dissenting:
The main question upon the merits in this case is the force and effect of that portion of section 5, subd. 4, of the primary election law, which requires that the candidate file an affidavit which shall contain, among other things, the following: “That if nominated, he will accept such nomination and not withdraw and that he will qualify as such officer, if nominated and elected.” It is contended that this has the force and effect of a prohibition against the withdrawal of a candidate after he has been regularly nominated at the primary election. I am unable to agree with the contention that there is anything, either in the language itself, or in the policy of our law relative to elections, which will warrant any such construction being placed upon the language quoted. In my judgment the very language of the statute requiring the candidate for nomination to make affidavit that he will not withdraw presupposes the power to withdraw. If the legislature intended to prohibit successful candidates at the primary election from withdrawing, it would have said so in direct and positive terms, instead *428of making a provision requiring the candidate to pledge himself in the most solemn manner possible that he would not withdraw.
In construing these provisions of the statute, we must not only consider the purpose and object of the act, which the legislature sought to accomplish, as manifested by its various provisions, but we should consider the condition of the law prior to the enactment of this statute. Prior to the adoption of the primary election law, candidates for office upon the various party tickets had the unquestioned right to withdraw therefrom whenever they saw fit and for such reasons as were satisfactory to themselves. This is clearly manifested by the provisions of what is known as the Australian ballot law, as may be illustrated by the following excerpt from section 7 of the last-named act: “Should a vacancy occur from any cause in the list of nominees for any office, such vacancy may be filled at any time before the day of election by the convention; or by a committee to which the convention has delegated power to fill such vacancies or by petitions as provided in section 4 of this act.” (Stats. 1891, c. 40.)
The various laws relative to public officers contain specific provisions for the resignation of such officers at any time they see fit to do so, even before they be qualified for such office. There has never been in the laws of this state any restriction whatever upon the right, either of a candidate for a public office or for an officer, to withdraw from such nomination or to resign from such office whenever he saw fit to do so. The freedom of the citizen in this respect has at all times been clearly recognized by statutory provisions. It is not to be presumed that the legislature intended to make a radical change in this respect in the absence of language clearly indicating such an intention. There is nothing, in my judgment, in the primary election law which indicated any intention to restrict the privilege of withdrawal which candidates for office have heretofore enjoyed; upon the contrary there are many things in the act which, to my *429mind, indicate the contrary intention. As stated before, the language of the act in question presupposes the power inherent in the candidate to withdraw, if he sees fit to do so, else, why require him to make an affidavit that he will not do a thing which he could not possibly do if the law were otherwise ?
The act relating to primary elections contains a number of provisions requiring affidavits upon the part, either of the candidate, or the elector. Section 4 of the act also provides that a candidate for the office of state senator or that of member of the assembly may include with his affidavit a declaration, either that he will vote for the candidate for United States senator in Congress who has received for that office the highest number of the people’s votes, or that he will consider the vote of the people at any primary election for United States senator as nothing more than a recommendation which he shall have the liberty wholly to disregard. If he includes with his affidavit the former declaration that he will vote for the candidate for United States senator who receives for that office the highest number of the people’s votes, it is conceded that such declaration can have no binding force upon him, but only imposes a moral obligation, for the reason that the constitution of the United States controls the manner' of electing a United States senator. The elector who signs a petition of a candidate for a particular nomination is required to make affidavit “that I intend to support for such nomination the candidate named herein.” It is manifest that this affidavit on the part of the elector is only to evidence his good faith at the time of making such affidavit. By another provision of the primary act an elector proceeding to vote at the primary election may have his right to vote challenged and he is required to make “oath or affirmation as to his bona fide present intention to support the nominee of such political party or organization.”
All these affidavits, in my opinion, are for the purpose of indicating the good faith of the elector at the time of *430making the same. The elector who has made affidavit that it was his bona fide present.intention to support the nominees of a certain political party may subsequently change his intention, and so with the elector who signs the petition for the nomination of a candidate for office. No penalty is imposed upon the candidate or elector for a violation either of the letter or the spirit of such an affidavit. In every case where an affidavit is required that a person will do a certain thing, there is a recognition of power within himself to do a contrary thing. A public officer is required to take an oath that he will support and defend the constitutions of the nation and state and perform all the duties of his particular office. He may violate every part of his oath. A witness upon the stand in the trial of a cause takes an oath to tell the truth, the whole truth, and nothing but the truth. He may, if he sees fit to do so, violate this oath and commit perjury. Many other examples might be given illustrating the correctness of the statement that the requirement of an oath to do a certain thing presupposes the power to do a contrary thing.
The main purpose and object of the primary election law is indicated by the following excerpt from its title: “An act to provide for the direct nomination of candidates for public office by’electors, political parties and organizations of electors without conventions at elections to be known and designated as primary elections, determining the tests and conditions upon which electors, political parties and organizations of electors may participate in any such primary election. * * * ”
The object of the act, as indicated by its title, was mainly to provide for the direct nomination of candidates for public office by the electors of the several parties without the means of the convention system, under which abuses had grown up. There is nothing in the act which warrants the construction that a candidate nominated under the primary system is subject to any greater or different restrictions than before prevailed in the case of a candidate nominated under *431the convention system. The act was designed to reach the abuses -of the convention system, and not to restrict the powers of candidates which have at all times been recognized by the laws of this state. The affidavit required of the candidate that he will not withdraw, and that he will qualify if nominated and .elected, is only intended to evidence the good faith of the candidate seeking the support of the members of his party organization. Manifestly, there is not any existing law by which a candidate for office, if he become elected, could be forced to qualify. Upon the contrary, there is specific statutory authority permitting him to resign any office to which he has been elected, before qualification, yet his refusal to qualify in such a case would be a violation of his affidavit. Candidates for political office have always been permitted to withdraw before election, and no serious difficulty has ever occurred in this state resulting from any such withdrawal. Language found in a statute is not to be given a strained construction, in order to avoid an imaginary evil which has never existed in the state and which, if given such construction, would be contrary to the established policy of the law which has prevailed for many years.
