
    WESTERMAN et al. v. MIMS, Secretary of State.
    (No. 3386.)
    (Supreme Court of Texas.
    Jan. 5, 1921.
    Dissenting Opinion Jan. 10, 1021.)
    1. Mandamus &wkey;>148 — Petitioners for independent nomination may maintain mandamus to compel certification.
    Those who sign a nomination petition of independent candidate may maintain mandamus proceedings against the secretary of state to compel him to certify the nomination if the candidate himself could have maintained such proceedings.
    2. Elections <&wkey; 142 — Candidate may be nominated as independent after declining party nomination.
    Under Rev. St. 1911, art. 3172, authorizing a nominee to decline nomination 20 days before election, a nominee by independent petition is entitled to he certified as such by the secretary of state after he declined a nomination by a party, notwithstanding article 2970, prohibiting the name of any candidate appearing more than once on the official ballot.
    3. Mandamus &wkey;>IO — Writ to compel certificate of regular nomination will be denied where under any law nomjnee is disqualified.
    Though Rev. St. 1911, arts. 3164-3166, has been strictly complied with in nominating an independent candidate, the secretary of state will not be compelled by mandamus to certify his name to be placed on the ballot if it is not entitled to be placed thereon because of any provision of the law, no matter where embodied.
    4. Mandamus &wkey;>IO — Petitioners for nomination cannot maintain mandamus if candidate cannot.
    Petitioners for independent nomination of a candidate who was under obligation to support a nominee of the party primary invited a breach of that obligation, and therefore cannot maintain mandamus to compel certification of the nomination if the obligation was such that it would prevent resort to mandamus by the nominee.
    5. Elections &wkey;>!26(4) — Primary pledge to “support" nominee imposes only “moral obligation.”
    The pledge of one who participates in a primary to support the nominee required by Rev. St. 1911, art. 3096, pledges him to uphold that nominee by aid or countenance, but he is under only a moral obligation to do so, since the obligation is not one that can be enforced by the courts, and a “moral obligation” in law is defined as one that cannot be enforced by action, but which is binding on the parties who incur it in conscience and according to natural justice.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Moral Obligation; Support.]
    6. Elections <&wkey;!26(4) — Statute as to pledging support to nominee not construed to prevent changes in party fealty unless intent is clear.
    Rev. St. 1911, art. 3096, requiring a participant in a primary to pledge support to the nominee, is not to be construed to prevent changes in party fealty unless the legislative intent to that effect is plain, since such construction would raise grave doubt as to the validity of the statute as an interference with privilege of free suffrage guaranteed by the Constitution.
    7. Mandamus <&wkey;7 — Writ discretionary, not a right.
    A writ of mandamus is a discretionary writ, and not a writ of right.
    8. Mandamus <&wkey;!5 — Not issued where relator has not “clean hands.”
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1526, empowering the Supreme Court to issue mandamus agreeable to the principles of law regulating such writ, mandamus, while a strictly legal remedy, will be refused, by analogy to the principles of equity, in aid of those who do not come into court with clean hands; that is, those who have violated conscience or good faith or other equitable principles in their prior conduct connected with the controversy.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Olean Hands.]
    9. Mandamus <&wkey;15 — Petitioners for independent nomination of participant in party primary not entitled to mandamus.
    A candidate for nomination at a party primary who pledged support to the primary nominee as required by statutes commits an act violative of' conscience by thereafter accepting an independent nomination so that petitioners for such nomination are not entitled to mandamus to compel the secretary of state to certify the nomination.
    Phillips, O. J., dissenting in part.
    Original petition for mandamus by H. Westerman and others against O. D. Mims, Secretary of State.
    Writ denied.
    See, also, 224 S. W. 888.
    Frank g. Anderson, of Galveston, for rela-tors.
    C. M. Oureton, Atty. Gen., G. L. Stone, Asst. Atty. Gen., and James B. Stubbs, of Galveston, for respondent.
   GREENWOOD, J.

The relators seek by mandamus to compel the respondent, secretary of state, to instruct the county clerk of Galveston county to have the name of respondent Aubrey Fuller printed in the independent column, under the title of judge of the Fifty-Sixth judicial district, on the official ballot in that county, at the general election on November 2, 1920.

