On Rehearing
Opinion by
Sweeney, J.:This proceeding, instituted by the deputy attorney-general, Mr. Fowler, pursuant to the provisions of section 29 of the act in relation to primary elections (Stats. 1909, pp. 273-291) is again before us to determine whether or not voters at the coming primary elections to be held September 6, 1910, are to be permitted to write in names of any electors they may desire to nominate for the respective offices to be voted for, and for a determination of how the ballots must be printed by the various county clerks in certain respects alleged about to be violated.
After a very thorough review of the former application and analysis Of the primary act, and the opinion heretofore prepared by the chief justice, I am unable to concur in all of that opinion and believe the same must be modified as hereafter disclosed, to properly comply with and carry out the intent of the legislature with regard to the provisions of the act in question attacked. These provisions now assailed are provisions pertaining to the proper character of ballot which the clerks of the various counties must order printed, and by reason of candidates failing to appear for nomination for several offices by the several parties whether or not it is necessary, where no candidates have offered themselves for nomination, for the voters to write in the names of those whom they desire to nominate for those vacant offices and for other offices as well.
In my opinion, as heretofore expressed in the case of Riter v. Douglass, where this court unanimously sustained the constitutionality of the direct primary law, one of the main objects of the primary law is the preservation of the integrity of parties. To allow voters of various par*144ties to promiscuously nominate men of other political faith as the nominees of a different party to which they belong, is totally at variance with my conception of the true intent of the object of the primary law. In my opinion, in the primary election, which is an election for the purpose of allowing the electors of each party to select their nominees, as distinguished from the general election where the entire electorate choose the officers to administer the affairs of government until the succeeding election, each party should have complete and exclusive control of determining its choice of nominees for its own party and these nominees must be selected from among its own members. To allow Republicans to nominate Democrats as Democratic nominees of the Democratic party, or vice versa, which follows if we allow the writing in of names indiscriminately by the voters, is totally at variance with my conception of the subject of the primary law and my opinion heretofore rendered.
The legislature in adopting the California primary act, expressly omitted a provision contained in the California act to the effect that voters were privileged to write in their choice as candidates for the respective offices, whether candidates’ names were printed on the ballot or otherwise. In eliminating this provision from the Nevada statute, is conclusive proof to my mind, in construing our Nevada statute, that we are justified and bound to draw the conclusion that the Nevada legislature intended to confine the voters to the names of the candidates appearing upon the ballot, by reason of having complied with the provisions of the statute; which designates the requirements to be complied with to get on the ballot. Therefore, the California cases cited by the chief justice to sustain his construction of the statute in allowing names to be written in promiscuously by the electors of the various parties for any nominees they desire, irrespective of whether or not their names are regularly printed on the ballot in compliance with the requirements of the statute, or otherwise, are not applicable to the questions *145raised under our Nevada statute, nor binding on this court to heed or follow.
The primary law expressly provides how any qualified voter who desires to have himself voted for any office as the nominee of his party, may secure three per centum of the voters of his party, pay his fee and comply with other requirements, provided in the act, whereupon his name will be printed on the official primary ballot, to be submitted to the voters of his party, and if he secures the majority of the votes of his party for that office he will be the party’s nominee for that office. If a candidate does not desire to comply with the provisions of the primary law, and take the chances of securing the majority of his party’s vote to become his party’s regular nominee, he can get on the official ballot by running as an independent candidate, by complying with the law regulating independent nominations. Every qualified voter has the same equal right to get on the ballot as a candidate, if he desires to comply with the law, and in my opinion is in no position to complain if he fails to avail himself of the opportunity of becoming a candidate which entitles his name to appear on the ballot. To allow individual voters to promiscuously nominate a man who does not offer himself as a candidate, and to authorize every voter to write in any name of any voter, irrespective of his politics, for any position, without the consent of such persons, and thereby encumber the ballot with names of individuals who, even if elected, would not care to qualify, and to allow voters of one party to name individuals of another party, as the candidates of a party in whose principles he does not profess or believe, is not only inequitable and illegal, but totally inconsistent with the object of the law.
