This is an original action filed in this court by the plaintiffs, praying for a writ of mandamus directed to the defendants, constituting the State Election Board of the state of Oklahoma, commanding them to place the names of said plaintiffs upon the ballot for the November, 1932, general election as candidates for the Socialist party for the office of presidential and vice presidential electors. Plaintiffs allege in their petition that they are residents and voters of the state of Oklahoma, and that M. Shadid and Seigfried Ameringer are the chairman and secretary of said Socialist party in the state of Oklahoma; that said Socialist party organization was effected on or about July 7, 1932; that said party was not recognized by the state of Oklahoma as a political party until August 24, 1932; that, on or about August 15, 1932, a petition was filed with the Secretary of State, signed by approximately 7,000 voters of the state of Oklahoma, requesting that petitioners be recognized as constituting the Socialist party of the state of Oklahoma; that said petition was approved by the Secretary of State, and that it was the duty of the State Election Board after said petition was filed and approved to recognize the petitioners to be and constitute the Socialist party of the state of Oklahoma; that it was the duty of the State Election Board to place the names of said plaintiffs as the presidential and vice presidential electors of said party upon the official ballots for the November 8, 1932, election; and that said Election Board has refused to place the names of said plaintiffs upon the ballots as nominees of said party for said presidential and vice presidential electors.
The defendants, in their answer, in addition to allegations of a general denial and admission of the facts that the defendants constituted the said Election Board of said state, and the admission of the refusal of said Board to place the names of plaintiffs upon said ballots as presidential and vice presidential electors of said party, specifically alleged that the 11 persons named in plaintiffs' petition did not file with the Secretary of the State Election Board as candidates for the nomination for the Socialist party for the office of presidential and vice presidential electors in the time and in the manner provided by law; that they were never voted upon by members of the Socialist party at any direct primary election held under authority of the laws of the state of Oklahoma, and that said persons have never been issued certificates of nomination by the State Election Board, entitling them to have their names placed upon the ballots as the nominees of said Socialist party for said office of presidential and vice presidential electors for the November, 1932 election.
Said defendants further alleged that, at two successive general elections, the Socialist party failed to receive ten percentum of the votes cast for the political party receiving the highest number of votes 'in said election, and that the said Socialist party, therefore, in 1930, did not exist as a political party in the state of Oklahoma. Defendants admit the filing of the petition with the Secretary of State signed by approximately 7,000 legal voters of the state of Oklahoma, petitioning the Secretary of State to recognize the socialist party as a political party in the state of Oklahoma; that the same was approved by the Secretary of State on August 24, 1932, and the notification of such approval by the Secretary of State was given the State Election Board; and that, on September 20, 1932, said plaintiffs submitted their application to have their names printed on the official state ballots to be voted on at the general election in November 1932, as candidates for said party for the office of said electors. Said defendants aver that plaintiffs have never shown to the State Election Board who named them as candidates of said party, or how or when they were chosen as such candidates; that, on September 24, 1932, the State Election Board considered the application of plaintiff and denied the same for the reason that the applications were not filed in the time and in the manner provided by law; that they had not been nominated by the voters of the Socialist party at a direct primary election held under the laws of the state of Oklahoma; that there was no authority of the State Election Board to place the names of said persons as such candidates upon the ballots for the general election to be held on November 8, 1932; that plaintiffs had not made timely application for the writ of mandamus; that the contract for printing the ballots was let by the State Board of Affairs on September 24, 1932; that the ballots were then being printed, and that it would be impossible to have the same reprinted in time for the Secretary of the State Election Board *Page 36 to ship said ballots to the various counties by October 25, 1932, as required by section 16, art. 3, chap. 29, Sess. Laws 1931 [O. S. 1931, sec. 5718]. Defendants pray that the writ of mandamus be denied.
Plaintiffs and defendants entered into a stipulation as to the facts, which is as follows:
"(Caption Omitted.)
"Stipulation as to Facts."
"The parties to this action, the plaintiffs and the defendants, hereby stipulate and agree to the following facts in this case:
"That all of the plaintiffs are legal voters of the state of Oklahoma, and that the defendants constitute the State Election Board of the state of Oklahoma.