It was averred and admitted that the respondent Fuller participated and voted in the Democratic primary in Galveston county, on July 24, 1920, at which the respondent Robert G. Street was a candidate and was nominated for judge of the Fifty-Sixth judicial district; that the official primary ballot had printed on it the words, “I am a Democrat and pledge myself to support the nominees of the primary;” that the American party of Galveston county nominated respondent Fuller on July 31, 1920, as a candidate for judge of the Fifty-Sixth judicial district; that on October 2, 1920, he filed with the county clerk of Galveston county a declination of the nomination; that on August 21, 1920, the relators presented and delivered to the respondent secretary of state their written application, requesting that the name of respondent Fuller be printed on the official ballot at the general election in Galveston county, as an independent candidate for judge of the Fifty-Sixth judicial district; that relators were all qualified voters, constituting more than 3 per cent, of the votes cast in the county in the general election of 1918; that none of the relators signing the application participated in a primary which nominated a candidate for said office, and that the application was verified by the statutory affidavits of each relator; that on July 24, 1920, respondent Fuller filed with the secretary of state his written consent to become an independent candidate for judge of the Fifty-Sixth judicial district; that respondent Fuller was a citizen and a qualified voter of the county of Galveston and state of Texas, was more than 25 years of age, and was a citizen of the United States'; and that he had been a practicing attorney in the state of Texas and in Galveston county for more than 4 years, had resided in Galveston county for more than two years next preceding November 2, 1920, and now resides in said county, of which he has been an actual, bona fide citizen for more than six months.

The contention of the relators is that, since the application of relators and the consent of respondent Fuller conformed to the requirements of articles 3164, 3165, and 3166 of the Revised Statutes, it became the duty, enforceable by mandamus, of the secretary of state, under article 3167, to issue his instructions to the county clerk, directing that the name of respondent Fuller be printed in the independent column of the official ballot.

On the other hand, the respondents, save Fuller, contend: First, that relators show no such interest as authorizes them to maintain this proceeding; second, that respondent Fuller’s nomination on July 31, 1920, by the American party for the office of judge of the Fifty-Sixth judicial district rendered him ineligible to become an independent candidate at the time relators’ application was presented- and for more than 30 days after July 24, 1920, the date of the primary election, and that the subsequent declination of the nomination by Fuller was ineffectual to render him eligible to become an independent candidate; and, third, that relators were not entitled to maintain this suit by reason of respondent Fuller’s participation in the Democratic primary at which respondent Street was nominated.

It is clear to us that, if this suit could be maintained by respondent Fuller, it can likewise be maintained by relators. The objection that respondent Fuller is alone affected by the action of the secretary of state is not tenable. The right asserted by relators is t,o present an independent candidate, designated by themselves, for the consideration of each voter through the official printed ballot. Such a right is conferred by statute on certain groups of qualified voters, under certain conditions. The precise question to be determined is whether the conditions exist which entitle relators, as such a group, to enforce by mandamus the right stated. The statement of the question is sufficient to disclose the interest of relators and their privilege to have the question adjudicated, notwithstanding respondent Fuller may not also join as relator in seeking the adjudication.

Article 2970 of the Revised Statutes forbids the name of any candidate appearing more than once upon the official ballot, except as a candidate for two' or more offices permitted by the Constitution to be held by the same person. Article 3172 authorizes a nominee for other than city offices to “decline and annul” his nomination by delivering to the officer with whom the certificate of his nomination is filed, 20 days before the election, a written declaration of his declination, signed before some officer authorized to take acknowledgments. While article 2970 warranted the secretary of,state to refuse to issue instructions for the printing of respondent Fuller’s name on the official ballot as an independent candidate during the time he was the nominee of the American party, yet. that nomination was annulled when respondent Fuller declined the. nomination in the mode prescribed by article 3172. After the nomination was thus annulled, it furnished no further warrant for the refusal to instruct the placing of respondent Fuller’s name on the ballot as an independent candidate, in compliance with an application filed in season. By this holding we simply recognize that the nominee has the time allowed by the terms of article 3172 for the exercise of his option to annul his nomination.

It is not the law that the writ of mandamus must be granted in every case upon a showing by relators that articles 3164, 3165, and 3166 of the Revised Statutes have been complied with. If the court were under any such compulsion, then the writ would have to be awarded, though the candidate named were confessedly ineligible to hold the designated office. It is elementary that a mandamus will not be issued to compel the doing of that which the law forbids, and chapter 13 of the General Laws of the Thirty-Sixth Legislature, p. 17, expressly forbids the placing of the name of an ineligible person on the ballot at a primary or general election. Manifestly one who seeks relief through this extraordinary proceeding must show himself entitled thereto under all applicable law, no matter where embodied.

