The following opinion was filed April 5, 1910:
Maeshall, J.I concur with much reluctance in the ■decision that our constitution permits general laws to he made by the referendum method. . I concur on the ground of ■stare decisis, only, the court having taken the position, now followed, over forty years ago and not since departed therefrom.
I concur in the decision that the primary election law •does not violate the Bill of Rights because it not only does not prohibit the holding of political conventions or declarations thereat of party principles, but rather contemplates such action, nor does it prohibit the suggestion of candidates as before, subject to approval at the primary. In short, in practical effect it does not prohibit the doing of those things formerly done, and supposed to be necessary, to insure party ■success, but the right to assemble in conventions, to declare party principles and suggest candidates is permissible. It is not only not illegal nor against public morals, but is lawful and commendable as ever.
I concur in the decision that the act as to nominating candidates for United States senator is valid for the reasons stated in the court’s opinion, which, in short, I understand to be that the act leaves the members of the legislature as free as *352formerly to exercise their judgment upon such evidence as-they can obtain; that under the act, as before the act, it is-not only their right but it is their duty to exercise their own judgment, and not to act as mere agents to carry out the judgment of others; that the act creates neither a legal duty nor moral obligation to carry out the verdict at the primary,, except as it coincides with their deliberate judgment after-being advised by the result of the primary and in other proper ways.
This brief memorandum will in due time be followed by a* brief discussion of some phases of the primary law.