GILMORE v. WAPLES et al., 188 S.W. 1037

PHILLIPS, C. J. The action was one by C. E. Gilmore, alleging himself to be a Democrat, regularly affiliated with that party,' and an announced candidate in the ensuing general election for the office of State Railroad Commissioner, against Hon. Paul Waples as Chairman and the other members of the State Democratic Executive Committee to restrain them from making a nomination for the same office. The petition declared it to be the purpose of the committee, unless restrained, to make such a nomination and to declare Mr. C. H.

Hurdleston the nominee of the Democratic party for the office, in contravention, it was claimed, of the statutes of the State denying any such authority to the committee. The basis of the suit is the right of the plaintiff, as he contends, to contest for the office as a Democrat in the general election without being subjected to the disadvantage of being opposed by a Democratic nominee whose nomination is prohibited by law. It is recited in an agreed statement of facts, a part of the record, that Mr.

Williams, the former incumbent of the office, was not at the time of his recent death a nominee of the Democratic party for the office, having been duly elected to it in the year 1912 for a term extending until the year 1918; and that the salary of the office is 84,000 per year. Also, that the plaintiff is a Democrat and has always been affiliated with the party organization. And further, that the placing of the name of Mr.

Hurdles-ton on the official ballot in the general election as the nominee of the Democratic party will be equivalent to his election, and will preclude the plaintiff from being a candidate for the office as a Democrat, since he would withdraw his candidacy rather than assume the attitude of opposing one declared to be the nominee of the party. An injunction restraining the committee from making any nomination for the office was issued by' the District Court. This order was reversed and the injunction dissolved by the honorable Court of Civil Appeals, Associate Justice Buck dissenting.

The case presents two questions for decision, one as to the power of the committee to make a nomination under the existing condition, and the other as to the right of the plaintiff to invoke the equitable remedy of injunction. The determination of the latter question depends upon the decision of the first. If there is no provision of law interdicting the proposed action of the committee, no legal right of the plaintiff can be said to be threatened with impairment, and the case presents merely a party dispute which the courts will remit to the party forum.

On the other hand, if the proposed action of the committee is prohibited by law, a judicial question is presented; and if such action threatens a legal right of the plaintiff and the infliction upon him of a material injury for the redress of which no adequate legal remedy exists, his right to equitable relief cannot be denied.

An inspection of the statutes makes it manifest that the Legislature has omitted to provide any method for the making of a party nomination for an office to be filled at the general election where the vacancy in the office occurs between the dates fixed by law for the holding of the general primary election and the ensuing general election, and for which office there has been no previous nomination of a candidate to be voted upon in the general election — the condition which the case discloses.

Other than the provision for an original nomination in the general primary election, nowhere is there provided any method for the nomination of a party candidate for a State office to be voted upon in the general election except where there has been a previous nomination and a vacancy in the nomination, caused either by a declination of the nomination or the death of the nominee. Mr. Williams, the former incumbent of the office in question, was not a nominee at the time of his death, which occurred after the time fixed by law for the general primary election. There was consequently no vacancy in a nomination.

There was simply a vacancy iu the office, calling for an original nomination if the party proposed nominating a candidate for the office in the general election. Under this condition was the State Democratic Executive Committee prohibited by law from making a nomination? The powers of a State executive committee in respect to making nominations for its party are dealt with in Articles 3172 and 3173 of the Revised Statutes. It is provided in

Article 3172 that in case of the death of a nominee for a State office, or the declination of such a nomination by a nominee, the State Executive Committee of the party may nominate a candidate to supply the vacancy. The succeeding article,

Article 3173, declares: “No executive committee shall ever have any power of nomination, except where a nominee has died or declined the nomination as provided in

Article 3172.” There is nothing ambiguous about these two articles. Nor is their intention in any wise obscure. They very plainly confer upon a State committee the power of nominating a candidate for a State office in instances where there has been a previous nomination and the nominee has either declined the nomination or has died. Just as unequivocally they deny such power to the committee in all other instances. The language of

Article 3173 is pointed, clear and certain, and there is nothing about it or its context that would warrant a court in setting it aside. A statute so plain and unmistakable leaves nothing for

interpretation or construction. All that courts may do with such a statute is to observe it and enforce it. There is an omission in the law, it is true. But it is not the business of courts to supply omissions in laws. Particularly are they without any authority to supply an omission in a law by holding that a certain body is empowered to do a certain thing when the Legislature has emphatically declared that such body shall not have the power to do that thing.

