I do not concur in the view that Rem. Rev. Stat., §§ 5175 and 5176, are applicable to nonpartisan primary elections. That, in the absence of statute, a candidate may decline a nomination, needs no citation of sustaining authority. Rem. Rev. Stat., § 5175, which is declaratory of the right of declination, has to do solely with declination of nomination for a partisan office. Judge Main's declination *Page 93 of the nomination was a waiver of his right to a place on the ballot in the general election. Judge Main's waiver of his right could not, in the absence of a statute to that effect, vest in the defeated candidate or candidates a right to a place on the ballot in the general election. To hold otherwise would constitute judicial legislation.
Under Rem. Rev. Stat., § 5212, only two persons, Judge Main and Judge Mallery, are entitled, by virtue of the vote they received in the primary election, to a ballot position in the general election. Judge Main's waiver of that right does not entitle any other person to a place with Judge Mallery on the ballot, hence Judge Mallery alone is entitled to be certified as a nominee for supreme court position number one.
I agree with counsel appearing as friends of the court that, while it may be unfortunate if vacancies occur on the judicial ballot which can not be filled before the general election, the court is without power to provide the procedure for filling such vacancies where the legislature has not seen fit to do so. *Page 94