concurring.
On the 28th day of September, 1912, the appellant, Andrew M. Morrissey, filed his petition in the district court for Lancaster county alleging that he was a qualified elector of Nebraska, eligible to the office of attorney general, and nominated at the primary election, April 19, 1912, as the democratic candidate for said office, and that he received his certificate of nomination and is entitled to have his name printed on the official ballot; that the defendant, Addison Wait, is the secretary of state, and that it is his duty as secretary to certify to the several county clerks the nominations of all candidates named by the political parties, in order that the names may be printed on the official ballot to be used at the November election; that at the time he was nominated there was no political party in Nebraska known as the Progressive party; that on September 13, 1912, there were filed in the office of the secretary of state certain documents, reading: “Agreement to Form New Party. We, the undersigned qualified electors of the state of Nebraska, in mass convention assembled, do hereby associate ourselves together, and agree to form a new political party, to be *277designated the 'Progressive’ party, and we do hereby agree to affiliate with said party, and to support its nominees at the next general election;” that there was appended to the said documents the affidavit of G-. .0. Van Meter, setting forth “that he is a qualified elector of this state, and that at the mass convention held in the city of Lincoln on September 3, 1912, at which the Progressive party was formed and organized as a new party, he had charge of and witnessed the signatures, and saw the electors preceding sign the agreement to form said new party and to support its nominees at the next general election, and that he verily believes them all to be qualified electors in the state;” that on said 13th day of September, at the time of filing the said alleged agreements, there was also filed in the office of the secretary of state a document purporting to be a certificate of nomination for the several state offices involved and for presidential electors and for United States senator, and designating said several candidates. The certificate of nomination certifies that at a mass convention held in the city of Lincoln, September 3, 1912, a new party was then and there organized under the name of the “Progressive Party,” and that not less than 500 electors participated in the convention. It was further alleged that there was a less number than 500, and that they were composed of persons of both sexes.
It is objected by Mr. Morrissey that there is no legal authority to hold political conventions to nominate candidates for any of said offices, and that the laws of the state prohibit the making of nominations for said offices by political conventions; that said pretended convention did not represent a political party casting 1 per cent, of the votes at the last general election; that the purpose of holding said convention was to disorganize existing political parties, and to impair the value of the several nominations given to candidates for said several offices. It was further objected that the names of said candidates so claimed to be nominated should not be certified to the county clerks of the several counties as candidates of said *278Progressive party, and he objected to any certificate being made by the secretary of state; that, upon the filing of said objections, the secretary of state fixed a time for the hearing at 2 o’clock in the afternoon of September 18, 3912, and at said time and place the objector appeared in person and by attorneys, and said candidates also apperod by attorneys, and evidence was introduced, and the matter was argued to the secretary of state, who thereupon entered an order overruling said objections, and filed a written opinion assigning his reasons therefor; that on the 2d day of October said'cause was presented for review before the Honorable P. James Cosgrave, one of the judges of the district court for Lancaster county, who, after argument, entered an order sustaining the action of the secretary of state and denying the relief prayed for in the petition; that it was found upon the stipulation and agreement between the parties that the Progressive party was duly organized and its nominees duly nominated and legally certified to the secretary of state, and that they are entitled to a place on the official ballot as the candidates of the Progressive party. It was therefore ordered, considered and adjudged that the said order of the secretary of state be in all things confirmed and approved, and that the proceedings of the said objector, Andrew M. Morrissey, be dismissed.
The case comes to this court to review the judgment rendered in the district court. It is contended that the judgment of the district court should have been in favor of said Morrissey and against the defendant, Wait, and that an order should have been ehtered enjoining the secretary of state from certifying the names of said candidates to the several county clerks to be placed upon the official ballot.
It appears from an examination of the record that there was a mass convention held in Lincoln at the city Audi.torium, September 3, 1912, and that more than 500 electors were in attendance and participating. It is contended that in the afternoon there were less than 250 *279voters present in the auditorium, but it further appears that later in the evening there was an immense audience. It .is alleged that the electors came for the purpose of hearing Governor Johnson of California deliver a speech. It must be admitted that, if a large number of electors were there, they may have been there for the purpose of participating in the convention, as also for the purpose of hearing the speech. It being admitted that a large audience liad assembled, it is impossible to say for what particular purpose they were there. It is contended that the papers signed were in five separate parts, although they all read, in substance, the same way. It would not be expected that 578 names would all be. placed on one long paper, when it would be much more convenient to put them on five papers. This objection is purely technical and without merit.
A consideration of the statute would seem to dispose of the questions presented. Section 118s, ch. 26, Comp. St. 1911, would seem to furnish statutory authority for organizing a new party in the state. It provides: “Electors may form a new party. * * * In order to form a new party there shall be present at a mass convention electors to the number of at least five hundred (500) in a state convention.” Section 117f, ch. 26, Comp St. 1911, provides: “The name of no candidate shall be printed Upon an official primary ballot unless at least thirty (30) days prior to such primary” nomination papers be filed. It is provided by section 118n, ch. 26, Comp. St. 1911: “Certificates of nomination for a new party may be filed with the secretary of state or the county or municipal cleric twenty-five or twenty or fifteen days before the election, as the case may require.” The foregoing section provides that this may be done in nominations that are made by convention or committee. The foregoing sections seem to dispose of the matter. It would seem not to be the intention of the primary act to abrogate the right of electors to form a new party; but apparently the thing contemplated is to perpetuate the right to form *280new parties. Whether it is essential that the particular 500 electors who must he present at a mass state convention to form a new party shall be the identical electors who are contemplated by the act as necessary to sign an agreement to form such new party may be debatable. Section 45, ch. 52, laws 1907, provides, among other things, that “in order to form a new party there shall be present at a mass convention electors to the number of at least five hundred (500) in a state convention,” and electors to “at least the number specified shall sign an agreement to form such new party and support its nominees at the next election;” but the act does not say the same 500 at the convention shall sign the agreement. It would be a harsh construction of the act to say that the" same 500 who attend the convention shall also sign the agreement.
There is a contention made that the purpose of forming the new party is not to bear immediate fruit, and that the new party is not to have recognition until after it has voted at a primary. This is not according to the American idea, and it would be eminently unjust. It would be directly in conflict with section 22 of the Nebraska bill of rights, which provides: “All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified -voter to exercise the elective franchise.”
Secretary of State Wait acted upon the evidence brought before him. His conclusion seems to have been a proper one. It was sustained by the district court for Lancaster county. It would be unfair to many thousand electors of the state of Nebraska to prevent them from voting for the candidates of their choice.