I dissent.
The writ, in my opinion, should issue.
Independent candidates seeking independent nominations, whether they be standing for the highest or for the lowest of our public offices, should be accorded the same consideration that is accorded to candidates who are pledged to the policies of a party.
The question involved in this cause is undeniably of great importance to the people. Their right of suffrage is involved, *Page 536 and the right of suffrage in a democracy is, or ought to be, inviolable.
The only conclusion to be drawn from the prevailing opinion is that section 1188 of the Political Code, under which independent nominations for "any public office" may be made, applies to every office within the gift of the people save and except the highest office, and that where the highest is concerned the people are wholly without right to make independent nominations. With this conclusion I cannot agree.
In California independent nominations for public office are made pursuant to the provisions of section 1188 of the Political Code, this section being specifically referred to by the direct primary law. So desirous were the makers of the direct primary law to protect independent candidacies, and to facilitate independent nominations, they wrote into it this clause: "Nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section 1188 of the Political Code." (Sec. 5, subd. 9, Direct Primary Law.) (Italics added.)
What is here to be considered is whether or not section 1188 of the Political Code permits and adequately provides for the independent nomination of candidates for the office of presidential elector — this office being a state office and not a federal office. (Pol. Code, sec. 1197; Donelan v. Bird,118 Ky. 178 [80 S.W. 796]; Hodge v. Bryan, 149 Ky. 110 [148 S.W. 21]; Todd v. Johnson, 99 Ky. 548 [33 L.R.A. 399, 36 S.W. 987]; In re Green, 134 U.S. 377 [33 L.Ed. 951,10 Sup. Ct. Rep. 586]; McPherson v. Blacker, 146 U.S. 1, 35 [36 L.Ed. 869, 13 Sup. Ct. Rep. 3, see, also, Rose's U.S. Notes].)
An analysis of section 1188 of the Political Code will reveal that it is made up of four sentences, each of which makes provision for certain very definite things.
The first sentence provides for the independent nomination of a candidate for any public office for which no nonpartisan candidate has been nominated at any primary election. It reads as follows: "A candidate for any public office for which no nonpartisan candidate has been nominated at any primary election may be nominated subsequent to said primary election,or in lieu of any primary election, in the manner following: A nomination paper containing *Page 537 the name of the candidate to be nominated, with other information required to be given in the nomination papers provided for in the direct primary law then governing primary elections, shall be signed by electors residing within the district or political subdivision for which the candidate is to be presented, equal in number to at least one per cent of the entire vote cast at the last preceding general election in the state, district or political subdivision for which the nomination is to be made subject to the restrictions contained in said direct primary law." (Italics added.)
The second sentence specifies two things: First, the law that shall govern the appointment of verification deputies, and other routine matters, when the independent nomination is made for an office for which nominations are made at the August primary election, in which case those portions of the direct primary law which apply to nonpartisan offices shall govern as to the routine matters set forth in the body of the sentence; and, secondly, the law that shall govern the appointment of verification deputies and other routine matters when the independent nomination is for a municipal office or for an office to which the direct primary law does not apply, in which case those provisions of the direct primary law which apply to primaries other than the August primary election and the May presidential primary election shall govern as to the routine matters set forth in the body of the sentence.
The third and fourth sentences specify matters that must be included in the independent candidate's nomination paper in addition to the matter specified in the first sentence, and the manner in which the candidate's name shall go upon the ballot when his nomination paper has been properly filed.
Certainly the office of presidential elector is a partisan office. Certainly, therefore, no nonpartisan candidate or group of candidates has been nominated for this office at a primary election. Our August primaries do not bring about the nomination of candidates for the office of presidential elector. Our August primaries do not indicate, in their results, the identity of the candidates who are to go upon the ballot in the November election, in so far as the office of presidential elector is concerned. The manner of the nomination of presidential electors, aside from independent *Page 538 nominations under section 1188, Political Code, is described in the direct primary law (sec. 2 and sub. 2 of sec. 24), wherein party conventions are made necessary, and wherein the fashion of the functioning of those conventions is set forth.
