I dissent. This proceeding should have been-abated and dismissed because of the absence of necessary parties.
Article 13.17, Election Code of the State of Texas, requires that county committees of political parties meet on the third Monday in June preceding each general primary and determine the order in which the names of candidates will' appear on the ballot. It is admitted that the County Democratic Executive Committee of Webb County did meet on the third Monday in June and, at such meeting, did determine the order in . which the names of candidates should appear on the ballot for the general primary to be held on July 28th. The complaint of relators is that the County Committee did not properly determine the order in which the names should appear .on the ballot. Whether properly so or not, the Committee had, according to its interpretation ,of the statute, determined “by lot” the order in which the ¡names of the candidates would appear on the ballot and had assigned the places so determined to the candidates in the primary election. Under the determination made by the Committee first place on the ballot for all offices was drawn for and assigned to candidates sponsored by the Independent Club. The issue in this case is not, therefore, whether the County Committee should be required to perform a statutory duty which it has declined to perform, but rather whether it should be required to perform a statutory duty in a manner different from the way in which it has already performed it. Necessarily included in the issue is' whether the candidates of the Independent Club have acquired any legal right to the positions on the ballot which were assigned to them as a result of the Committee’s first effort to comply with the statute. On . this issue the candidates of the Independent Club are entitled to be heard, and they cannot be heard without being made parties to this proceeding.
The majority have rejected the suggestion that the candidates are necessary parties to this proceeding. In doing so their opinion indicates they have given no consideration to the governing rules which have been iterated and reiterated by this Court throughout its history. As early as 1866 in Tabor v. Commissioner, 29 Tex. 508, 521, this Court rejected-a petition for writ of mandamus to' compel the Commissioner of the General Land Office to issue a patent, saying: “If there were no other objection to the-application for a writ of mandamus in this case, the fact that there are other claimants to the' land, who are not parties to this proceeding, would furnish- grounds for refusing it. The averment that their claims are void will not relieve the matter of the difficulty; for this court will not undertake to adjudicate their'claims, .whether valid or not, when the claimants are not parties to the suit.” In 1927 in O’Keefe v. Robison, 116 Tex. 398, 292 S.W. 854, we stated-what, except for the present-case, we have "applied as an unbending rule-of parties in mandamus proceedings, as follows: “The law as declared by this court has long been that mandamus will not issue unless all,parties whose interests may be affected by .the result of the litigation are made parties to the suit, so that they may have their day in court.” As late as 1934. in City of Houston v. Allred, 123 Tex. 35, 66 S.W.2d 655, 656, we stated the rule in even stronger language when we said: “It is the settled law of this state that persons, whose rights would be injuriously affected' by the issuance of a mandamus by- this court are necessary parties to the proceeding,, and all known parties, in interest, should be summoned to come in and defend such. *919interests. Also third parties claiming an adverse interest in the ■subject-matter of the-suit which may. be affected by the judgment must be bound as respondents, without regard to the validity of their claims.”
When.,this mandamus proceeding- was filed in this Court the candidates of the Independent Club had been drawn for and then,claimed the right to have their names appear in first place on the ballot , in Webb County for all offices, and they cannot, be ousted from that favorable position without a decision by this Court that the drawing through which they were assigned first place on the ballot was not a legal drawing. It thus appears that their interests - will necessarily “be affected by the result” of this litigation, and that they- are therefore entitled to. “have ■ their day in court” on the legality of the proceedings under which their, claimed rights arose.
■On what authority do. the .majority rely in- applying a different rule in this ease ?
The authorities cited for holding that these candidates are not necessary parties are. two cases by this Court: Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484, and Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526, and four cases by Courts of Civil Appeals: Blankenship v. Little Motor Kar Co., Tex.Civ.App., 224 S.W. 210; Monk v. Crooker, Tex.Civ.App., 207 S.W. 194; Wright v. Peurifoy, Tex.Civ.App., 260 S.W.2d 234 and Friberg v. Scurry, Tex.Civ.App., 33 S.W.2d 762. These cases need analysis.’
