The following opinion was filed April 21, 1910:
Maeshall, J.(concurring). "When this case was decided I filed a memorandum of points understood by me to be covered by the court’s opinion, to be followed by a concurring, opinion. This is pursuant thereto. I will endeavor to' show: (a) As an original matter, a law cannot be made by creating one, in form, ieaving it to the people to or not to convert such form into law in fact; (b) the significantly alleged, features of the primary law, which, were they in fact a part of it, would, doubtless, render it unconstitutional, are not there-either in its letter or spirit; (c) liberty of action alleged to be unconstitutionally restrained or prohibited, on the contrary is-contemplated and encouraged; (d) the feature as to United States senators does not impose any duty on nor permit surrender of, by members of the legislature, their respective-judgments.
The foregoing challenges attention as involving questions-of far-reaching importance. Nothing approaching the dignity of the matter often comes to this court. Individual shades of thought and lines of logic, leading to final conclusions in which the justices concur, could not easily, if at all,, be indicated in an opinion, speaking with the necessary sin*353gleness of the court, yet such individual logic may give much force to the legal and moral effect of the thought in the aggregate, which must stand out as that of the court. Expression of individual judicial views on great constitutional questions, is always permissible, is often advisable, and is sometimes, seemingly, almost necessary. Eor added vindication of the court’s position and of my own guarded concurrence in one respect and emphatic concurrence in others, after a careful study and analysis of the primary act, and for the good it may do in dignifying and entrenching our valuable principles of constitutional liberty, lifting them so far above any existing tendency to encroach upon the sacred field of inherent human rights, as to minimize danger of any one of them being destroyed or seriously impaired, — this opinion is written. The labor is not indulged in with any thought of mere exploitation of individual ideas, but rather of judicially aiding in keeping significantly in view, those principles which the constitution, builders aimed to declare and have preserved, unimpaired, as an essential part of our system, and at the same time, of vindicating the wisdom of the legislature wherein it has been severely criticised and its legitimacy confidently challenged. To do the latter, while upholding the constitution in all its integrity, not swerving one way — giving appearance of impatience with its restraints and a purpose to reduce them to a minimum as much as possible, which method would result in practical nullification — nor the other, suggesting narrowness on the part of the fathers, which they were, in fact, entirely free from; but taking that broad view which gives tho constitution the effect intended, viz.: to secure the inherent rights of men.
It seems that overleaping desire for change, at times colors mental views, so that men are wont to survey our system from the viewpoint of ancient conceptions of man’s status; that one’s liberty and property and freedom to enjoy and acquire the latter- are mere privileges afforded by grace of a sov*354ereign, instead of ours, which displaced it, that all those mere privileges of the ancient system are inherent rights, not rights conferred by any human power, nor subject to be taken away by such power; but birthrights; that they may be regulated ; but that regulation to be legitimate must be within the spirit of the constitution, i. e. to preserve, to secure their integrity and competency to conserve human enjoyment; that at the dividing line between regulation which conserves and that which impairs, is the one between the legitimate and the illegitimate, in legislation. Danger of encroaching upon this line, which is sometimes seen in legislative acts passed or proposed, was foreseen, as well as importance of vigilance to guard against it. So the fathers closed the fundamental guarantees by this admonishment:
“The blessings of a free government can only be maintained by a firm adherence to justice, moderation, frugality and virtue, and by a frequent recurrence to fundamental principles.”
So recurring I will endeavor to discuss the questions involved in this case.
I yield very reluctant concurrence with the idea that it is constitutional for the legislature to pass a general act to become a law upon its being approved by popular vote. I yield upon the ground of stare decisis only. I dissent from the view that such an act is sustainable from an original standpoint, and that there is no logical distinction between a local act to become law in prcesenti, but be operative only in such localities as by popular vote adopt it, and a general act, presently proposed by the legislature, to be a law when approved by popular vote.