Undoubtedly the legislature did not intend that a candidate for a party nomination should treat such nomination lightly. It intended that he should assume the highest form of personal obligation that his candidacy was in good faith, an obligation such that common experience has shown is seldom broken for light or trivial causes; but, while so doing, the legislature recognized it would be a dangerous experiment to make an absolute prohibition against withdrawals. Many reasons may suggest themselves why the legislature did not intend to go further than to impose the highest possible moral obligation upon a candidate not to withdraw from a ticket after nominated. Unforeseen changes may occur in the affairs of a candidate at any time which would render it impossible for him, either in j ustice to himself or to his party, to remain upon a ticket. Suppose, for *432example, that, after the primary election, the successful candidate for governor upon the ticket of either of the two great parties of the state should by reason of accident, illness or personal engagements be forced to leave the state before the general election, or is rendered incapable of performing the duties of the office, if elected, the strongest political reasons are presented why such candidate should be permitted to withdraw; and his party organization be permitted to • fill the vacancy. Withdrawal in such a case would only be a technical violation of the affidavit of the candidate, and, in my judgment, would not be contrary to the spirit of the election laws of the state. There is not, in my j udgment, anything in the language of the statute in question which will impute to the legislature an intent to compel a majority party, say, to see the highest office in the state go to a minority party simply because its candidate has met with some unexpected misfortune which renders him incapable of fulfilling his obligation to his party. The construction given to this language by the prevailing opinion is dangerous in the extreme and leaves a political party powerless to protect itself against any unforeseen situation. The fact that cases may be imagined in which the right to withdraw may be abused is no argument, in my judgment, against the manifest intention of the legislature not to disturb the power that has always existed in a candidate for office to withdraw from such candidacy.
Section 27 of the primary election law provides: “Vacancies occurring after the holding of any primary election shall be filed by the party committee of the city, county, city and county, district or state, as the case may -be.” This is the only provision in the act relative to vacancies. There is no limitation as to what may cause the vacancy. If a candidate cannot withdraw from a nomination, then the only clear way a vacancy could exist -would be by the death of such candidate. The Australian ballot law recognizes that vacancies may exist “for any cause,” which includes withdrawal after nomination. There being nothing in the primary elec*433tion law clearly indicating any intention upon the part of the legislature to modify the existing law relative to the withdrawal of candidates, the language of the statute in question, in my opinion, does not prohibit a candidate for a public office from withdrawing from such candidacy. The candidate having the unquestioned power to withdraw, when he gives proper notice of such withdrawal, a vacancy is created in the nomination for such office, which vacancy the proper committee has the power to fill if it sees fit so to do.
In the case at bar, T. V. Eddy, the Republican nominee for district judge of the Seventh Judicial District comprising the county of Esmeralda, on or about the 30th day of September, 1910, served, on the county clerk of said county, notice in writing of his withdrawal as a candidate for such office. At the same time he addressed a letter to the Republican county central committee of Esmeralda County advising such committee of his action, and giving as a reason therefor his inability to enter into the campaign on account of ill health. The reasons given for his withdrawal have, in my judgment, no legal effect, but only go to the moral question as to whether there has been a wilful violation of a moral obligation. The answer of the county clerk to the petition in the lower court “admits that by law it is his duty * * * to place upon the said official ballot only the names of such candidates as by law are entitled to have their name appear thereupon.” This duty being admitted, it follows that the county clerk ought not to print upon the official ballot the name of a candidate who has regularly withdrawn his nomination for a given office. As the Seventh Judicial District comprises only the county of Esmeralda, it was not necessary to file the withdrawal with the secretary of state, nor was the secretary of state required to furnish the county clerk with any such certificate. As I view the law, the said T. V. Eddy had the legal right to withdraw from his candidacy for the office of district judge; that he properly filed notice of such withdrawal with the county clerk of Esmeralda *434County; and that it thereupon became the duty of the county clerk to remove his name from the ballot.
It is not entirely clear to my mind that the writ of mandate ought to issue in every case where there has been a withdrawal of a candidate for office who has taken the affidavit provided for in the statute that he would not withdraw. It is a matter, which, I think, in the brief time permitted for consideration, probably should be left to the discretion of the trial court. There may be cases where the withdrawal is not supported by any sufficient reason therefor, in which event a court might very properly refuse to issue the extraordinary writ to compel the exercise of the legal duty of the clerk to remove the name from the ballot when the rights of others would not be affected. The trial court, however, deemed this a proper case for the issuance of the writ which was obtained by the official authority in the county of the political party which had placed the said T. Y. Eddy in nomination.
Having reached the conclusion that the' lower court properly determined the controlling question of law involved in the case, I am of the opinion that the judgment ordering the issuance of the writ should be affirmed.