In my opinion the act in question is unconstitutional only in so far as it undertakes to make it mandatory upon the voter to express a second choice when three or more candidates are running for a given office and a second and third choice when more than four candidates are running for a given office in order to have his vote counted. This provision being the last paragraph of section 1 of the act, is in conflict with that part of the Constitution providing for the free exercise of the ballot, and therefore unconstitutional and void. With this paragraph eliminated, the voter would be left free to express a second or third choice only in the event he desired to do so. The remainder of the act in no way conflicts with the Constitution, and is therefore valid and binding.
It was clearly the intention of the Legislature as expressed by the act to provide for a preferential primary and thus, so far as possible, insure nominations by a majority rather than a minority of the voters, and it will always be presumed that the intention of the Legislature was to keep within the provisions of the Constitution and that portion of the act which does not conflict with the Constitution should therefore be upheld, and full force given to the legislative intent to provide a preferential primary law within the provisions of the Constitution.
I, therefore, concur in the majority opinion only to the extent herein indicated.
I am authorized to state that MASON and RILEY, JJ., concur in the views herein expressed.