(dissenting). I fully concur in what is said in the majority opinion upon relator’s first point; nor do I disagree with such opinion as to many other propositions therein discussed, but which I do not consider have any relevancy to the vital question here involved, which is whether the 30 per cent, feature of the primary election law is a legitimate and constitutional enactment. Upon this proposition I am forced to dissent from the views expressed in the majority opinion, and will briefly set forth my reasons for so doing.
Conceding that the objects sought to be accomplished by this percentage clause are as stated in the majority opinion, it is very clear to my mind that all such objects may be fully accomplished by a much less drastic statute. Relator’s counsel does not contest either the validity or the propriety of a limitation upon the right to make party nominations by requiring a certain percentage of its members to attend the primary and vote before such party shall become entitled to have its ticket appear upon the official ballot, and for the purpose of discussion he concedes that even a 30’ per cent, limitation, when properly applied, might be justified, but his contention is, as stated in 'his brief, that: “When the required percentage of individual members of a given party have attended the primary, called for their party ticket, and voted, all possible beneficial ends have been accomplished, and any more extended limitation becomes obnoxious to the law as unreasonable, unnecessary, arbitrary, and merely captious interference with the constitutional privilege of the individual citizen, and therefore becomes and is judicially reprehensible.” Whether such a limitation, or any limitation which is based upon the vote of the party at a prior general election, is justifiable when properly applied I express no opinion. As I view it, all the *161ends sought to be .accomplished by requiring a reasonable percentage of the votes cast at the primary to nominate, and this is as far as any Legislature has gone in other states, so far as I am aware.
The specific vice existing in this feature of the law is forcibly illustrated by the particular facts disclosed by the record on this appeal. At the recent primary election in Grand Forks county 650 Democrats, or about 32^2 per cent, of the total voting strength of their party, actually 'attended and voted for certain candidates of their party as such. For some unknown reason, or through indifference, and perhaps because he had no opposition, 27 or about 12 per cent, of such electors failed to vote for relator, thereby reducing his percentage slightly below 30 per cent. The result is, under the holding of the majority of this court, that 88. per cent of those who did vote for relator, or 573 Democrats in said county, are practically disfranchised as to such office, and this without any corresponding benefit to the public. To my mind such a result ought not to be possible. After mature deliberation I am forced to the conclusion that the argument and reasoning of relator’s counsel is unanswerable. I can discover no beneficial or reasonable purpose in the '30 per cent, limitation clause aforesaid, except to prevent the members of one political party from participating in the nominations of candidates in other party organizations, and such a result will be just as fully accomplished without extending such limitation to any candidate upon the primary ballot. Under the law each party’s ballots are printed separately, and it is impossible for an elector to- vote a split ticket. In other words, he is restricted to the party whose ballot he calls for. Hence it is plain that the mischief, sought to be remedied by the 30 per cent, limitation clause does not require the application of such clause to each or any candidate; but, if 30 per cent, of the party voters attend the primary, and actually call for and vote any portion of their ticket, they are powerless to participate in any manner in the nominations of- other party candidates. The inevitable result, therefore, of the practical working of said provision is to unnecessarily interfere with and render difficult, and in some instances entirely preclude, a party organization from nominating a full or -even a partial ticket. It is a matter of common knowledge, of which we must take judicial notice, that at the recent primary election in this state one of the party organizations, with but few exceptions, cast but a very slight vote in excess of 30 per cent, for any of its candidates, and many of its candidates received *162less than such percentage. It is not difficult to see that such a result may often happen. A combination of circumstances may easily arise which would defeat any party from nominating a full, and perhaps any, ticket. The history of the primary law in this state shows that the percentage of the electorate of the state who attend such primaries is small when compared with the total number of qualified voters. This may be accounted for in various ways. Quite a respectable per cent, of the voting population take but scant interest in any election, and are to a great extent indifferent as to the exercise of the elective franchise. If left to their own volition, many of them would not go to the polls even at a general election. This class are still more indifferent regarding primary elections. Again the primary takes place at a busy season for the great majority of our citizens, and many of them may feel that they cannot ,afford to take the time necessary to enable them to attend. Still another reason may foe that there is no contest for nominations within a party, and in such a case the primary of such party goes by default, so to speak. Again it may frequently happen that the vote for a party candidate for the office of Secretáry of State in certain portions of the state, or throughout the entire state, as was the fact at the last general election, may greatly exceed the normal vote of his party, and thereby render it very difficult or impossible for such party to cast 30 per cent, of such vote at the primary two years later. The per cent, of so-called independent voters, or those who ignore party lines, is so large that such a result is not at all unlikely to happen. The foregoing are matters within the common knowledge of all and should be taken into consideration in determining the reasonableness of the limitation clause in question.
It is idle to argue that the 30 per cent, clause can be justified as a reasonable exercise of legislative power in order to obviate accidental nominations not desired by the party. The party’s will is expressed solely by the members thereof who attend the primary, and it is not a legitimate argument to say that those who remain at home or do not attend thereby in any manner give expression to the party will. A holding to the effect that a party, which is recognized by the law as such, cannot make a nomination where the per cent, of those actually attending the primary and voting thereat falls below 30 per cent, of its total vote cast at some time in the past, although every elector therein who attended such primary voted for a par*163ticular candidate as its nominee; is, to my mind, a startling and unheard of principle, and is, I believe, indefensible from ai constitur •tional standpoint. It would be just as unreasonable to say that a candidate at a general election, although he receives a majority of the votes cast, shall not be deemed elected unles's he also receives.a certain percentage of the total votes cast at some prior election. The general rule in this country is that the will of -ai majority of those voting shall control.
