(dissenting in part). With much of the opinion of my associates I agree. If, however, I were acting alone, I should not entertain the application in this proceeding at this late date. It is,an application to this court on its equity .side, and the relator does not come before us with the clean hands which should be presented when seeking equitable relief. I do not mean that he is guilty of fraud, but that he has been guilty of gross laches, which should deprive him of standing in a court of equity. Under the primary law (Laws 1907, p. 151, c. 109) petitions of candidates, who desired their names placed upon the primary ballot, .were required to be .filed with the Secretary of State by the 25th day of last May. On that day this relator knew that six persons were candidates for nomination .to the office of United States Senator in this state. He could have then taken steps to test the validity of the senatorial provisions of the statute, and, had they been held void, much waste of effort would have been prevented. Again, when the vote was canvassed, and he ascertained that his favorite, whoever it may have been, was unsuccessful, an opportunity was open for application for the relief which he demands, without putting the candidates who had the highest number of votes to the expense, and the people to the inconvenience, of preparing for again submitting the question at the November election. Not doing so, the two candidates have been permitted to continue the campaign *70for some months, undoubtedly and naturally at great expense both in time, effort, and money, until the 17th day of October, when application was made for the issuance of the writ. Notice of such application was not served on the candidates until Tuesday, the 20th inst. It ,was argued on Friday and Saturday, the 23rd and 24th insts. The court has had three days in which to consider the many very important and new constitutional questions involved. Counsel for the relator were prepared with an elaborate brief in support of their contentions, but counsel for the respondent, and for the candidates, had not to exceed three days in which to prepare for argument, and were unable to submit briefs. Under these circumstances this court would be justified in refusing to give the matter consideration, and I am of the opinion that it is not justified in considering and' attempting to decide such questions with so little opportunity for consideration and reflection. I would not, however, in view of the attitude of my associates, suggest these reasons were we able to agree on all other questions. The fact that we are not emphasizes the undesirability of considering and attempting to pass judgment upon such questions when at best, in my opinion, any conclusion at which the court arrives must be largely a guess.
On the, merits of the proposition I can concur with most that is said in the majority opinion. No doubt can exist that the Senate of the United States is the final judge of the election of its own members, and that any decision which we reach in the premises will not control or influence that body, yet this fact, as -it appears to me, should not, and does not, prevent or excuse the courts of a state from passing upon the validity of state laws which involve directly or indirectly the election of senators. The state courts are not courts of last resort on federal questions in any instance. My associates have arrived at a conclusion, however, upon one question, which, with my present light on the subject, I am unable to concur in. And it is a very important question in this election. Not important as to future elections, because it can readily be amended by the Legislature. I refer to their construction of section 13, p. 157, Primary Election Law 1907. That' section in part reads as follows: “The candidate receiving the highest number of votes at such primary election shall be the nominee of his party for the office of United States Senator at the succeeding session of the legislative assembly which is to elect a United States Senator; provided, however, that in case no candidate receives forty per *71cent, of all the votes of his party cast for the office of United States Senator, then the two candidates of each party who receive the highest number of votes cast at such primary election shall be placed upon a separate ballot to be voted for at the general election following. Such ballot shall be prepared in the same manner as the general election ballot commonly known as the ‘Australian Ballot/ is prepared. The candidates of each party are to be placed upon such ballot under their proper party heading. The names of each candidate shall be placed upon such ballot in the same manner as the candidate for state officers and shall be voted for in the same manner.” The language in question refers to the general election, and to the Australian ballot used thereat. It is clear to me that in using the words “upon a separate ballot” the legislative mind was directed toward the Australian ballot, and that its intention was that the ballot for the nomination of United States Senators should be separate and apart from the Australian ballot, on which are placed the names of the candidates for congressional and state offices to be elected, and that it does not mean, as held by a majority of this court, a separate ballot for each party which had failed to make nominations at the June primary for senator.
This construction is fortified by further consideration of the section. It continues, “such ballot shall ibe prepared in the same manner as the general election ballot is prepared. It does not read “such ballots,” as it undoubtedly would have been made to read had the Legislature contemplated a separate ballot for the senatorial candidates of each party which had failed to nominate at the June primary. And it continues, “The candidates of each party are to be placed upon such ballot under their proper party heading.” It does not read, as it otherwise would have read, “upon such ballots.” In each place the plural should have been used rather than the singular. “Under their proper party heading,” refers to the headings of the columns devoted to the different parties, clearly contemplating that, in case two or more parties failed to nominate a candidate for senator in June, there should be one senatorial ballot containing a separate column, with a party heading, like the party heading in the Australian ballot, for each party. In other words, it appears clear to me that the meaning of this provision is that, when the candidates of one or more parties fail to receive 40 per cent, of the vote in June, the names of the two highest candidates of each of such parties go upon one ballot, known as the “senatorial *72ballot” at the November election, the Republican candidates in one column, headed “Republican” and the names of the other candidates in other columns, headed, “Democratic,” and so on, and that this ballot is to be handed to each voter at the general election. It is true that courts should, where two constructions are possible, give to a statute (that construction which will sustain its validity, but in doing so they are not required to- give a strained construction, or to give to the language a meaning different from that in which it is ordinarily used, or read into the statute something which is not clear should be meant by the language which it does contain. I venture the assertion that of the several thousand election officers who will serve on the third proximo, not 1 per cent, would on reading this act think of its bearing the construction given fit in the majority opinion. Neither will it occur to them that they should challenge votes, or take any steps to see that only Republicans vote the senatorial ticket. I am fortified in this belief by the fact that on the argument, where the relator, the Secretary of State, and each of the contesting candidates were represented, all by able counsel, it was conceded by counsel -for the relator, and for the Secretary of State, and at least for one of the candidates that this provision only required or permitted one senatorial ballot for all parties which failed to make nominations at the June primary. This was the one point on which counsel for the different parties were unanimous. The provisions in other parts of the law for challenging voters as to their party affiliations clearly refer only to the June primary. Now the importance of this point -consists in this: Courts, so far as I have been able to learn, while uniformly holding that primary elections are so far matters of public concern as to be proper subjects of legislative oversight and of reasonable regulation, a-t the same time hold that, when the Legislature undertakes to regulate them, it must do so in such a manner as to protect each party from having its affairs managed, or its nominations made by members of other parties, or by persons who belong to no party.
