specially concurring:
I agree with the conclusion stated in the opinion of Mr. Justice Denison that the court is given jurisdiction of this case by section 25 of the election law of 1910.
I am further of the opinion that the court had jurisdiction regardless of that section. The relator claims that he is, by virtue of an election held under the primary election law of 1910, and by subsequent proceedings thereunder, a member of the state central committee of his party, and that said committee declines to recognize his membership. He seeks by mandamus to compel the committee to restore him to the position from which he ha.s been unlawfully excluded. He claims a statutory right, and I can see no reason why he may not invoke the aid of the courts to protect that right.
A similar question was before the New York Court of Appeals in 1900, and is reported under the title of People *315ex rel. Coffey v. Democratic Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674. A very able opinion in that ease, by the then Chief Justice Parker, vindicates the rights of the relator above stated, clearly and, as I think, beyond question. It is there pointed out that the primary election law was intended to and did take from political bosses the right to control in the nominating of candidates for office; that it had surrounded the primary election with all the safeguards provided for general elections; and that the persons who are chosen by the voters to represent them, in matters preliminary to nominations, are entitled to hold the position for which they have been so chosen during the term prescribed by law. It is there very' aptly said: “The scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.”
Referring to the claim that a general committee of a political party ought to have the right to remove a member from office, the court said that the legislature appeared to have “decided that the wrongs that had been and were being done to the primary voters exceeded that which could result from occasional association with a hostile member. In other words, it determined that the majority of the primary voters were entitled to select any representative that they might desire, who should be responsible to those electing him, and only to them, for his conduct in office:”
It was therefore held that the relator was entitled to a writ of mandamus to compel the central committee to restore him to the privileges of membership-.
Our law of 1910 gives practically the same protection and endorsement to the primary election law as does the law of New York, to which the court had reference. It puts primary elections upon the same plane as elections to office; provides voting booths, election clerks and judges and certificates of election, all at the expense of the taxpayers. To say that a man chosen to a position named in the statute may be ousted from that position by a political committee, without a -reason other than political, and have *316no remedy in court, is to say that the law, passed at the demand of the people to remedy that very abuse, is without effect. It is a charge that the legislature authorized the expenditure of public money without expectation of any substantial benefit therefrom.
A similar question was before the supreme court of Missouri in State, ex rel. Guion v. Miles, et al., 210 Mo. 127, 109 S. W. 595. There the relator sought, by mandamus, to compel the Democratic central, committee of St. Louis to restore him to membership on that committee. He had been elected a member of the committee by direct vote at the primary election, but had been expelled from the committee1 for an alleged failure to comply with one of its rules as to meetings. His right to the writ was first challenged, and the court held that mandamus was the proper remedy. The court quoted with approval the New York case, and held that the right of legislative bodies to determine the qualifications of their members afforded no support to the action of the committee, the right exercised by legislative bodies being constitutional. The court points out that if the general committee, provided for by the ■primary act, has power to make rules by which a member may be expelled, it may be said that the legislature has enacted a meaningless provision when it provided that committeemen should be selected by the people at the primary election in their respective wards. Evidently this is so, because if a committee may deprive one of its members of his right to sit and act with them, it may also deprive other members, and so become in effect a voluntary body, such as existed before the primary law was passed.
I am clearly of the opinion that the law of 1910 repealed so much of the law of 1901 (section 7811, C. L. 1921) as recognizes the right of a voluntary state central committee to determine controversies arising from claims to positions created or recognized by the later law in the section now appearing as section 7552, C. L. 1921. The law of 1910 covers the whole subject fully, and provides for the exercise of all the authority by the elected committee which *317the act of 1901 conferred, upon the voluntary committee. A considerable portion of that section covers the same subject which is covered by the election law, including the manner in which the central committee is constituted.
The provisions here relied upon by the relator are plain, unambiguous and comprehensive. His right, therefore, to a hearing by the court cannot be denied upon any doubtful question of the effect of a prior statute, which is at least apparently repealed.
I am authorized to state that Judge Whitford and Judge Sheafor concur in these views.