True, this court, in State ex rel. Att’y Gen. v. O’Neill, 24 Wis. 149, 154, upheld the referendum principle as to a local option law and said, entirely obiter, approving the reasoning in State v. Parker, 26 Vt. 357, 365, that it is illogical to sustain such principle as to a local option law and to condemn a *355general act to take effect as law only npon approval by popular vote, and sueb obiter remarks were given judicial approval in Smith v. Janesville, 26 Wis. 291. But I cannot ascribe suck infallibility to tke reasoning supporting suck early observations as to adopt it now as sound. Wken it was made tke question involved was new. Since tken it kas received attention by many courts.
Tke Vermont case, in tke extreme, does not appear to kave been followed tkere. Each decision cited therein either involved a local option law or kas been displaced where made by some later decision. Neither tke Vermont case nor Smith v. Janesville has been followed anywhere in suck a ease as this, while tke doctrine thereof kas been condemned over and over again. Barto v. Himrod, 8 N. Y. 483, 490, which tke .Vermont court, and this court following Vermont, criticised as not authoritative, kas, since suck criticisms were made, been affirmed, most emphatically, many times. People v. Fire Asso. 92 N. Y. 311; Gilbert E. R. Co. v. Kobbe, 70 N. Y. 361; Matter of Thirty-fourth St. R. Co. 102 N. Y. 343, 7 N. E. 472; People v. L. I. R. Co. 134 N. Y. 506, 31 N. E. 873; Stanton v. Essex Co. 191 N. Y. 428, 84 N. E. 380.
People v. Collins, 3 Mich. 343, which tke Vermont court ignored because of tke justices being evenly divided, as was said, was explained in Feek v. Town Board, 82 Mich. 393, 47 N. W. 37, tke doctrine of tke New York court being fully adopted restricting tke referendum principle to local Option laws, it being said that in People v. Collins, “No one of tke judges contended that, had tke effect of tke submission of tke act been to determine whether” it “should become a law or not,” it “would kave been valid.” Adding: “Tke power of tke legislature ... to pass an act, and tken to take tke sense of tke people whether it shall become a law or not, was not admitted nor kas it ever been in this state.” The supreme court of Pennsylvania, also cited by tke Ver*356mont court, subsequently took tbe same view. Comm. ex rel. McClain v. Locke, 72 Pa. St. 491. If there is a decision following Smith v. Janesville, as to the precise question here, counsel were not able to find it and we have not been more successful.
As to local option laws, even, the referendum principle has-been, by many courts, reluctantly sustained and by divided courts quite often. Fell v. State, 42 Md. 71; State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469; Paul v. Gloucester Co. 50 N. J. Law, 585, 15 Atl. 272.
Barto v. Himrod, supra, has been followed in many jurisdictions which uphold local option laws, as does the New York court. Ex parte Wall, 48 Cal. 279; Ex parte Anderson, 134 Cal. 69, 66 Pac. 194; State v. Weir, 33 Iowa, 134; State v. Metcalf, 33 Iowa, 610; Lytle v. May, 49 Iowa, 224; Eckerson v. Des Moines, 137 Iowa, 452, 478, 115 N. W. 177; Lammert v. Lidwell, 62 Mo. 188; Rice v. Foster, 4 Harr. (Del.) 479; Parker v. Comm. 6 Pa. St. 507.
True, Smith v. Janesville has been referred to here with approval, not, however, to the point now involved, but to the general proposition that the legislature can make “a law complete in itself” and leave the question of its enforcement to turn upon future ascertainment of some fact or happening of some contingency. Note the significance of the language: “a law complete in itself.” ' The infirmity here, as courts generally have viewed the matter, is the legislative effort did not create a law “complete in itself,” as in case of a local option law. It left to popular judgment whether a proposal should or should not be a law. It made a form only for a law, leaving it to the people to vitalize it, by evolving it into-a law. That seems unmistakable. It was provided that whether the act “shall take effect . . . shall be submitted to the people of this state. ... If approved by a majority of the votes cast upon that question, it shall go into effect and be in force from and after such ratification by the people.”*357Such contingency of its becoming a law, fixing tbe time thereof, if at all, as that of popular approval, is tbe precise distinguishing characteristic between" such laws and local option laws, which has resulted in the general condemnation ■of the former. They are not “laws complete in themselves” upon emanating from the legislature, with executive approval, but mere propositions to the people of acts for their adoption as laws, or rejection. In all New York cases that distinction is clearly drawn, as a few,quotations will clearly show.