I am therefore of the opinion that voters are obligated to vote for only those candidates whose names appear printed on the ballot, and that they are not entitled to vote or write in any name for any candidate unless his name appears on the ballot.
The primary law, however, provides for the election *146at the primary election for " County Committeeman” and how the committee is to be formed and organized from the committeemen elected from the various precincts. The law in this respect does away with the method heretofore in vogue, wherein the central committees governing political parties were selected by convention method. The law expressly provides for the canvass of these county committeemen, and in my judgment it was the intention of the legislature to allow voters of the various precincts the privilege of writing in their choice for this minor office on the ballot. The selection and election of officers of county and state governments has been signally segregated from the provisions of the act of the legislature regarding the selection and election of " County Committeemen. ”
I am therefore of the opinion that at the primary election voters are privileged and authorized, without destroying the validity of their ballot, to write in the name of the " County Committeeman ” they desire to vote for. This office of " County Committeeman, ” however, is the only office for which a voter is authorized to write a name on the ballot.
The legislature, when they eviscerated the provision of the California statute, authorizing the voter to write in on the ballot the name of any candidate he desired to vote for, irrespective of whether or not his name appeared on the ballot, in its haste inadvertently left the provision for blank spaces under the names of the candidates regularly appearing thereon. This inadvertent act of the legislature in providing for these unnecessary spaces, however, as I construe the statute, would not warrant us to judicially legislate in the act the provision they intentionally struck out, to wit, of allowing the voters to write in the names of candidates in the blank " appendicitic” spaces. These spaces, however, are in my judgment totally unnecessary, and I am therefore of the opinion that clerks should be directed not to print them, nor to print the official designation for any office for which no *147candidate has been presented by regularly complying with the law.
It is represented to the court that in certain counties the clerk has already printed in on the ballots these blank spaces, and, the secretary of state not having in his possession other paper to supply, that if this court should hold these spaces unnecessary and not to be printed, these counties, owing to the shortness of the time before the primary election, would be disfranchised. Entertaining the view I do of these unnecessary blank spaces, and the intent of the legislature to confine voters to voting for candidates of their own political faith in their own primaries, I am of the opinion, in view of the fact that all the ballots are the same and uniform, in those counties where the clerks have too previously printed their ballots containing the unnecessary blank spaces, that it is immaterial whether they have done so or not, and therefore there is no legal necessity of us- ordering these respective clerks of these counties to reprint their ballots. I desire, however, to be strictly understood as holding that in the last referred to counties, no voter is privileged to vote for any candidate except those whose names regularly appear on the ballot by writing in any name, with the exception that they may vote for a “County Committeeman” by writing in the name for this respective office. Whether or not a “County Committeeman,” as referred to in the act, the legislature intended to treat and consider in the same status as a “candidate” for office, it is unnecessary for us to determine, as the question is not involved.
Subdivision 8 of section 12 of the act, providing for the election of " County Committeeman, ” reads: "At the bottom of the last column on any official primary election ballot to be voted in September for the nomination of candidates to be voted for at the ensuing November election, there shall be left one blank space defined by light lines or rules three-eighths on [of] an inch apart and which shall be preceded by the words 'County Committeeman.”’
*148It will be noted that this section makes no provision for a blank space, to the right of the blank space for the name, to stamp an X and specifically in subdivision 7 of section 12 of the act providing for such a blank space opposite the names of candidates, whose names are printed on the ballot. This is immaterial, however, and in my opinion, in order to remove any doubt which may exist in the mind of the voter, who desires to vote for a committeeman by writing in the name as to whether he should make an X opposite the name he may write in, it is immaterial whether he may do so or not, and that, if he chooses to both write in the name and mark an X after the name he may write in, or simply write in the name without the X thereafter, his vote should be counted either way.