To say that the Legislature’s failure to prescribe any method for the making of a party nomination under the'conditions here shown warrants a holding that an executive committee may nominate under such conditions, means only that the courts may themselves provide the method, and, in this case, a method the use of which for the purpose the Legislature has expressly forbidden. It has been argued in behalf of the committee that the whole law discloses an intention on the part of the Legislature not to prohibit the committee’s acting in such a contingency as the case presents, and that

Article 3173 should be so construed notwithstanding its literal terms. The intention of a law is the essence of the law, and from this it follows that the primary rule of construction is to ascertain and give effect to that intention.

While the purpose of all rules upon the subject is simply to ascertain the legislative intent, and the context of a statute will be consulted in that effort, yet, in the language of a distinguished author on statutory construction, “the intent which is finally arrived at must be an intent consistent with, and fairly expressed by, the words of the statute themselves.” Sutherland on Stat. Cons. § 388. There can be no intent of a statute not to be found in its words, and certainly there can be none that is expressly negatived by its words. The argument that the Legislature did not intend in the enactment of

Article 3173 to prohibit a nomination by an executive committee under the contingency here involved, rests alone upon the grant of such power to the committee in the case of the declination of a nomination or the death of a nominee, as provided in

Article 3172, and the omission to provide any method whatever for the making of a nomination under such other condition. But the grant of such power to the committee in a particular instance cannot imply an •intention to allow its exercise in another in the face of a positive statute that except in the instance particularized the committee shall not possess the power. The only intention deducible from such a statute and consistent with its terms is a denial to the committee of the power except as expressly granted.

Nor is an intention that the committee should have the power in an instance like that here presented supplied by the omission of the -Legislature to provide any method for a nomination under such a condition, in the teeth of the plain negation of that intention found in the declaration of

Article 3173, that except in the case of a nominee’s death or the declination of a nomination no committee should ever have the power of nomination. There is but one intention to be drawn from this statute or its context that is consistent with the provisions of the statute. It is the intention which lies on the face of the words themselves — that except in the case of the declination of a nomination or the death of a nominee, no committee shall have any power of nomination. As is said by the author above quoted: “Courts are not at liberty to speculate upon the intentions of the Legislature where the words are clear, and to construe

an act upon their own notions of what ought to have been enacted. Tlie wisdom of a statute is not a judicial question; nor can courts correct what they may deem excesses or omissions in legislation, or relieve against the occasionally harsh operation of statutory provisions without danger of doing more mischief than good.” Id. § 364. At another place in the same work,

Section 366, it is said: “We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.” Further in the same

section it is said: “The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise where there are cogent reasons for believing that the letter does not fully and accurately disclose the intent.

No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute.” There are instances where the literal meaning of a statute may be disregarded. But it is only where it is perfectly plain that the literal sense works an absurdity or manifest injustice. Id. § 408. Edwards v. Morton, 92 Tex. 152, 46 S. W. 792, presented a case of that kind.

A literal construction of the statute there in question would have entailed a holding that one recovering a judgment in the justice court is required to give bond in double the amount of the judgment in order to appeal. It would be a plain absurdity to require a man to give a bond to secure a debt due himself and to one from whom the debt was due; and this court accordingly refused to give the statute that construction. But it cannot be contended that the effect of a statute which prohibits an executive committee of a political party from making a nomination except as provided in

Article 3172 involves either an absurdity or a manifest injustice. Vested as it was with the power of legislation upon the subject, it was clearly competent for the Legislature to provide for nominations by the committee in certain instances and to deny it such authority in all others. It is the undoubted right of a political party to make nominations for the elective officers of the people. The Legislature has the authority to prescribe reasonable methods to be employed for the purpose; but it does not possess the power to absolutely prohibit any nomination being made.