In People v. Fire Asso. 92 N. Y. 311, 316, affirming Barto v. Himrod, 8 N. Y. 483, the court said:
“As to the school law, the people were made the legislature, and left to decide whether the bill proposed should or should not become a law. , This court held that the legislature, under the constitution, could not so delegate its power, but was bound to determine for itself the expediency of the measure, and either enact or reject it.”
Again, in People v. L. I. R. Co. 134 N. Y. 506, 31 N. E. 873, the court, approving the early case, declared thus:
“The difficulty with the statute there was . . . that it provided for the submission to the electors to determine whether the act should or should not become a law.”
Again, in Gilbert E. R. Co. v. Kobbe, 70 N. Y. 361, this language was used:
“The existence of the law itself in that ease [Barto v. Himrod] was made to depend on the vote of the people.”
Lastly, in the very late case of Stanton v. Essex Co. 191 N. Y. 428, 432, 84 N. E. 380, the court said:
“The senators and assemblymen are selected by the electors of their respective districts to represent, them in the legislature of the state and to enact such laws as shall be requisite and advisable. The people, who have intrusted them with legislative power, have the right to demand the exercise of their knowledge, judgment and discretion in the framing *358and in the enactment of laws, and in so far as their duties are strictly legislative, bave prohibited them from delegating that power to others. It was consequently held in Barto v. Himrod, 8 N. Y. 483, that an act establishing free schools throughout the state was unconstitutional and void, for the reason that the fact of its becoming a law was made to depend upon the result of popular vote.”
Other courts axe quite as emphatic. To illustrate, in Lammert v. Lidwell, 62 Mo. 188, 194, we read:
“It is not only the right of the representatives, when assembled in the legislature, to make laws, but it is their duty to do so. When the people, through the constitution, delegated the lawmaking power to the legislature, it conferred an authority and imposed a duty which could not be exercised by any other body of men. Therefore, every law, to have any binding force or validity, must, when it emanates from the legislative body, have the form and character of a complete enactment. It must operate by virtue of the legislative authority, and not depend upon popular action or the people’s suffrages for its vitality.”
And further, in effect, whether an act shall or shall not be law cannot be' made to depend upon its existence as law upon popular vote. And further, citing approvingly the logic of the supreme court of New Jersey:
“The will of the legislature must be expressed in the form of a law by their own act. If it is left to the contingency of a popular vote to pronounce whether it shall take effect, it is not the will of the lawmakers, but the voice of their constituents, which moulds the rule of action. If the vote is in the affirmative it is law; if in the negative it is not law. The vote makes or defeats the law, and thus the people are permitted unlawfully to resume the right of which they have divested themselves, by a written constitution, to declare by their own direct action what shall be law.”
Pages of judicial learning of the character above given might be quoted. The idea, that a vote of the people favorable to a proposed law, without which it cannot be “a law complete in itself,” is a contingency upon which “a law com-*359píete in itself” is dependable for vitality, is generally rejected. ' ■
Existence or nonexistence of a law is one thing. That involves wholly matter of expediency and is wholly within the legislative field. .Whether a law “complete in itself” shall be pnt in force is another. It is the latter which may be made to depend upon a future contingency. It seems the court, in the Janesville Case (26 Wis. 291), confused the two, holding that a mere proposal for a law, complete in form, is “a law complete in itself,” within the meaning of local option decisions, and so reached the conclusion, in effect, that the contingency upon which a proposed form for a law may be law in fact may be a favorable popular vote.
