¶1(concurring).
¶2Ted R. Hunt was nominated in the primary by the Democratic Party for the office of County Commissioner of Precinct 1, Cameron County. At that election Jimmie Lee Hockaday voted. Five per cent of the voters of the precinct then, on behalf of Hockaday, made application to the County Judge requesting that Hockaday’s name be placed on the ballot for the General Election, as an independent candidate. That petition conformed to every requirement of art. 13.53, Election Code, Vernon’s 'Ann. Civ. Stats., in our opinion. .We find no law which compels the candidate to make oath of non-participation in a primary election. Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938. The signers of Hockaday’s application are required to make such an oath and they did. The County Judge gave consideration to the application, and caused an investigation to be made concerning the sufficiency of the signers and their qualifications. ■ He then passed on the matter *162favorably to Hockaday and ordered her name printed on the ballot. Hunt, .the Democratic nominee, then filed suit in the District Court of Cameron County, seeking a mandamus compelling the County Judge to set aside his order and enjoining the County Clerk from posting election notices and printing Hockaday’s name on the General Election Ballot. The District Court granted that relief and Hockaday appeals.
¶3In my opinion, the presentation to the County Judge of the petition on behalf of Hockaday, confronted the County Judge with a duty to exercise administrative discretion. The County Judge functioned in this matter as an administrative officer, not as a judicial officer. Wolf v. Young, Tex.Civ.App., 277 S.W.2d 744. Courts possess the power to compel the exercise of that discretion, but have no power to tell the administrator what his discretion is. If the statutes prohibited the action taken by the County Judge, we could' treat his action as arbitrary. We have been pointed to no statutory prohibition against the exercise of his, discretion and his making a decision. We are faced with the argument that a candidate has a moral duty not to run as an independent candidate if he has voted otherwise in the primary. The Supreme-Court has declared that such a situation imposed upon Hockaday a moral duty only. Rummler v. Reavley, Tex., 293 S.W.2d 638; Westerman v. Mims, 111 Tex. 29, 227 S.W. 178. In those cases, the candidate and those on his behalf were denied relief. The administrator vested with the discretion in those ca,ses exercised discretion against them, and that, together with their bad political manners, defeated their right to upset the administrator’s decision. But in-the instant case the -administrator determined that Hockaday conformed to the law and then exercised his discretion for the candidate. We are called upon to reverse that exercise, of discretion. To do so, we must conclude that the County Judge acted arbitrarily. The-most that this record shows is that Hockaday complied with all the law requires, but violated a moral duty. For us to hold that a county judge acted arbitrarily because he failed properly to weigh a moral duty of the candidate is quite different from a denial as an original matter by the County Judge of an application upon that basis. The examination of the application and the weighing of moral duty was the function of the administrator. For an appellate court to hold that an administrator acted arbitrarily because the applicant, though meeting every statutory requirement for a place on the ballot, had violated a moral obligation, would give a new and dangerous approach to the meaning of administrator’s discretion. It is not our judicial duty to exercise the discretion, but to determine whether an . administrator abused his discretion. In my opinion he did not. On this record, if he had determined the question the other way, he would not have abused his discretion. We cannot substitute our idea of discretion for that of the statutory administrator — in this case the County Judge.
¶4The judgment which upset the administrative exercise of discretion by the County Judge should be reversed and vacated.