I concur in the judgment and generally, except in one regard, in the views expressed by Justice Lorigan. I am unable to assent to his conclusion that the provision relative to the filing of an affidavit by any person designated by electors of a party for nomination, as a condition precedent to the printing of his name as a candidate on the primary ballot, in which affidavit he must state substantially that he is a member of the party for whose nomination he is designated, etc., is a valid provision. Its effect is, *Page 795 of course, to prevent the printing on the ballot of the name of any person as a candidate for the nomination of a political party unless he is a member of the party and has otherwise complied with the requirements of the provision.
It appears plain to me that the provision in the constitution giving the legislature the power to prescribe the tests and conditions upon which political parties, organizations of electors, and electors may participate in a primary election, was not intended to warrant a restriction in any degree of the right of the members of a party to nominate for any particular office any one whom they desire, who has the legal qualifications for the office, regardless of his political affiliations. The tests and conditions referred to in this provision are the tests and conditions upon which political organizations may have nominations made at the primary, and the tests and conditions upon which electors may participate, both in the selection of candidates for nomination by their party to be voted for at the primary, and in voting as members of a party at the primary itself, and have no reference to the persons who may be selected for nomination.
It has always been recognized that a political party has the absolute right to nominate any one for office whom it sees fit to select, regardless of his political affiliations, provided he has the proper legal qualifications for the office, and that each of two or more parties may nominate the same man as a candidate for the same office, and, as has been said by this court, "if any confusion of political principles should thereby result, that is a matter wholly for the political parties themselves, and not at all for either the legislature or the courts." (Murphy v. Curry,137 Cal. 479, [70 P. 461].) The object of our constitutional provision relating to a direct primary law is simply to enable the members of a party to directly name the nominees thereof, instead of selecting them by the convention method — to empower them to do directly the thing they have been heretofore required to do through delegates or representatives elected by them. Their freedom of choice as to the candidates to be selected must be the same in the one case as in the other. No such control over parties as would enable the legislature to preclude a political party from nominating any person it desires to nominate who is legally eligible to the office, could have been contemplated. *Page 796 Whosoever was eligible for nomination to any office by a party under the convention method, must be eligible under any direct primary law that may be enacted by the legislature.
The act before us does not even purport to make one ineligiblefor nomination by one political party simply because he is a member of another party. It purports to do no more than prevent the printing of his name on the official ballot as a candidate for nomination. Under the express terms of the act, any member of a party may write in the blank space contained on his ballot the name of any person as his choice for the nomination, and if a person whose name is not printed on the ballot receives in this way a plurality of the votes cast by members of the party, he is the nominee of the party, regardless of his previous or present political affiliations, and regardless of the fact that he may also be the nominee of another party for the same office. The objection to the legislative act in this regard is practically the same as the objection held to be good in Eaton v. Brown,96 Cal. 375, [31. Am. St. Rep. 225, 31 P. 250]. The provision of the act under discussion "destroys the just and equal and uniform operation which in an election law, of all others, is demanded, no less by the express terms of our fundamental law than by the genius and spirit of our institutions." Under it, although members of a party, to the extent in number prescribed by the act for the selection of a candidate for nomination, desire to place before the electors of that party as a candidate for nomination thereby one who is not a member of the party, or did not affiliate with it at the last election, etc., they may not do so upon the same terms and with the same opportunity for the consideration of his candidacy by the electors of the party generally as are afforded the aggregations of members of that party which select as candidates for nomination persons who are members of the party and who can or will make the prescribed affidavit. We know, as a matter of fact, that the disadvantages that would result from the failure to have the name of such candidate printed on the ballot, while other names are printed thereon, are of such a nature as to practically preclude in most instances any fair consideration and expression as to his candidacy on the part of the electors of the party generally. The provision is thus clearly a substantial discrimination against such members of a party as desire *Page 797 to select for a nomination for any office one who is not a member of the party, although under the very terms of the act he is eligible, and in favor of such members of the party as desire to award the nomination to some member of the party. Whatever may be our views as to which is the better policy for a political party to pursue in such a case, the question is one solely for the members of that party to settle, and not for the legislature or the courts. The discrimination is not warranted by any principle or rule of which I am aware, and operates to destroy the equal and uniform operation of the law which the constitution demands. The views expressed in Murphy v. Curry, 137 Cal. 479, [70 P. 461], and Eaton v. Brown, [31 Am. St. Rep. 225, 31 P. 250], fully sustain this conclusion.
It is very clear that the invalidity of this provision should not be held to invalidate the whole act, of which it is a very minor and unessential part.
What I have said does not, in my opinion, affect the conclusion reached in the opinion of Justice Lorigan as to the validity of the provision for the payment of a reasonable fee on the filing of the certificate of nomination. The conclusion that such a charge may be made by the state, if reasonable in amount, appears to be fully supported by principle and authority.