The foregoing sufficiently shows why I cannot concur with all grounds for the decision on the first point discussed in the court’s opinion. The doctrine that laws may be made by the referendum process — and I cannot escape the conclusion that such is the effect of the rule followed — seems to be subversive of one of the basic principles of our form of government. While the constitution declares that the chosen members of the legislature shall be the lawmakers, -such doctrine is to the effect that they may lay the burden upon the people at large.
I cannot bring myself to concur with my brethren on the first point, even on the ground of stare decisis, without extreme hesitation. I would prefer to join, if it were possible, in overruling Smith v. Janesville, and make the law of this state harmonize with that of the country generally. The court would be warranted in that, to save an important constitutional principle, especially where it will not disturb any rule of property. It should be done now, if ever, as to the point under discussion. However, my brethren being unanimous on the ground of stare decisis, primarily, I will concur but not on any other.
It is dangerous for a court to refuse to correct an early *360mistake on a great question of constitutional law, where a remedy may be applied without disturbing vested personal or property rights. “ConsistencyIs a jewel” as applied to judicial holdings as well as to human actions in general, yet it is not so priceless but what it were better to sacrifice it, in some instances, than to purchase it in exchange for a fundamental principle.
In the foregoing there is no purpose to condemn, in the slightest degree, as an original matter, the making of laws by the referendum process. Such method may be, from an original standpoint, the height of wisdom. The question is, What is the policy incorporated in the constitution ? If that be not the best, it should be changed if at all in the constitutional way, not by subverting the fundamental law. The same power that established one way can change or abolish it altogether. The wisest course, the safest course, and the only right course, is to maintain the integrity of the constitution as we find it, till the power which made it sees fit, in the manner provided by it, to change it.
The government of this country, as said by Chief Justice MaR,sha:li. in Marbury v. Madison, 1 Cranch, 137, is a government of laws and not of men. That fundamental idea must not he forgotten. Any departure from it endangers the very purpose of government to conserve our birthrights. The constitution is the paramount law. Legislatures and judges are sworn to support it as they find it, regardless of their notions of expediency from an original standpoint. It having delegated power to make laws to a particular agency, that agency is exclusive. If it were for legislatures or courts, by any ingenious contrivance, to do in one way what the people, in the exercise of their original right to create a governmental fabric, ordained shall be done in a particular way, such assumed omnipotence to abuse or abdicate a trust would neutralize the dominant feature which is the crowning idea of any written constitution. It is upon these consider*361ations that I so question the referendum method of making law, regarding Smith v. Janesville to have seriously invaded •our constitutional system. Yet by long tacit adherence thereto, the error, as we have seen, has become so implanted in our system that, standing alone, I could not change it if I would. Because of the futile character, at this late day, of a formal dissent, I submit to go with my associates, expressing no opinion as to whether it were better that the people had, unquestionably, reserved unto themselves authority to both initiate and make laws.
I concur that the primary act does not violate the guaranteed right to “peaceably assemble to consult for the common good” nor the general spirit of the constitution guaranteeing liberty of citizens to maintain political parties and to do all things reasonably necessary to make party organizations effective to secure vitality of their principles. I concur for reasons stated in the court’s opinion, and for others necessarily inferable therefrom, and for still others.
It is contended for appellant that the legislature cannot prohibit party conventions and declarations thereat of party principles. I understand the learned attorney general to freely concede that, but to contend there is no such prohibition. Appellant’s counsel concede there is no express prohibition, as the fact is, but suggest that the spirit of the law supplies want thereof; that such has been the practical construction of the law, and that it should be treated accordingly.
So it is, in effect, argued that the law should be viewed in its spirit and condemned the same as if what is suggested to be in spirit included therein, were expressed in the letter. The constitutionality of a law is not to be thus tested. It is to be upheld as legitimate, unless it is otherwise beyond reasonable doubt. If in letter, it is constitutional, it should be sustained as thus expressing the legislative purpose, rather than to seek by construction, for a meaning which will require its condemnation. The letter may be violated to sus*362tain an act in its spirit, if in the latter it is legitimate though in the former it is not. It should not be unnecessarily viewed in a supposed spirit to condemn it, since it is not to be thought the purpose of a lawmaking power, in any instance, to have been to violate the constitution.
