(dissenting). While my conception of this “government of the people, by the people, and for the people” forces me to differ from my associates in so far as they consider the act within legislative power, I shall direct my attention only to the statutory test of party allegiance and the limitation of the voter’s right of choice to the names printed on the official ballot. The oath that every voter may be required to take and by which his political status is determined adds additional qualifications to the constitutional requirements, which have always been held exclusive, and the invasion of his right to choose candidates is an objection which prevades the entire primary scheme, as formulated by the Eegisla-ture of this state, and wholly destroys the freedom and equality of the ballot. For self-preservation or the common good “the powers that be” may stand ready to repudiate the latest public declaration of party principles and time and events may have convinced the elector, possessing all the qualifications required by the Constitution of the unfitness or utter depravity of one or more of the numerous candidates for state and county offices, and yet he must swear, if challenged that he intends to support everv one of such *161candidates together with all the principles, of. his party as declared in its last preceding platforms state :and national, or be prohibited from casting a ballot at the primary election for the candidates, of his choice, and thus, at the very inception of the proceeding' to- select public servants, he is .wholly disfranchised.'
Reminiscent of that fondly cherished governmental 'authority once residing in the people, the erudite unchallenged voter' whose observation, study, and reflection have rendered him dissatisfied with some part of the present ticket, or some plank in the previous party platforms, may still idly express his choice for a' precinct committeeman and delegates to the county'convention by -writing their' names on the official ballot but this poor boon is burdened'with the alternative that he vote for all other' candidates whose names are printed on the official ballot, or not vote at all. Thus has the Legislature of this s-tate destroyed that independence of political action assured by the framers of the Constitution, and it would be wholly consonant with present conditions to prefix the words “no longer” to our chosen motto: “Under God The People Rule.” From a recent and most exhaustive dissertation by Mr. Mechem devoted exclusively to the various aspects of primary legislation I quote as follows: “Now, the constitutional right to vote involves, not merely the right to vote for or against a suggested individual or measure — it involves also the right to' propose men or measures, at least ;so far as the voter’s own action is concerned. It it not merely a right to vote for or against the person or plan of some other person’s choice, but it involves the right in the voter to take the initiative and to vote for the men and measures of his own choice. It is therefore true, as has often been pointed out, that the right to vote necessarily involves the right to nominate, and that the right to nominate is an essential and inseparable part of the right to vote. The right to nominate, therefore, becomes a constitutional right, and any law which denies to the voter the right to determine for whom he shall vote must be void.” 3 Mich. Law Review, p. 367. The impairment and restriction of such con-, stitutional right by. the Legislature is a question that seriously concerned this court in the case of Chamberlain v. Wood, 15 S. D. *162216, 88 N. W. 109, 56 L. R. A. 187, and, being unable to agree with my associates, I filed a dissenting opinion,. from which I may be permitted to quote a brief exerpt as follows: “Until all men are viewed in exactly the same light, and the preference of one becomes the preference of all, it. will be neither plausible nor reasonable to say the right of suffrage can be freely, equally, and independently exercised under statutes which merely gives to qualified electors an option to vote for persons whose names are printed on the official ballot, or not vote at all; and such is not, and under our system of government can never be, the law. It is manifestly absurd to hold that the elector, who is thus deprived of 'his privilege of choosing a public servant, stands on equal footing with those who find upon the official ballot the name of every candidate for whom they choose to vote. It is the constitutional prerogative of every qualified elector who has complied with all preliminary statutory regulations as to registration, etc., to vote for whomsoever he may choose; and .statutes which deprive him of such right have been, so far as my research extends, invariably held for naught in every jurisdiction with the exception of this.”
In 91 Am. St. Rep. pp. 674-688, inclusive, Mr. Freeman, whom I believe to be recognized by the legal profession as an author and text-writer of considerable eminence, has reported the entire case, and criticised the majority opinion at unusual length; and I quote his concluding paragraph as follows: “The foregoing copious extracts from the decisions in various jurisdictions leave little to be said on the question of the right of electors to vote for a candidate whose name is not printed on the official ballot. On principle nothing can be clearer than this right, and nothing can be more subversive of a free ballot than its denial. We have not discovered a single authority, save the principal case, and perhaps Commonwealth v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141, that intimates the competency of the Legislature to deny this right. And, as before pointed out, the court in the latter case misconceived the law. We should admire the courage of the South Dakota court in announcing its conclusion in the face of the decisions of the other states, if it were defensible on principle. But regarding it, as we do, to be destructive of one of the greatest institutions vet realized *163in the evolution of society, we have no hesitancy in denouncing it as a dangerous precedent.” Manifestly chapter 139, p. 285, Laws 1907, requires an unwarranted test oath, and violates the foregoing important rule of action by limiting the elector’s right of choice vouchsafed by the Constitution to men and measures proposed by others without his knowledge or consent.
Sustained by every law periodical, text-writer, and well-reasoned decision in the books, I have no inclination to depart from the principles controlling the dissenting opinion in Chamberlain v. Wood, supra, and am confirmed in the belief that the alternative writ of mandamus should be granted.