Love v. Wilcox and Ferguson v. Wilcox can hardly be .said -to be authority for the position of th.e majority since, as is admitted in the,majority opinion, no question of the absence of necessary parties was raised, .considered, or decided, in, either of these cases. The-same may be said.of- the Court of Civil Appeals case of Friberg v. Scurry. There is yet another reason why none of the three cases may be regarde'd as authoritative on-the point in question-: all were cases in which the relators sought no other relief than to' have their names placed on- the official ballot-. In other words, in none of the three cases was any relief sought which could have taken away any right or affected any interest of other! candidates. If we are to be governed by cases in which the question was not raised or'decided, Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251, 155 A.L.R. 180, seems more authoritative and compelling. ■ There a writ ■of mandamus was sought from,and. issued by this • Court ■ to compel the Secretary of State to certify to election officials the names of fifteen persons, certified to him by the September 1944 'State Convention, as the nominees of the Democratic Party for Presidential Electors. The writ could not have issued unless the right thereto had been clear, nor unless the certification sought Was, on the part of the Secretary of State,’ an absolute and rigid duty, excluding the exercise of discretion. Nevertheless, fifteen persons whose names had been certified as the Dem'otratic nominees for the same offices by a prior May Convention were 'made' respondents because of their claim that they were legally entitled to be certified." I doubt not that the proceeding would have been "abated if they had not been made parties. " ’
The majority’s principal authority seems to be Blankenship v. Little Motor Kar Co., supra, which is quoted extensively. Aside from the fact that that case was decided in 1920 and in the 36 years-since has never been cited as 'authority on the point at issue "by this Court in its many opinions on the subject, or by any other court, it, like the other cited Court of Civil Appeals cases of Monk v. Crooker and Wright v. Peurifoy, is clearly distinguishable.
In the Blankenship case a writ of mandamus was sought to require the district judge., to-fix the atnount of a supersedeas bond. Obviously, the .-performance- of' the mere ministerial act of fixing, the amount of the bond, could not 'have impaired the rights of the other parties, to -the, suit, and the heart of the court’s opinion holding that *920the other parties to the suit were not necessary parties to the mandamus proceeding is found in the language that the performance by the court of the ministerial duty “could in.no way comprehend the impairment of any legal right, which might be asserted to circumvent such legal requirement.” I apprehend that the result would have been altogether different if the mandamus proceeding had been one to compel the district judge to approve a supersedeas bond. In such a case the other parties to the suit would have had a legal right to question the sufficiency of the bond, both as to form and as to substance.
In Monk v. Crooker the court rejected a contention that because the suit involved the construction and validity of an ordinance the city was a necessary party, saying [207 S.W. 196]: “ * * * but no judgment is sought against the city, and it certainly is not the law that in every suit against an officer of a city or town in his official capacity, in which the construction or validity of an ordinance of the city or town is involved, that such corporation is a necessary party to the suit, and we are cited to no case that so holds.” Of course a city is not a necessary party to all suits which involve the validity of a city ordinance, but that is not the problem, in this case.
Wright v. Peurifoy involved an application to the Dallas Court of. Civil Appeals for a writ of maqdamus to require a district judge to approve an affidavit of inability to pay costs as a prerequisite of appeal. The opinion of the court reflects that the affidavit was contested but it does not reflect whether the contest was by the opposing parties in the litigation or by the court reporter and district clerk. The Court of Civil Appeals overruled a contention that the court reporter and district clerk were necessary parties to the mandamus proceeding, stating [260 S.W.2d 238]: “We.are asked only to issue a writ to the District Judge requiring him to enter an order overruling the contest of respondents to relator’s affidavit. We are not asked to go further * * * by ordering the trial court to direct the District Clerk and Court Reporter to prepare the record.” From the foregoing quotation it is obvious that the court did not feel that it was foreclosing any legal right of the court reporter and district clerk to refuse to prepare the record. But if the contest of the affidavit was filed by the district clerk and the court reporter I am of the opinion that this decision is erroneous and we should not put our stamp of ápproval on it by citing it as authority.
The cases cited in the majority opinion and analyzed above are hardly impressive authority for denying the candidates of the Independent Club their day in court to be heard on the issue of their right to retain first place on the ballot for the various offices for which they are candidates. They had a right to urge before this Court, for .instance, that the statutory requirement for determination of places on the ballot by lot was directory and not mandatory; that the statute was of doubtful meaning and the County Committee was authorized to-construe it; that drawing “by slate” was in fact a compliance with the statutory requirement for determination by lot; and that, in any event, drawing “by slate” was a substantial compliance with the statutory requirement and nothing more was required. It is beside the point for us to say that they would have been wrong as to these matters and that we would not have agreed with them; the important thing is. that they have been denied their opportunity to present these and other matters to this. Court. In other words, rights which they claim under the County Committee’s action taken on the appointed day and at the appointed place and time have been taken from them without their having been afforded a hearing.