It must be conceded that, under our form of government, political parties are promotive of public welfare; that they cannot exist without organizations and that the organizations cannot exist without freedom to assemble in mass or delegate conventions for the purpose of consultation as to party policies and declaring, such policies. Therefore, it is not reasonable, unless it is unavoidable, to conclude any legislative enactment to have been" intended to abolish or abridge opportunity to do those essential things or to make doing the same, or any thereof, contrary to public morals. On the other hand, it would seem that the holding of party conventions should be regarded as not only permissible but commendable, instead of reprehensible, in the absence of unmistakable words in the written law to the contrary. Perfect freedom, in that regard, has existed from the foundation of our American system. Its continued existence is necessary to the maintenance of that system. Common sense teaches it; experience affirms it; the constitution in spirit guarantees it; and every court that has spoken on the subject has recognized and dignified it
The supreme court of California in Britton v. Board of Elec. Comm'rs, 129 Cal. 337, 61 Pac. 1115, voiced the common judicial sentiment in these words:
“No one can be so ignorant as not to appreciate the value, indeed the necessity, of opposing political parties in a government such as ours. No one, it would seem, can be so thoughtless as not to realize that government by the people is a progressive institution which seeks to give expression and effect to the wisest and best ideas of its members. No declaration is needed in the Declaration of Rights to the effect that electors holding certain political principles in common may *363freely assemble, organize themselves into a political party, and use all legitimate means to carry their principles of government into actual operation. ... It is inherent in the very form and substance of our government and needs no expression in the constitution.”
And further, in effect, conventions of political parties have long been known in the history of this country. The right of members of a political party to freely assemble, deliberate and act, to promote the interest of such party, is a right guaranteed by the constitution, state and national. Ereedom to do those things, reasonably appropriate to the effective maintenance of party organization, cannot be abridged. “Self-preservation is an inherent right of political parties as well as of individuals.” The California court, in connection with these emphatic declarations,' freely acknowledged the constitutional right of such regulation of political parties as serves to promote their legitimate end, while denying the existence of that power of regulation which would turn a shield designed to protect into a sword to destroy.
Every court which has considered any of the numerous modern efforts to regulate the process of selecting party candidates for public office, has recognized not only the legitimacy but the importance of political parties. Regulation acts all dignify that idea, making political parties a part of the election instrumentalities of the state. The purpose, and the only legitimate one, of such an act is to regulate for conservation, not for prejudicial restriction or destruction. In construing such an act, if in its letter or from one point of view such purpose is violated, courts should look at it in some other aspect, or in its spirit, if need be, taking into consideration the abuses designed to be corrected and all appropriate rules for judicial construction, in order to arrive at a meaning within the scope of the language used in the act, consistent with guaranteed rights.
True, history under the primary act would indicate that *364the idea bad taken, root that it prohibits bolding party conventions with any of tbe former usual purposes. But one will search tbe law in vain to find any such idea therein, or anything to reasonably lead to that conclusion, except that a party candidate, however suggested, cannot have his name placed on the official ballot unless he receives, at least, a plurality approval of such members of his party as may see fit to vote at a primary election conducted as the law provides.
It being conceded that political parties are necessary under •our system and assemblages of some sort of party members are appropriate, if not necessary, to their effective maintenance, that the primary act contains no prohibition in that regard, it is useless to claim that the act either outlaws political conventions or makes the holding of the same contrary to public morals.
