As stated in the majority opinion, the writer agrees with the views expressed by Chief Justice CONNER that if articles 3172 and 3173, Vernon's Sayles' Texas Civil Statutes, 1914, apply to the case presented by plaintiff's petition, then article 4643, Id., provides for injunctive relief for appellee. Chapter 11, § 50, Acts of the 29th Legislature, pp. 520-565, provides that: "A nominee may decline and annul his nomination," by following the course therein prescribed. This section further likewise provides that in the case of the death of a nominee, the executive committee of the party of which the deceased was the nominee may nominate a candidate, and have his name placed on the ticket as the nominee of said party, in lieu of the name of the person so deceased. Certainly this provision, preserved in part in article 3172, supra, has reference not merely to general elections, as contradistinguished from primary elections, but also to the substitution of a nomination by the executive committee in place of a nomination by primary election, where the death of the nominee has occurred subsequent to such primary election, and therefore deals with and has reference to the system of primary nominations subsequently provided for in this act.
As a part of said section 50 of this act, and preserved in article 2968 of the Civil Statutes, it is provided that: "No paster shall be used except as herein authorized, and, if otherwise used, the names pasted shall not be counted." Thus evidently intending to prohibit the counting of the votes cast for a candidate in the general election who has not been nominated by one of the methods provided for, and whose name has been pasted on the ticket. Section 118 of the same act, now preserved in article 3173 of the Statutes, provides:
"No executive committee shall ever (italics the writer's) have any power of nomination except where a nominee has died or declined the nomination as provided in section 50 of this act."
It would seem more specific, plainer language could hardly be used to inhibit an executive committee from nominating a candidate except in the case where a nominee has died or declined the nomination.
It is conceded by my Brethren that W. D. Williams was not, at the time of his deplored death, a nominee of the Democratic party in the sense the word is used in this act. Therefore, no such exigency arose as authorized a nomination by the executive committee provided for in section 50 of said act. It is further conceded by Chief Justice Conner that inasmuch as the Legislature has seen fit to enact legislation covering party nominations, and has therein prescribed how such nominations shall be made, and has prohibited their being made except as provided, that injunction may be resorted to to prevent the doing of some act prejudicial to the rights of a petitioner, which act the law has absolutely forbidden. In this view he is fully sustained by the authorities he cites, as well as others of equally eminent respectability. It would, in the opinion of the writer, make no difference if it were in fact (as suggested in the majority opinion) a rule of the Democratic party that the executive committee should nominate a candidate under any other conditions than the two mentioned in the statute. The rules of every party must be circumscribed and limited by the law as enacted by the Legislature. Certainly, then, it was not incumbent upon the petitioner in this case to contravene in his petition the existence of such inhibited rule. If, under the statutes and under the Constitution, plaintiff is entitled to make his canvass for this office without having his opponent receive an advantage at the hands of the executive committee, which advantage is not only not provided for by statute, but absolutely prohibited by the enactment of the Legislature, then it seems to the writer that the injunction would lie, and that the judgment of the trial court should in all things be affirmed.
As is well said by the appellee:
"The rights of a candidate in elections, where the procedure is prescribed by law, are legal rights and the question in the instant case goes beyond the mere right to be a candidate and involves the right to be denominated on the official ballot as one who is the legal nominee of the Democratic party." *Page 128
It was said in the case of Fletcher v. Tuttle, 151 Ill. 57, 37 N.E. 688,25 L.R.A. 145, 42 Am. St. Rep. 220, cited and relied on by appellants:
"If a public officer, charged with the political administration, has disobeyed or threatens to disobey the mandate of the law, whether in respect to calling or conducting an election or otherwise, the party injured or threatened with injury in his political rights is not without remedy; but his remedy must be sought in a court of law, and not in a court of chancery."
Under the blended system of this state, no such distinction between legal and equitable remedies is observed as in the Illinois jurisdiction. Under article 4643, Vernon's Sayles' Texas Civil Statutes, injunctions may be granted:
"(1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant."
As said in the case of Lane v. Kempner, 184 S.W. 1090-1093:
"These provisions of the statute have been construed in many cases by the courts of this state as giving an applicant, putting himself within their terms, a right to the injunctive relief, irrespective of the existence of a legal remedy at law. It is not a sufficient answer to say that the applicant had a remedy at law, and that he should first be forced to resort to such legal remedy."
See, also, Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; Tipton v. Railway Postal Clerks Association et al., 173 S.W. 562; and other cases cited in Lane v. Kempner.
The cases of City of Dallas v. Consolidated Street Ry. Co., 105 Tex. 337,148 S.W. 292, Harding v. Commissioners' Court, 95 Tex. 175, 66 S.W. 44, McDonald v. Lyon, 43 Tex. Civ. App. 484, 95 S.W. 67, Walls v. Brundidge,109 Ark. 250, 160 S.W. 230, Ann.Cas. 1915C, 980, cited by Associate Justice DUNKLIN in his dissent, do not, in the opinion of the writer, give support to the contention that one who is doing, or threatening to do, an illegal act to the prejudice and injury of a citizen of this state, may not be enjoined, because, forsooth, such act, actual or threatened, is connected with, or pertains to, the machinery of a political party. In the first cited case the Supreme Court merely held that courts have no power to interfere by injunction with canvassing returns and declaring results of an election on the ground that the regulation sought to be adopted by popular vote was not one which could be enacted, and would, if adopted, interfere with property rights of the complaining party. In this cited case those sought to be enjoined were alleged in plaintiff's petition to be threatening to pursue the course prescribed by statute, and Mr. Justice Phillips in discussing the question said:
"Elections belong to the political branch of the government, and the general rule is that they are beyond the control of the judicial power. The authority resides in the courts to determine their validity, and in cases of invalidity to protect property rights which may be wrongfully impaired if their result is suffered to become effective and is sought to be enforced; but a proper deference for their respective powers that is imposed upon the several departments of the government, should constrain the courts to caution and certainty when their authority is invoked against the determination of the popular will."
In City of Austin v. Cemetery Association, 87 Tex. 330, 28 S.W. 528,47 Am. St. Rep. 114, and Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S.W. 668, it was held that an injunction will lie to restrain the enforcement of a void city ordinance, where it is shown that the enforcement of the ordinance would result in irreparable injury to the applicant.
The writer believes the same principle as here contended for by appellee is enunciated in the case of Board of Medical Examiners of Texas v. Taylor, 56 Tex. Civ. App. 291, 120 S.W. 574, where the Texarkana court held that where a State Board of Medical Examiners places such a construction on the law as to deprive a citizen of unquestionable legal right, under circumstances that a citizen has no right to appeal and no other remedy, a court having jurisdiction to issue mandamus may review such determination on such writ. In City of San Antonio v. Routledge,46 Tex. Civ. App. 196, 102 S.W. 756, it is held that mandamus will lie to compel the performance of an act which the law enjoins as a duty resulting from an office, trust, or situation. With equal force it seems that an officer, person, or official body, threatening to do an act prohibited by law and prejudicial to the rights of another, should be subject to injunction to restrain the threatened act.
Hereinabove the writer, in the limited time allowed, has sought to express his views, and regrets that the exigencies, of the situation do not allow him more time for the investigation of the important questions involved.