(dissenting).
I respectfully dissent. The Court has, in effect, held that the Respondents failed to plead in the trial court facts sufficient to show that the individual members of the Board entered into a conspiracy for the purpose of destroying competition between the individual members of the Board and those whom they represent as members of the Texas Optometric Association and the Respondents. My position, simply stated, is this: If the pleadings alleged, and there was some evidence to support an allegation that the Professional Responsibility Rule under attack was not enacted in good faith for the purpose of protecting the public health and well-being, but was the result of an actionable conspiracy entered into between the individual members of the Texas State Board of Examiners in Optometry, or if such issue or issues were tried by consent, the trial judge’s action in submitting the issues of conspiracy to a jury for determination was in the exercise of his judicial discretion, and this Court is without authority, in mandamus proceedings, to control the exercise of such discretion.
This is not a proceeding brought solely to test the validity of the rule, but the question is whether the pleadings and the evidence raise issues of fact to be submitted to the trier of the facts in a trial de novo, to be determined by a preponderance of the evidence rather than the substantal evidence rule. In this connection, it should be stressed that the validity or invalidity of the rule is not before this Court.
In my opinion the legal effect of the pleadings was to charge that the individual members of the Board had entered into a conspiracy, which is an actionable conspiracy under the anti-trust laws of the State. These acts, if committed, were unlawful acts of officials, hence not acts of the State. Therefore, the issue was properly tried under the preponderance of the evidence rule. See Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837 (1945).
In discussing or relating the allegations of fact contained in the pleadings of both the Relators and the Respondents, I wish to make it clear that my comments are in no way to be construed as an expression of an opinion as to how the trier of the fact issues, whether raised by the pleadings and the evidence or tried by consent, should answer the issues.
The pleadings are voluminous and the statement of facts consists of some three thousand pages. I have read the pleadings but not the statement of facts, therefore, I do not propose to second guess the trial court as to the evidence but rather choose to think that it was the considered opinion of the trial court that the evidence which had been adduced before the court and jury in a regular trial was sufficient to raise an issue of fact on the question of conspiracy.
The Court does not reach the question of evaluation of evidence, but holds that the pleadings fail to allege an unlawful conspiracy and that the acts charged against the individual members of the Board were *419neither unlawful in themselves nor did such alleged acts bring about the accomplishment of a lawful objective by unlawful means. The allegations in Respondents’ pleadings show a studied design on the part of the members of the Board (except Rogers) to pass a rule (the rule under attack), which exceeded statutory authority and would ultimately destroy the business of their competitors. Furthermore, it was alleged that these Board members were also members of the Texas Optometric Association, an organization with a philosophy diametrically opposed to the business methods successfully and lawfully used by the Respondents in the operation of their profession as optometrists. It was alleged that by virtue of the conspiracy, the Board members had, in effect, abdicated their official positions and were acting for their own personal gain and that of their fellow conspirators, the Texas Optometric Association. It was alleged that the Board members (except Rogers) paved the way for such accomplishment by the adoption of another rule known as the “Rule Making Procedure Rule.”1 The petition alleges that the “Rule Making Procedure Rule” was implicitly followed in the adoption of the “Professional Responsibility Rule,” and that both rules were unlawfully promulgated for the “sole purpose of hindering and destroying the competition which said Board members, in their individual capacities, and members of the Texas Optometric Association, Inc., may encounter in their personal and day to day activities in their practice of optometry.”
The pleadings further alleged that the effect of the rule, which they claim was adopted to destroy competition, would “be tantamount to the destruction of the practice of your Plaintiffs; nevertheless, the said individual Board members, purporting to act in their official capacity, but motivated solely by their own selfish interests and the selfish interests and desires of the Texas Optometric Association, Inc., proceeded with the adoption thereof.”
The trial court defined, in its charge to the jury, civil conspiracy in these words:
“You are further instructed that a civil conspiracy is a combination of two or more private persons, firms or associations by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.”
This is a correct definition and one that has been approved by the courts. See Bartelt v. Lehmann, Tex.Civ.App. (1947), 207 S.W.2d 131, 132, wr. ref.
Pursuant to Article I, Section 26, of the Constitution of Texas, our Legislature *420adopted Article 7429, Vernon’s Annotated Civil Statutes, which reads:
“Any and all trusts, monopolies' and conspiracies in restraint of trade, as herein defined, are prohibited and declared to be illegal.”
It is not in accord with the Constitution of Texas and the laws of Texas to condone the selfish acts of one group of a certain profession which would lead to the destruction of the practice and the elimination of the competition of another group engaged in the same profession.
The Court says that in Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (1957), this Court recognized that “* * * broad regulatory powers, many of which are somewhat discretionary in nature, are delegated to the * * * Board * *
The Court, however, overlooks the statement in Kee v. Baber, which distinguishes that case from this. In Kee v. Baber, we said:
“The gravamen of appellants’ attack upon the three rules in question are that they are inconsistent with the provisions of Article 4563. We do not so regard them. The provisions of the legislative enactment are broad and general in scope. An intention to vest the Optometry Board with authority to fill in the details relating to the proscribed action by members of the profession is indicated. * * * ”
Although the Court in the present case points out that Respondent Carp intervened in Kee v. Baber and attacked the rules there under consideration “on the basis of similar allegations of conspiracy,” and that the issue of conspiracy was “put aside by stipulations of the parties,” the Court now cites Kee v. Baber as authority for its holding that no conspiracy has been pleaded.