It is suggested that the law unreasonably interferes to prevent the making of party platforms in convention as well as the nomination of candidates thereat, since it provides a different way for each. T.rue, as it seems, only to the extent that the party platform as it may be promulgated by a party convention, or other party authority, must be put into its final form by the party candidates nominated at the primary, and that candidates, if suggested at a convention, must obtain indorsement at the primary as a condition precedent to their names being placed on the official ballot. The required indorsement may well have been, and doubtless was, considered by many, at least, who voted for the primary act, a means of rendering ineffective such abuses in securing a place on the official ballot by the old way, as had in the judgment •of some commonly occurred, and were liable to occur again, by compelling a candidate, notwithstanding the convention indorsement, to stand the test of the primary as well.
Not only is- there perfect freedom of party action as indicated, for aught there is in the primary act, but I think it •clearly contemplates such action. Such indications are *365many. They were, doubtless, incorporated therein for the very purpose of preventing successful attack upon its validity. I will specify some of them.
Existing political organizations of parties were not, in any respect, abolished or prohibited. Moreover they were dignified as a part of the state election system, as we have seen.
Sec. 21 requires creation of all political committees which had been customary, from state committees down to committees of voting precincts. Such preservation and dignification of the old organizations must have been for a purpose. It would be unreasonable to suppose' that such a perfect system was preserved as a mere matter of form; that the legislative thought was to preserve such political machinery and yet destroy the effectiveness thereof. It must have been thought, by many at least, who consented to pass the act, that the party committees so carefully provided for, in harmony with existing conditions, and the members of the respective parties, would be left free to do, in general, everything commonly done which was not prohibited. The inference to that effect seems irresistible from the fact that, after providing for all the usual committees, they were not prohibited from acting as before, except in so far as inconsistent with the act. Consistency would obviously require convention candidates to secure indorsement at the primary before having their names placed on the official ballot and a specified indorsement before having their names go on the primary ballot. There is no express or implied prohibition of convention nominees having their names, in due course, so placed, and, if it were otherwise, there would probably be no division of opinion as to its being an illegitimate interference. But to put the matter beyond all reasonable controversy, the legislature industriously provided that “Each committee and its officers shall have the powers usually exercised by such committees, and by the officers thereof, in so far as is consistent with this *366act.” And, further, to prevent even temporary interference with other party operations as theretofore, it was provided that the existing nonofficial committees should, till the election of their successors under the primary law, exercise all power mentioned.
Now as to the declaration of party principles by which electors must test their political status, there are clear indications that pre-primary announcement by conventions or by some party authority was contemplated. How could a candidate know, with any definiteness, the principles of his party in advance of some such declaration ? Is it reasonable to suppose it was contemplated that knowledge of the party principles-would be postponed till the declaration by the candidates should be given out as provided in see. 22 of the act ? The idea of nominating a party candidate without knowledge in prcesenii, of the party principles for which he will stand, leaving it to him and his associates to proclaim to the members of the party the party principles, has appeared so absurd as to be pointed to as a most glaring infirmity of the act. That idea, in my judgment, is no more a part of the law, in fact, when reasonably construed, than the one that it prohibits holding party .conventions. It not only is not in the act, but significant features thereof clearly, to my mind, negative its being there.
