concurring:
I agree with much that has been said by the chief justice. As it would be vain to have extra spaces upon the ballots unless they may be utilized, the real question ip whether the legislature intended to limit the names' of candidates to be voted for and nominated at the primary election to those going upon the ticket by petition as party candidates or later as independent candidates, and having their names printed upon the ballot, as expressly allowed; or may the voters at the primary election write on the ballots the names of any electors they may desire, other than the party or independent candidates for the nomination printed upon the ballot? In other words, did the legislature intend to have the secrecy and benefits of the Australian ballot system, which has been in force in this state since 1891 at our general elections, apply hereafter to the primary elections, so as to prevent at them the successful intimidation or purchase of voters and the abuses which were sometimes practiced under the old method of balloting openly, but which are no longer possible at the general elections? Whether it is not as desirable to guard the voter with secrecy at the primary as at the general election, excepting that frauds at the primary may become known and may react at the general election against a candidate for whose advancement they are practiced, is a matter of policy for the legislature and not for the courts to determine further than to ascertain the legislative will in construing the language of the enactment. Primary elections had not come in vogue at the time of the adoption of the constitution, and it is not assumed that the elector has any greater inher*141ent rights at them or may not be as much restricted in the method of voting at the primary by reasonable regulations as at the general election.
Uncertainty arises because the late direct primary election act provides that under each group of candidates there shall be printed as many blank spaces as there are candidates to be nominated for the office, but with no express direction, as in the California statute, that names may be written in these spaces, and because our act authorizes the leaving of a blank space, preceded by the words “County Committeeman,” and makes provision for the canvassing of the vote for county committeeman, without specifying the method by which the names for county committeeman may be placed on the ballot, and states that “all penalties and provisions of the law governing elections, except as herein otherwise provided, shall apply with equal force to primary election as provided for by this act.” By this last condition our Australian ballot law, with its secrecy and safeguards, and which prohibits the writing of names upon the ballot, and which concededly applies to elections, may become applicable to primary elections unless it is otherwise provided in the late act. In this connection, there is force in the contention that the provision for blank spaces under office designation and for a space under the name of, and the canvassing of the name for, county committeeman, when the statute designates no method for printing or placing names for that position upon the ballot, leads to the implication that the legislature intended that names might be written in for county committeeman, and inferentially for other positions, the writing in of the names for which would not destroy the secrecy of the ballot any more than the writing in of the name for county committeeman. It is necessary to hold that names may be so written, in order to give any force to these provisions or to have a county committee elected. 1 am not constrained to favor a construction which would lead to such undesirable results as would occur under the statute as it now exists if spaces are not provided *142and names are not allowed to be written in them. If hereafter the legislature, representing the people of the state, deem it wise to guard primary elections with the same secrecy which prevails in general elections a new statute can be easily framed which will clearly indicate this intention and at the same time provide for the election of county committeemen and for the nomination of candidates by the voters after the time has expired for having printed upon the ballots the names of party or independent candidates.
As our act is mostly the same and has sections reláting to assembly districts and other conditions in California which do not prevail in this state, it may be fairly inferred that it was largely copied from the bill pending before the California legislature; and as ours omits the direction for the writing in of names and it does not appear that this omission was not intentional on the part of the legislature, and that the provision relating to spaces and county committeemen was not retained by oversight, the same as other parts of the California bill were retained, or that upon more mature consideration the legislature would not have eliminated any language of the statute which might, even by implication, lead to the inference that names might be written upon the ballot, the proper construction is not clear. But when it is doubtful whether the provisions mentioned were retained inadvertently, to give them effect when they are a part of the statute' would seem more in consonance with the ordinary rules of construction. As with a new machine or garment, a new law may not be perfect or work to the best advantage upon first trial. It is to be expected that experience with the act will show defects and errors which it will be desirable to have corrected by future legislative action.
For these reasons I concur in the order directing that a blank space,- followed by a square for stamping the cross, be placed below the name or names of candidates for each particular office where names are printed on the *143ballot and below the office designation where no such names are printed.
P. B. Ellis,'for Petitioner.