In conclusion, therefore, I am of the opinion that no voter is privileged to vote for any candidate whose name does not appear on the ballot by writing in any name, but that each voter is privileged to write in a name of anyone for whom he may desire to vote for as " County Committeeman”; that the clerks of the various counties should not print additional blank spaces under the names of candidates whose names are printed on the ballot, but in those counties where the clerks have so printed such spaces that they are not obligated to reprint the ballot for the reasons above assigned; further, that the official designations of offices for which no candidate has been nominated should not be printed on the ballot.
I also concur in the views expressed by Justice Talbot, in separate opinion, covering these points, filed this day, which comes to the same conclusions on the points involved which I have above expressed.
The various clerks will, therefore, be guided accordingly in the preparation and • printing of their primary election ballots; and the orders heretofore made pursuant to the opinion by the chief justice will be modified accordingly.
Opinion by
Talbot, J.:After reconsidering questions presented in relation to the form of primary ballots, and studying more carefully *149the various provisions of the late primary act, which are so uncertain in their meaning as to have led to differences of opinion by county clerks charged with the execution of the law, by district attorneys as their legal advisers, and by others, lawyers and judges, we have finally arrived at the following conclusions regarding the printing of spaces upon the ballot and the writing of names thereon at the primary election:
This uncertainty is caused mostly by the provision in subdivision 7 of section 12 that “under each group of names of candidates shall be printed as many blank spaces, defined by light lines or rules three-eighths of an inch apart, as there are to be candidates nominated for such office,” by the direction in the following subdivision (8) that at the bottom of the last column on the primary ballot there shall be left a space preceded by the words “County Committeeman,” and by later sections in the act which provide for the counting and certification of the vote for county committeeman, when the act nowhere provides for the writing of names in any of these spaces, or otherwise, on the ballot. Regardless of whether the clause in section 31, stating that “all penalties and provisions of the law governing elections, except as herein otherwise provided, shall apply in equal force to primary elections, as provided for by this act,” makes the Australian ballot law, which applies to general elections, applicable to primary.elections, and regardless of whether it is the purpose of the primary act to guard the primary elections with secrecy, under the ordinary rules of construction the intention of the legislature, as far as gleaned from the different sections of the act, ought to govern our conclusion. These are not so clear or certain that even legally trained minds, after careful study of the whole act, may not change or differ as to the meaning of some of these provisions. We think that by providing for a blank space following the designation of county committeeman, for the canvass and certification of the vote for county committeeman and for a county committee when there is no provision in the act for nomi*150nating or printing names for county committeeman, and no way by which they may be elected or by which a county committeeman may be selected except by writing in the names, it is the natural inference that the legislature intended that the voter should write the name of his choice for county committeeman in the space under that designation on the ballot.
The same reasons do not apply to the blank spaces directed to be left upon the ballot under each group of names of candidates. Not only is there no direction in the statute for writing names in these spaces, but there is no provision for canvassing or certifying any names written in them. The provision for these spaces is the same in the California statute as in ours, and in neither act is there any provision for printing blank spaces after the designation of offices for which no candidates have appeared by petition or had their names printed upon the ballot. Yet the Supreme Court of California properly directed that blank spaces be left upon the ballot after these office designations. By express provision of the statute in that state the voter was authorized to write in the names of persons who had not filed petitions or had their names printed upon the ballot. Under the circumstances the spaces were needed, and it would have been inconsistent to have deprived the voter of the privilege of having them for writing the names under office designations when the ballot did not have printed upon it the names of any candidates for those offices, while the statute authorized him to write in the names of the persons who were his choice for any offices and provided blank spaces for this purpose under the printed names of candidates, but omitted, possibly inadvertently, to provide such spaces under the names of office designations which were not followed by any printed names of candidates.