Such an attempt would constitute an arbitrary interference with the liberty of the people to freely associate themselves for the purpose of expressing such choice for their elective offices as they might select and for reasons they might see fit. “The liberty of the electors in the exercise of the right vested in them by the Constitution to choose public officers on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality, and are therefore criminal, cannot be denied.

It seems to me as absolute as the right to pursue any trade or calling, and therefore their right to associate and organize for that purpose is equally great.” Coffey v. Democratic General Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 680. The failure of the Legislature to provide any method for a nomination under tile conditions created by the death of Mr. Williams does not mean that the Democratic party was without any authority to make a nomination for the office of Railroad Commissioner. In our opinion it has that authority.

The mere failure of the Legislature to provide an available method does not defeat its right to make a nomination. The right exists and in our opinion might be exercised in any manner agreeable to party usage not expressly forbidden by law. The use of the Executive Committee as a method is expressly so forbidden, in our view, by

Article 3173, and it cannot, therefore, be availed of. But except as the Executive Committee is denied any power of nomination under the conditions presented, plainly the making of a nomination under such conditions is unregulated by any statute law, and it could therefore, in our opinion, be made in accordance with the party law and agreeably to party usage. This brings us to the question of the right of the plaintiff to equitable relief.

The contention of the committee upon this phase of the case is that there is presented but a political question and at most but a political right, and for the protection of such a right equity will not extend its aid. This would be true as to the character of question and right involved, but for the fact that the making of party nominations in this State is regulated by law. With our legislation covering the subject, whether a given nomination has been made in accordance with that legislation or in violation of it, presents, not a political question, but necessarily, a judicial question.

For what purpose and to what end, it may appropriately be ipquired, have the various statutes in relation to party nominations been enacted in this State if the rights and duties therein defined and the matters they purport to govern still present mere political questions, to be settled alone by party law and in the party forum, and are therefore beyond the cognizance of the courts? The very purpose of this legislation was to relieve these matters of their mere political character, as was their nature aforetime, and subject them to the regulation of the statute law. The courts exist only to enforce the law.

This includes the statute law. If they have no cognizance of rights arising under a civil statute regulating a political party, upon the ground that the body regulated is political and therefore any question affecting it is also political, though in terms governed by an express statute, it must follow that a political party is beyond the control of the law. But political parties are not beyond the control of the law. When regulated by law, their action to the extent that it is so governed may be reviewed by the courts as the only means of giving effect to the sovereign law of the State.

In such case the inquiry is judicial because made the duty of the courts; and the questions presented, are likewise judicial because arising under the written law. Is the right of the plaintiff to contest for the office in the general election as a Democrat, without the disadvantage of an opposing Democratic nomination, a mere political right, where such nomination is made contrary to law? Aids right would be political, clearly, if the law did not make the opposing nomination unlawful. Does it remain, however, only a political right, under the law which forbids the nomination in the manner made?

This depends simply upon whether the candidacy of the plaintiff for the office has the protection of the law which declares as unlawful the proposed nomination. If so, his right to be unopposed by the unlawful nomination, is clearly a legal right. It could not be of a different character. A statute designed to protect a certain class of persons, and which in terms does so, against certain illegal action, by prohibiting such action, is a dead letter if it does not confer upon such persons a legal right to demand the protection.

Article 3173 was designed for the protection of political parties, and every member of such parties acting within his lawful rights, against the use of unauthorized au-. thority by an executive committee. There can be no doubt, for illustration, that a candidate for a party nomination in the general primary election is protected by this statute in his right to have such primary election, alone, determine his candidacy. Nor can there be any question that such right would be a legal right.

The statute making unlawful a nomination by the committee in such case, necessarily confers upon a-member of the party whose candidacy is lawful the legal right to be unopposed by such illegal action of the committee. Otherwise, the statute is of no force and protects nobody against usurpation of authority by an executive committee.

