging facts, which, if true, would entitle respondent, Southwestern Motor Transport, Inc. to damages, and the allegations and prayer for injunction are indivisible. The fact that respondent, Southwestern Motor *651Transport, Inc. asked for an injunction to protect the jurisdiction of the Court over the subject matter and the parties and to hold the same in status quo and to prevent the occurrence of further damages until the case could be tried on its merits does not automatically convert the action into one solely to enjoin strikes or picketing for an unlawful purpose or conducted in an unlawful manner. This being true, it necessarily follows that the injunction sought was ancillary to the main suit. This is apparent by reference to the two Senate Bills as set out above. Senate Bill 45 gives a right of action for damages, including injunctive relief, whereas, Senate Bill 46 applies to suits which only seek to enjoin strikes or picketing. Senate Bill 46 was not intended to refer to any type of action other than that of injunction only. The suit before us is one of a combination of damages and injunction, precluding application of the pure injunction statute, Senate Bill 46. Our construction of Senate Bill 46 is further exemplified by delving into the legislative record.
On January 18, 1955 Senate Bill No. 46 was introduced, read, and referred to the Senate Committee on Civil Jurisprudence. At that time, the caption read as follows:
“A BILL
“TO BE ENTITLED
“AN ACT amending Article 1995 of the Revised Civil Statutes of the State of Texas, 1925, by adding a new Subdivision 17a providing that suits for damages or to enjoin, or suits for damages and to enjoin strikes or picketing for an unlawful purpose or conducted in an unlawful manner may be brought in the county where the strike or picketing occurred, or in a county adjoining the county in which the unlawful acts occurred, or in the county of residence of a defendant, or in Travis County; repealing all laws or parts of laws in conflict with such subsection; and declaring an emergency.” (Emphasis supplied.)
The body of the Bill contained language identical with that emphasized in the caption.
There were two amendments to this Bill in the Senate. The amendments struck from the caption and the Bill the words “for damages or to enjoin, or suits for damages and” leaving the rest of the Bill undisturbed. The Bill as amended referred only to “suits to enjoin.” By striking out the above quoted words the Legislature intended that this enactment should ap*652ply only to injunction suits and not to those sounding in damages or in any combination of damages and injunction;
This Court can properly consider evidence of the Legislative intent other than the words of a statute without first determining that the statute is ambiguous. “Courts should not lose sight of the fact that statutory interpretation, whatever it may be called so far as the function of courts and jury is concerned, is a fact issue. Where available, the courts should never exclude relevant evidence on that issue of fact.” 2 Hor'ack, Sutherland On Statutory Construction, 316-317.
The courts strive for a construction consistent with the purposes of the legislation, and Texas authorities have held that the courts follow the intention of the Legislature. See Cousins v. Sovereign Camp, W. O. W., 120 Texas 107, 35 S.W. 2d 696; Wood v. State, 133 Texas 110, 126 S.W. 2d 4; State v. Dyer, 145 Texas 586, 200 S.W. 2d 813. In many instances, the purposes of the enactment cannot be discovered from the Act itself but only from the economic and social conditions throughout the State, the evil to be remedied, and the history of the Bill. Statutory phrases may have more than one reasonable meaning within the context. As said in 43 Harvard Law Review, p. 868; “A statute is neither a literary text nor a devine revelation. Its effect is therefore neither an expression laden with innumerable emotional overtones nor a permanent creation of infallible wisdom. It is a statement of situation, or rather of a group of possible events within a situation, and as such is essentially ambiguous.” The fact that the Legislature struck from the Act the provision referred to above should be considered in determining the intention of the Legislature. “When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. The interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function.” United States v. American Trucking Association, 310 U.S. 534, 60 Sup. Ct. 1059, 84 L. Ed. 1345.
Thus it is seen that the legislative history of the Act confirms our holding that this is a suit which seeks both damages and injunctive relief. Mandamus will not issue to compel a public official to perform an official act unless the relator shows a clear legal right to the relief sought. Relator has failed to show authority under the provisions of Senate Bill No. 46 for the appointment of a substitute Judge.
*653It is appropriate to call attention to the fact that Section 17-a (Senate Bill 46) has been inserted as a Section of Article 1995, Vernon’s Annotated Civil Statutes. Article 1995, supra, provides that “No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in the following cases:” Then follow a number of exceptions, including the Section 17-a under discussion.