The decision in the Fickert case (108 Pac. 269) was based upon the will of the legislature and followed the statute, which- expressly authorized the voter to write any names he desired on the primary ballot. Our legislature has not included this provision in our statute, and we are *151led irresistibly to the conclusion that by this omission it was not intended that the voter should be allowed to write in the names of persons for offices or for any position other than that of county committeeman, for which provision is made, as before stated. Under this view it is not necessary to place on the ballot any spaces under the printed names of candidates, for the act nowhere authorizes the writing of names in these spaces by the voter nor that other use be made of them.
It may be inferred that by oversight the legislature failed to eliminate from the statute the provision that they be placed upon the ballot, at the time the provisions of the California bill authorizing the writing in of names was omitted from our act. As the voter there was allowed to write in names, the spaces were needed, both under the printed names of candidates and under the names of office designations where there were no names of candidates printed on the ballot. But as our statute does not authorize the writing in by the voter of names in either case, it is not necessary that the lines be placed upon the ballot in either. As section 27 only allows the filling of vacancies occurring after the primary election, there is no way by which these spaces can be used for filling vacancies as spaces may be used on the ballot provided for the general election.
The rule that courts should endeavor to give effect to all the language in the legislative enactment is undoubted, but it ought not to be carried to the extent of requiring judicial legislation to give it force. It would be extending the principle too far to hold in this case, because there is merely a provision in the statute, possibly and apparently retained there by inadvertence, directing that spaces be placed after the printed names of candidates, that therefore the legislature intended that the voters might write names in those spaces upon the ballot when the provision authorizing such writing is omitted from the act. This would in effect reverse the action of the legislature and judicially interpolate into the statute the very provision which they had eliminated. It would be giving the same interpretation and effect to the statute in this state, which *152fails to authorize the writing upon the ballot of any names the voter may desire for candidates, which has been given to the California act, which expressly carries such authorization, and would give life and force in this state to a provision of the California act which has been decapitated and never included as a part' of the statute by our lawmaking power.
Section 2 of the primary election act provides:
"All candidates for elective public offices shall be nominated as follows:
" 1. By direct vote at primary elections held in accordance with the provisions of this act; or
"2. By nominating petitions signed and filed as provided by existing laws. ”
Apparently these are intended as words of limitation, and allow nominations to be made only in accordance with the primary act or by nominating petitions, as formerly, the time for which in this campaign has not arrived and in regard to which there is no question before us for solution. Consequently we are limited to considering how nominations for elective offices may be made " in accordance with the provisions” of the primary act. In its various sections no method is found by which candidates may be nominated or have their names placed on the ballot at the general election, except by first filing petitions and having their names printed upon the primary ballot, and by receiving the highest number of votes at the primary election for the nomination sought. As the act nowhere provides for the writing in of names of candidates or persons desired for elective offices, nor for the canvassing or certification of names written upon the ballot for any position excepting that of county committeeman, it follows that if a person whose name is not printed upon the ballot should receive the highest number of votes at the primary election by having his name written upon the ballots, he would not thereby be nominated within the limitations of section 2, which allows nominations to be made only in accordance with the provisions of the primary act or by nominating petitions.
We do not think it would be within the language, pur*153pose or spirit of the act to allow any one or more members of a political party to become candidates either upon election day or weeks or months in advance and receive votes by the writing in of the names and have these votes canvassed and certified for them the same as if they had obtained a petition with three per cent of the voters and filed and paid the fee for the same. If this could be done candidates, like mushrooms over night, might spring up on the eve of the primary election, contrary to the general policy of the act, which provides for periods of time and certifications which give notice to the electorate. Voters in different precincts and in the same precinct could cast their ballots for numerous persons, a part or all of whom were not seeking or wanting the office, and the act makes no provision for the resignation or withdrawal of a name of anyone who has been nominated or received the highest number of votes at the primary election. It is contended that the petitioner and voters generally ought to have the inherent right to write in the name of any person they desire to have elected to an office. Unless the person selected desires to hold the office and there is at least a possibility that he may be elected, the disallowance of the writing in of his name does not deprive the voter of any substantial beneficial right. It is hardly possible that a candidate or person whose name the voter desires to write on the ballot could be elected if a petition signed by three per cent of the voters could not be obtained for the purpose of having his name written upon the primary ballot.
