I concur in the opinion of Justice GRAVES that the application should be refused for the reasons stated in that opinion. Our judgment might well rest upon those conclusions. It seems to me that the opinion of Judge J. C. Hutcheson in the case of Grigsby v. Harris, cited by Judge GRAVES, is a conclusive answer to relator's contention that the resolution of the State Democratic Executive Committee confining the participants in the primaries to white qualified electors is in effect a discrimination by the state against relator because of his color. No decision of the Supreme Court of the United States sustains such contention, but on the contrary the right of political parties to determine the qualification of the members of the party has been uniformly recognized by that court. Judge Hutcheson in the opinion cited with the usual force and clearness which characterizes his judicial writing shows the unsoundness of this contention, and cites the authorities which fully sustain his conclusions.
I am not disturbed as to what the Supreme Court of the United States in the omnipotence of its judicial power may hold on the question in some future opinion, but I am not disposed to lead the way to a change in its present views upon this question by anticipating that they will be changed or modified in some future opinion.
I think the application should be refused for the further reason that the petition does not present any ground of relief cognizable and enforceable by this court under the provision of the act of the Legislature set out in the opinion of Justice GRAVES conferring original jurisdiction upon the Supreme Court and the Courts of Civil Appeals to issue writs of mandamus against the party officials and primary election officers named in the act. As stated in Justice GRAVES' opinion, the constitutionality of the act is not questioned by the respondents and need not be determined by this court in this proceeding. Whether valid or not, the act does not by its terms confer original jurisdiction upon the Supreme Court or Courts of Civil Appeals to hear and determine the complaint of relator that the action of the respondents denying him the right to vote in the Democratic Primary election is an infringement upon the rights guaranteed to him by the Constitution and laws of the United States. The power or jurisdiction conferred by the act is special and by well-settled rules of decision is limited to the strict terms of the grant. When so construed, the express language of the act only gives authority to the courts named to grant the writ of mandamus in original suits brought in such courts "to compel the performance in accordance with the laws of this state of any duty imposed upon them respectively by law." There is no ambiguity in this language, and by it the Legislature only intended to confer upon the Supreme Court and Courts of Civil Appeals original jurisdiction to issue writs of mandamus to compel the performance of a statutory duty by the persons charged with its performance.
This was the extent of the jurisdiction exercised by the Supreme Court in the case of Love v. Wilcox. The statute invoked by the petitioner in that case was construed by the Supreme Court as charging the respondents with the duty of placing Mr. Love's name as candidate for Governor upon the tickets to *Page 726 be used in the coming Democratic Primary election.
The petition in this case does not ask mandamus upon any such ground, and it is not contended that the respondents have failed or refused to perform any duty imposed upon them by any law of this state. Any suit relator may have for redress of his alleged grievances cannot be originally brought in this court, under the terms of the statute above quoted, and the trial court should have sustained the general demurrer to relator's petition.