Likewise, this statute would protect the candidacy in the general election of a member of the party who had been duly nominated in the general primary election. • The case presents a condition where it is plainly optional with the Democratic party of the State whether it makes any nomination for the office in question. Under the conditions presented — the law having prescribed no method available for the purpose —it is not required to make a nomination; and it has not made a lawful nomination.

That a member of the party, where no nomination is required to be made and no lawful nomination has been made, may as a Democrat lawfully contest for an elective office in the general election, cannot be denied. It being his lawful right to contest for the office as a Democrat in the general election, where no nomination is required to be made and no legal nomination has been made, the candidacy of such a member of the party in the general election is in our opinion as clearly protected by

article 3173 against a nomination by the executive committee, declared as unlawful by that article, as would be tbe candidacy of a member of the party for a nomination in the general primary election. To hold otherwise is simply to narrow the scope and purpose of

article 3173 to the protection of only candidates for a party nomination or the lawful nominees of a party. In view of its broad provisions the statute cannot in our opinion be so limited. It declares that, except as provided in

article 3172, “no executive committee shall ever have any power of nomination.” This can only mean that the power denied is forbidden at all times and under all conditions. It necessarily follows that the statute protects not only candidates for a party nomination and the duly declared nominees o{ a party, but, as well, the candidacy in the general election of a member of the party as such, where no nomination is provided for and no lawful nomination has been made, and confers upon such a member the legal right to invoke its protection by an appropriate proceeding in the courts.

Any other view, it seems to us, simply means that an executive committee may in the face of a plain statute make an unlawful nomination, and that a member of the party, rightfully a candidate for the office because of no nomination having been made, and the rest of the party membership, as well, are powerless to resist the committee’s action but must submit to it. This, in our opinion, would result in the nullification of the statute.

We think it also plain that the proposed action of the committee threatens a material injury to the plaintiff for the redress of which no adequate legal remedy exists, entitling him to equitable relief. This was the holding of a majority of the honorable Court of Civil Appeals constituted by Chief Justice Conner and Associate Justice Buck, if

article 3173 prohibited a nomination by the committee. We think that holding was correct. It is shown that the nomination of Mr. Hurdleston by the committee will be equivalent to his election. It would destroy all prospect of the plaintiff’s election and, under the agreed statement of facts, will wholly preclude his candidacy. If, in virtue of

article 3173 it is his legal right to be protected in his candidacy against an unlawful nomination by the committee, as we have held, the destruction of that right and, in consequence, all prospect of the plaintiff’s election, necessarily will inflict upon him a substantial injury.

It is apparent that no legal remedy is available to prevent the legal right of the plaintiff to have his candidacy unopposed by an unlawful nomination being in effect destroyed, or to avoid the destruction of all prospect of his election, which, it is agreed, will be the result if the committee is permitted to make the proposed nomination. The first maxim of equity is that it will not suffer a right to be without a remedy.

We do not believe there is any appreciable conflict in the authorities upon the proposition that where the making of party nominations by political parties is once regulated by the statute law the rights created and protected by a statute are legal, as distinguished from political, rights; and that for their invasion equity will afford its relief where there is no adequate legal remedy.

Cases exist wherein it is asserted that the-rights of members of political parties in respect to party nominations are mere political rights of which the courts will not take cognizance, but in most instances it will be found that this doctrine has been asserted where there was no statutory regulation of such nominations. McDonald v. Lyon, 43 Tex. Civ. App. 484, 95 S. W. 67, decided by the honorable Court of Civil Appeals for the Fifth District, illustrates cases of this character. It involved a mere party dispute, ungoverned by any law save the party law.

The rights involved were therefore purely political and without any legal standing. It was properly held that the courts would not interfere for the settlement of such a dispute. An essentially different status, however, is presented where the making of party nominations is governed by law. Rights arising under such laws, as is true in respect to all rights conferred by statute, are held to be legal rights, the exercise of which the courts will protect as a part of their duty to give effect to the written law of the land. And for the ' enforcement of such rights equity will not in proper cases deny its relief.