It may be conceded that the legislature can make only reasonable regulations, and cannot, under the guise of regulation, pass and have enforced laws which will in effect prohibit the electors from becoming candidates at the general election. The requiring of a petition signed by a small percentage of the voters is not deemed such a prohibition. The decision of this court, holding that the writing of the name upon the ballot at general elections distinguishes and invalidates it, warrants the conclusion that the legislature may also prohibit the writing of names upon the ballot at the primary election and may *154restrict the voting to such candidates as have by compliance with reasonable regulations secured the printing of their names upon the primary ballot.
Whether it is as desirable to guard the voter with secrecy at the primary as at the general election, when frauds at the primary may become known so as to react at the general election against a candidate for whose advancement they are practiced, is a matter of expediency for the legislature and not for the courts to determine, further than to ascertain the legislative will in construing the language of the act. However, it is apparent from what we have said that our conclusions as to the questions before us relating to the form of ballots would be the same whether the legislature intended to have the secrecy and benefits of the Australian ballot system, which has been in force at our general elections since 1891, apply hereafter to the primary elections, so as to prevent 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. It may be expected that the primary act as construed by the courts will not prove perfect upon first trial, and that it will show defects which will be desirable to have corrected by legislative action.
Modifying the views which we entertained after the first hearing, at which argument was made on behalf of the petitioner only, and which we formed hastily and before we had time to give the matter mature consideration, we adhere to the conclusion that as the statute directs that at the bottom of the last column on the primary ballot “there shall be left one blank space, defined by light lines or rules three-eighths of an inch apart, and which shall be preceded by the words ‘County Committeeman/ ” these words and this space ought to be printed on the ballot accordingly, so that the name of a person for whom a voter desires to vote for county committeeman may be written in and thereafter canvassed and certified as directed in other sections. But as there is no provision in the statute for the writing in of names *155or placing upon the ballot the designation of offices for which no candidates or printed names appear upon the ballot, and no provision in the statute for the placing of spaces under office designations for which there are no candidates, and no provision for allowing, certifying or canvassing votes for candidates for public offices cast in any way excepting votes cast by putting a cross after the printed name of the candidate, the names of officers for which no candidates have filed petitions need not be printed upon the ballots. It is also unnecessary to insert under the groups of names of candidates the blank spaces designated in subdivision 7 of section 12, for the reason that these would be an unnecessary appendage, because there is no provision for their utilization. If they are already printed upon the ballots in any of the counties of the state, their insertion is harmless.
As the statute does not require a square to be placed at the end of the space below the words " County Committeeman,” it would seem to be intended to allow the elector to vote for his choice for that position by merely writing in the name. But we see no particular danger or objection in the square after this space which appears upon the sample ballots before us, because if the elector in addition to writing in the name for county committeeman should also insert a cross in the square, as he is directed to do in voting for candidates whose names are printed on the ballot, it would not be deemed detrimental as a distinguishing mark when considered in connection with the permissible writing of the name and the other squares upon the ballot if the provisions of our Australian ballot law be considered applicable to primary elections, except as otherwise provided in the late act.
As the sample ballots which have been attacked in this proceeding bear the words "County Committeeman” preceding a blank space followed by a square, and omit any designation of the office for which no petitions have been filed, but include under each group of printed names of candidates as many blank spaces as there are to be candidates nominated for the particular office, official ballots in the same form may be used if already printed, but, if *156not already printed, it is suggested that these extra spaces may be omitted.
The order regarding the printing of the ballots will be modified to correspond with these views.