(dissenting). It is stated in the complaint that this proceeding is instituted by “the plaintiff” on his own behalf and also on behalf of all other citizens of the United States and of *74this state, who are members of the Republican party and similarly situated: that the “.plaintiff” is an elector of this state qualified and entitled to vote for presidential electors at the coming general election in this state: that the Atorney General was requesed o institute the proceeding; and that he has refused so to do. In my opinion an eelctor, upon the refusal of the Attorney General to prosecute, ma ymaintain a proceedin ginvolving questions pertaining to the sovereignty of the state, its franchises and prerogatives, and the liberties of its people, in this court, in the name of the state. In such a proceeding, the state, not the elector, is the plaintiff, and the 'latter’s- interest, other than- -as an elector, is- immaterial. In other w-orcfe, in such -a case, whether on the relation of 'the Attorney General or an elector, the Attorney General having' declined to act, it i-s wholly immaterial what effect, if any, the result of the proceeding may have upon the relator. State v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741; Everitt v. Board, 1 S. D. 365, 47 N. W. 296. The distinction between an action or proceeding instituted in the name of the -state on the relation- of the Attorney General or in the name o-f the state on the relation of an elector, the Attorney General having refused to act, -and an a-ction instituted by an individual to enforce or protect a right peculiar to- himself and others, similarly situated, was not considered in State ex rel. Cranmer v. Thorson, 9 S. D. 152, 68 N. W. 202, 33 L. R. A. 582. There was no allegation in the co-m-plaint in that case regarding the refusal of the Attorney General to prosecute the proceeding. In the title of that case, Cranmer, not the state, should have been named as “plaintiff.” But, no objection appearing to- have been raised, the proceeding was regarded- as the suit of a private person governed by the rules applicable to ordinary actions in equity. Therefore, that case is not an ¡authority which ¡should govern the -ca-se at bar, if the -complaint discloses a state of facts involving questions pertaining to the sovereignty of the state, its franchises, and prerogatives and the -liberties of its -people. - In my opinion the complaint, liberally -construed, with -a view o-f -substantial justice, as it should be discloses such a state of facts, notwithstanding the superfluous declaration- that the suit is brought -on behalf of the relator, erroneously designated- as “plaintiff” and others similarly -situated. Therefore, with profound respect for the judgment of my learned *75Associates, I dissent from the conclusion that the demurrers to the complaint should be sustained on the ground that the relief -sought-would he of no benefit to the relator.
In view of the conclusions reached by a majority of the court regarding the interest of the relator, no useful purpose- would be served by an extended discussion of other phases of the case. I-t is sufficient to state that, in my opinion, this court is authorized by the onstitution and statutes of this state and its former decisions to determine in this proceeding whether the names of the defendants, other than the Secretary of State, should appear as candidates for presidential electors in the Republican column on the official ballot which every elector of the state will be required to use if he votes* at the coming- general election; that whether such names shall so appear is a legal .question affecting- -the legal rights of every elector of this state, regardless of party -affiliation; that, upon- the facts as they stand admitted for the purposes of defendant’s demurrers and “motion to quash/’ such names should not so appear on such ballot; -and that the Secretary of State should be restrained -from- so certifying the- same. These views necessarily lead to the conclusion that the demurrers and “motion to quash" should be overruled, without -reference to* the Richards ■proposed primary law, which, in my opinion, did not go into- effect by operation of the emergency clause contained in the measure as submitted by the Legislature.