One of the features suggested is in see. 5. Each signer of a party nomination paper is required to proclaim therein the party to which he belongs, and that he nominates the candidate named by him “as representing the principles of said party” and that he intends to support such candidate. Does not that, necessarily, presuppose common present knowledge by members of the party of the party principles ? Does it not clearly negative the idea that candidates after being nominated are to then proclaim to those who nominated them what their principles are, in respect to which all had previously pledged themselves? How could one make his affi*367•davit without party principles having been, by some party authority, made known prior thereto? How could they be •so made known, except by a party conference at which all members of the party would have opportunity to be heard personally, or representatively, through operation of party machinery ? Moreover, how could one named at the primary to stand for party principles make the affidavit required by secs. 11-18 of the primary act, as amended — that he will ■qualify if elected, in effect, making oath that he will, if elected, take office and strive to vitalize the principles of the ■party, — unless, in contemplation of law, he then knows what those party principles are ? How can he then know them if ■the party platform is to be made instead of merely “formulated” at the meeting required to be held under see. 22, since the latter event is required to occur long after the former? Again, how can the party principles, referred to in the nomination paper, or contemplated in the affidavit of the party candidate, have any reference to the, now customary, personal declaration of a party candidate as to where “he stands” — something very novel, if not unheard of before the primary law ? Does not the required declaration under oath •of the party nominator and that of the party nominee, condemn the idea that the mere personal declaration of a would-be party nominee as to “where he stands,” is the test ■of party faith prescribed by party authority, to which both nominator and nominee are required to pledge themselves? The personal declaration may be known when the nomination paper is filed, but very little, if any part of it, may be embodied in the “formulation” of the platform, which subsequently occurs. It could not'stand as a party pledge, in any ■event, except in a personal party sense, since not put forth by political party authority. Yet the declarant — if a somewhat popular notion of the primary law is right — is liable to find himself in the dilemma of trying to ride several political horses at the same time, one of his own creation before *368tbe primary, one created by some party authority prior to the signing of the nomination papers, one created by himself and associate candidates subsequent to the primary, and one created by the national party authority.
'The idea that the primary law was framed on the lines suggested should not be thought of for a moment, if the words thereof do not unmistakably require it. When we see that the scheme in all its parts contemplates some authoritative-declaration of party principles before the signing of nomination papers, and with reference to which the nomination pledge would be made and to which future action would be referable, all parts of the law harmonize with a rational conception, and all supposed unreasonable and so unconstitutional interferences in respect to the matter, disappear.
Further plain indications that the primary act contemplates knowledge of the party principles to be contended for at the coming election, before signing nomination papers, is found in sec. 22. While it provides for a meeting of party candidates for platform purposes, it does not provide that they shall make a platform, but that they shall “formulate”' one. Why did the legislature so industriously use the word “formulate” if “make” was meant? Formulate is satisfied without making at all, in the sense of an original declaration of principles. The common meaning of the term “formulate,” is to reduce to a form; to express in formula; to put in a clear and definite form of statement or expression. To originate is one thing; to put in concise form of. expression understood principles is another. That the law contemplates the latter only, is made plain because it provides that upon the day for the meeting of candidates for platform purposes, they shall “forthwith formulate” (put in concise form of expression) “the state platform of their party.” No time is allowed for deliberation, as in case of an original declaration of party principles. All is consistent with there having been, previously, such a declaration. Candidates are re*369quired to meet at 12 o’clock noon, and “formulate” tbe platform “before doing any other business.” Thereupon they are required to do much other prescribed business, all other proper business desired and to publish the platform before 6 p. m. the day following that of the meeting.
Why such, haste? Is it at all consistent with the idea of that deliberation and discussion of, and agreement upon party policies, necessary to the making of a party platform in. the ordinary sense and which the constitution guarantees opportunity for ? At the same time is it not perfectly consistent with the idea of the party policies being known at the time of making the pledge by nominators and affidavits of nominees? The suggested answers make sec. 22, supposed by many to be absurd, and pointed to as an altogether senseless, a fair enactment.
I concur that the feature of the primary act as to nomination of candidates for United States senators, properly construed, is not unconstitutional, for reasons stated in the court’s opinion, which will bear further elaboration.
It cannot be made too plain or too emphatic that, while the national constitution remains as it came from the fathers, all attempts to directly, or indirectly, nullify or materially weaken the requirement that United States senators shall be chosen (appointed) by state legislatures, must fail. The dignity of the provision in that regard has not been appreciated by some courts which have dealt with the matter.