Egan v. Grewe, 112 Ky. 232, 65 S. W. 437, decided by the Court of Appeals of Kentucky, the court of last resort in that state, presented a case where the executive committee of a political party attempted to fix a certain date as the last day on which any person would be permitted to submit his name to be voted for at a certain primary election of the party which had been duly called to nominate candidates of the party. The time within which such names were to be submitted was governed by a statute which fixed the last day for that purpose later than that fixed by the committee.

The plaintiff in the case, a member of the party, submitted his name to the committee to be placed upon the primary election ballot as a candidate for the party nomination as a candidate-for state senator within the period fixed by the statute, and his request was refused by the committee. He was granted a mandatory injunction to compel the placing of his name on the ballot. The Court of Appeals'held that he was entitled to such relief. In Brown v. Committee, 119 Ky. 720, 68 S.

W. 622, decided by the same court, the-executive committee of a party was pro - ceeding to hold a primary election under rules and regulations essentially different from the requirements of the Kentucky statute goverñing such an election. It was-held that a candidate in the -election was entitled to an injunction to restrain the committee irom holding the election in any manner violative of the statute. Neal v. Young, 75 S.

W. 1082, by the same court, involved a case where certain candidates for nomination in a primary election sought to restrain a Democratic executive committee from declaring that the primary election, theretofore duly called, should not be held. In the opinion this is said: “It was urged in argument that the question here involved is purely a political one, and that the courts should not take jurisdiction of it. My answer is that the court of appeals has a contrary opinion, and in Egan v. Grewe, Brown v. Republican County Committee, and Young v. Beckham [115 Ky. 246, 72 S.

W. 1092, 1094], has held that it had jurisdiction to enforce individual and legal rights. If it were a controversy between the old committee and the members claiming to be, under the appointment of the chairman, as to which was the regular committee, and no other rights were dependent upon the controversy, then it would be a purely political question, to settle which the courts would not take jurisdiction. When elections were conducted under the viva voce system, or by ballots furnished the electors by the candidates or their friends, no such question as is involved could arise.

Since the adoption of the official ballot system by the Constitutional Convention, since the legislative branch of the state government provided for the regulation of primary elections by law, questions involving the legal rights of individuals will arise for the determination of the courts. The necessity for such adjudications has been placed upon the courts by the changes which have been made by the organic and statutory law of the state.

However much the courts desired to do so, they could not avoid the responsibility of deciding such questions, even if perchance some one should fail to discriminate between political rights and those legal rights which arise under the law, and declare the court was adjudicating purely political questions. The Democratic committee of Jefferson county and the city of Louisville, being officers in virtue of the primary election law, were entitled to conduct the primary election, and to ascertain and certify the result of it without any interference or hindrance of the defendants.

To protect them in the exercise of this right, injunction was the proper remedy.” Because the rights of the plaintiffs in these several cases arose under and were protected by a statute, the reason of these decisions is that they could no longer be regarded as purely political rights, but were essentially legal rights, for the protection of which against illegal action by the party authorities only equity afforded an adequate remedy, notwithstanding the management and methods of a political party were involved and the action of the party authorities thus subjected to review by the courts. Brown v. Cole, 54 Misc.

Rep. 278, 104 N. Y. Supp. 109, presented a case where a Republican elector sought to restrain by injunction a Republican county committee from carrying into execution a system of enrollment formulated by the committee by which all persons except those whose names might appear upon the enrollment were to be excluded from participation in the Republican primaries of the county. The statutes of the state prescribed the qualifications of the persons entitled to be enrolled for the purpose of voting in primary elections. The basis of the suit was the committee’s disregard of such statutes.

The same argument was made in the case as is made here against the right of the plaintiff to an injunction, namely, that his right to vote in the primary election was a mere political right, not cognizable in equity.

The court disposed of the contention in these words: ' “In the common law no place was found for the political rights of citizens. * * * The . necessity for a different rule regarding the non-i recognition of the political rights of citizens did ! not become apparent for many years after the ! formation of our government, and the ancient I doctrine found expression in numerous decisions of our courts.

