concurring:
Under section 1834 of the Revised Laws, which provides that "nominations for public office may be made by convention of delegates representing a political party which at the last election polled at least three per cent of the entire vote,” under section 1835, which states,"all nominations made by any such convention shall be certified as follows: A certificate of nomination, which must be in writing, and shall contain the name of each person nominated, his residence and the office for which he is nominated, and shall desiginate the party or principle which such convention represents, ” and under the language of section 1836, that "a candidate for public office may be nominated otherwise than by a convention in the manner following: A, certificate of nomination, containing the name of the candidate to be nominated, with the other information required to be given in the certificate required in section 3 of this act (preceding section, Rev. Laws, 1835), shall be signed by electors residing within the district or political • division for which candidates are to be presented, equal in number to at least ten per cent of the entire vote cast at the last preceding election” — it *44is clear that a certificate of nomination made by such a political convention should designate the party or principle which such convention represents.
In regard to what the certificate of nomination by petition of electors shall contain, when considered in connection with the words "with the other information required to be given in the certificate, ” provided in cases for nomination by convention which " shall designate the party or principle which such convention represents,” the requisites are not so clear, and differences of opinion have arisen. The Progressive party, having been formed in the nation and state last summer, could not file a certificate of nomination of nominees by its convention under section 1834 of the Revised Laws, because it was not in existence and did not poll three per cent of the vote at the last election. The only other method provided by the statute for making nominations has been followed, and certificates of nominations signed by more than the required percentage of electors have been filed. It is stated in the certificates that the "nominees represent the Progressive party and the principles thereof, as declared and proclaimed by the Progressive National Convention at Chicago, Illinois, on August 7,1912, nominating Theodore Roosevelt of New York for president of the United States and Hiram W. Johnson of California for vice-president of the United States.”
It may be observed that section 1834 defines a convention which may make nominations, but the. statute nowhere defines a political party; and the nominations here having been made by a certificate signed by the requisite number of electors, certifying that the nominees represent the Progressive party, and filed without objection, the question arises as to whether such a certificate may properly designate the party or principles for which the nominees stand, as clearly required in a certificate of nomination by a convention, whether the secretary of state ought to certify to the county clerks the names of the nominees with the party or principle they represent, as stated in the certificate, or whether he *45may ignore this part of the certificate, and certify that the nominees are independent candidates.
Section 1840 states: "Not less than thirty-five days before an election to fill any public office, the secretary of state shall certify to the county clerk of each county within this state the name of each person and the name of the office for which he is nominated, as specified in the certificate of nomination filed with him.” The county clerks are directed to supervise the printing of the ballots, and section 1844 provides that "the political designation of each candidate shall be printed opposite his name.” There is no specific provision in the statute directing the secretary of state to certify the names of candidates under party designation or principle or as independents, but, as these designations serve no good purpose except for the information of the voter, it may be implied that it is the duty of the secretary of state to certify to the county clerks, not only "the name of each person and the name of the office for which he is nominated,” but the party designation or principle for which he stands, if properly stated in the certificate of nomination. This seems to be necessary in order that compliance may be had with the statutory provision for the printing of the political designation opposite the names of the candidates. By the language quoted in sections 1835 and 1836, it is apparently the intention of the legislature and the spirit of the statute that certificates of nomination, other than by convention, and when made by the requisite number of electors, shall designate the-party which the candidate represents, if he represents a party, or principle for which he stands, similarly to the requirement for a certificate of nomination by a convention. Under this construction, may not the candidates or the electors signing the petition, and a new party which they represent, although without power to nominate because it polled no vote at the preceding election, designate, in a certificate signed by the required percentage of voters, the party or principle for which the nominees stand, so long as their designation does not take the *46name or infringe upon the rights of any other party? As several new political parties have been allowed to do this during the last twenty years, without any break in the precedent so established, and no new party can get on the ballot in any other way so as to have a standing at an election and poll the necessary percentage of votes to enable it to nominate candidates by convention for the next election, and as it is not fair to assume that the legislature intended to prevent the formation of new parties or to give the parties existing at the time the law was passed a monopoly or trust in the right to nominate candidates by convention, a liberal and just construction of the law will allow a new political party to put its designation on the ballot, as has so often been done. The legislature cannot deprive an elector who has been a resident of the state six months, and who has not committed any crime, of his inherent right under the constitution to exercise the elective franchise and vote for his choice. It may regulate, but it cannot take away, the right to vote, and it ought not to discriminate; and when the language of the statute is open to another, and the most reasonable, construction, it ought not to be so construed as to hold that the legislature has discriminated in favor of existing parties and against the formation and rights of new parties.