The Court dismisses the conspiracy charge in this case by observing that this is just a professional dispute and that a rule has been adopted which happens to please the members of the Board (except Rogers) and the members of the Texas Optometric Association, Inc., a corporation, its members allegedly having been unlawfully given the authority to finally, in effect, enact the rules for the Board to follow. The conspiracy charges are more serious than the Court seems to realize.
The trial court held the pleadings alleged a conspiracy in restraint of trade, and the trial court was of the opinion that there was some evidence showing that a conspiracy produced the rule in order to stifle competition in the sale of eyeglasses. Whether it was urged that there was no evidence of conspiracy or whether the trial court was doubtful as to the sufficiency of the evidence to raise a fact issue is immaterial. The fact remains that the trial court, in the exercise of its discretion, overruled all objections offered by Relators and submitted issues inquiring if the individual members entered into a conspiracy with the Texas Optometric Association to use the powers of the Board to prohibit the practice of optometry under trade or assumed names; inquiring if the enforcement of the rule would “result in the stifling of competition in the practice of optometry between those same persons and your plaintiffs (Respondents).” The jury was asked to find if such conspiracy (fraud) was for the purpose of stifling competition.
In none of the cases cited by the Court which involved Railroad Commission orders were there pleadings that the individual members of the Railroad Commission had entered into a conspiracy with one group to stifle competition between that group and another group engaged in the same business. The Relators have failed to show a clear abuse of discretion by the trial court. They have failed to show a clear right to the writ of mandamus. Therefore, the application for the extraordinary writ of mandamus should be denied.
Clearly the objections to the pleadings, and the Relators’ motion for instructed verdict presented questions which required the *421exercise of discretion by the trial judge. Mandamus will not lie to compel the performance of an act of a judge ihvolv-mg judicial discretion. State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846, 847 (1958); Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958). In Iley it was held that this court will not issue writs of mandamus to control or revise the exercise of discretion by trial courts in the performance of purely judicial as distinguished from ministerial acts.
In the Betts case, supra, it was said that this Court is not vested with general supervisory power over the district courts.
“If an exercise of discretion by the district judge be involved this Court may not assert its original jurisdiction to enforce its own judgment, even though the actions of the district judge may have been improvident or otherwise erroneous.”
The writ of mandamus will not lie to correct a merely erroneous or voidable order of the trial judge. The action of the trial judge in permitting the case to go to the jury, and later declaring a mistrial when a verdict was not obtained are not orders which the trial court was powerless to enter. If such actions were erroneous, such errors can be corrected on appeal. See Iley v. Hughes, supra.
I agree with the Respondents that the conspiracy question should be met. It is stated in their brief:
“ * * * [T]he Relators relegate the contention of Respondents to a challenge of ‘motives’ of the individual Board members. This exercise in semantics cannot sweep under the rug the hard fact that Respondents charged a conspiracy under the Constitution and statutes, offered proof in support thereof, and the belief of the trial judge that there was an issue of fact to submit to the jury. Conspiracy, to become an issue of law, must be determined from an evaluation of the facts offered in support thereof. Weighing the facts to determine the necessary quantum of evidence which would warrant submission to a jury is, and must always be, an exercise of judicial discretion.”
The Court, in effect, has held that the pleadings must be sufficient to shock the judicial conscience, and that its conscience could only be shocked upon a “showing of conditions comparable in seriousness to that to corruption, fraud, dishonesty or bribery * * I cannot conceive of alleged conditions more corrupt in nature than the allegations that the members of the Board have lost sight of their duties as public officials, and have designedly conceived a scheme to destroy not only the good name of the Respondents but their business as well. The Court says this is not the type of action and conduct which would shock its conscience. Not only that, the Court holds that the “case has been fully developed in the trial court and is ripe for judgment.” The effect of this order is to deprive the Respondents of the right to amend their pleadings and obtain a ruling on the amended pleadings by the trial court. The conspiracy issue has been eliminated. The Respondents can expect no relief by appealing from the force of the judgment the trial court has been ordered to enter. I presume it would not shock the conscience of the Court in the event the trial court should grant the Respondents a new trial in order to give the parties a fair opportunity to perfect a record from the trial court’s ruling on sufficiency of pleadings after having been given an opportunity to amend their pleadings.
Relators’ prayer for a writ of mandamus should be denied.
. “RULE MAKING PROCEDURE In making rules and regulations for the regulation of the practice of optometry pursuant to Article 4556, Revised Civil Statutes of Texas, the Board shall prepare and propose such rules and regulations and submit by mail a copy of each such rule and regulation, as well as all other such rules and regulations as may have been proposed and filed with the board, supported by a petition signed by at least twenty-five per cent (25%) of the optometrists licensed by and practicing in the State of Texas, in ballot form to each optometrist licensed by and practicing in the State of Texas for a vote thereon. At the end of thirty (30) days from the time such ballots are mailed, the board shall count the ballots that have been returned, provided that no election shall be valid unless a minimum of fifty-one per cent (51%) of the optometrists licensed by and practicing in the State of Texas shall have voted at the election at which such rule or rules are voted on; and each and all of such rules and regulations that have received two-thirds of the votes cast shall be by said board declared as approved (page 67) by the profession. The fact that any rule or regulation is approved.- by the profession itself shall be considered by the board as prima facie evidence that such rule or regulation is reasonable and necessary for the regulation of the practice of optometry in Texas. No rule or regulation for the regulation of the practice of optometry shall be made by said board that has not received two-thirds of the votes cast in the manner above provided.”