On Motion for Rehearing.
This court has not held that any voter can be excluded from participation in a Democratic primary who is willing to take the obligation to vote for and support the nominees, and there is no ground for the argument that such has been the ruling of this court in this or any other case. Unfortunately for the Democratic Party in Texas, the door into its councils has been opened by article 3107, as enacted by the Fortieth Legislature, and so it is that many enemies of Democracy who, like appellant, do not recognize the binding force of the obligation in law and morals, are going into the primaries of the party and attempting to select candidates for those more conscientious, or who have higher conceptions of the binding force *800of a voluntary obligation. The statute of 1927, which is named article 3107, in lieu of the old 3107, which sought to exclude negroes from the primaries of white men, has no reference to men who are seeking to enter the primary to obtain honors and not merely to cast a ballot.
The statute of the Fortieth Legislature, Called Session, General and Special Law, p. 193, provides:
“Every political party in this staté 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; provided that no person shall ever be denied the right to participate in a primary in this state because of former political views or affiliations or because of membership or nonmembership in organizations other than the political party.”
The enactment and the proviso are inconr sistent with and repugnant to each other. The one gives power to the party to prescribe the qualifications of its members and “in its own way determine who shall be qualified to voté or otherwise participate in such political party.” Then the other deprives the party of .the- right to deny “the right to participate in a primary in this state because of former political views or affiliations or because of membership or nonmembership in organizations other than the political party.” Whatever may be meant by other organizations, whether churches, fraternities, or political parties, such provision could not prevent executive committees from excluding those who are claiming to be members of the party and at the same time announcing that no regard will be paid to the statutory obligation from being placed on a ticket to be voted for as a nominee for some office in the gift of the party. It refers to past opponents of the party and not to present enemies who avow their intention to defeat the nominees of the party. The party can protect itself against a man who wants to be an officer on the ship of Democracy and at the same time states that he will do all he can to destroy the chief officer and scuttle the ship.
The case of Briscoe v. Boyle, 286 S. W. 275, decided by this court, is in no particular similar in its facts to this case. It was held in that case that a voter, not an aspirant for office, could not be required to take an oath that he did not vote for the nominee of another party at the last preceding general election and did not give aid and support to any other party at such election. That referred to past actions on the part of a voter and not to present acts of disloyalty on the part of one seeking the votes of a party for one of its highest state offices. We have seen but one case similar in its facts to this case, and that is the case of Westerman v. Mims, 111 Tex. 29, 227 S. W. 178, which is decisively against the claims of appellant.
The motion for rehearing is overruled.