"That the plaintiffs have not at any time filed with the Secretary of the State Election. Board applications as candidates for the nomination of the Socialist party for the offices of presidential electors; that the plaintiffs have never been voted upon as candidates for the nomination of the Socialist party for the offices of presidential electors at a direct primary election of the Socialist party held under the authority of the laws of the state of Oklahoma, and the said plaintiffs have never been issued certificates of nomination by the State Election Board as the nominees of the Socialist party for the offices of presidential electors.
"That in 1928 the Socialist party at the general election held in the state of Oklahoma in that year failed to receive ten percentum of the votes cast for the Republican party which was the party which received the highest number of votes at said election; that at said 1928 general election the Socialist candidates for presidential electors received 3,924 votes and the Republican candidates for presidential electors received 394,046 votes; that in 1930 there were no filings for state office by any Socialist candidates and no candidates of the Socialist party for state office received any votes in said election, and said Socialist party at said 1930 general election held in the state of Oklahoma failed to receive ten per centum of the votes cast for the Democratic party at said election which was the party receiving the highest number of votes in said 1930 election.
"That on or about the 15th day of August, 1932, a petition, was filed with the Secretary of the State of the state of Oklahoma, signed by approximately 7,000 legal voters of the state of Oklahoma, petitioning the Secretary of State to recognize the Socialist party as a political party in the state of Oklahoma; that said petition was approved by the Secretary of State on August 24, 1932, and the Secretary of the State Election Board was notified of said approval on said date; that Exhibit 'A' attached to defendants' answer is a true copy of the form of the petition above referred to.
"That on September 20, 1932, twelve persons, to wit: W.R. Stidham, A.G. Dather, M. Shadid, Wm. Lincoln Garver, Thomas Lee Wilson, A.M. McClure, Allen C. Adams, R.O. Womack, L.W. Langwell, Alfred Reynolds, Mrs. F.M. Denney, and M.E. Craig, submitted their applications to the Secretary of the State Election Board to have their names printed on the official state ballots to be voted at the regular general election to be held on Tuesday, November 8, 1932, as candidates of the Socialist party for the eleven offices of presidential electors; that said applications were all on similar forms and the application of Alfred Reynolds is typical of the other applications and the copy of said application of Alfred Reynolds atached to defendants' answer as exhibit 'B' is a true copy of said application. * * *"
It is the contention of the petitioners that the political organization coming into existence after the holding of the primary election has the right to have the names of its nominees for presidential and vice presidential electors placed on the ballots to be voted on in the November general election; that all political power is inherent in the people, and no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage of those entitled to such right; that legislative interference with freedom of voters to form political organizations, and act under their respective party names, is an interference with the right to vote; that it was not the intent of the writers of the Constitution to deny the people of the state the right to express their will at the polls; and that the right of the people to express their will through their right of suffrage must never be abridged or infringed upon.
It is further contended by the petitioners that the Legislature of this state has gone further in abridging and restricting the right of suffrage in this state than the restrictions imposed upon the voters of any other state; that section 5649, of the 1931 Oklahoma Statutes is unconstitutional; that under section 5764, O. S. 1931, the names of the unopposed candidates do not appear on the primary ballots, and that the electors, plaintiffs herein, are unopposed, and their names would never have appeared on the primary ballot; that the primary election laws were not to prevent nominations, but to control and regulate such political parties as are in existence at the time of the primary election, and *Page 37 that a party organized and recognized by the state as such political party is entitled to have the names of their nominees for presidential and vice presidential electors placed on the ballot to be voted for in the general election, even though such party did not participate in the primary election by reason of its not having been in existence at the time of the primary election, such party having been organized thereafter and prior to the general election.
It is the contention of the defendants that plaintiffs' petition does not state facts sufficient to constitute a cause of action; that plaintiffs are not entitled to the relief prayed for for the following reasons:
"(a) That plaintiffs have never filed their applications with the Secretary of the State Election Board as candidates for the several nominations of the Socialist party for the offices of presidential electors; (b) that the plaintiffs have never been voted upon as candidates for such nominations by the members of the Socialist party at a direct primary election held under authority of the laws of the state of Oklahoma; (e) that certificates of nomination have not been issued to the plaintiffs by the State Election Board; and (d) that there is no law authorizing the State Election Board to place upon the ballots for a general election the names of the persons claiming to be the candidates of a political party organized after the time for filing as candidates for party nomination had closed."