All that our August primaries do is to select the delegates who are to attend those conventions, and none of the delegates so selected is pledged to any candidate for the office of presidential elector, nor is any delegate bound to vote in those conventions for any candidate save the candidate of his pensonal preference; and, therefore, no man may know, after the August primaries and until the decisions of the conventions, who the presidential electors of his party are to be. If the convention did not ever convene no presidential electors would be nominated, and the mere fact that the August primaries set those conventions in motion by giving them a personnel cannot rightly be made the premise for a conclusion that the electors are nominated in August, or at any other time before the conventions meet.
The second sentence of the section has no bearing upon the independent nomination of candidates for the office of presidential elector, since this office is not one, as has been seen, for which nominations are made at the August primary election, neither is it a municipal office nor an office to which the direct primary law does not apply, and those portions of the direct primary law governing the appointment of verification deputies and other procedural phases of a nomination referred to in this sentence do not apply to this sort of a nomination.
It is obvious that the office of presidential elector is not a municipal office, and since the direct primary law itself makes provision for the nomination of presidential electors by means of the convention system, it is also obvious that it is not an office to which the direct primary law does not apply.
The direct primary law of the state of California is a liberal enactment. Its purpose is to give wide scope to the right of suffrage. By its own definite pronouncements it is to be liberally construed, "so that the real will of the electors shall not be defeated." (Direct Primary Law, sec. 1, subd. 9.) *Page 539
Liberally to construe legislation requires that its language shall be given a fair and a reasonable meaning in the light of the object of the legislation. (Lawrence v. McCalmont, 2 How. (U.S.) 426 [11 L.Ed. 326, see, also, Rose's U.S. Notes].) This court has heretofore declared in unmistakable terms that "the purpose of the statutory provision [sec. 1188, Pol. Code] concerning nominations by certificate is . . . to permit absolutely independent nominations of persons as candidates who have no political affiliations with any party, and who do not intend to form a party, but who become candidates for reasons personal to themselves or to those who sign the certificates." (Partridge v. Devoto, 148 Cal. 167, 170 [82 P. 775, 777].) Let it be noted that the petitioners here are seeking independent nominations without regard to political party affiliations.
The liberal construction of a statute negatives any strict, narrow, ungenerous, or literal interpretation.
And a liberal construction of section 1188 leads to the conclusion that the legislature did not intend to exclude the office of presidential elector from the list of those offices to which independent nominations may be made.
This section of the Political Code is inseparably bound up and interwoven with the direct primary law; the direct primary law refers to it as providing the manner and the means whereby independent nominations shall be made, and by this reference incorporates the section within itself.
A reading of this section in its entirety, always giving it the liberal interpretation to which, by the provisions of the direct primary law, it is entitled, "so that the real will of the electors shall not be defeated," and always bearing in mind that the direct primary law commands, without equivocation, that "nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section 1188 of the Political Code," compels the conclusion that provision for the independent nomination of candidates for the office of presidential elector, in the manner in which that nomination is sought to be made by the petitioners, is found in the first sentence of the section.
According to that sentence "a candidate for any public office [that is to say, a candidate for the public office of presidential elector] for which no nonpartisan candidate has *Page 540 been nominated at any primary election [which is the situation here exactly], may be nominated subsequent to said primary election, or in lien of any primary election [that is to say, in place of a primary election, or in the absence of a primary election, which is what the petitioners seek to do], in the manner following . . ." (and then follows a description of the mechanics of the nomination).
These views are rightfully taken of the section as a whole, or as it has been analyzed, if it be remembered that the section is to be liberally construed, and that its purpose is not to restrict the right of independent nominations but to foster that right. To take the view that the section contains a bar to the independent nomination of presidential electors is to read into that section that which is not there; indeed, it is to defeat the very purpose of the section, which was and is to make possible the independent nomination of candidates forany office for which no nonpartisan candidate has been nominated at a primary. In order that the real will of the voters shall not be defeated the intent of the section should be carried out and that intent is made plain by the words "in lieu of any primary election" in the opening sentence of the section. There has not been in this state any primary election for the office of presidential elector.