To hold that a substitute Judge must be appointed upon Ex Parte Motion would deprive the 44th District Court of the exercise of its jurisdictional or venue power without proof of any lawful reason for ordering a substitute for the judge. Section 17-a, supra, provides that “* * * The judge of the court in which suit is filed shall have full power to act in the case until receipt by him of a copy of an order of the Administrative Judge removing the case or appointing a substitute judge, and the provisions of this Act shall be cumulative of existing rig-hts of the parties to a change of venue as authorized by law * *
The Act does not specifically provide a method of determining the necessity for ordering a substitute judge, but, in the absence of such provision, I content that allegations and proof should be required as provided in regard to a plea of privilege. Since the record in this case fails to make any proof of a disqualification of the judge of the court in which the case was filed, or any reason for the appointment of a substitute judge, the Presiding Judge correctly overruled the motion for the appointment of a Substitute Judge. To hold otherwise would render the provision for the appointment of a Substitute Judge in Senate Bill No. 46 as well as Section 6 in Senate Bill 45 unconstitutional. A duly elected District Judge has the constitutional right to conduct his court and control the court’s docket. It would be a dangerous step to permit parties to a lawsuit without cause to displace a judge of a court. The courts hesitate to strike down an Act of the Legislature, and will not do so unless there is no alternative. However, the majority of this Court has rejected the idea expressed in this opinion that evidence should be required establishing a reason for removing the judge of the 44th District Court just as evidence is required on a plea of privilege. In my opinion, if some such procedure cannot be read into the Act, then, if the Legislature desires, it should amend the Act by writing into it a provision that the movant must establish a legal reason for the appointment of a Substitute Judge. It should be kept in mind that Senate Bill No. 46 does not authorize the appointment of a Substitute Judge in damage suits, but only in pure injunction suits. In the event *654the Bill should be amended, as suggested, it would still be confined to suits asking for injunctive relief only.
This suit comes under the provisions of Senate Bill No. 45 in so far as determining the question of the nature of the suit is concerned. The Bill deals with damage suits, therefore, the plain provisions of the Act require that the petition for writ of mandamus be dismissed. However, granting for the purposes of this opinion that relators have the right to file the motion for the assignment of a District Judge by the Presiding Judge of the Administrative Judicial District, they are, nevertheless, not entitled to the writ of mandamus because they have failed to show a clear right thereto.
Section 6, Article 5154g, supra, means that the motion must be filed within two days after receipt of legal notice, that is, after service of citation or notice as otherwise provided by the Rules of Civil Procedure or the Statutes of this State. There is no conclusive evidence in this record showing the filing of a motion by all of the relators for the assignment of a District Judge to hear all proceedings in the cause within two days after legal notice of the institution of the suit. The relators’ amended petition for writ of mandamus does allege that timely written application was filed pursuant to Senate Bill No. 46. This allegation is the equivalent of asserting that they filed their motion within five days after receipt of notice of the suit, but does not show a compliance with the provisions of Article 5154g, supra, which requires filing within two days. It is true there is in the record an affidavit of one of the defendants which shows that the motion was filed within two days after he was served with citation, but there were other defendants in the case and there is no showing that they were not served more than two days before the motion was filed. It is true that Section 6 says any party to any suit may file the motion, but there are ten relators in this suit, all of whom are asking this Court for relief by way of mandamus, but the fact that one of the relators has shown that he brought himself within the provisions of Section 6 of the Act does not mean that the writ should be granted. The relators as a group have filed a joint application for the writ and have failed to show a clear right thereto.
The prayer for Writ of Mandamus is denied.
Opionion delivered February 6, 1957.
Rehearing overruled March 13, 1957.
Movants are parties to this suit, having been cited as defendants in the above styled and numbered suit to enjoin strikes or picketing within the meaning of S.B. No. 46, Chapter 388, Acts of 54th Legislature, Regular Session, (1955); Vernon’s Ann. Civ. St., Article 1995 (17-A).
The cited statute provides: “That where suit is filed in a county authorized by the provisions of clauses (1) or (2) above, any party thereto may, within five (5) days after notice of institution of suit, make written application to the Presiding Judge of the Administrative Judicial District within which the suit is filed for the appointment of a substitute Judge in the court where suit is filed, whereupon such presiding Judge of such Administrative Judicial District immediately shall assign another District Judge from such Administrative Judicial District who shall thereafter hear all proceedings in such suit.”
This application is being made by parties defendant in this suit this 29th day of November, 1955, within five (5) days after notice of institution of suit.