Section 1, art. 2, Constitution of the United States, provides, in part, as follows:
"* * * Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress. * * *"
Section 6093, C. O. S. 1921, as amended by section 1, chap. 241, Oklahoma Sess. Laws 1929 [O. S. 1931, sec. 5754], provides as follows:
"Political parties in this state shall select or nominate their respective candidates for the various national, state, district, county and township offices by a primary election or elections as herein provided for; and no candidate's name shall be printed upon the official ballot for any general or special election at which all or any of the national, state, district, county and township officers are to be elected unless such candidate shall have been nominated as herein specified; provided, that this provision shall not exclude the right of nonpartisan candidates to have their names printed upon such official ballots as hereinafter provided for."
This section provides that no candidate's name shall be printed on the official ballot for any general or special election at which all or any of the national, state, district, county, and township officers are to be elected unless such candidate shall have been nominated as therein specified, and specifically provides that this provision shall not exclude the right of nonpartisan candidates to have their names printed upon such official ballots as thereinafter provided for, as directed by the Constitution, section 5, art. 3. Chapter 29, art. 1, Sess. Laws 1931 [O. S. 1931, sec. 5755]. Section 1 provides as follows:
"Section 1. That section 6101, Compiled Oklahoma Statutes 1921, be and the same is hereby amended to read as follows:
" 'Section 6101. Any person desiring to become a candidate before primary elections for a political party nomination shall petition the proper officials, as hereinafter provided, to have his name so printed upon such political party ticket, and this provision shall apply to nonpartisan candidates. Such petition shall be filed as hereinafter provided and shall be signed by the candidate personally before a notary public and sworn to according to law. Such petition shall give his place of residence, his post-office address, and shall name the party before which he desires to become a candidate and the date of the election. All nominating petitions for presidential electors. United States Senators, Representatives in Congress, state officers, members of the Senate and House of Representatives, district judges, and for all other offices for which the electors of the entire state, or subdivision thereof greater than a county are entitled to vote, shall be filed with the Secretary of the State Election Board.
"All nominating petitions for county and township officers or offices for which the electors of a subdivision of a county are entitled to vote, shall be filed with the secretary of the county election board."
Section 2 of article 1, of said chapter 29, requires the nominating petitions to be filed with the Secretary of the State Election Board not more than 100 days nor less than 65 days before the date fixed by law for the primary election. Section 6094, C. O. S. 1921, as amended by section 3, art. 3, chap. 29, Sess. Laws 1931 [O. S. 1931, sec. 5758], provides:
"* * * The first Tuesday in the month of July of each even numbered year shall be biennial regular primary election day, at which time each political party entitled and intending to make nominations for the next *Page 38 general election shall nominate their candidates for all elective offices and positions enumerated in the preceding section to be filled at such general election, including United States Senators and Congressmen."
Said section also provides:
"* * * That for the nomination for presidential electors, the entire state shall be considered a nominating district. A candidate filing for such an office shall designate in his nominating petition the number of the office for which he desires to be a candidate and the primary election ballot shall so show. Nominees of each of such numbered offices, except nominees for presidential electors, shall be designated on the general election ballot as the nominee of their party for the same number of the office for which he was nominated, and the nominee securing at said election the highest number of votes cast for said numbered office shall be elected to such office. Provided that nominees for presidential electors shall be placed on the ballot in the general election as, provided by section 2, chapter 100, Session Laws of 1927, and by Senate Bill No. 53, as passed by the Thirteenth Legislature, 1931."
The aforesaid section 6094, as amended by Session Laws 1931, provides for the time and purpose of the primary, and specifically states:
"At which time each political party entitled and intending to make nominations for the next general election shall nominate their candidates for all elective offices and positions enumerated in the preceding section to be filled at such general election including United States Senators."
Section 6270, C. O. S. 1921 (section 5814, C. S. 1931), provides:
"On the first Tuesday after the first Monday in November in each year next preceding the expiration of the term of office of each President of the United States, a number of electors of the President and Vice President of the United States, equal to the whole number of Senators and Representatives in Congress to which the state is entitled, at the time the President and Vice President to be chosen shall come into office, shall be chosen by the qualified electors of the state in the same manner as is provided by the general election laws for the election of state officers. * * *"
Section 6110. C. O. S. 1921 (section 5777, Okla. Stat. 1931), provides;
"No person shall be allowed to become a candidate in any general election unless he shall have complied fully and completely, with the provisions of this chapter."