If one is under obligation, legal or moral, to support a nominee of a party primary, the act of becoming a candidate against the nominee necessarily involves the breach of that obligation. Those who invite the breach cannot escape responsibility for the wrong it may involve. We are therefore of the opinion that, if respondent Fuller could not maintain this action, under the averments of relators’ petition, neither can the relators.

The relators and the contesting respondents differ as to the nature of the obligation imposed on a participant in a party primary. The latter contend that the obligation to support a nominee is a legal obligation, rendering the participant ineligible to become an opposing candidate. The former deny that any obligation is imposed on the participant save such as binds his honor and his conscience, and assert that no cognizance should be taken by the court of an obligation of that kind in awarding or withholding the writ of mandamus.

In support of the view last stated, the declarations in Koy v. Schneider, 218 S. W. 483, 221 S. W. 916, are cited, to the effect that the voter was not bound legally, but was bound morally to support the nominees of the primary wherein he voted. While those declarations were not necessary to the decision in that case and are not regarded as conclusive of the question here presented, a majority of the court, on careful consideration, are of the opinion that it cannot be properly said that the voter does become bound otherwise than morally to support primary nominees.

Article 3096 prescribes “a primary test” to be printed on each ballot as follows:

“I am a- (inserting the name of the political party or organization of which the voter is a member) and pledge myself to support the nominees of this primary.”

For many years such a test was required in party primaries while under no statutory regulation. The object of the test, when so required by party managers, was simply to determine the voter’s qualifications to have a part in choosing the candidates of the party or in dictating its policies.

It is not believed that the Legislature can in reason be said to have had a different object in the enactment of article 3096. The purpose of the Legislature was the same as the pre-existing purpose of the party managers, and that was to exclude from party action all persons save those holding a present party allegiance and having a bona fide present intention to support the party nominees.

If the entire purpose be not accomplished in determining whether the voter is a member of the party, having a subsisting intent to support the nominees, still we cannot say that the pledge imposes an executory legal obligation. The specific, statutory pledge is to “support” the primary nominees. As stated by Webster, to “support” is “to uphold by aid or countenance.” The Legislature must have given such an interpretation to the pledge, if they considered it binding on future conduct, in exacting it of ^vomen voters, when extending suffrage to them in primaries and conventions only.

The vital distinction between a legal obligation and a moral obligation is that it is practicable to enforce the former and impracticable to enforce the latter. To give effect to the distinction is to deny that the pledge imposes a legal obligation on the voter. It is utterly impracticable to enforce an obligation to uphold another by aid or countenance through either a decree for specific performance or an award of damages.

Of the decisions relied on by the contesting respondents to sustain the view that the pledge imposes a legal obligation on the voter, the case of State ex rel. Labauve v. Michel, Secretary of State, 121 La. 374, 46 South. 434, seems nearest in point. In disposing of the objection that the statute requiring the voter to declare his affiliation with the party holding the primary violated the article of the Constitution of Louisiana which secured the voter the right to prepare his ballot in secrecy, the court said:

“The answer to this is that the voter, by participating in a primary, impliedly promises and binds himself in honor to support the nominee, and a statute which exacts from him an express promise to that effect adds nothing to his moral obligation and does not undertake to add anything to his legal obligation. The man who cannot be held by a promise which he knows he has impliedly given will not be held by an express promise.”

We do not regard this opinion as contrary to our conclusion. The court affirmed that the primary voter, with or without the statute, incurred a moral obligation binding on his honor. The court concluded that the obligation was no greater with than without the statute. In our opinion, the court did not declare or mean to declare that there is any legal obligation with or without the statute. On the contrary, the court found that there had been no attempt by the Legislature, in enacting the statute, to impose on the voter anything in the way of a legal obligation.

In our opinion, a voter cannot take part in a primary or convention of a party to name party nominees without assuming an obligation binding on the voter’s honor and conscience. Such obligation inheres in the very nature of his act, entirely regardless of any express pledge, and entirely regardless of the requirements of any statute. The obligation, like the promise exacted by the statute when treated as governing future conduct, is for co-operation in good faitli to secure tlie success of tire nominee. There is no reasonably certain measure of bona fide co-operation in matters of this sort. The voter’s conduct must be determined largely by bis own peculiar sense of propriety and of right. It is for such reasons that the courts do not undertake to compel performance of the obligation. Being unenforceable through the courts, the obligation is a moral obligation. Herriott v. Potter, 115 Iowa, 648, 89 N. W. 91, 92. As stated by the Supreme Court of Pennsylvania:

“A moral obligation in law is defined as one ‘which cannot he enforced by action, but which is binding on the party who incurs it, in conscience and according to natural justice.’ ” Bailey v. Phila., 167 Pa. 573, 31 Atl. 925, 926, 46 Am. St. Rep. 693.

