I concur in everything that is said in the prevailing opinion. It certainly will not be questioned that an elector has the inherent right, under our system of government, of offering himself as a candidate for office, and, after having offered himself, to withdraw his name and retire from the political contest at any time that he sees fit. The sole limitation upon this unquestioned right is the limitation which may be fixed upon it by law. The only limitation which our law has seen fit to impose is that inferentially contained in the requirement of a candidate to make an affidavit that "if nominated" he will continue his candidacy for and seek election to the office. The legislature having seen fit thus to restrict the right of withdrawal after nomination, and having placed no restriction upon the right of withdrawal before nomination, under every canon of construction that right of withdrawal before nomination still rests with every candidate for office. Such was the unanimous view of the supreme court of Nevada in the case cited in the prevailing opinion. Therefore, no right to withdraw his name as a candidate from the primary ballot is expressly or impliedly given to any candidate because it is not necessary that it should be expressly or impliedly given. The right is his unless it is taken away by positive law, and there is no positive law so doing. Nor is it necessary that there should be any specific mode prescribed by which any withdrawal can be effected. It is a reflection upon our jurisprudence to say that its general remedies are not adequate, as they were found to be by the supreme court of Nevada under a statute in all particulars identical with our own.
But conceding the right of withdrawal to exist, the dissentient view is that the legislature designed that this right should have no effect because the law also says that county clerks shall print the "names of all candidates for the respective *Page 289 offices for whom nomination papers have been duly filed." Such a construction is but the veriest sticking in the bark. To attribute such a meaning to the legislature is deliberately and unnecessarily to charge it with the design of deluding and deceiving the electors of the state. For under that construction it is not denied that it means that the name of a candidate who has died may not, even though the fact be timely and officially brought to the notice of the county clerks, be omitted from the ballot to be printed; that if the sole candidate of a political party has been convicted of a felony and thus disqualified from holding office, the legislature designed in both such and all like cases that the name of the dead man and that the name of the felon should remain upon the ballot, notwithstanding that if they received a majority of the votes neither could take office, and the result would be either that a man whom the people by their votes had not selected would fill the office, or that the state must be subjected to the added and unnecessary expense of another election. I am unwilling myself to charge the legislature in its enactment of the primary law with any such stupidity or evil design. Nor is it necessary that this should be done, whenever, as here, notification of withdrawal, of death, or of legal disqualification to hold the office is under timely notice officially made known to the county clerk.
The provisions of the primary law calling upon the county clerks to print upon the primary ballot the names that have been certified to them by the Secretary of State, by every reasonable intendment means only that those names shall be printed unless changes shall have occurred within the contemplation of the law, such changes as in fact are contemplated and provisions for which are made by section 27 of the act quoted in the prevailing opinion, and the forced construction which unnecessarily is sought to be given to this, I repeat, convicts the legislature, without any express language to that effect, of a design to make the primary election ridiculous by compelling, to the deception of the voters, the retention of the name of a man who is dead or has been sent to the state prison.