It appears from the foregoing provisions of the various acts of the Legislature enacted, that the name of no candidate of a political party for any office shall be printed upon the ballots unless in conformity to the primary laws which have been enacted. Such is the plain provisions of the statutes, section 5777, Okla. Stat. 1931, supra.
In the case at bar, the plaintiffs did not file their names as provided by law as nominees for presidential and vice presidential electors. The political party does not file the name of any candidate under our primary system. Any person desiring to become a candidate before a primary election must petition the proper officials in the manner provided by law to have his named printed upon such political party ticket. This must be filed within a certain time, signed by the candidate personally, and sworn to before a notary public, according to law. It has become a part of the public policy in this state that every nomination shall be by primary election, Ex parte Wilson, 7 Okla. Cr. 610, 125 P. 739.
In the case of Dancy v. Peebly, 132 Okla. 84, 270 P. 311, this court, in speaking of section 5, art. 3, of the Constitution, said;
"By virtue of section 5, art. 3, of the Constitution of this state, the electors of political parties are entitled to cast their votes in a direct manner for their choice between opposing candidates for the nomination of a particular elective office, and the Legislature is without power to substitute or delegate the right of such choice to any person, body or convention. * * *
"It is a part of the political history of Oklahoma that a very large majority of the membership to the Constitutional Convention were elected on promise to assist in writing into the Constitution of the state a provision whereby the electors of the respective political parties would be given the right and privilege of balloting on candidates who offier themselves for the nomination by political parties to the various political offices."
Counsel for the plaintiffs cite the case of State ex rel. Mills v. Stewart, Sec. of State, 210 P. 465, from the. State of Montana, and Morrissey v. Wait (Neb.) 138 N.W. 186.
Our court, in the case of Dove v. Oglesby, 114 Okla. 144,244 P. 798, in passing on the validity of the primary act, said:
"We have our own peculiar suffrage system, written into our basic law with great care and in plain English, therefore, the decisions of other jurisdictions based upon dissimilar systems render us little, if any, benefit in determining the plain meaning *Page 39 of our own laws, or in deciding when our constitutional rights are violated."
In the third paragraph of the syllabus, the court said:
"Under our scheme or plan for holding elections and exercising the right of suffrage as provided in article 3 of the Constitution, primary elections are made a component element of the right of suffrage. They are made a necessary prerequisite to a general or final election, and the free exercise of the right of suffrage is just as necessary in primary elections as in general elections, and hence, the provisions in section 7, art. 3, of the Constitution apply in primary elections the same as in general elections."
In contrast to this we find J. Holloway, who concurred in the opinion in the case of Mills v. Stewart, supra, in speaking for the Supreme Court of Montana in the case of State ex rel. Smith v. Duncan (Mont.) 177 P. 248, said:
"Many of the provisions of the primary election laws are crudely drawn, and some of them are almost unintelligible."
It was specifically stated in the thirteenth paragraph of the syllabus in the case of State ex rel. Mills v. Stewart, supra, as follows:
"The general primary law did not entirely repeal the old law governing nominations, there being no repealing clause."
In the body of the opinion, the court said:
"The party was organized after the primaries, and, as previously stated, there can be no question as to the right to reorganize an old or to organize a new political party. It is a right inherent in the electors of the state, and such a right is a necessary accompaniment of popular government, without which our government would be bereft of efficient vital force and in danger of the evils of absolutism. When its organization was complete on September 30, 1922, then if it desired to nominate candidates for state office, it could not make such nomination at a primary nominating election under the initiative measure. The only primary election for which that act provided had already been held in August. That law was not to prevent nominations, but to subject them to public regulation and control so far as possible. State ex rel. Reibold v. Duncan, 55 Mont. 380, 177 P. 250. So that the Socialist party was obliged to look to the general law for authority. The Initiative Act (Laws 1913, p. 570) did not entirely repeal the old law. The old law in many respects was left in full force and effect. In fact, the initiative measure did not, in express language, contain any repealing clause at all. It only provided that every political party shall nominate all its candidates for public office under the provisions of that law, and not in any other manner. Section 639, Rev. Codes 1921. But, as has been indicated, that inhibition referred only to the political parties in existence at the time of the primary. The court has held in the case of State ex rel. Reibold v. Duncan, supra, that the initiative law has no application to special elections, and that it was not designed to furnish the exclusive means by which all candidates for public office shall be nominated. The only law, then, under which nominations could be made by the new Socialist party thus organized on September 30, 1922, was section 612, Revised Codes 1921, which was in existence prior to the Initiative Act, and which, as we have seen, as not repealed thereby so far as relates to special elections and to political parties coming into existence after the primary election."
