(dissenting).
I respectfully dissent.
My brethern of the majority find the pertinent statutory provision ambiguous. This being so, they properly do not disturb the political judgment of the political election committee regulating a party election, since they find no clearly applicable statutory provision to the contrary of the committee’s determination.
Nevertheless, under equally well settled principles, the dissenting justices cannot ignore, as beyond judicial review, action of a party election committee which is clearly illegal and which is contrary to express law, in the opinion of the dissenting judges.
Just as did the Attorney General in an opinion followed by the Secretary of State, the dissenting judges find that La.R.S. 18:361, subd. D, as last amended by Act 535 of 1968, unambiguously requires either the reopening of the qualifications or the scheduling of a new primary election, when one of two or more candidates dies within thirty days of the day fixed for the first primary election. Omitting provisions not applicable to the present situation, the statute provides:
*1059“Where there is one or more candidates . . . for the same office, and any of such candidates ... die within thirty days of the day fixed for the first primary election, . . . and there is not time to print the name of a new candidate . . . on the ballot . . . , and there remains . any other candidate for the same office, all votes cast for the remaining candidates . . . shall be null and void and shall not be counted except as . . . provided [as follows:] the respective committees having authority to call primary elections shall call and hold another primary election * * 1
Thus, as the dissenting judges read La. R.S. 18:361, subd. D as presently in effect, the primary election scheduled for August 19th shall be held as scheduled, but all votes cast for the nomination for the office of United States Senator “shall be null and void and shall not be counted” except when cast in another primary election called for that purpose. All votes cast for all other state, district, and local offices shall be counted and shall determine the nominations for such other offices. The additional primary election for the office of United States Senator could easily be scheduled, without additional expense, for the second primary elections presently scheduled for these other offices. A second primary election for Senator (only) could then be scheduled between that date and the general election, if indeed none of the candidates who qualify for the first senatorial primary do not receive a majority of the votes cast.
Prior to the 1960 amendment of La.R.S. 18 :361, the statutory provision did provide that nominations would not be reopened, except where a candidate died more than thirty days before the day fixed for the primary. This, in effect, is the meaning of the present subsection 361, subd. C.
The 1960 and subsequent amendments, which our majority now ignores, were specifically intended by the legislature to regulate the present situation: Where a candidate dies within thirty days before the first primary and where the Secretary of State certifies there is not time to print the name of a new candidate on the ballot. The obvious purpose of the 1960 and subsequent amendments by the legislature was *1061to permit the people a chance to have a real choice, when they may have been deprived of it by the death of the only candidate for the party nomination representing their point of view within thirty days of the first primary.
We may think the legislation is unwise or even foolish. We may be distressed by the thought that a first primary election for an office may be postponed by the death of a minor candidate whose living could not have affected the outcome. Or, to the contrary, we might not be adverse to a policy which lets the nomination go by default to the survivor if one of two strong candidates who qualify dies just before the election.
Nevertheless, whatever our personal views, the legislature has expressly mandated in mandatory terms that under the present situation, “Where there is one or more candidates” and “any of such candidates” die within thirty days of the first primary date, “all votes cast for all remaining candidates . . . shall be null and void” except in a special primary election called for that purpose. It is not our function as a court to strike out mandatory election legislation as meaningless because we disagree with it.
I may add that, by the majority’s ignoring the plain intent and provisions of Subsection D of La.R.S. 18:361, this enactment is reduced to a meaningless jumble of words. It exists now as a time-bomb available to disrupt future elections should any candidate die within thirty days of the first primary date. The legislature had best confirm this judicial repeal of it by a legislative repeal; or, if the legislature prefers to reinstate the there-expressed legislative policy of insuring the voter a wider choice, by re-opening the candidate list when his candidate dies, it must do so by re-enacting said statute in even more explicit terms, if such be possible.
. The statutory history of the section, which appears in Chapter 2 “Primary Elections” of Title 18 “Elections”, clearly indicate that the “candidates” referred to are those who qualified as candidates in the primary election for the nomination. See La.R.S. 18:361 (1950) ; its amendment by Act 44 of 1952; its amendment by Act 280 of 1960 (which for the first time also applied in certain circumstances to the distinguishable situation where there is one or more “nominees of a political party, for the same office”) ; and as amended by Act 535 of 1968. Act 280 of 1960 also amended La.R.S. 18 :631 providing for equivalent procedures when there is a death of one of two or more nominees (i. e. selected for a party, usually after the primary election process).