The provision of section 5, subdivision 9 of the direct primary law which declares, "Nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section 1188 of the Political Code, as said section reads at the time of said nomination," has been held to have reference to attempted nominations under section 1188 of the Political Code, "subsequent" to or "in lieu of any primary election." It means "that a candidate for a party nomination who was defeated at the primary election may not have his name placed on the general election ballot as a candidate for the office under the provisions of said section 1188. In other words, the provision as a whole is simply a declaration that nothing in the act shall be construed as prohibiting the independent nomination of candidates subsequent to or in lieu of any primary election, as provided in section 1188, except that no candidate defeated for a party nomination for such office at the primary may be so nominated." (Narver v. Jordan,173 Cal. 424 *Page 541 [160 P. 245].) It would seem, therefore, that "in lieu of any primary election," that is, in place of a primary election, independent candidates without party affiliations for the office of presidential elector, which obviously is included in the phrase "any office" found in section 1188 of the Political Code, may be nominated as that section liberally construed provides, by a substantial compliance — as far as it is possible for independent candidates without party affiliations — with the procedure provided in section 5, subdivision 3 of the direct primary law.
To hold that it is not possible to make independent nominations for the office of presidential elector because this office is not mentioned by name in section 1188 would be to limit unjustifiably the right of suffrage. The right of suffrage, which is a constitutional guaranty not lightly to be disregarded, involves and is bound up with the right to make nominations. A legislature, indeed, has not the power to impose unreasonable, unnecessary or impossible restrictions which may tend to deprive independent bodies of voters of equality of opportunity in the making of nominations. (People v. Smith,206 N.Y. 231 [99 N.E. 568, 571].) Our legislature, it should be noted, not only has not attempted to restrict the right of suffrage, but has sought to give to the citizenry the greatest possible freedom in the matter of making both party nominations and nominations independent of parties. And it should be the policy of courts to protect that freedom and even to encourage it by a liberal construction of our election laws in favor of the right of the voter. This court itself has given approval to the decision of one of our appellate courts wherein it is said: "The right of qualified citizens to vote at all elections is the fundamental right upon which our government is founded. To justify a court in holding that the people of the state have surrendered or abridged that right, their intent to do so must appear with great certainty and clearness." (People v. Elkus,59 Cal.App. 396, 404 [211 P. 34, 38].) Obviously, a restriction upon the right to make nominations is a restriction upon the right to vote. Certainly our election laws were intended to accord equal consideration to all candidates. If this was not the intention of our law, section 1188 of the Political Code would never have become legislation and would now be meaningless. *Page 542 Since the petitioners should be afforded the opportunity which the law provides to make nominations for presidential electors, it follows that the voters should be afforded the opportunity to cast their ballots, if they desire to do so, for the petitioners' nominees as a group. Section 1197 of the Political Code, indeed, makes provision for group voting for presidential electors, and it has been held by this court that: "There is no force in the objection that the nomination paper filed in behalf of said candidates is faulty because separate nomination papers were not circulated and signed for each of the candidates, and that a single nomination paper containing all their names should not have been circulated and signed by the voters. There is no provision in the law that forbids several candidates for such an office, not exceeding the whole number to be elected, from having their names inserted in a single nomination paper and circulating it in that form. We, therefore, hold that it does not render the nomination paper defective." (Wheeler v. Hall, 188 Cal. 49, 51 [204 P. 231,232].)
The question presented in the case last cited, as the prevailing opinion, declares, "concerns the right of a group of candidates of a Board of Freeholders to be nominated as a group by a single set of nomination papers," and save for the fact that the petitioners, in the instant case, are seeking to be nominated to the office of presidential elector and not for the office of freeholders, there is no possible distinction, it seems to me, between the point presented in the cited case and the proposition presented for decision in the instant case. While it is true, as the prevailing opinion declares, the question was disposed of by this court in a "terse statement," nevertheless it was adequately and correctly disposed of and the terseness of the statement cannot detract from the correctness of the decision. And that the question of the right of a group of candidates to be nominated as a group by a single set of nomination papers was definitely decided in the case last cited is evidenced by the concluding clause of the decision, wherein it is said, "we, therefore, hold" that the circulation or signing of single nomination papers containing the names of a group of candidates "does not render the nomination papers defective." If Wheeler v. Hall was good law when it was decided *Page 543 it is good law now. If it is not good law now it should be directly and definitely overruled.
