I dissent.
Plainly put, the effect of the decision is that only parties organized at the time of the preceding general election or one coming within paragraph (b), subdivision 9, section 1 of the direct primary law are entitled to have placed on the general ballot in the November election candidates for electors for President and Vice-President, and that since petitioners did not organize under said paragraph (b) they cannot nominate such electors. In other words, such independent voters not having affiliated with a party could have no voice, either in the May or August primaries, except as to nonpartisan candidates at the August primary or in nominating electors *Page 548 for the general election. Hence, if they have not organized under said paragraph (b) their only alternative is to enroll under the banner of one of the other parties with whose principles they may not be in sympathy. The right to form a party under said paragraph (b) cannot avail here, for the reason that no such organization was attempted by petitioners.
In a general sense a primary election is a contest within the particular party and a general election a contest between parties. The direct primary law provides:
"Section 1. Words and phrases where used in this act shall, unless such construction be inconsistent with the context, be construed as follows:
"Primary Election. "1. The words 'primary election,' any and every primary nominating election provided for by this act.
"August Primary Election. "2. The words 'August primary election,' the primary election held in August to nominate candidates to be voted for at the ensuing November election or to elect members of a party central committee or delegates to a party convention.
"May Primary Election. "3. The words 'May presidential primary election,' any such primary election, held in May of each year of the general November election at which electors of President and Vice-president of the United States are to be chosen, as shall, provide for the indication of preference in the several political parties for party candidates for president of the United States through the election of delegates to national party conventions.
"Definition of the Word Election. "4. The word 'election,' a general state, county, city or city and county election as distinguished from a primary election, recall election, or special election.
"November Election. "5. The words 'November election,' either the presidential election, or the general state, county, or city and county election held in November of each even numbered year. . . .
"Definition of 'Political Party,' 'Party,' 'Political Organization. . . .'
"9. The word or words 'political party,' 'party,' 'political organizations' or 'organizations,' a political party or organization *Page 549 of electors which has qualified, as hereinafter provided, for participation in any primary election; and such party or organization shall be deemed to have so qualified when one or both of the following conditions have been complied with:
"Qualification as Political Party. "(a) If at the last preceding November election there was polled for any one of its candidates who was the candidate of such party only for any office voted on throughout the state, at least three per cent of the entire vote of the state or for any one of its candidates who was the joint candidate of such party and any other party for any office voted on throughout the slate, at least six per cent of the entire vote of the state; or
"(b) If on or before a date which shall be the seventy-fifth day before any primary election, there shall be filed with the secretary of state a petition signed by registered qualified electors of the state, equal in number to at least three per cent of the entire vote of the state at the last preceding November election, declaring that they represent a political party or organization the name of which shall be stated therein, which party said electors desire to have participate in such primary election; . . ."
According to the majority opinion, therefore, only voters affiliated with parties can vote at a primary election except for nonpartisan candidates, and a body of independent voters who conceivably in given situations might constitute a majority of the electorate can have no voice in having candidates placed on the ballot at the general election if they did not proceed under said paragraph (b). The circumstance that such voters are accorded the privilege of voting at the general election for or against the candidates nominated by the parties with which they are not affiliated, or that they may write in the names of candidates of their own, can have no weight in deciding whether electors for President and Vice-President may be placed on the November ballot other than as the representatives of a party.
Such a discrimination among bodies of citizens should not be accepted unless it is demonstrably clear the legislature so intended.
It is not questioned that section 11.88 and any amendment thereof is made a part of the direct primary law — and that *Page 550 it is confined to independent nominations. It has no purpose other than to effectuate the primary law as to independent nominations. The language employed in that section — "a candidate for any public office," to designate the class entitled to independent nominations, could hardly be broader. But the prevailing opinion holds that when the legislature used the phrase it did not regard candidates for presidential electors as officers — although the term is not in any manner qualified in the section nor in the primary law. It is reasoned that if the legislature regarded such electors as officers it would have provided a suitable procedure for independent electors for President and Vice-President, and that even giving a liberal construction to the provisions of section 1188 and the primary law no such mode can be discovered. In other words, from this asserted omission it is held that the legislature intended that electors for President and Vice-President could only be nominated by parties; with the result that as the statute stands the words "for any public office" in section 1188 does not connote all candidates for public office, but only some of them. It is upon the reasoning that the legislature did not regard such electors as officers that the prevailing opinion does not deem it necessary to determine whether a presidential elector is an officer — a question I deem necessary to a determination of the case.