The reasons therefor were not j those which originated the doctrine, but were , found in the fact that such rights we're regarded i as belonging to matters which did not concern i the public at large, and from their very nature beyond the pale of the law. Political parties differ from individuals, corporations, and chartered organizations, in that they are not liable to amercement, incarceration, or dissolution and therefore not subject to the familiar methods of governmental restraint.

For many years statecraft was at a loss to discover any method by ! which they might be brought under effectual control. * * * The struggle to accomplish this result has left its marks upon the statute books of this state for the last fifty years, where the history of its progress may be read by any one desiring enlightenment upon the subject. * * * i The objects of these provisions (the statutory ! provisions prescribing the duties of the officers I of the primaries, the method of procedure, qualification of voters, etc.) are manifest, and it is not | to be presumed that the Legislature would so attempt to regulate and prescribe, in respect to the I holding of primaries and the qualifications of ' voters thereat, without intending to enable one having an interest in such primaries to protect and defend his rights and enforce compliance with the law.

Otherwise the statute would be inane and an elector powerless. * * * Refer- ! ence is here made to the enrollment laws for the ; purpose of indicating the completeness of the legislation of recent years touching the rights of electors, the regulation of political parties, and the duty and jurisdiction of courts to take cognizance thereof.

From this review of such legislation, I conclude that the old doctrine that political rights were beyond the_ domain of judicial investigation and determination has been swept away, and that there no longer remains any distinction between the civil and political rights of citizens, and that the courts may not shut their doors against the enforcement of any such rights. It will be presumed that every right, recognized or conferred by statute, may be protected, defended, and enforced by an appropriate legal method amd that every wrong has its remedy.” To the same effect is Walling v.

Lansdon, 15 Idaho, 282, 97 Pac. 396, where the general question is elaborately discussed. In Cook v. Houser, 122 Wis. 534, 100 N. W. 964, in discussing this question, it is said: “The time has long since passed for serious controversy as to whether in this class of cases judicial questions are involved. The idea urged upon our attention by defendant’s counsel that they involve only political questions, which should be left for solution to the party organizations directly interested, has been judicially denied over and over again.

We venture to say that there is no conflict at this time in respect to the matter, in judicial authorities dealing with legislative plans for the use of an official ballot.” We have attempted to make a careful review of the authorities relied upon by the defendants in error in support of a contrary view. As given in their brief, they are as follows: Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; Winnett v. Adams, 71 Neb. 817, 99 N. W. 681; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; Anthony v. Burrow (C. C.) 129 Fed. 783; McDonald v. Lyon, 43 Tex. Civ. App. 484, 95 S.

W. 67; Robinson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067; s. c., 98 Tex. 267, 83 S. W. 182; City of Dallas v. Consolidated Street Railway Co., 105 Tex. 337, 148 S. W. 292; Harding v. Commissioners’ Court, 95 Tex. 175, 66 S. W. 44; Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220; Alderson v. Commissioners, 32 W. Va. 640, 9 S. E. 868, 5 L. R. A. 334, 25 Am. St. Rep. 840; Kearns v. Howley, 188 Pa. 116, 41 Atl. 273, 42 L. R. A. 235, 68 Am. St. Rep. 852; 15 Cyc. 331; Annapolis v. Gadd, 97 Md. 734, 57 Atl. 941; State v. Foster, 111 La. 939, 36 South. 32.

No one of these cases, with possibly one exception, is in any respect analogous to the present case, and none of them controls it. They group themselves into the following classes:

(1) Those in which it does not appear that the particular right involved, for the enforcement of which the action was brought, was protected by any statute.

(2) Those in which the suit was to restrain some step in an election, in nowise invading any right of the complainant.

(3) Actions to prevent removal from office or to contest the title to an office.

(4) Where the effort made was to obtain a review of some character of party action, when a special tribunal had been created by statute for the settlement of such disputes and given finality of decision concerning them. McDonald v. Lyon has already been noticed. In none of the other Texas cases cited were the questions presented here in anywise involved. In each it was claimed that a property right of the complainant would be invaded if the result of a particular election was permitted to be declared.