• " It is said in the majority opinion that the controlling purpose of this limitation clause is to define what constitutes an expression of the party will. This, to my mind, is á strained construction, but be that as it may, it is entirely clear that the Legislature, under .the guise of defining what shall constitute an expression of the party will, cannot entirely thwart, or in any manner unnecessarily hinder or impede, the expression of such will.
It is also said in the majority opinion that: “There is a marked analogy between the primary election provided for and a political convention. This election, in. effect, constitutes political mass conventions of the various parties, composed of the voters of the respective parties, each depositing his ballot in his own precinct instead of at one central point, and there is likewise a marked analogy in the proceedings under this law and those of a party convention or conventions. It cannot be doubted that in a party convention its members would have the right and power to adopt rules; and, among other provisions, fix the number or percentage of voters dr delegates necessary to constitute a quorum or to express the -will of the convention and its members in the nomination of a candidate.” This is all very true if the primary is considered as a mass convention composed of those who attend and„participate. It is not true if those who remain at home, as well as those who attend, are to be deemed members thereof; Who ever heard of a mass convention adopting a rule that no nomination shall be made unless the candidate receives a majority or plurality, as the cáse may be, of the votes of those who stayed away as well as those who •attended ? Under the practical operation of such provision- it is -a very easy matter for the dominant party, and for that matter any party having sufficient strength, to completely annihilate all opposition in the future by other party organizations. • This can be ac^ obmplished by casting enoúgh of its votes in favor of the-candidate, or candidates, for Secretary of State of such opposite party, or *164parties, to swell his vote to an amount in excess of 70 per cent, of his normal party strength, so that at the succeeding primary such party could not muster the required 30' per cent., even if every one of its voters should attend and vote. We would then have the strange and absurd situation of a legal party organization .without the legal power to nominate a single candidate. Such a situation may not only possibly but may quite probably arise. A political party could well afford to sacrifice this merely ministerial office for one term in order to annihilate all future party opposition. A statute which permits such a condition to be brought about is manifestly against public policy and void.
It must be remembered that the right to nominate candidates for office is inseparably connected with the right to vote for such candidates when nominated. The exercise of the elective franchise is .the most important right of the citizen, and any law is unconstitutional which unnecessarily and unreasonably restricts, or interferes with, the free exercise thereof. As held by this court in Johnson v. Grand Forks County, 16 N. D. 363, 113 N. W. 1071: “The Legislature has the right to make any reasonable regulations to prevent fraud in the conduct of elections, voting by persons not qualified under the Constitution, and for the speedy conduct of the business incident to elections. The question for courts to determine is whether they go beyond the bounds of reason, and whether they place any restrictions around the exercise of the right of suffrage which limits it arbitraril)'- or unnecessarily.” ' As said by the Supreme Court of Illinois in the recent case of People v. Board of Election Commissioners, 221 Ill. 9, 77 N. E. 321: “The right to choose candidates for public offices, whose names will be placed upon tire official ballot, is as valuable-as the right to vote for them after the)- are chosen, and is of precisely the same nature. There is scarcel)- a possibility that any person will or can be elected to office under this system unless he shall be chosen at a primary election, and this statute, which provides the methods by which they shall be done, and prescribes and limits the rights of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law. It is undoubtedly true, as urged by counsel for defendants, that it has become not only proper, but necessary, to provide additional safeguards and protection- to the voters at primary elections, to the end that their will may be fully expressed and faithfully and honestly carried out, and any law *165having that object in view would naturally commend itself to the lawmaking power. The legitimate purpose of such a law, however, must be' to sustain and enforce the provisions of the Constitution and the rights of voters, and not to curtail or subvert them or injuriously restrict such rights.” In State v. Drexel, 74 Neb. 776, 105 N. W. 174, the Supreme Court of Nebraska, in speaking -upon the .same subject, took occasion to say: “To say that the voters are free to exercise the elective franchise at a general -election for nominees, in the choice of which unwarranted restrictions and hindrances were interposed, would be a hollow mockery. The right to freely choose candidates for public office is as valuable as the right to vote for them after they are chosen.” See, also, the following authorities, ánferentially supporting the general doctrine abov-e announced that the rights of nomination and of candidacy are incident to the right of -suffrage, and that therefore any unnecessary and unreasonable hindrance or impediment to the exercise of the former rights is, to the same extent, a hindrance and impediment to the exercise of the latter. Johnson v. Grand Forks County, supra; Dapper v. Smith, 138 Mich. 104, 101 N. W. 60. No- state, so far as I am able to discover, has any similar provision. Respondent’s counsel intimates that the state of Washington requires 40 per cent, to nominate, but upon examination of their primary law I find that a plurality vote of those voting nominates, except as to -congressional candidates and those for state offices, when there are four or more candidates, in which event it is, in effect, provided that the electors, shall designate -their first and second choice, and if no candidate receives 40 per cent, of the first choice votes cast, then the first and second choice votes for each candidate shall be added together, and ercise o fthe elective franchise, and hence is unconstitutional.
(118 N. W. 22.)For the foregoing reasons I am constrained to hold that the 30 per cent, clause aforesaid is both an unreasonable and unwarrantable and wholly unnecessary restriction and limitation upon the exercise of the -elective franchise, and hence is unconstitutional.