I dissent. I concede that the constitutional provision in question applies to city offices, and requires the candidate to reside in the particular division of the city before election, not to remove into it after election, if elected. I also concede that the provisions of the city charter are unconstitutional as applied to the election in question, if these provisions affect a substantial right *228guarantied by the constitution. The whole city being one election district, I concede that, under the constitutional provision in question, every voter is eligible and entitled to be elected to any one of these nine offices for which he may receive the requisite number of votes, and that this provision of the charter is unconstitutional if, by being confined to a particular one or a particular four of these nine offices, and not being allowed to be a candidate for any of the others, he is deprived of a substantial right. If I have a constitutional right to my choice of one of nine silver dollars, all exactly alike, and, instead of permitting me to choose, the statute designates which one I shall take, I have lost no substantial right, and the statute is not unconstitutional. This is exactly the constitutional question involved in this case, and the only one.-
Each of these nine offices is exactly like the others. Each of the nine members, when elected, performs the same functions, has the same powers, honors, and emoluments, and bears the same responsibilities. Then, if the voters have the right to elect the candidate to one of these offices, and he has lost no opportunity of being elected by being confined to a particular one, he is not deprived of any substantial right. The law refuses to recognize a distinction without a difference, to correct error without prejudice, or to enforce rights that are not substantial. The legislature had a right to say that, instead of there being what may be called a “sweepstake race” for these nine offices, there should be nine separate races, one for each office, all run at the same time; and, if each candidate had a right to take his choice of which one of these nine races he would enter, he could not complain.
The legislature had a right to label each of these nine offices with a different label, and require the voter to vote for a specified candidate for a specified office, and provide that the votes cast for such candidate for several of these nine offices cannot be all counted for him for one office. But, unless something is done before election to designate for which one of the nine offices a particular candidate shall run, it will result in confusion. Jones may get 1,000 votes for office No. 1, 1,800 for office No. 2, 1,500 for office No. 3, and thus the vote for him may be distributed or scattered through the whole nine offices. Has the legislature no right to prevent such confusion by designating which one of the nine offices Jones shall run for, if they thereby deprive him of no right but an imaginary one? That is *229what the legislature has done in this case. But, instead of labeling each of the nine offices by a different label, they have labeled four by one label, four by another, and one by another, and accordingly provided for three separate races, one for each group of offices. The candidate who entered one race ran for one of the four offices in a particular group against the other candidates running for the offices in that group, and, if he was not more than fourth in the race, he was entitled to an office; and so of the candidate who ran for one of the offices in the other group of four, and the candidate who ran for the office standing alone in a group by himself ran only against the candidates running for that office, and had no right to it unless he was first in the race. And certainly,! if each candidate had a right to select which race he would enter, — out of which group he would seek an office, — -his constitutional rights were not infringed. But what has he lost by having the law designate the group in which he should run? It is not claimed that there was any gerrymandering or unfair apportionment of the eligible voters among the groups, or that each candidate did not have just as much opportunity to be voted for and be elected when the statute made the choice for him as if he had made it himself. To say that under such circumstances his constitutional right has been infringed is to say that it is so sacred a right that it cannot be regulated at all. If this is true, then the whole Australian ballot law is void,, because it provides (Laws 1893, ch. 4, § 44) that the certificate of nomination of the candidate for a state office shall be filed more than four weeks before election, for a county office three weeks, and for a city office ten days, before election, and clearly makes all persons not having their certificates then filed and the fees paid ineligible for that or any other office at that election. See, also, Laws 1891, ch. 4, § 38.
To this it is answered that, suppose a special election is held to fill a vacancy, this statute makes all persons not residing in a particuular division of the city ineligible, and therefore the law is unconstitutional. I concede it. That is a very different case. In that case the voters residing in the other two divisions of the city would at that election be deprived of a substantial right. But because it might be unconstitutional at an election which may never be held, or one which by mere accident may be held, it does not follow that it must be unconstitutional as to all other elections. Because the provisions of a statute may be unconstitutional when attempted to be *230applied to one condition of things is no reason why it is unconstitutional as applied to all other conditions of things. Conditions may he discovered as applied to which many otherwise constitutional laws are unconstitutional. Whether or not the scheme of the legislature can be carried out to its full extent is not the question here. We are not trying the constitutionality of a scheme, but of an action.
But, before it can be held that Reardon and Arosin are entitled to these two offices, it must not only be held that it is unconstitutional to prevent each of them from running for any of these nine offices which he or the voters might select, but it must also be held that it is unconstitutional to divide these offices into groups at all, so as to prevent him from running a single race for all of these nine offices, with the constitutional right to one, if he did not fall further behind than ninth in the race; and it seems to me that the majority have found it necessary to answer this proposition by ignoring it.
As well may it be said that any eligible voter has a constitutional right to run for all the county offices filled at the same election by all the voters of the county. But, the legislature having failed to provide for any such race, he runs for register of deeds, and, being defeated for that office, discovers after election that he has more Antes for the office of register than any man has for county auditor; therefore he claims the office of county auditor, though he never ran for it at all.
His claim would be just as reasonable as the claim of Reardon or Arosin in this case. Neither of them ran for the offices here in question at all, but for one of four other offices, which he failed to get; and, being defeated, each discovers that he received more votes than the respondents running another separate race at the same election, for other and different offices in a separate group of four.
It seems to me that he has no more right to an office for which he did not run, simply because he was not allowed to run for it, than any other eligible Aroter in the city.
If this reasoning is too subtile and refined for the majority of the court, I cannot help it.
(Opinion published 59 N. W. 1006.)