Moreover, we think the legislative intent ought to be plain before ballots are held forbidden which reflect conscientious changes in party fealty. Grave doubt might arise as to interference with the privilege of free suffrage guaranteed by our Constitution should the statute be construed as invariably requiring the casting of certain ballots. In rejecting that construction, we avoid any serious question of the validity of the statute and follow the rule:

“That where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise, and by the other of which such questions are avoided, our duty is to adopt the latter.” U. S. v. Del. & II. Co., 213 U. S. 408, 29 Sup. Ct. 536, 53 L. Ed. 849.

We do not say that circumstances might not arise under which one who had participated in a primary would be relieved of the moral obligation which is ordinarily incurred not to undertake the nominee’s defeat. The present case does not call for the determination of the effect of extraordinary circumstances.

Relators admit that the candidate proposed by them did vote in the primary, and they apply for a mandamus to get his name on the ballot, in order to defeat the nominee, without disclosing any fact tending to excuse the breach of good faith and conscience, which they invite. Are they entitled to the writ on these admissions?

It is generally held by the courts of last resort in America that the writ of mandamus is a discretionary writ, and it is frequently stated that it is not a writ of right. Smith v. Commissioner, 215 Mass. 353, 102 N. E. 362; Hill v. Mayor, 193 Mass. 574, 79 N. E. 825; Ross Township v. Michigan United R. Co., 165 Mich. 35, 130 N. W. 358; Van Akin v. Dunn, 117 Mich. 423, 75 N. W. 938; People v. City of Rock Island, 215 Ill. 493, 74 N. E. 437, 106 Am. St. Rep. 179; Hooper v. Rooney, 293 Ill. 370, 127 N. E. 713; State v. Graves, 91 Ohio St. 38, 109 N. E. 590; State v. Winterrowd, 174 Ind. 592, 91 N. E. 956, 92 N. E. 650, 30 L. R. A. (N. S.) 887; Board of Excise of Okla. County v. Board of Directors of School District 27 of Okla. County, 31 Okl. 558, 122 Pac. 520, Ann. Cas. 1913E, 369; Wiedwald v. Dodson, 95 Cal. 453, 30 Pac. 580.

This court announced in an opinion of Chief Justice Gaines that mandamus “is an extraordinary writ and rests largely in the sound discretion of the court.” Munson v. Terrell, 101 Tex. 220, 105 S. W. 1114.

None of these cases can be rightly construed as affirming that the remedy afforded by the award of a mandamus depends upon arbitrary action by the court. On the contrary, the discretion referred to is a judicial discretion to be exercised in the application of fixed principles. It is because these principles require the determination of the existence of many incidents, some of which are of an unusual nature, as well as the nonexistence of others, as conditions precedent to the writ’s issuance, and because such determination is impossible without the exercise of judicial discretion, in the light of the peculiar facts of each proceeding, that the writ is correctly classified as discretionary. 26 Cyc. 143 to 145.

Our statute empowers this court to issue writs of mandamus “agreeable to the principles of law regulating such writs.” Article 1526, Vernon’s Sayles’ Texas Civil Statutes.

Among the principles regulating the issuance of writs of mandamus, which cannot • be regarded otherwise than as clearly settled, is one which is thus stated in section 1380 of Spelling’s Extraordinary Relief:

“While the remedy by mandamus is not equitable, but strictly legal, yet by analogy to the principles prevailing in courts of equity it is a uniform requirement that the relator in seeking this remedy must come into court with clean hands.”

To the same effect, see section 26, High’s Extraordinary Legal Remedies.

Justice Lamar, speaking for the Supreme Court of the United States, announces the rule to be that—

“Mandamus * * * will not be granted in aid of those who do not come into court with clean hands,” since the writ issues “to remedy a wrong, not to promote one.” Turner v. Fisher, 222 U. S. 209, 32 Sup. Ct. 38, 56 L. Ed. 165.

See, also, Nevell v. Terrell, 99 Tex. 356, 87 S. W. 659, 89 S. W. 971; Hale v. Risley, 69 Mich. 598, 37 N. W. 570.; U. S. ex rel. Stevens v. Richards, 33 App. D. C. 418, 419.