In so far as the question as to whether or not incumbent presidential electors occupy a public office is concerned (which the prevailing opinion ultimately concedes is not the question here), let it be said that the case ofCoulter v. Poole, 187 Cal. 181. [201 P. 120], is not at all inconsistent with the views herein expressed to the effect that a presidential elector is a state office. Coulter v. Poole gives expression to a general rule to which there are well-recognized exceptions founded upon other respectable authority which hold that a public office need not have continuance and that whether or not an office is public is not determined by the fact that an incumbent performs but one act or a series of acts.
Thus it was said in State ex rel. Clark v. Stanley,66 N.C. 56 [8 Am. Rep. 488]: "A public office is an agency for the State, and the person whose duty it is to perform this agency is a public officer. This, we consider to be the true definition of a public officer in its original broad sense. The essence of it is, the duty of performing an agency, that is, of doing some act or acts, or series of acts for the State." (Italics added.) "Public officers are usually required to take an oath, and usually a, salary or fees are annexed to the office, in which case it is an office 'coupled with an interest.' But the oath and the salary or fees are mere incidents, and constitute no part of the office: Where no salary or fees are annexed to the office, it is a naked office — honorary — and is supposed to be accepted merely for the public good. This definition also excludes the idea, that a public office must have continuance. It can make no difference, whether there be but one act, or a series of acts to be done —whether the office expires as soon as the one act is done, or is to be held for years or during good behavior." (Italics added.)
It has been held in effect in this jurisdiction that free-holders, elected by voters of a political subdivision, whose sole duty is to frame a county government charter, are public officers, even though their tenure of office is transitory, during which they function but once. (Wheeler v. Hall, supra.) *Page 544
A liberal construction of the statute in question would, it seems to me, compel the conclusion that the word "office" as used in section 1197 of the Political Code and in section 2 of the direct primary law with reference to presidential electors was employed by the legislature and intended to be understood as meaning an office within the liberal and broad definition of that term. The prevailing opinion declares that "it may be conceded that they [presidential electors] are public officers and still it is not unreasonable to suppose that the legislature in framing that section did not so regard them." In view of the further concession in the prevailing opinion that "there are approved definitions sufficiently broad to include them [presidential electors] as such," I am unable to appreciate the reasoning which leads to the conclusion of the prevailing opinion that it is "not unreasonable to suppose that the legislature . . . did not so regard them." If presidential electors come within any approved definition of public officers, then it seems to me it must necessarily be presumed that the legislature had that definition in mind. The legislature has decided for itself that the position of presidential elector is of sufficient dignity and importance to be deemed an office. The designation of a legislative enactment is generally conceded to be indicative of the legislative intent and ordinarily of strong persuasive force in determining whether or not any given position is to be deemed an office and in a case of this character, where a liberal interpretation is required, it ought to be conclusive of the legislative intent to employ the term "office" in its broad and liberal meaning.
Section 1197 of the "Political Code designates the position of presidential elector as office as does section 2 of the direct primary law, and to say, as the prevailing opinion says, that the word "office" as employed in those sections and the phrase "any office" as employed in section 1188 of the Political Code does not mean office but means something else which is not defined is the acme of strict construction.
The fact that the form of ballot prescribed and printed in the Political Code specifically makes, under the head of presidential electors, reservation therein for a blank column in which the names of thirteen independent candidates for presidential elector may be written in is strongly indicative of the legislative intent to provide for the independent *Page 545 nomination of presidential electors and tends most strongly to confirm the conclusion that when they referred in other portions of the direct primary law to the "office" of presidential electors they had in mind the broad and liberal definition of the term "office." The prevailing opinion concedes that independent nominations for presidential electors may be made by the "write-in" process. And if this be so then it seems to me to be inconsistent to say, as does the prevailing opinion, that "the plainly indicated legislative policy is that candidates for presidential electors shall be nominated only at a state convention of a party or a political organization."
But it is idle to pursue this particular phase of the case further. The prevailing opinion does not go so far as to say that a presidential elector does not occupy a public office. The prevailing opinion holds neither one way nor the other on this point. And it would seem that if the prevailing opinion were forced to a conclusion on this point the holding would be that the office of presidential elector is a public state office within the liberal and broad meaning of the term.
