dissenting.
I disagree with my associates in the disposal of this case. The judgment is in nowise based upon the provisions of the apportionment act. My associates are of opinion that this court has no authority to read and construe the act for the purpose of ascertaining whether a vacancy exists in the 26th district, and that even though it can be ascertained from the provisions of the act that no election should be held in the 26th district in the year 1902, it is nevertheless the duty of the secretary of state to certify the nomination; and their opinion is predicated upon the theory that if the secretary of state were to refuse to file a certificate of nomination of candidates in districts where by the plain mandate of the law no election is to be held, or if this court were to direct the secretary of state to refuse to file such certificates, the secretary or this court would violate that provision of our constitution which declares that each house of the legislature “shall judge of the election and qualification of its members. ’ ’
This, I think, is an erroneous construction of our ■constitution. I deem it to be the duty of the secretary of state, when the legislature has indicated that no *387election shall be held in certain senatorial districts for a certain year, to refuse to receive certificates of nomination from such districts, and the duty of this court to uphold that official in thus executing the will of the legislature.
I am of opinion that we should ascertain from the apportionment act whether or not there is a vacancy in the 26th senatorial district. If, after reading the act, we are of opinion that a vacancy exists, we should direct the secretary of state to file the certificate of nomination and certify the names of candidates to the various county clerks,- if, on the other hand, we are of opinion that no vacancy exists, we should direct the secretary of state to refuse to file the certificate of nomination.
I should not regard the act of this court in' directing the secretary of state to refuse to file a certificate of nomination in districts where no vacancy exists as an interference with the right of the legislature to "judge of the election of its members, but should regard such action as a proper exercise of the jurisdiction of this court in ascertaining the true meaning and intent of the legislature (and not of the senate only), as expressed in the apportionment act. If, as stated in the opinion, we must ignore the provisions of the statute and arm Senator Newell with the proper credentials to enable him to present his claims to the senate of the next general- assembly, whether a vacancy exists in the 26th district or not, it follows that we must arm every other candidate with credentials and that there may be forty persons with such credentials presenting themselves as senators of the next general assembly, notwithstanding the constitutional membership of the senate is thirty-five.