The rule that he who seeks a mandamus must present his application with clean hands has no different meaning from the general maxim in equity that “he who com'es into equity must come with clean hands.” Prof. Pomeroy states the meaning of the maxim as follows:

“It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere in his behalf, to acknowledge his right, or to award him any remedy.”

He adds:

“It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose foundation is good conscience.” 1 Pomeroy’s Equity Jurisprudence, §§ 397, 404.

Having concluded that the petition of relators is grounded on conduct amounting to an invitation to, and hence participation in, an act violative of good faith and of conscience, it follows that relators did not come into court with clean hands, as required to entitle them to the relief prayed for, and hence the mandamus is denied.

PHILLIPS, O. J.

(dissenting in part).

When on motion leave was originally sought for the filing of this proceeding, I objected to the granting of the motion. It was clear to my mind that the relators had no right to a mandamus for the placing of Mr. Fuller’s •name on the official ballot as a candidate for district judge in opposition to Judge Street, the nominee of the Democratic party for the position, selected in the preceding primary election; it being shown that Fuller participated in the primary election as a Democrat and subscribed to the pledge that he would support its nominees at the general election. It seemed to me then, as it does now, an absurdity to say that a man could enter a party primary; subscribe to the pledge and obligation imposed by the statute law, to support the nominees of the primary; thereby obtain the right to participate in the primary; and then in the general election could lawfully become a candidate against a nominee of the primary. This conclusion was reached by determining, not whether there was anything unmoral about Fuller’s candidacy, but whether it was lawful. That, in my opinion, was the only thing to determine about it. It was in open disregard of the obligation of a valid, a plain, and a vital statute. It was therefore in my judgment unlawful.

In the refusal of the mandamus, I therefore of course concur. But the case, in my opinion, is not to be disposed of upon any such ground as that advanced for the decision by the majority of the court.

Fuller’s candidacy was either lawful or unlawful. The right to this mandamus should be decided accordingly.

If it was lawful, as it seems to me the majority opinion inevitably declares it, since according to its holding Fuller could become the candidate without violating any legal obligation or right, it should not be denied because in the view of the court there was merely something bad about the morals of it.

A court, it is true, has a discretion in respect to the awarding of a mandamus. But the right to so vital a thing as candidacy for public office should not depend upon a court’s view of its morality. It should depend alone upon the written law, and should be judged alone according to the law.

In a free country, any man, in the absence of a disqualifying statute, has the right to run for public office. Under free institutions, if his candidacy be not prohibited by positive law, it should not be denied.

If as tested by the law it is rightful, and is wrongful only as tested by morals, the ballot box is the best place to settle the equities of it.

If it be only in breach of good faith, but not in breach of any law, and is to be condemned only in conscience, the voters at the election may be, and should be, trusted to attend to its moral phases. I do not think a court should concern itself with them.

The decision of the majority is that the obligation imposed by the statute, requiring a participant in a primary election to subscribe to a pledge that he will support the nominees of the primary, is only a moral obligation. This is in accord with their holding in the Woman Suffrage Case, in answer to the proposition there urged that the statute making women eligible to vote in primary elections was invalid because they would necessarily be required to take this pledge, a pledge they could not perform; since, admittedly, they could not at that time vote in general elections. It is. now said in this majority opinion that the proper interpretation of the phrase “to support the nominee,” as intended by the Legislature in exacting it of women voters, is “to uphold by aid or countenance.”

The pledge required by the statute can not well have one meaning "for men voters, and another for women voters. It has never had but one primary meaning; and that is, “to vote” for the nominee in the general election. A party nominee, with an opposing candidate against him, would be in an enviable position in a general election with just the “countenance” of his party associates. He would doubtless have a new sense of the value of his nomination. Where the rivalry of parties was strong, the eagerness with which a party nomination would be sought under this interpretation of the duty of the party membership can be left to the imagination.

The decision further is, that though the relators are independent voters, having in no wise taken part in the primary election, and are shown here to have fully complied with the law governing the proposal by independent voters of an independent candidate, they are not before the court with “clean hands,” since Fuller’s becoming such a candidate even at their instance and petition, while not a violation of any legal duty, would be a breach by him of good faith.