The paucity of controlling or analogous cases which characterizes the majority opin^ *921ión is the more pronounced because the hooks are full of cases by this Court which, in principle, are clearly to the contrary. There is no need to analyze this great host of cases at length. It ‘is sufficient to note them and to indicate the various fact situations in which they have been decided.
Other claimants to land are necessary parties to a mandamus proceeding against the Commissioner of the General Land Office to compel the issuance of a - patent, or against a public surveyor to compel the survey of public land for the location of a land certificate, even though it is asserted that their claims are void or without merit. Smith v. Power, 2 Tex. 57; Cullem v. Latimer, 4 Tex. 329; Watkins v. Kirchain, 10 Tex. 375; Winder v. Williams, 23 Tex. 601; Tabor v. Commissioner, 29 Tex. 508; Chappell v. Rogan, 94 Tex. 492, 62 S.W. 539. One to whom a subsequent lease is executed is a necessary party to a mandamus proceeding against the Commissioner -of the General Land Office to compel the reinstatement of a forfeited lease. Nevell v. Terrell, 99 Tex. 355, 87 S.W. 659, 89 S.W. 971. The patentees of land and those holding contracts of purchase are necessary parties to a mandamus proceeding .against the Commissioner of the General Land Office to compel the issuance of a permit for prospecting for oil and gas. O’Keefe v. Robison, 116 Tex. 398, 292 S.W. 854. The surface owner of land is a necessary party to a mandamus proceeding to ■compel the Commissioner of the General Land Office tó set aside an order cancelling .an oil' and gas lease on the land'. Magnolia Petroleum Co. v. Walker, 124 Tex. 125, 73 S.W.2d 526. Holders of senior revenue ‘bonds are necessary parties to a mandamus proceeding against the Attorney General ■of Texas to compel the approval of junior revenue bonds. City of Houston v. Allred, 123 Tex. 35, 66 S.W. 655; Id., 123 Tex. 334, 71 S.W.2d 251, 257; City of Killeen v. Shepperd, Tex.Sup., 291 S.W.2d 728. Other parties to the main- suit are necessary parties to a mandamus proceeding to compel the presiding judge of an administrative judicial district to assign a judge for the trial of the case. Morton’s Estate v. Chapman, 124 Tex. 42, 75 S.W.2d 876. Other parties to the main suit are necessary parties to a mandamus proceeding to compel the trial judge to proceed to trial in the case. Williams v. Wray, 123 Tex. 466, 72 S.W.2d 577. Other .parties to the main suit are necessary parties to a mandamus proceeding to compel a trial judge to set aside an order entered in the pending cause. Goebel v. Carter, 124 Tex. 314, 77 S.W.2d 215. Other parties to the main suit are necessary parties to a mandamus proceeding to compel the trial judge to render and enter, a judgment on the jury’s verdict. Douglas v. Parish, 124 Tex. 39, 72 S.W.2d 591; Miller v. Stine, 127 Tex. 22, 91 S.W.2d 315. Other parties to the main suit are necessary parties to a mandamus proceeding to compel the clerk of the trial court to issue execution on the judgment, or, alternatively, to compel the trial judge to enter a nunc pro tunc judgment. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 48 A.L.R. 355. Other parties to the main suit are necessary parties to a mandamus proceeding to compel a Court of Civil Appeals to accept and file a motion for rehearing. State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253. Other parties to the main suit are necessary parties to a mandamus proceeding to compel a Court of Civil Appeals to certify a question of law to the Supreme Court.. Atwood Cotton Breeding Farms v. Gallagher, 123 Tex. 505, 73 S.W.2d 525; Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593.
I note a few cases by Courts of Civil Appeals. Opposing parties in the main suit are necessary parties to compel a district judge to correct the record so as to show a different filing date on a motion for new trial in the main suit. H. M. Cohen Lumber & Building Co. v. McCalla, Tex.Civ.App., 142 S.W.2d 685. The .defendant in judgment is - a necessary party to a mandamus proceeding to compel a justice *922of the peace to reinstate a vacated default, judgment. Lloyds Alliance v. Oliver, Tex.Civ.App., 222 S.W.2d 472. The contestant in a suit contesting the election of school trustees is a necessary party to a mandamus proceeding to compel the trial judge to dismiss the main suit on the ground that the court is without jurisdiction to try the case and that the case is moot. Critchfield v. Watson, Tex.Civ.App., 275 S.W. 257.
By what reasoning does the majority apply a different rule in this case?