Primary election laws have several objects. Among them are the protection of the public against the corruption of the ballot, and the nominations of candidates by small fractions of the party, and the preservation of party organization. If a law permits people to vote indiscriminately, without reference to their party affiliation, for candidates representing a party to which they do not belong, the whole purpose of a primary law is subverted. Instead *73of preventing corruption, it would furnish the widest opportunity for it, by permitting the turning of the management of a party over to its enemies; and the courts, so -far as they have passed upon this question, invariably hold that primary laws which permit this to- be done are invalid. The Legislature is not compelled to legislate on the subject of party nominations, but when it assumes and attempts to do so,_it is in recognition of the fact that parties exist, and are necessary to the promotion of the public welfare, and any larw which permits the destruction of parties by these means fails of its .purpose and is invalid. If my interpretation of section 13 is correct, it means that in the present instance the Democrats having nominated their candidate for senator at the June primary, may take part in the nomination of a Republican candidate for senator at the November primary, thus not only nominating their own candidate, but possibly exerting a controlling influence in the nomination of the Republican candidate. The injustice of this cannot be denied. The Legislature is not required to legislate regarding the organization of churches or secret societies, or to provide for their incorporation or management, but when it does so, it cannot provide that the members of the Lutheran Church shall or may control the management of the Catholic Church, nor would a law permitting the Odd Fellows to -control the affairs of the Free Masons be sustained.
This question was passed upon by the Supreme Court of California, in Britton v. Board of Election Com’rs, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. It says: “Active political parties —parties in opposition to the dominant political party — are, as has been said, essential to the very existence of our government. The right of any number of men holding common political beliefs or governmental principles to advocate their views through party organization cannot be denied. As has been said, ‘Self-preservation is an inherent right of political parties, as well as of indivduals.’ Whipple v. Broad, 25 Colo. 407, 55 Pac. 172. A law which will destroy such party organization, or permit it fraudulently to pass into the hands -of its political enemies, cannot be upheld. The procedure of political parties may be regulated, and the wisdom of the Legislature may well be exercised, in devising methods to. check political corruption and fraud; but the Legislature itself, under the guise of regula-tión, cannot be permitted to throw open the doors to these very abuses. A law authorizing, or even permitting, the *74opponents of'an organized political party to' name the delegates to the nominating convention of that party would not for a moment be countenanced. Yet that, in effect, is precisely what the act under consideration does permit. It provides that the primary election of all political parties shall be held at the same time. To the intending voter at such primary one ticket is given. No question may be permitted touching his political affiliations, past, present, or future. The voter takes the ticket, retires into' the privacy of the booth, and there, secretly, and not in violation of any law, but in strict accordance with the law, names such delegates as he desires to the political convention of one or another of the parties, whether he is a member of that party or not, whether he ever intends to become such a member or not. The result is apparent. The control of the party and of its affairs, the promulgation and advocacy of its principles, are taken from the hands of its honest members, and turned over to the venal and corrupt of other political parties, or of none at all. . Masquerading thus under the name of one of the great political parties might be a convention of men, authorized by this law to represent it, and place upon the general election ballot, as its candidates, those whom they might select — a body of men whose sole purpose might be the disruption and destruction of the party whose representatives this law declared them to be. It is expressly declared in -the Declaration of Rights that the enumeration therein contained shall not be construed to impair or deny others retained by the people. A law which thus permits.the disruption and misrepresentation of a political party is an innovation of these reserved rights.” This construction has been approved in Morrow v. Wipf (S. D.) 115 N. W. 1124, and Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109, and I think by other courts.
Of course, if the law contemplated the nomination of United States Senators or the expression of a preference by the people as between the different candidates by voters of all parties, it would present a different question, but that is not the purpose of this law, its purpose being to provide for party nominations, and if my construction of this section is correct, the vice of the law lies in that it permits the voters of a party which succeeds in making a nomination in June to participate in the nomination of a candidate representing a party to which they do not belong, or with which they do not affiliate in November, for the same position. Even if section *7513 does admit of the construction given it by my associates, -the meaning is so obscure as to defeat the purpose of the provision and thereby render it invalid.
(118 N. W. 141.)In brief, my opinion is that, because the Legislature has attempted to regulate party-primaries and nominations, it must do it in a manner which, with reasonable certainty, prevents the participation of any but members of a party in its management or nominations; that if it has failed to do so, or if the language of the act is so involved, or its meaning so obscure, that most men of fair intelligence would, on reading its provisions, fail to find any method provided for party protection, it must fail. This in my judgment applies to that part of the law relating to the November nominations of senatorial candidates.
For these reasons, inadequately expressed, but as fully discussed as the brief time at my command, before the opinion must be filed to render it of any effect in the coming election, will permit, I conclude that the provisions of chapter 10-9, p. 151 of the Laws of 1907, relating to the vote for the nomination of a candidate for United States Senator at the same time and place as the general election is held, are invalid, and, to that extent, I dissent.