The relators are seeking the mandamus here; not Fuller. The relators have not breached any faith. They were under no kind of obligation to Judge Street or to the political party which nominated him in the primary. They were under no duty not to oppose him in the general election with a candidate of their own. Their right to Mr. Fuller as their candidate would be equal to the right of the Democratic party to Judge Street as its candidate, if there were nothing in the law making the candidacy of Mr. Fuller illegal. Nothing can be held in my opinion as denying them this right and disqualifying and barring their candidate, but the written law. Nothing but the written law should be interposed between them and that right. The decision means that if Fuller had privately solicited Judge Street to become a candidate and promised him support, the relators should be denied the right to propose him as an independent candidate, though the law did not forbid Fuller’s candidacy and he was under no legal obligation not to become a candidate. There is no difference in morals between a man’s violation of his private word and his violation of his public word.

The sole ground of the decision is that the Hands of relators are to be regarded as “unclean” because Fuller’s candidacy would be a violation of his public word — not a violation of a legal duty. I do not consider the condition of the relator’s hands as the real question in the case, or, in view of the real question, of any importance.

The true question is whether Fuller’s candidacy would violate a legal right of Judge Street as the nominee of the primary in which Fuller participated — a right entitled to the law’s protection. If it would violate no such right, it is difficult to see how a court has any authority to interdict it or deny it legal standing.

The question must be determined by the nature of Fuller’s duty in the premises. The nature of a right which issues from a duty is necessarily that of the duty. If Fuller’s obligation not to become an opposing candidate was only a moral obligation, the corresponding right of Judge Street to be unopposed by his candidacy could not be other than a moral right. It would be a legal right — a right entitled to the law’s protection, only because of Fuller’s obligation being a legal obligation. This is the whole of the case. The law will not enforce purely moral obligations. It enforces, and can enforce, only legal obligations.

The importance of the decision therefore becomes manifest. It involves, not only whether duties and obligations imposed by valid laws are to be classed by this court as only of moral force, but the far-reaching question as to whether a party nomination under our statutes has any legal standing or integrity as against the candidacy of one pledged and bound by them to support and not oppose the nominee.

The effect of the opinion of the majority of the court is to announce that any one taking part in the primary is thereafter legally free to oppose such a nominee, even to becoming a rival candidate; that in the eyes of the law he is free to destroy and defeat the very purpose of the primary; that the law will require of him a solemn obligation for a fair and lawful purpose, and in the same breath absolve him from all legal duty to respect it.

While my protest is futile, I emphatically dissent from a holding by this court which deprives these statutes of all their strength and by which the primary system of this State, as safe-guarded by them, is virtually stricken down.

The purpose of a primary is not alone to make a choice of party candidates. It is to make a choice binding upon the party membership, particularly those who participate in the primary, whereby the strength of the party will be combined and unified for the success of its nominees at the general election. Each member of the party is entitled to vote his preference in the primary. But the essence of the primary is its binding effect upon those who enter it. No one is obliged to enter it, but if a party member does not expect to be both morally and legally bound to respect its result, he ought to stay out of it. The consideration for his agreement to vote for its nominees is the benefit accruing to him from the same agreement made by all the other party members participating, whereby the ultimate election of his choice of candidates, if selected in the primary, will be furthered, and, at all events, the party will be afforded in the general election a united voting force for the election of its nominees. As a loyal member of the party he is supposed to be concerned in the success of its nominees, whether they be the choice he expressed in the primary or not.

The primary is a barren, useless proceeding unless it binds those who take part in it, to vote for its nominees. Because of this palpable fact, the statute requires that those entering it pledge themselves to so vote. Only by making this pledge are they entitled to take part in it.

If in the face of this statute one who makes that pledge is only morally, but not legally, bound to observe it, the statute is a farce. It means that the statute has no virtue as a law, but is only a moral sanction. It was not needed as a moral sanction. It would be bad morals to violate such a pledge though there were no statute on the subject. The moral obligation would exist without the statute. Then why write a statute to express it? The statute could not create the moral obligation. Nor could the statute add anything to it. Legislatures cannot create moral obligations, nor impose them as such. That belongs to a higher power. Statutes are not written with any such design. They deal with legal obligations or duties and legal rights. Unless intended to have the iull force of a law; to express the command of the sovereignty of the State as a rule, not advisory, but imperative; to impose, not an obligation purely moral and belonging exclusively to the tribunal of conscience, but a duty cognizable in the forums of the law; and to create a corresponding right which the law will recognize, maintain and protect, the statute might as well never have been written.

