dissenting.
While I agree with much that is said in the majority opinion, I must dissent from the conclusion reached. That opinion holds:
1. That the provision of the law under consideration which declares that candidates for judicial and educational offices shall not be “nominated, indorsed, recommended, censured, criticised or referred to in any manner by any political party, or any political convention or *19primary, or at any primary election” is void as being in violation of the provisions of the bill of rights protecting liberty of speech and the right of free public assembly. So far as the prohibition of free speech by citizens assembled together in conventions is concerned, this provision of the act is clearly and manifestly void. Its'enforcement in this respect would be an assault of the gravest and most heinous character upon the liberty of the citizen, and one that no free people would long endure. It is opposed to that spirit of liberty which is our dearest heritage, and which should be most jealously conserved and strongly defended by legislature, courts and private citizen alike. It cannot be defended as a valid exercise of legislative power, and, indeed, counsel for respondent laudably has made no attempt to do so. But, perhaps recognizing its inability and the folly of attempting to curb and limit free speech and free assemblage in a land of liberty, the legislature wisely attached no penalty or. punitive sanction to a violation of its commands in these respects. Since a disregard of this provision can meet no punishment, all that part of the act may be treated as surplusage. It may be considered as an indication of what the legislature would have liked to do if it had the power, or perhaps as advisory in its nature. But I cannot go so far as the majority in holding this whole provision void. Not all of it is obnoxious to or inhibited by any provision of the constitution. The regulation of primary elections is concededly within the province of the legislature, and that portion of this provision which prohibits the nomination of such candidates at any primary election is not in violation of any constitutional provision and is a proper regulation. The legislature may, as it did for many years before the passage of the Australian ballot law, .leave the whole matter of the nomination of candidates and the preparation of ballots to be used at the general election to individual or party care; the only regulation at that time being that the elector should deliver in full view of the people assembled at *20the polls a piece of paper with the name of the person voted for written or printed thereon and a pertinent description of the office (Gen. St. 1873, ch. 20, sec. 30) ; or it may take into its hands the entire control and direction of the nomination of candidates and the preparation and furnishing of official ballots. Its action in regard to these matters, where no constitutional right is assailed, is conclusive alike upon the courts and upon the citizen.
In this state the printing and furnishing of official ballots has for years been assumed by the state. No other ballots than those furnished by public authority can be used. The manner in which the names of candidates shall appear upon such official ballot, whether with or without party designation, is a matter entirely within the control and discretion of the legislature, provided only that in this respect no discrimination or partiality is shown which will defeat the constitutional requirements providing for “a free ballot and a fair count.” Political parties may or may not be recognized by the legislature in regulating the form of ballots, and there is no constitutional requirement which compels their notice. The legislature has the option whether or not the ballots shall be “official” and printed at public expense, and whether party designations shall appear thereon, and it has the power to decide whether the names of candidates printed upon the “official ballots” shall be ascertained by petition, by convention, by primary election, or by any other manner which accomplishes the end sought, a reasonable limitation of the number of names necessary to print in order to afford every elector a fair opportunity to express his preference. While at the general election the elector may vote for whom he pleases by writing any name upon the ballot, it is manifestly impossible for the state to print in advance the name of every possible candidate, and the exercise of some method of selection is necessary to avoid needless expense and an unwieldy and cumbersome ballot. The state, too, has the right reasonably to classify offices, and to provide that candidates for certain offices *21¡■'ball be selected by primary election and for others by petition. This state having heretofore adopted the primary system of nominations as to certain offices, it has the power to prohibit nominations at a primary election for such offices as to which it is provided nomination shall be by petition. In my judgment the prohibition of the nomination of candidates for judicial and educational offices at primary elections is a valid exercise of legislative power, but the prohibition of free speech and free assemblage contained in the act is not and ought not to be of more practical or legal effect than “sounding brass or a tinkling cymbal” or “the crackling of thorns under a pot.”
2. Coming now to the provision limiting signatures to petitions for candidates for the office of supreme judge to not more than 500 in any one county: In its practical operation I seriously doubt whether this would hinder or obstruct any voter in the exercise of the elective franchise. Every one who has observed the degree of care and discrimination, or rather lack of these qualities, which the average man ordinarily employs before he affixes his name to petitions must come to the conclusion that, after obtaining 500 signers in a few counties in the more densely populated portion of the state, there would be little or no difficulty in filling the quota from the 80 or more counties left to canvass. But, however this may be, the possibility exists that the reputation of a candidate entirely fitted and qualified for, and who might adorn, the position may be so purely local that, unless the voters of his own immediate locality furnish the 5,000 names necessary under the law, thousands of voters in that locality would be placed at a serious disadvantage, as compared with voters in other parts of the state, by being compelled to write the name of their choice upon the official ballot, instead of its being printed thereon. The contingency is in my opinion remote, but it may happen. The nnexpected often happens. It is the duty of the courts to preserve and uphold every constitutional safeguard thrown around the exercise of the elect*22ive franchise, and since the view taken by the majority is in the direction of promoting and preserving wider freedom of choice, and removes a hindrance or obstruction to the right of selection, I concur in the holding that this provision is discriminatory and void. But the limitation as to 500 signatures only applies to judges of the supreme court. No such provision is made as to other candidates, and this single provision certainly was not the inducement for the passage of the act. As to all other-officers the majority opinion condemns the act upon one ground alone, that of the empty and forceless inhibition of free speech. I am firmly convinced that this alone is mere redundant matter, and is not of sufficient importance to justify setting the law aside.
