(concurring).
I agree with the majority opinion’s conclusion, but I wish to make it clear that I am not in accord with two points therein.
First, in the majority opinion’s language :
“When a statute by express language repeals a former statute and attempts to *361provide a substitute therefor, which substitute is found to be unconstitutional, the repeal of the former statute is of no effect, unless it clearly appears [from the act] that the legislature intended the repeal to be effective even though the substitute statute were found invalid.” (Emphasis mine).
Such a fiction has a certain validity when the later statute intends to “amend and replace” the former, thereby leaving legislative rules in its “place and stead.” Bissett v. Pioneer Irrigation District, 21 Idaho 98, 101, 120 P. 461, 462 (1912). Accord Lemhi Co. ex rel. Gilbreath v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214 (1929). For in that event the legislature has demonstrated not once, but twice (or more), that the subject area of enactment shall be occupied and governed by legislation.
However, the present situation is quite different. Here the most recent legislation, codified as I.C. § 34-602, deleted (by implication) the previously enacted method of forming a new political party; inserting nothing in its place. No substitute was provided, there was no replacement; no legislative rules were given in lieu of the former governing formation of a new party. This elimination merely left a legislative void with respect to formation of a new political party, and in such a situation the fiction of conditional repeal (depending on constitutionality of the repealing statute) becomes a fantasy. Thus, I would not treat the repealed statute (Idaho Sess.L.1919, ch. 107, § 2, pp. 372-373, as amended by Idaho Sess.L.1927, ch. 83, § 517, pp. 101-102) as having been revived by our decision that I.C. § 34-602 is unconstitutional. I would look to it for guidance, but I would not consider it, as does the majority, “remaining] in full force and effect.”
Second, the majority opinion cites several cases for the proposition that the constitutional right of suffrage encompasses “The right of citizens to organize, and give expression and effect to their political aspirations through political parties.” Examination indicates that of these cases, direct authority for the proposition stated, in the context of this action, is found only in the California cases, especially Britton v. Board of Election Com’rs, 129 Cal. 337, 61 P. 1115, 51 L.R.A. 115 (1900), and Independent Progressive Party v. County Clerks of Alpine County, 31 Cal.2d 549, 191 P.2d 6 (1948). The other opinions recite the proposition but it is not properly part of their holdings.