There is a marked difference between the moral law and municipal law. The moral law is of divine origin. Municipal law is a human institution. The moral law is compulsory upon all persons in their relations with each other and in their duties to each other and to their Maker. Broadly speaking, it is the foundation of municipal law. Many of the latter’s rules and doctrines proceed from its principles and reflect them. But much of municipal law arises from considerations other than pure morals — from the importance of certainty, from expedience in many instances, and from the necessity for rules in accord with the average conduct of mankind. At certain periods the common law included many arbitrary rules, sometimes pure dogmas, in which there was no semblance of morality. For some of those ancient rules Lord Coke said no reason, even, could be given and none was supposed to be given. Therefore, the precepts of the moral law, except as the municipal law has embodied them and diffused them through its own doctrines and statutes, are left for their enforcement to the individual conscience. As purely moral obligations they essentially belong to the realm of conscience. There are many moral duties that are not legal duties. There are many legal duties— made so by the common law and particularly by the statute law — that are not moral duties.

But whether moral duties or not, once they are imposed by a valid statute, they become legal duties. The object of the statute in such case is to make them legal duties, resting no longer alone in moral authority, but imposed as legal obligations as a part of the law of the land and conferring legal rights upon those to whom they are owing — duties whose violation means something more than the mere pains of conscience, but for whose infraction the law will provide a remedy, as it does, and must do, for the protection of every legal right.

It is inconceivable that a duty commanded or a right conferred by a valid statute may be denominated as only a moral duty or a moral right. Or that a valid statute is to be held as impotent to convert what may also be a moral duty into a legal duty.

Such a proposition simply reduces itself to a denial of the validity of the statute. The purpose of such a statute is plainly to make the duty one charged and commanded by law. Otherwise, it would not be made the subject of positive law. If it be a duty so commanded by law, it is a legal duty. It can have no other character, unless the power to command it by law be denied.

In actual effect, this is what the holding of the majority- of the court comes to. The invalidity of the statute requiring the pledge is not expressly declared in their opinion, but it might as well be. The opinion intimates that in their view the statute would be invalid, as an infringement of the right of free suffrage, if the duty to respect the pledge it requires be held a legal duty. Therefore, says the opinion, as avoiding question as to the statute’s validity if held to impose a legal duty, it will be “construed” as charging only a moral duty.

There is nothing about the statute to construe. It is one of those statutes which do not admit of construction. If valid, it imposes a legal duty. If it does not impose such a duty, it is only because the Legislature was without the power to command the duty. Unless it imposes a legal duty, the statute is merely an impressive recital of the existing moral obligation, and is not entitled to be called a law. Holding it, by construction, as charging only a moral duty, denies the duty any legal nature and hence the statute any legal effect. This holding, therefore, merely means that question as to the statute’s validity is to be avoided by an adopted construction which deprives it of any legal force.

There is no authority for holding a Legislature to be without the power to enact a primary election statute requiring as a legal obligation such a pledge as this one. The constitutionality of such statutes has often been expressly affirmed. State v. Drexel, 74 Neb. 776, 105 N. W. 174; State v. Michel, 121 La. 374, 46 South. 430; Rebstock v. Superior Court, 146 Cal. 308, 80 Pac. 65. There is no suggestion in any decision that the obligation created by such a statute and the pledge under it is only a moral obligation. State v. Michel, 121 La. 374, 46 South. 430, plainly treats the primary voter’s taking part in a statutory primary as itself creating a legal obligation to respect its result and support its nominees. It is in that view that it is said in that opinion that the statute requiring him to so agree “did not undertake to add anything to his legal obligation.” The legal obligation was recognized as existing and as growing out of participation in the statutory primary.

Aside from authority, such a statutory pledge cannot, in reason, be held invalid because there is imposed a legal duty to respect it. Agreement by the primary voter to support its nominees by voting for them is absolutely essential to the integrity of the primary. Unless it so binds those taking part, it is without purpose or effect. The constitutionality of the primary as a method for making party nominations, with this as its aim and end, has never been denied. To allow participation in the primary without such agreement and its performance would result in the disruption of any party. A law which would countenance a voter’s right to enter a primary and his perfect freedom thereafter to destroy and defeat its very purpose would be void on its face.

With the primary voter clearly without any right to enter the primary unless he agrees to abide its result and support its nominees, how, in reason, is any constitutional right of his impaired by a statute which, in subjecting the primary to the control of the law, requires, if he does enter it, such agreement of him as a legal obligation? With the primary recognized as a constitutional method of making party nominations, and such agreement by the primary voter being the essence of the system, how can it be unconstitutional to impose performance of the agreement as a legal duty? How is any right of suffrage denied by such a requirement?