As I analyze the opinion two reasons are given, as follows: (1), the judiciary has no control over elections except as given by statute, and Article 13.41, Election Code of the State of Texas, authorizing mandamus proceedings against executive committeés and others “makes no requirement for the joinder of any opposing candidate as a party”, and (2), “under the Election Code the Committee are the only persons who may lawfully prepare the official ballot, and no candidate can lawfully do anything toward preparing, printing arid distributing the official ballot.” I respectfully submit that neither reason is sound, as I shall undertake to demonstrate.
Considering the first' reason given, it may be stated, parenthetically, that Article 1735a, Vernon’s Annotated Texas Civil Statutes, also confers power on-this • Court to issue writs of mandamus to compel election officials to perform their duties and that such Article was not repealed by-the Elecj tion Code. It should be noted further, however, that this Article, like Article 13.41 of the Election Code, “makes no requirement for the joinder' pf any opposing candidate as a party.”
To assert, or to infer, that this Court has no-judicial power to compel the addition of opposing candidates as .'parties in mandamus proceedings against executive committees and election officials -is to assert, or to infer, that political rights may be taken from candidates for. party nomination or for public- office without due process of law.; That vieiw was long since rejected-by this Court. Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1040. Whether this Court may require the joinder of opposing candidates as parties to mandamus proceedings in this Court- under Article 13.41, Election Code, and Article 1735a, Vernon’s Annotated Texas Statutes, depends not on whether .those articles of the statutes require such joinder, or omit to- require it, but on whether the rights of opposing candidates. are affected by the litigation. It is a matter of common knowledge that candidates for party nominations regard first place on the ballot as strategically valuable. I have no doubt but that against- the claims of a usurper the courts would'protect • one legally drawn for first place on the ballot in his right to have his name appear in first place. And if the courts would afford such protection it follows inevitably that the right to have one’s name appear in first place on the ballot should not be taken from a candidate whose name has been drawn for that position, on the ground that the -drawing was illegal, without’ affording the candidate an opportunity to defend its legality. Here, the Court by writ of mandamus- has compelled the removal of the names of the candidates of the Independent Club from first place on the ballot, a place to which they claim to have been legally drawn, without their being made parties or being given a hearing. ■ •
■ The second reason given by the majority for the judgment has no more validity, than the first. Of course the Committee is the only agency, that “may lawfully prepare-the official ballot”,-and of course “no candidate can lawfully do anything toward, preparing, printing and distributing the official ballot”., But that has -little to do with the exclusion c>f. candidates as parties. Thp fact that candidates have no part in the preparation or the printing and distribution-of the ballot does not militate against the necessity of their being parties to man*923damus proceedings if. their “interests may be affected by the result of the litigation.” It could be said with equal emphasis that the opposing party in litigation is not á necessary party to a mandamus proceeding to compel the judge to proceed to trial because only the judge can sett'and try the case and no opposing litigant can lawfully do anything toward setting the case for trial; or that other claimants to land are not necessary parties to a mandamus proceeding to compel the Commissioner of the General Land Office to issue a patent because only the Commissioner of the General Land Office can issue a patent and no opposing claimant can lawfully do anything toward preparing and issuing a patent; or that holders of senior bonds aré not necessary parties to .a mandamus proceeding to compel the Attorney General to approve a junior bond issue beéause only the Attorney General can approve such bonds and no other bond holder can lawfully do anything toward approving the junior issue. I might continue ad infinitum, but what has been said will demonstrate that the second reason -given, by the majority for their ruling in this case would make, a farce of the general rule of law heretofore followed by this- Cohrt in determining who ■ are necessary parties to-mandamus proceedings. Never before, so far as I know, has this Court said that the only necessary party ito a mandamus proceeding is the one on whose conduct the writ operates.
I conclude that the position of the majority in their holding that the other cán-didates for county ,and district offices on the official ballot in Webb County are not necessary parties to this mandamus proceeding is not supported by either precedent or reason. . I respectfully submit- that the holding is proof -of-the old judicial adage that “hard cases... make bad law”. .Our order awarding the writ of mandamus was entered on June 27th. The hour wa.s.late; absentee balloting was scheduled to begin on July 8th. To require a délay of twenty-four-or forty-eight-hours while . opposing candidates were made parties to this proceeding would have been an inconvenience to election officials and perhaps to voters, and, withal, we would likely- have reached the same result. But convenience and haste should not have been controlling factors. We should have abated this pro-, ceeding until relators, brought in opposing candidates as respondents so that they could have had their day in court.
WALKER, J., joins in this opinion.