(concurring specially).
That the statute under consideration does not invest, and was not intended to invest, the secretary of state with authority to try and pass upon all kinds of objections that may be filed against certificates of nomination, and, that properly construed, it does not invest the secretary with more than ordinary ministerial or executive powers, are propositions upon which the Chief J ustice has clearly expressed my views. But in respect to certain matters presented by the record and the argument of counsel, I desire to express a further opinion.
1. The legislature may undoubtedly pass all necessary laws for the purpose of regulating in detail the manner of conducting elections. But under the guise of regulation the constitutional rights and privileges of electors cannot be infringed. It is true, as counsel contend, the constitution provides that, “ the general assembly shall pass laws to secure the purity of elections, and guard against abuses of the elective franchise.” But the same article also provides that every duly qualified elector “ shall be entitled to vote at all elections.” Const., art. 7, sections 1 and 11.
How far legislation in the interest of ballot reform may be extended, need not now be determined. But I am firmly impressed with the conviction that it cannot be extended so far as to substantially impair the right of any elector to cast his vote at each election according to his own individual *38judgment and preference, and to have the same counted as cast. These principles should not be lost sight of, either in legislation or in judicial decisions.
2. The conclusion at which the court has arrived in this case is not variant from the legal issues presented, as the unthinking may suppose. It is true, the real parties to this litigation,, representing as they do the different branches' of the Democratic party, appear to have framed the issues under consideration with the view to secure, if possible, some official recognization of the regularity and genuineness of their respective political organizations, — one branch contending that the secretary of state is the proper officer to decide which branch has put forth the regular, genuine Democratic ticket to be voted for at the ensuing election, the other branch contending that it is the province of the district court to decide such question. It is true, the decision of the court does not technically respond to the issues to the full extent thus presented, nor does it permit such question to be decided, either judicially or officially. This is not altogether unusual. A judicial decision should conform to the requirements of the law in respect to the subject-matter before the court. Parties cannot by the manner in which they present issues for determination compel the court to decide matters foreign to the true meaning and intent of the law.
It is not the province of either executive or judicial officers to indorse, uphold, or endeavor to give official sanction to the mere political course, regularity or genuineness of any political organization as such. Political parties as such are voluntary, not official, organizations. The statute provides how candidates nominated by political parties, or otherwise, may be placed before the electors for their suffrages, at public elections. When the requirements of the law have been complied with, the duty of the secretary in respect to certifying such nominations to the county clerks of the several counties of the state is clear. It is the province of voters by their ballots to .decide between rival political parties, conventions and candidates.
*393. There is no middle ground upon which to place the decision of this ease. It having been determined that it is the duty of the secretary to pass only upon formal objections to certificates of nomination, it follows that since the rival certificates are each complete both as to form and contents, since each contains all the matters specified in the statute, since each is duly authenticated, verified and filed with the secretary within the time prescribed by the statute, the secretary must certify each to the county clerks. Every reason that can be urged why the secretary should certify the O’Donnell certificate bears with equal force in favor of his certifying the McDaniel certificate. It is most illogical to say that the secretary has not the power or authority to decide which of two certificates is valid when both are equally good in form, and when each couforms to every requirement of the statute, — and then contend that it is his duty to accept and certify one and reject the other.
4. The proposition that when two certificates of nomination equally good as to form and contents are filed with the secretary within the time prescribed by the statute, the secretary should accept and certify the one first filed, and reject the other, is wholly untenable. If such a rule were to obtain, there would be no security that regular, genuine party nominations would not, at every election, be forestalled and barred out by irregular or bogus nominations purporting to represent the same party.
5. The principle is elementary, that the writ of mandamus lies to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. The writ lies in a proper case to compel action, but not to control discretion. If the secretary could be, and actually was, authorized by law to determine which of two or more rival conventions was the bona fide representative of the same political party, then, perhaps, he might be compelled by mandamus to decide between them and certify the nominations of the one and reject those of the other, but his action in such case would have to be according to his own judgment *40in the premises, and not according to the judgment of some other tribunal. But to say that he may be compelled by mandamus to decide when he has not the power to decide, is an absurdity. To say that the law enjoins upon the secretary the duty of certifying one set of rival nominations and the rejection of another, when he has not the authority to decide between the claims of the rival conventions from which they emanate, is equally absurd. Mandamus can never be resorted to to compel the performance of an act by an officer until his duty in the premises is shown to be clear and certain, and that he refuses or neglects to perform it.
6. Counsel have not cited any provision of the statute which by the most forced construction can be held to invest any tribunal other than the secretary himself with the authority to decide between two certificates equally good upon their face, both as to form and contents; and since it appears that the secretary has not such power or authority, it follows that the writ of mandamus cannot be resorted to in this case except for the sole purpose of compelling the certifying of the O’Donnell certificate on the ground that the same is in all respects valid upon its face. It cannot be resorted to for the purpose of securing from the district court a decision between the rival claims of the O’Donnell and McDaniel certificates as representing genuine democratic nominations; nor can it be resorted to for the purpose of prohibiting the secretary from certifying the McDaniel certificate.
Denied.