As we have seen, the designation of a party or principle for which the candidate stands is provided for in the certificate of nomination by a convention and indirectly in the certificate of .nomination by petition of electors; and it naturally follows that power to make this designation is vested in the convention or electors authorized to make the certificate. It must be inferred that the political designation of a candidate to be printed opposite his name on the ballot is the same which has been fixed in the certificate. It has been suggested in the argument that the respondent as secretary of state cannot assume the functions of a high priest, with the exclusive power of christening a new party. He may refuse to file a certificate which is not in proper form, or perhaps to certify *47to the county clerks a party designation in the certificate which is unauthorized, different from the party to which the certificate belongs, or which is contrary to the authority of that party; but there is nothing anywhere in the statute which, by the merest inference, can give him the semblance of power to interpolate into the certificate, or to certify or to order onto the official ballot any party designation or principle not stated in the certificate of nomination. If, as proposed in this case, the secretary of state may certify a candidate on the official ballot as an "Independent” when the candidate has been nominated by a certificate as a " Progressive, ” he might with equal power certify on the official ballot as "Independent” candidates nominated as Democrats, Republicans, or Socialists. As no authority is given for making a party designation except in the certificate of nomination, it is apparent that no officer, after the filing of the certificate, is authorized to change the designation of the party or principle for which the candidate stands, and that the certification of the name and party designation to the county clerk and the printing on the ballot ought to follow the certificate.
Uncertainty regarding these statutory provisions may have arisen from their consideration in connection with decisions in cases in which the candidate attempted to take advantage of some party name to which he was not entitled. A good name may have protection, and, if these nominees were attempting to certify under some party name to which other candidates were entitled, it would be different. "Who steals my purse, steals trash; * * * but he who filches from me my good name, robs me of that which not enriches him, and makes me poor indeed.” An imitator of Sandow, the strong man, was restrained from advertising ánd appearing before the public as " Sandowe. ” An inventor, after long advertising and the sale and manufacture of fountain pens, was able to prohibit the advertising and sale of a different pen under the same name by another man of that name. This case bears no resemblance to the present one in *48Kansas, where, as in California, presidential electors avowedly supporting Theodore Roosevelt, the nominee of the Progressive party, are seeking election under the name and prestige of the Republican party, the nominee of which is William H. Taft. It has been held in a number of instances that candidates may not proceed as, when they are not, party nominees. It may be admitted that the legislature may abolish the right of any political party to make nominations, as has been done in regard to judicial officers in some of the states. So long as the right of a political party to make nominations is recognized, the party ought to be allowed to fill nominations or leave any blank at will, and no candidate who is not such should be allowed to appear as the regular party nominee on the certificate or ballot. Different conditions are presented here. The wrongful attempt to pose, without authority, as the nominee of an existing political party, may be readily distinguished from the right to form a new party, and have that party adopt a name, select candidates, and have them nominated by the certificate designating the new party name and signed by the requisite number of electors. These nominees are not usurping the prerogatives of any other party, and no good reason appears why the new party which they represent and the principles which they espouse may not be designated in the certificate and given force with its other statutory provisions by the signature of the necessary percentage of voters, nor why the secretary of state should not certify their nominations accordingly, so that their names and their new party designation may be printed upon the ballots in accordance with the truth for the information of the voters at the polls.
The decisions properly hold that in cases like this, where the right or title of no party is being infringed, the statute will be liberally construed in favor of allowing the designation of the party or principle for which the candidate stands. No political party appears to claim that any usurpation or injury will result if the designation "Progressive party” is placed with the names *49of these nominees on the official ballot. No issue is raised against the allegation that they are the nominees of the Progressive party. The Progressive party is not here contending that they are not its nominees. If it were shown that no Progressive party has been formed, then there would be none to be injured, and no wrong would result from allowing the nominees to be designated as "Progressive.” This new party has no legal power to nominate its candidates, except through a certificate' of nomination signed by electors numbering at least ten per cent of the votes cast at the last election. A less number may form a political party; and, whether all the signers of the petition belonged to the new party or not, by the statute the certificate becomes effective when signed by this number of electors. In the Colorado case, which was approved in the Minnesota case, the court ■said: "The statute does not purport to give a definition of a political party. In the Century Dictionary a political party is thus defined. 'A company or number of persons ranged on one side, or united in opinion or design, in opposition to others in the community; those who favor or are united to promote certain views or opinions, ’ and the definition in Webster’s Dictionary is substantially the same. In this state there is no statute that in any way qualifies this definition, and a political party here, as elsewhere generally, is a voluntary association of voters who are desirous of promoting a common political end, or carrying out a certain line of policy. The association may be formed, not merely by a convention, but in other ways; and when electors to the number named in section 6 of the statute come together and agree upon a certain policy, and make a certain list of nominees, and select a party name and emblem, they may file with the proper officer the certificate evidencing their acts; ancl, while the mere filing of the certificate or petition may not create a. political party, it is, nevertheless, the evidence of its previous formation, and the result of the acts of the association of electors culminating in a list of nominees gives to the organiza*50tion, with respect to its nominees, the same rights on the official ballot that are acquired by the nominees of a previously existing political party that makes its nominations by convention or a nominating committee. ” (25 Colo. 403, 55 Pac. 181.)
In the limited time for consideration since the argument and submission of the case yesterday afternoon, it is my conclusion that respondent may properly certify the name of the party as designated by electors in excess of the number required to sign the certificate. I concur in most of the views stated in the opinion of Mr. Justice Norcross, in the conclusion that the candidates’ names in the petition are entitled to go on the official ballot with the designation "Progressive party, ” and in the order that the writ issue prohibiting the respondent from certifying them as " Independent. ”