I regard as unfortunate the conclusion that the legislature in using the comprehensive term — any candidate for public office — meant to exclude electors for President and Vice-President, especially where the effect is to disfranchise a body of citizens. In my opinion the conclusion could be avoided in view of the fact that nominations by parties were eliminated from section 1188 by the amendment thereof and because of the liberal rule of construction prescribed by the primary law itself in these words: "This statute shall be liberally construed, so that the real will of the electors shall not be defeated by any informality or failure to comply with all the provisions of the law," and that "Nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section one thousand one hundred eighty-eight of the Political Code, as said section reads at the time of said nomination." The general rule is thus expressed in 10 Cal. Jur., section 3, *Page 551 page 20: "Sections 1041 to 1292, inclusive, of the Political Code deal with the subject of elections in a general and comprehensive manner, and there are a number of statutes dealing with the subject of elections in particular cases. The former and the latter are in pari materia, and in accordance with the general rules of statutory construction should be construed together. When, therefore, it does not clearly appear that the legislature intended by a statute relating to a special election to prescribe all the rules that should govern such election, and where it does appear that the language of the general statute is so comprehensive that it literally embraces the subject matter of the special statute, the latter will not exclude the general statute from the field it occupies, unless there is a necessary repugnancy between the acts. . . . In construing election laws, a construction that will permit the virtual disfranchisement of any qualified voter will never be adopted if the statute be fairly susceptible of any other meaning."
In my view section 1188 was intended to include independent candidates for any public office and it is therefore necessary to first determine whether a presidential elector is an officer of the state. The weight of authority is opposed toState v. Gifford, 22 Idaho, 613 [126 P. 1060], which arose in 1912 when the Progressive Party organized and selected presidential electors. The case holds that a presidential elector is not a public officer. I cannot conceive why a presidential elector is not, a state officer. (Todd v. Johnson,99 Ky. 548, 555 [33 L.R.A. 399, 36 S.W. 987].) It is not shown that the Idaho statute is the same as our own. From the time of his election to the casting of the vote in the electoral college the elector is under an obligation to perform a duty, a duty that pertains to the public — not as a representative of a party or an employee but as an officer of the state for which he acts. The duty is not transient, occasional, or incidental, but remains unrelieved until it is finally and completely performed. It is a public trust in the best sense of that term. He is invested with one of the functions pertinent to sovereignty in the executive department of the government. The definition of what is and what is not an office is contained in the elaborate note to Shelby v. Alcorn, 72 Am. Dec. 169, 179, and a presidential elector meets every test of a public officer discussed *Page 552 in the note. Hall v. Wisconsin, 103 U.S. 5 [26 L.Ed. 302, see, also, Rose's U.S. Notes.], referred to in said note, thus distinguishes between an office and a contract (p. 9): "The question to be considered was before us in United States v.Hartwell, 6 Wall. (U.S.) 385 [18 L.Ed. 830, see, also, Rose's U.S. Notes]. It was there said that 'an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. . . . A government office is different from a government contract. The latter, from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.' " It is not in keeping with the great responsibility involved to declare that such electors merely undertake a public employment. They are chosen by the electorate and it would be altogether unusual to submit to the voters the selection of persons as electors for President and Vice-President if they were merely to perform a ministerial act. No matter what custom has been followed since the present mode of selection was first provided, electors for President and Vice-President are vested with authority to elect a President and Vice-President and their action is final. I cannot escape the conviction that if the legislature had not regarded presidential electors as public officers they would have provided a scheme for their selection by popular vote.
I am satisfied with Mr. Justice Lennon's conclusions as to the scope and meaning of section 1188 when read into the direct primary law and that when considered, in the way he points out, a mode is available to place candidates for such electors on the November ballot without having resorted to said paragraph (b). The rule of liberal construction prescribed by the primary act places the duty upon courts to interpret the law so that if possible such a mode may be evolved that one group of citizens may not be denied rights enjoyed by other citizens.
The writ should issue.