concurring.
I fully concur in the opinion of Mr. Justice Gabbert. The ground upon which he bases his conclusion is impregnable, and is so clearly and concisely stated that amplification would serve to obscure, rather than to elucidate, the controversy. The opinion speaks for itself, and it would seem that there *382ought to be no doubt, either as to the scope of the decision or the principle upon which it proceeds. But in the dissenting opinion an interpretation is put upon the opinion of the majority, and a theory selected for them, which, as yet, they have not announced, and for which they decline to act as sponsors. To prevent any misconception of their position, this concurring opinion is written.
In an opinion the statement of a rule in general terms must be taken in connection with the particular facts of the case. In the determination of a pending controversy disclosing certain facts it is not a safe practice, nor do courts usually indulge therein, to anticipate and decide other cases that may arise exhibiting an entirely different state of facts, and to which other legal principles may apply. It will be time-enough, therefore, to determine the duty of the secretary of state when the general assembly enacts a law expressly providing that there shall be no vacancy in a given senatorial district at a given election. It has not so declared in the apportionment act of 1901. It did so declare in the act of 1891 — SessionLawsl891 22, 24. In the act of 1891 the general assembly very wisely specified, as should have been done in 1901, in what senatorial districts elections should, and in what districts elections should not, be held at the next general election after the act took effect. But if a case such as suggested in the dissenting opinion should be presented to the court, it may not be inappropriate to observe that we would then have, in advance of the election, an authoritative declaration, in the form of a statute, by the general assembly itself, with which body rests the sole power of judging of the election and qualification of its members, that in the districts wherein it had’ said elections should be held, those duly elected thereat would be entitled to seats at its ensuing session. But such supposed case is so rad*383ically different from the one we are now considering that we need not pause to inquire what would be the duty of the ministerial officer charged with the execution of the legislative mandate.
The condition which now confessedly confronts us is that if elections are held in all the senatorial districts created by the apportionment act which are not now fully represented, those elected therefrom, together with the hold-over senators who cannot be displaced, will, if all are seated, constitute the senate a body of 36 members, whereas, under the constitution, it is limited to 35. Mr. Justice Gabbert has demonstrated that neither the secretary of state nor the courts can say what senatorial district shall be disfranchised. Mr. Justice Steele thinks, as I understand it, they may determine in which district a vacancy exists. If the court has such power then, if the condition wás that like provision had been made for the election of- a number of senators who, together with the hold-overs, would give a senate of 34 members, it would have power to add one so as to make good the constitutional number. It would have the same power to add one to, as it would have to subtract one from, the number provided for by the legislature. In neither case has a court such power, nor could that power be conferred upon it. To attempt to exercise it would be a flagrant usurpation of jurisdiction which the general assembly alone possesses, and likewise an exhibition of judicial legislation without a parallel.
Courts cannot thus make laws by arbitrarily eliminating from invalid enactments the clauses which produce the invalidity. Neither can they give life to an act which is defective because of the absence of provisions which the legislature might have, but did not, put into it, by injecting into the statute the omitted provision.
*384One or two illustrations will show the futility, as well as the lack of power, of tribunals other than the general assembly assuming under the election act and in proceedings thereunder the power contended for. Suppose the secretary, as he has done, determines that there is no vacancy in the 26th district, and upon a review of his decision this court determines that there is. In the 3rd district in which nominations have been certified we hold, in a contest, that there is no vacancy. In the first case we order the secretary to certify the nomination which he rejected, and in the second, to recall and cancel the one which he accepted. When the senate meets, it says that no vacancy existed in the 26th district, in which an election was held, but that a vacancy did exist in the 3rd, where wé refused to allow an election, and also in the 4th district, which was prevented from holding an election by an order of this court made in a third contest. The court could not, if it would, enforce its own orders, and the senate’s subsequent decision could not be nullified by us, but a grievous wrong would be done somewhere that could not be wholly rectified.
Again, suppose that Mr. Newell’s nomination had been received, and a nominee in some other district had filed an objection to its certification on the ground that there was no vacancy in the 26th district. If the secretary of state has the power here asserted and sustains the objection, would he not indirectly, but none the less conclusively, determine which claimant had the right to a seat in the next senate? He certainly could not do this in a contest between rival claimants, and he cannot of his own motion do so. If such exclusive power is not vested in the ministerial officer, or the courts, and the legislation has not assumed to confer it, why should they arbitrarily exercise it?
If the reasons given by Mr. Justice Gabbert for *385affirming the judgment of the district court be not ample, there are others which might be assigned, but which we think there is no necessity for mentioning. There is, however, one matter, though technical in the sense that it does not go to the merits, which, in the opinion of the majority, renders the contention of the secretary of state wholly untenable. The secretary has no power whatever in respect to certifying nominations except what the so-called election act gives, and he is denominated by that act a ministerial officer.J ’ Session Laws 1891, p. 148, § 13, as amended by Session Laws 1897, 155. The act furnishes a method of procedure complete in itself for determining all controversies that arise under it, and only such matters as the act provides for can be determined in the proceedings instituted thereunder. The subject 'matter of the pending controversy is not within the purview of the act. But if it was, the proceeding is a special proceeding, and the method of procedure prescribed must be followed, and there is no pretense that it was observed here. The ministerial officers designated are given certain powers- and charged with certain duties in relation to the preparation of the official ballot, and it is for that purpose, and that only, that such powers have been conferred and duties imposed. All certificates of nomination which are in apparent conformity with the provisions of the act shall be deemed valid, unless objection thereto shall be made in writing within three days after filing the same. Though the secretary refused to file the certificate in question, yet since the parties presenting it did all that was possible for them to do in complying with the provisions of the statute, the law regards the certificate as having been filed. This being so, and the statute expressly declaring that it shall be deemed valid unless objected to, and no objection at all having been made at any time, the sec-
*386retary in the absence of such objection is not, by the statute — and that is the sole source of his power— vested with authority to refuse to certify the nomination because he has some objection to it for some substantial reason. He may, of his own motion, refuse to file a certificate, on some formal ground, but if it is, as expressed in the statute, “in apparent conformity with the provisions of this act,” as this certificate admittedly is, the secretary may not, of his own motion, and in the absence of some objection based upon matter of substance, refuse to certify the nomination.