The decisions but affirm the well-established doctrine that the completion of an election or the mere declaration of its result does not impair or threaten any property right; and that the courts will not interfere to prevent the completion of elections, belonging as they do to the political branch of the government. Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, is relied upon as a leading authority. It holds that an action instituted to have an apportionment act declared unconstitutional presents merely a political question.

This holding is directly opposed by the supreme courts of Indiana and Wisconsin, both of which announce that such a question is judicial. Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561. In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402, grew out of an action in equity, brought in a Circuit Court of the United States, to re'strain a city council of a city in a state from removing a police judge from office.

It was held that the question of title to a public office is cognizable alone in courts of law, and that a Circuit Court of the United States was without authority to restrain the council of a city from trying and determining charges of malfeasance against a city official. Winnett v. Adams, 71 Neb. 817, 99 N. W. 681, was a case where the action was to restrain a party committee from putting into force a certain rule governing the official ballot of a primary election. It does not appear from the decision that the action of the committee was in fact prohibited by any statute.

The court in its opinion adverts to no-statute purporting to deny to the committee the authority it assumed to exercise. If there was no such statute, clearly no legal right was invaded. In Kearns v. Howley, the action was to restrain a chairman of a party committee from filling vacancies in the committee. It is distinctly stated in the opinion that the action sought to be enjoined was not prohibited by any statute, and, of course, there was in such case no violation of any legal right of the complainant.

This significant passage is found in the opinion: “It may be, if this bill had aimed to prevent a threatened violation of law by any of these officers, it could have been maintained.” When these cases are examined and the actual decision in each is considered, it will-be found that the questions presented by this case were not at all involved, with possibly the exception of Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980. It is unnecessary to review them further. Walls v. Brundidge remains to be considered. It concerned a contest for the Democratic nomination for Governor.

By statute it was provided that the central committee of the party should constitute a board for the hearing of contests of primary elections with the-right of appeal to the state convention; and that the decision of these tribunals should be conclusive of the contest. S. Brundidge and Judge Hays were rival candidates for the-nomination. Brundidge filed a contest with the central committee. It heard the contest and determined that Judge Hays had received a majority of the votes, declaring him the nominee.

The bill of complainant alleged that the committee had not granted him a hearing upon his contest, but had arbitrarily declared his opponent to be the nominee. It prayed that the certification of his nomination be enjoined. A majority of the court held that the rights of Mr. Brundidge were merely political and not cognizable in equity.

It is to be noted, however, that the decision of the case is in part rested upon the fact that a special tribunal had been created by statute for the hearing of such a contest and its determination; that its decision was made final by statute, and was therefore not subject to review in the courts.

A dissenting opinion was filed by Chief Justice McCulloch, holding that the allegations of fraud in respect to the action of the committee on the contest gave equity jurisdiction of the case, upon the ground that the right of the complainant to a fair hearing before the committee was a legal right because á statutory right; further holding, however, that since the complainant had permitted the time to elapse in which the contest could be determined in advance of the general election, he had no right which equity could protect— clearly a proper disposition of the case.

In Chief Justice McCulloch’s opinion in this case, attention is directed to the fact that the cases which hold that no court will interfere in the matter of nominations because depending purely upon party regulations all antedate the enactment of statutes providing for such regulation; and that where the field has been entered upon by Legislatures as a fit subject of regulation by law, the courts hold that legal rights are thereunder established which the courts will protect.

His conclusion that the right conferred by the statute to a fair hearing of the contest before the committee was a legal right, which would be protected in equity against fraudulent action of a party committee, is, in our view, unassailable. The holding of the majority of the Arkansas Supreme Court in Walls v. Brundidge more nearly supports the contention of the defendants in error here than any ease cited. But we are unwilling to give our concurrence to the doctrine that a right conferred by. the statute law of the state is not a legal right.

To hold that such rights are not legal rights in our judgment destroys the force of the statute law. The case has been carefully considered. AYhile the good faith of the state Executive Committee is not in our opinion to .be doubted, we think it clear that its proposed action is prohibited by the statute and that the plaintiff was entitled to have it restrained. The judgment of the Court of Civil Appeals is reversed and that of the District Court is affirmed. YANTIS, J., dissenting. ©cs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes