(dissenting). I can see much force in the argument of the majority opinion in this case. I cannot, however, believe that it rightly construes the statute in question, or the legislative intent which lay behind it. It is to be remembered that, in determining such case, it is *521not the intention or understanding of the author of the bill, or of the committee which proposed it, which we must seek to determine, but rather the intention of the legislative body as a whole, which voted upon and approved it. When a statute is taken from another state, the rule is well established that the presumption will be that the construction put by the courts of that state upon it will be followed in the state of its adoption. Our statute was either framed upon that of the state of Washington or that of the state of Idaho, perhaps upon both. It is more like the Idaho statute than that of Washington. The Idaho court construed the statute of that state to be mandatory as to second choice, and construed the words, “vote for first and second choice,” as being imperative, not directory. It is true that a later legislature amended the form of the statute, and changed the words, “vote for first and second choice,” to, “You may at your option vote for both first and second choice if there are more than twice as many candidates as there are positions.” But this is an argument for, rather than against, the presumption that our statute should be construed to be mandatory until so amended. Our legislature, indeed, had before it the acts of both the Idaho and Washington legislature, which were held "by the courts of those states to be mandatory, and in addition thereto the magazine articles of many years, all of which had insisted upon the democratic necessity cf nomination by a majority vote. The opinion in chief is in error in regard to the passage of the amendment of the Idaho statute. That statute was not amended until after our own legislative session had adjourned. The same conclusion must follow from a consideration of the facts surrounding the Washington decision. At the time of the adoption of the North Dakota statute the Washington court held their statute to be mandatory. It is true, as suggested in the majority opinion, that there was a clause in that statute which also provided that if the voter did not vote for both first and second choice his ballot should be thrown out. The Washington court, however, in holding the words, “vote for both first and second choice,” to be mandatory, and not directory, construed these words by themselves alone, 'and made no reference to, nor paid any attention whatever to, the other clause referred to. .
“But if there were doubt as to the proper construction of other provisions of this act,” the Washington court says in State ex rel. Duryee v. Howell, 59 Wash. 634-639, 110 Pac. 543, “that doubt is removed by the *522form of ballot which the legislature has itself prescribed in § 4813. The form of ballot there given follows literally the provisions of the section preceding it. It first contains the names of candidates for representatives in Congress; next, the names of candidates for the several state offices, and next, the names of candidates for United States Senators. Above the names of candidates for representatives in Congress and state offices is a warning to the voter to vote for both first and second choice for these offices, while above the names of candidates for United States Senators is a warning to vote for one choice only. To remove any room for doubt, the names of four senatorial candidates are inserted, which would bring the ballot within the second choice provision of the statute if that provision had any application. To avoid the force of this provision the relator contends that legislative forms are only directory, and that a substantial compliance therewith satisfies the requirements of the law. As a rule this contention is sound, but we are not asked to uphold a form of ballot which substantially conforms to the requirements of the law. On the contrary, we are asked to compel a state officer to certify a form of ballot at variance with the form prescribed by the legislature itself. This we must decline to do.”
The form of ballot prescribed in Washington was practically the same as ours. Above the names of the candidates were the words, “vote for' both first and second choice for this office.” The Washington court held that it could not instruct the auditors to prepare a ballot which was contrary to the form of the statute. The relator in this case has asked the court to instruct the auditors that the language of the statute and of the ballots which has been prescribed by the legislature does not mean what it says. See also State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728.
When the act in question was passed'by the legislature, we must re member that the Idaho and the Washington decisions were in the books and before it. In the Idaho decision of Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280, the court, on page 492, said: “'The language used in said § 14 in regard to voting for a second choice is as follows: Note for both first and second choice if there are more than twice as many candidates as there are positions.’ Said language is a command, and indicates a clear intention on the part of the legislature to require the voter as a condition on which he might exercise his first choice, that he *523also express his wish as to a second choice in case of the contingency that no first choice selection be made. This is not an unreasonable regulation. In the same section we find the following command: ‘Mark only your party ticket.’ Is that language directory only % And, again, ‘Do not vote for the. same person for both first and second choice.’ Can anyone reasonably imagine or contend that these provisions are merely directory and may be disregarded by the voter if he desires to disregard them ? I think not. Can the Voter, under said last-quoted provision, vote for the same person for both first and second choice, and legally insist that his vote be counted ? It requires a peculiar temperament to seriously contend that said provisions are merely directory, to be folr lowed or not at the mere whim or caprice of the voter ? Those are commands conveyed directly to the voter by being printed at the top of each ballot, and he must obey them, 'or his vote will not be counted for any candidate where a second choice vote is'required to be cast. If the legislature had not intended that candidates should be nominated by a ma; jority vote if possible, they certainly would not have injected into said act the provisions for a second choice vote at all. The intention of the legislature which naturally results or is gathered from the context of the act, from the occasion and necessity of the law, from the mischief felt and the remedy in view, is too clear to be misunderstood. Said provision of the statute requiring the voter to vote for both first and second choice where there are more than two candidates for the same position or office is mandatory, and not unreasonable.”.
It is strange, indeed, that if our legislature did not intend that the words, “vote for both first and second choice,” should be mandatory, that they should have adopted the Idaho statute as construed by the decision aforesaid and by the decision of the supreme court of Washington, when, by merely adding the words, “if you desire,” or “at your option,” they could have made the contrary intention perfectly plain.
Another reason for holding the statute to be mandatory is the history of the legislation, and the political and social thought which led up to it, and the evil which the legislation was intended to obviate. One cannot read the articles and addresses which for the last twenty years have appeared' upon the subject in the reviews and magazines of America, without being impressed with the fact that what the proponents of the idea had in mind was a majority vote and the making it impossible for *524any candidate to be nominated by less than a majority of his fellow citizens. Its purpose was to prevent “the possibility of a man representing the principles of only one fourth of the voting strength of the party being nominated as the candidate of the party, and in direct conflict with the view of three fourths of the voters of the party. It was the recognition of this principle that caused conventions to nominate by a majority vote of the delegates, instead of by plurality.” Chas. K. Lush, in “An Essential Amendment to the Primary Election Law.” “The present primary,” the same author continues, “is in effect a convention in which every voter is a delegate, and in which the candidate receiving the most votes on the first ballot is the nominee. The remedy lies either in the adoption of the second choice amendment, or by return to the convention system. The present primary law is an absurdity because it applies to the plurality rule to what is, to all intents and purposes, a political convention.” “The principal argument against the second choice provision,” says Mr. Justice Eullerton in State ex rel. Zent v. Nichols, 50 Wash. 527, 97 Pac. 728, “is that it interferes with the freedom of election guaranteed by the Constitution, and compels the elector to vote for a person other than the candidate of his choice. This contention is untenable. The elector has the utmost freedom of choice in casting his first choice ballot, though his choice will not avail him unless at least 40 per cent of his party agree with him. It was entirely competent for the legislature to provide that a candidate receiving less than 40 per cent of his party vote should not be deemed its nominee, and with such provision in the law it was incumbent on the legislature to provide some other method of nomination whenever a candidate failed to receive the required vote at the primary. It might have provided a second primary, but a second primary would, perhaps, prove equally fruitless unless the number of candidates to be voted for were restricted. If the candidates to be voted for at the second primary were restricted to the two or three receiving the highest vote at the former primary, then all those who did not favor these particular candidates might complain, with equal justice, that they were compelled to vote for candidates other than those of their choice.”
Again we find the following in the November, 1909, number of the Political Science Review: “Following our universal practice in regular elections, most of the direct primary laws provide for nomination by *525a mere plurality, hence, when there are three, and especially when four or more candidates for nomination, the nominee is frequently chosen by a minority, even a small minority, in direct contravention of the fundamental principle of majority rule. This has given rise to what is generally recognized as a distinct problem in the actual workings of the direct primary system. Thus far only two methods of meeting this problem has been made by our statutes; the second ballot and the minimum percentage plan.” We cannot, indeed, but come to the conclusion from reading the literature upon the subject, that it was nomination by majority that was sought to be aimed at. We are also equally as clear that, unless such statutes are construed to be mandatory, there is every opportunity for fraud,- the very fraud which the second choice amendment was sought to obviate, and that, in most instances, there will be no second choice at all. The facts of the recent elections in all of the states, indeed, have shown that where the second choice has not been made mandatory, the privilege has not been generally taken advantage of. Each candidate has generally instructed his followers to vote for him and him alone, and not only has the very purpose of the statutes been nullified, but the candidates and. voters who have conformed to the spirit of the law have been placed at a disadvantage.
We are cognizant of the fact that the law writers generally state that in the absence of a specific statutory mandate, “the courts will . . . so construe . . . [election] laws as to prevent the disfranchisement of voters by reason of irregularities and omissions of officials, or by reason of a failure of the voter to comply strictly with the law in preparing and marking his ballot.” 2 Lewis’s Sutherland, Stat. Constr. § 709. We know of no cases, however, where this rule has been applied, where the voters, by their failure or omissions, have nullified the whole purpose of the election laws under which they were acting. There is a wide difference between throwing out a ballot because it is not properly initialed by the judges of election, and throwing out a ballot because the statute has applied to the primary the majority rule of the convention (and after all a primary is merely a statutory political convention), and the voter has refused to abide by that rule. As we said before, the very purpose of the statute and of the second choice idea is to bring about majority nominations, and we are assured that the construction given by the majority of this court will defeat the very purpose for *526wbicb the law was enacted. We must take into consideration the evils which the statute sought to prevent, and which led to its enactment, and, in the'light of said facts and of the contemporaneous history and decisions, pass upon the legislative intention. This court is not a legislature, nor is it a constitutional convention. It must seek to enforce the laws as they are, and to express the intention of the legislature at the time that it enacts statutes, and not its own ideas, or even a maturer judgment which has later influenced the legislators themselves.
Spalding, Oh. J. I concur in above.