In the case if Morrissey v. Wait, supra, the Legislature had provided for the organization of new parties to nominate their candidates by convention. There is no such provision in our Constitution or statutory enactments.
The third and fourth paragraphs of the syllabus in the case of Morrissey v. Wait, supra, are as follows:
"3. Where a new party is formed after the time fixed by the statutes for the holding of the regular primary elections, nominations for candidates of such party may be made by mass convention held under the provisions of section 45, c. 52, Laws 1907; and certificates of nomination of such candidates may be filed with the proper officers at the time specified in section 40 of the same act.
"4. In construing statutes to the exercise of the elective franchise and to the nomination of candidates by political parties, either at primaries or by conventions or committees, the court should construe doubtful or ambiguous statutes in the light of the constitutional provision that 'all elections shall be free: and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise.' (Const. art. 1, sec. 22.)"
In the body of the opinion, it is said:
"The provision for the organization of new parties is contained in section 45, c. 52, Laws 1907 (Ann. St. 1911, sec. 5905; Comp. St. 1911, c. 26, sec. 118s) which is a part of the law relating to primary elections. The section is lengthy, and will not be copied here in full. It contains the requirement hereinbefore referred to that there shall be 500 electors present at a mass state convention and the same number of signers to an agreement to form a new party. It also *Page 40 contains the foregoing quotation that 'such new party shall be entitled to have separate party ballot at the next primary,' etc. This section, when considered with the requirement of the statute that all nominations be made by primary elections, might justify the thought that mass conventions can only form a new political organization, and that its candidates must be named at the next primary; but a view of other sections of the statute leads to a different conclusion. Section 39 of the same act provides; 'All nominations for candidates of any political party for office to be filled at a special election or any other office to be filled by the electors, except from the provisions of this act, shall be nominated by a convention or committee of their political party,' etc. : and provides further: 'It is the intention that the manner provided in this section for the nomination of officers named herein, by a convention or committee, shall apply only where such officers are to be chosen at a special election.' etc. Section 40, in substance, provides that when nominations are made by a convention or committee, as provided for in section 39, the certificates of nomination to be filed with the Secretary of State shall be filed not less than 25 days before the election; but it provides further: 'Certificates of nomination for a new party may be filed with the Secretary of State or the county or municipal clerk 25 or 20 or 15 days before the election, as the case may require.'
"Construing the several sections of the statute together, it seems clear that the 'certificate of nomination for a new party' mentioned in section 40 applies to the necessary certificate when a nomination is made by convention, and cannot possibly apply to a nomination made by a primary election, as shown by the returns thereof, in which latter case no nomination certificate is required. The limit within which such nominating certificate may be filed with the Secretary of State is much later in point of time than that fixed for canvassing the returns and for the certification to the Secretary of State of the results of a primary election. It seems clear, therefore, that a new party may be formed after the time when it is possible for it to participate in the regular primary election."
We do not think these cases are applicable to the instant case.
It is the province of the Legislature to enact laws relative to the right to vote and the regulation of political parties. Such laws should be reasonable and not destructive to some constitutional right. It is for the Legislature to provide the manner by which candidates may have their names placed upon the ballot for any primary, special, or general election, and so long as, there is no interference with any constitutional inhibition, this court has no right to interfere.
It is true that our Constitution and statutes do not inhibit the formation of a new party subsequent to the primary election, but it is obvious that the plain intent and purpose of the legislative enactments in reference to the primary law require that before any candidate can submit himself to the qualified electors of the state, he must comply with the provisions of the statutory enactments relative to the primary law. See section 6110, C. O. S. 1924, supra. The relief which plaintiffs seek in this case is legislative and not judicial.
Much more might be said upon the issues herein involved, but, suffice it to say, that after a careful examination of the pleadings and the contentions presented by counsel in their briefs, we conclude that the primary law is a part of the public policy of this state, and that its provisions are mandatory and controlling upon all political parties of the state and nonpartisan candidates.
The writ is denied.
CLARK, V. C. J., and HEFNER, ANDREWS, and KORNEGAY, JJ., concur, LESTER, C. J., and RILEY, CULLISON, and SWINDALL, JJ., dissent.