In all popular governments it has always been conceded that the liberty of the people could only be preserved through the undisturbed right of the citizens to assemble and give expression to their views as to the proper conduct of governmental affairs, to give voice to their grievances and suggest changes in the administration of the government and advocate principles necessary to protect the rights of the people. The Americans inherited their principle of the voice of the people being uttered through the medium of assemblies for that purpose, and, while assuming this right before the adoption of the Federal Constitution, our forefathers deemed the right of citizens to meet in assemblages or conventions so important that it was written into the Constitution, and became a cardinal point in the Bill of Rights of the organic law of the land. Out of the right so secured by the Constitution, political parties came by natural and inevitable evolution. In the convention held for the purpose of framing a constitution, the difference in theories of government came rapidly to the surface, and the seeds of different political parties germinated and came into active existence, and a cleavage of ideas as to what would constitute a government of the people became so marked and antagonistic that it was apparent that it was necessary that those believing in local self-government and those who believed in a strong central government could not live together in unity, and the contest was on that will exist as long as there is a semblance of liberty in America. The antagonistic principles and theories of government found expression in convention of those of like faith, who held conventions, wrote their principles, and indorsed those they desired to elect to carry out the views of their constituencies. The party of Jefferson holding to the theory of local self-government was organized in the early days of the republic, and has existed through the vicissitudes and political contests of more than one hundred years. The opposing school of politics has also existed during that time, sometimes under the name of Federals, Whigs, or Republicans, but at all times adhering to the Hamiltonian theory of a strong centralized government at the expense of state rights and local self-government. Parties to formulate and execute the two diverse theories of government have kept up their organizations without interference until within the last forty or fifty years, when the state has in many ways sought to invade the rights of the people as expressed through their party organizations. The invasion has been pressed through constitutional amendments, the Congress, federal courts, and the machinery of the judiciary department of the federal government. The primary system has been adopted in a number of the states, and that system has opened a fertile field for legislation seeking to destroy the freedom of choice and action on the part of political parties. The onslaught on political parties has culminated in courts usurping most of their prerogatives, and at last the political party is enjoined from selecting its own membership, and labored opinions are delivered to demonstrate that the party is a mere agency of government and has even lost the right of deciding who shall be eligible to participate in its actions.
The Fourteenth and Fifteenth Amendments of the Constitution, submitted and adopted by a portion of the states of the United States, have been interpreted so as to cover almost every phase of life, at least in the Southern section of the republic. The object and aim of those responsible for the formation and presentation of the amendments were primarily to transform the former slave into a full-fledged citizen, and invest him with all the rights and privileges of the highest position on earth, that of a voter under the Constitution. No one would so stultify himself as to claim that it was contemplated by those who formulated the two amendments to obliterate all control of the people over their political parties, and especially open wide the doors of the Democratic Party to all negroes who might desire to enter therein. On the other hand, the negroes were taught to avoid that party as they would a pestilence, and to homologate and associate alone with the "Grand Old Party." The creators of the two amendments would have been horrified at the thought of a negro entering Democratic councils. The amendments were undoubtedly only intended to protect the negro in his right of suffrage at elections for choosing the officials of government, national and state. One of the rules for the proper interpretation of an amendment or a statute is to endeavor to arrive at the intentions and motives of the legislators who proposed or enacted them. No such complicated *Page 129 political machinery as that used at the present time had ever been attempted, or perchance dreamed of, for years after the two amendments were added to the Constitution. If such an interpretation had been attempted in the reconstruction period, it would have been derided, because those then in power did not desire that the newly enfranchised should ever enter the Democratic, or any other than the Republican Party. However, "time marches on," and the negro had turned from the "lily white" arm of the Republican Party to the Democratic Party, and in construing the primary system it was held that the party was an agency of the state government, and as such under the fostering care of the two amendments.
However much the logic and strength of the minority opinion in the case of Nixon v. Condon, herein cited, may excel those of the majority opinion, however much we may differ with the majority opinion, representing only five of the nine judges of the federal Supreme Court, still it is the law of the land, and this court will endeavor to follow not only its spirit but its letter. That opinion, while holding that the state had made the state executive committee its agent by authorizing them to fix the qualifications of members of the party, still in effect holds that the state had not made the party state convention its agent, and that, if the convention, through its inherent powers, decided who should or should not be members of the party, it would be a valid and binding exercise of power, which had steered clear of the Fourteenth and Fifteenth Amendments. In an attempt to follow the majority opinion in Nixon v. Condon, the state convention of the Democratic Party of Texas in May last, by resolution duly adopted, excluded negroes from Democratic primaries. The convention followed the majority opinion to the letter, and this court follows it in the same manner.
No decision of any appellate court of Texas has ever been written that tends to sustain the decision of the trial court herein, which enjoined the primary election officers of the Democratic Party from obeying the commands of their highest authority in the councils of the party, and which Judge Cardozo holds had power to give the authority destroyed by the district Judge.
The case of Briscoe v. Boyle, 286 S.W. 275, delivered by this court, has no applicability to the facts of this case. In that case it was merely held that, the Legislature having passed a law fixing the only test that could be imposed upon a voter by the inscription at the head of the ticket, the officers of the election had no right or authority to exclude a voter because he had voted the Republican ticket at a former election; in other words, election officers have no power or authority to create new tests not fixed by the governing power of the party.
The case of Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484, is mainly on the jurisdiction of the Supreme Court, and follows the Briscoe Case in saying that officers of election have no authority to prescribe other qualifications than those prescribed by statute. The two opinions merely held that the statute had prescribed the only tests that could be invoked by the officers of election. The last expression of the Supreme Court in Love v. Buckner (Tex. Sup.) 49 S.W.2d 425, if read in consonance with the last expression of the Supreme Court of the United States, sustains the opinion of this court.
We quote from Love v. Buckner as follows: "We do not think it consistent with the history and usages of parties in this state nor with the course of our legislation to regard the respective parties or the state executive committees as denied all power over the party membership, conventions, and primaries, save where such power may be found to have been expressly delegated by statute. On the contrary, the statutes recognize party organizations including the state committees, as the repositories of party power, which the Legislature has sought to control or regulate only so far as was deemed necessary for important governmental ends, such as purity of the ballot and integrity in the ascertainment and fulfillment of the party will as declared by its membership."
In the Nixon v. Condon Case, 286 U.S. 73, 52 S. Ct. 484, 76 L Ed. 984, the Supreme Court bases the agency of Texas in the governing of political parties on the power given the executive committee to fix the qualifications of membership in the party, but, after destroying the ship of party power and rule, threw out a spar upon which the party might keep its head above the tumultuous political sea of 1932, that spar being the convention of the party, not acting on any state mandate, but on its unfettered volition. The executive committee acquiesced in the resolution of the state convention and certified the resolution of the convention down for the government of the county primaries. The primary of Bexar county endeavored to act under that resolution, but was prevented by the injunction granted by a state district judge.
The only method of protecting its inherent right to state who shall and shall not be members of the Democratic Party in Texas, by the five to four opinion in Nixon v. Condon has been strictly followed by the party, and the resolution of the May convention of 1932 will be respected and carried into effect by this court.
Our original opinion is upheld as supported by law and precedent. *Page 130