None is denied. There is no abridgment of the right to vote. Nor of the right to vote just as the voter contemplated when he entered the primary. The primary is only a predetermination by him of his choice of candidates, in which he willingly participates and takes an active part. It is a lawful method for the selection of the candidate of his party, and of himself as a member of the party. He is under no compulsion to adopt it as a method. He has the right to stay out of the primary. But if for purposes of his own and to subserve his interest as a voter he enters the primary, and in common with the other members of his party makes use of it for the selection of a candidate to be voted for by him at the general election, he would be in poor position to say that his voluntary adoption of the method operated as an abridgment of his right of suffrage. Having availed himself of it in aid of that right, he would not be heard to say that its just obligations were an impairment of the right.

The integrity of the primary, as a common and lawful method of the people for making party nominations is a matter of constitutional concern, as well as the right of suffrage. A reasonable law which only fairly protects .the primary, as does the requirement of this statutory'pledge in imposing a just legal duty upon the primary voter,-cannot be considered as any abridgment of the right of suffrage.

That a statute imposing a given duty does not provide a criminal penalty for the violation of the duty, or even a civil penalty, does not change the nature of the duty. There are many legal duties, imposed by statute and not arising from a statute, for whose breach no express penalty is provided. Nor is the nature of the particular duty altered .because, on account of certain features of it or peculiar circumstances, the law will leave its breach to other remedy than specific performance. There are many legal duties of this class, also.

But the rights which grow out of and are founded upon all such duties, whether those for whose breach no penalty is provided, or those whose specific performance will not be enforced, the law will protect, and for their protection afford appropriate remedy. It does so only for the reason that the duty from which the corresponding right proceeds is a legal duty. In this way the law compels observance of the duty. It is to be presumed that it will provide an appropriate remedy for the breach of every duty which it rightfully imposes.

Let it be supposed, for illustration, that instead of this application for the certification of Fuller’s name as an independent candidate being refused by the Secretary of State, it had been granted and Fuller had acquired the full status of such a candidate. Is it to be doubted that Judge Street, as the nominee of a primary in which Fuller had participated and taken the pledge required, by the statute, would be entitled to the law’s protection of his candidacy from such unlawful candidacy on the part of Fuller? Or that the law would fail in a remedy for its protection?

To what end have these nominations been subjected to the law’s control and regulation if the law will not safe-guard their integrity by protecting the rights of those who obtain them? If a right conferred or recognized by statute is not to be protected, defended and enforced by appropriate legal method, then we must abolish the maxim that the law will grant no right and permit no wrong without a remedy.

In Gilmore v. Waples, 108 Tex. 167, 188 S. W. 1037, the nature of the rights growing out of these primary election statutes was discussed. It was there held, not that they are moral rights, but that they are legal rights, because founded upon the statute law, and as such entitled to the law’s protection.

In the illustration just given, the right of Judge Street so entitled to protection would proceed only from its character as a legal right — a legal right growing out of Fuller’s legal duty under the statutory pledge, not to oppose him as a candidate, but to vote for him. Why? Not because of any statute expressly forbidding Fuller’s candidacy under such circumstances, since there is no such express statute, but for the reason that the statute requiring the pledge and his giving it in the primary as effectually prohibits his opposing candidacy as would a statute so written in terms.

If the statute does not have that effect, it has no effect. It required that Fuller agree to support tlie nominee. He did. so agree in obedience to the statute, as the means of entering the primary. Judge Street as the nominee became a beneficiary of the agreement and Fuller’s obligation to respect it. In virtue of the statute the duty to perform the agreement became a legal duty; the right of Judge Street as a beneficiary of the duty became a legal right; and it would command the law’s protection, as any other legal right.

But the law does not enforce purely moral obligations. They create no legal rights. Hence, in such a situation as is above instanced, if Fuller’s obligation be only a moral one, there would be presented the anomaly of an utter denial of any legal redress for the protection of a nominee 'under the statute against the opposing candidacy of one who as a participant in the primary was by the statute pledged and bound not only not to oppose him, but to support and vote for him. These statutes are a travesty if such a result may have their sanction.

They do not give any such sanction, as this court distinctly declared in Gilmore v. Waples. They do not, because the rights they confer and the duties they impose are legal rights and legal duties. Those rights and duties could be nothing else and be the subjects of the statute law of the State. 
      ©^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     