This brings me to the question of what effect on the whole law is had by excising both of these provisions. It is a fundamental and elementary proposition that under our system of government what laws shall be passed, what political or governmental policy pursued, or what economic theory adopted in the affairs of government are matters with which the legislature is alone concerned, and for which it is alone responsible to the people of the state. It may be as well to say in this connection that whether the act was passed by a bare majority or whether it was unanimously adopted, whether the policy is new or whether ancient, whether its intent is wise or whether unwise, whether passed from partisan motives or not, and whether the result may prove to be good or evil are matters with which the court has no concern. Many laws, in fact most of great importance, have a partisan origin, and are obnoxious to many persons; but with this we have nothing to do.
Does the law, or do any of its provisions, violate the constitution? This is the sole question. If any portion of the act does so, is that portion such an essential and necessary element that its elimination leaves a law incomplete and fragmentary, and which does not accord with the legislative purpose and intent, and which is in*23capable of enforcement? It is the duty of the court to construe and interpret acts passed by the legislature so as to uphold them if their language reasonably admits of such interpretation, and not to set them aside unless they clearly contravene the constitutional limitations upon legislative power. All doubts must be resolved in favor of the statute, and all presumptions are that the legislature passed a valid act and kept within its constitutional powers. As a corollary, if a part of a statute fails as being obnoxious to the limitations of that instrument, if, after the elimination of the objectionable part, enough of the law remains so that the intention of the legislature may be carried out, and the desired end and purpose of the enactment accomplished, the act may stand. These propositions are so elementary that citation of authorities is needless; and, indeed, these are the- canons recognized in the majority opinion. I agree with the language of Judge Holcomb, quoted in the majority opinion, that “the language found in the invalid portion of the act can have no legal force or efficacy for any purpose whatever (State v. Insurance Co., 71 Neb. 335),” and with the language of the majority opinion that “what remains must express the legislative will, independently of the void part, since the court has no power to legislate.” Tested by this rule, does “what remains express the legislative will?” I am convinced that there is no difficulty with the law in this respect. After eliminating the prohibition of free speech and the provision limiting the number of signatures for the office of supreme judge, we find an act which, in substance, provides that candidates for judicial^and educational offices shall be nominated by petition, and not at primary elections, prescribing the number of signatures to entitle the candidate to the printing of his name upon the official ballot, and providing that the names shall be printed thereon without party designation. I see no obstacle to the carrying out of these provisions.
I am of the opinion that since the entire control of the *24printing of the official ballot has been, placed in the hands of the public authorities, and since if any candidate should “be nominated, indorsed, recommended, censured, criticised, or referred to” by any political party or political convention, this could have no possible effect upon the printing of any name or party designation upon the official ballot, the declared end and purpose of the act — to remove the election of candidates for such offices from the domain of party politics — may be accomplished, so far as it may be done among a free people. The legislature cannot prevent free speech, but it can control and regulate the official ballot and the manner of selection of names of candidates to be printed thereon. It has the right to do so in such a manner as to remove, as far as it may consistent Avith constitutional rights, certain offices, or all offices, if it chooses, “from the domain of partisan politics,” if in its judgment it believes it to be for the best interests of the state. It cannot abolish parties, nor prevent their formation, it cannot prevent the free and open discussion of the qualifications and fitness for office of candidates, either by neAVspapers, individuals or assemblages of citizens, whether in church, mass meeting or political conve'ntion; but it has the undoubted right to mitigate, if it can, any evils that it believes to flow from nominations by political parties, so long as it acts in such a manner that there shall be no infringment upon the requirement of the constitution (art. I, sec. 22) that “all elections shall be free; and there shall be no hindrance or impediment to the right of a.qualified Amter to exercise the elective franchise.”
I believe that, Avith the excision of the immaterial and unessential provisions mentioned, the law is still in accordance with the legislative purpose and intent, and with the constitution of the state; that these portions may be declared invalid, and the remainder of the statute upheld as a valid exercise of legislative power. For these reasons, I must dissent from the conclusion reached that the laAV is altogether void.