The assertion of the prevailing opinion that by no process of reasoning may section 5, subdivision 3 of the direct primary law be applied to the office of presidential elector is, in my opinion, answered by the holding in Partridge v. Devoto, supra, that section 1188 of the Political Code was designed to permit absolutely independent nomination of persons as candidates, whohave no political affiliations with any party and by the direct primary law itself wherein it is said that no "failure to comply with all the provisions of this law shall defeat its purpose." If this mandate of the direct primary law is to be given a reasonable meaning, that meaning is that independent candidates for independent nominations who have no political affiliations with any party are not to be stayed where they have done all that they can do to comply with the law and that when they have done that they have done enough to entitle them to go before the people at the polls.
Moreover, this court should now do that which the prevailing opinion concedes this court was "constrained" to do in the case of Wheeler v. Hall, supra, that is, "make some practicable application of the procedural provisions of *Page 546 the direct primary law," to the end, as the direct primary law itself declares, "that the real will of the electors shall not be defeated." This, it seems to me, could readily and rightfully be done in the instant case, even though the provisions of the direct primary law and the provisions of section 1188 of the Political Code concerning the independent nominations of candidates for "any office" be clumsily and unskillfully drawn. The difficulties presented by the lack of perspicuity in the law under consideration are not insurmountable. The general intent of the law concerning the independent nomination of candidates for "any office" should be carried out, and if the procedure provided by the statute for the nomination of independent candidates for "any office" be doubtful or defective, because of looseness or ambiguity of expression, appropriate procedure for the preparation and presentation of certificates of nomination for such independent candidates may justly be determined and permitted by analogy from other procedural provisions of the law. There is no just way in such a situation other than that of analogy. (Matter ofFagan, 21 Misc. Rep. 403 [47 N.Y. Supp. 288].) And this is so because to the right of suffrage, as constitutionally guaranteed, the right to make nominations is essential, and the legislature may not, intentionally or unintentionally, impose unreasonable, unnecessary, and impossible restrictions whichwill deprive independent bodies of voters of equality ofopportunity in the making nominations." (People v. Smith,206 N.Y. 231 [99 N.E. 568]; Eaton v. Brown, 96 Cal. 371 [31 Am. St. Rep. 225, 17 L.R.A. 697, 31 P. 250.]; Murphy v. Curry,137 Cal. 479 [59 L.R.A. 97, 70 P. 461]. See, also, concurring opinion of former Chief Justice Angellotti inSocialist Party v. Uhl, 155 Cal., at page 794 [103 P. 181].)
With reference to the "write-in" process, the prevailing opinion concedes "that the exercise of the right of suffrage is less easy and convenient than it would be if the voter were enabled by stamping a single cross in a square to cast his ballot in favor of thirteen candidates and that the right to pursue the easier and more convenient method, if it were accorded by the provisions of the law, would be in the nature of a substantial right to be secured, if necessary, by the action of the courts." (Italics added.) If it be less easy, that is to say, more difficult, for the voter to exercise his *Page 547 right of suffrage by the "write-in" process than it would be by permitting independent nominations to go upon the ballot, then it seems to me there is no escape from the conclusion that the legislature has discriminated against the independent voter by the imposition of a restriction which places him at a decided disadvantage, and here again we are confronted with the fundamental proposition that the legislature may not impose restrictions upon the right of suffrage which will deprive independent bodies of voters who have no party affiliations of equality of opportunity in the making of nominations.
Plainly, it is the purpose of the prevailing opinion to hold that the office of presidential elector is not an office which the legislature had in mind when it enacted section 1188 of the Political Code. This, of course, is a purely negative view. And it is a recognized principle of law that courts, in interpreting statutes, should endeavor always to so construe them as to give them an affirmative rather than a negative meaning. When a statute has been enacted, courts should seek to give it vigor, courts should endeavor to give it life rather than to kill it by technical refinements of reasoning which approximate mere negation and are far from liberal. This especially should be the policy of courts in interpreting statutes which declare themselves to be written in a liberal spirit, and which assert that they are to be liberally construed. Indeed, to construe statutes strictly, when the statutes demand a liberal construction is, in cases of this character, to defeat not only the will of the legislature, but the "real will of the electors" as well.