It has been said by some courts, quite correctly, that the action of the primary is no more or less than a method of exercising the right of petition and that the agents petitioned to are no more bound thereby than in any other case of like manifestations of desire. In others, it has been said, quite loosely, that the result of the primary does not create a legal duty; it only creates a species of obligation. How there can be a legal obligation without a corresponding duty, is hard to perceive. The logic, in the literal sense, seems absurd. If *370it be meant an obligation to respectfully consider the wishes of the petitioners and their reasons in connection with all other matters bearing on the question, in forming judgment respecting exercise of the constitutional power of appointment, I perceive no infirmity in it. If it means an obligation, legal or moral, to surrender the discretion incident to the constitutional power of appointment vested in the members of the legislature, then, manifestly, the law, so construed, would be nugatory.
One of the most troublesome questions in the constitutional convention was, whether senators should be elected by the people or appointed by the state legislatures. There were two radically different schools on the subject, and a third of lesser significance, as indicated in the court’s opinion.
The views of those who advocated leaving the duty of selecting senators with the state legislatures as an appointing power, prevailed and for reasons, in the main, inconsistent with an election directly, or indirectly, by the people, or the members of the legislature acting in the discharge of their duties otherwise than according to their own unbiased, un-coerced judgment. The term “elected” was eliminated and the term “appointed” used instead in the final act of the national drama. This was the form in which the matter was put: “Motion for an appointment of the senators by the state legislatures.” On this all the states represented, ten in number, voted “Aye.” Rhode Island, New Hampshire, and New Jersey were not represented in the final vote.
The school of statesmen which advocated election by the people did not submit to the convention plan. In the contest over the question of ratification, the merits and demerits of such plan were fully discussed, the leaders in the affirmative being Hamilton, Madison, and Jay. They argued that the very purpose of a senate required the appointment of its members to be removed from the source of selection of members of the popular branch, as far as practicable j such pur*371pose being to prevent popular impulses in prcesenti, — liable to be produced by tbe appeals of well-meaning theorists or of thoughtless demagogues bent on promoting selfish ends by arousing unreasonable prejudice, — to be regretted upon reflection and consideration after reason had resumed its customary sway, from controlling in directing the important affairs of government of a great people. It was said that there was as much danger from the abuse of liberty as from the abuse of power, and that while one body should be selected by such method as to minimize the danger of the latter the other should be selected by a far different method, one most likely to guard against danger of the former.
In harmony with the peculiar functions of the senate to secure the country against danger of hasty action under the impulse of popular clamor of the hour, and to furnish the element of conservative force requisite to a stable, safe government, on the basis of our American conception of the rights of men, it was in effect urged that the senate should have a dignity and permanency and independence of mere momentary popular intérference, akin to the high judicial status, and so should have the source of selection of its members removed from that of the popular branch. Mr. Madison, speaking on the subject, said:
“It must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures and with the genuine principles of republican government.”
Referring, in support of that idea, to the lessons of history, it was said, in substance: No republic ever long existed without a senate and in case of one, permanency was promoted or otherwise as the plan of organization assimilated to the one proposed. Such a body as the proposed senate has never been successfully oppressively dominant but been, in the long run, uniformly a conservative force making for the public good and the strength and permanency of the govern-*372meat. Selection of members of tbe higher branch, designed to be the legislative balancing feature, can best be made by a deliberative, representative body, selected by the people. The tendency has been for the popular branch to encroach upon the senate rather than for the latter to encroach upon the former. As the power of the senate for the purposes of its creation became weakened the government became weakened also and the tendency was to decay.
After a long period of public discussion and of education the people adopted the constitution, fully understanding that the members of the respective legislatures, untrammeled by interferences with the exercise of judgment, would be charged with the important duty of appointing United States senators.
Can it be supposed that, had the question of whether it was competent for the people, by a primary election method, to impose upon the members of a legislature, either a legal duty or a moral obligation to surrender their respective individual judgments in respect to the choice of a United States senator, come before the first great judicial expounder of the constitution, Chief Justice Maeshall, with all the circumstances of the adoption of the convention plan before him, there would have been any hesitancy in answering in the negative ?
It must not be lost sight of that United States senators are federal, not state officers. The legislature of a state has no more right to change the appointing power reposed in it by the federal constitution as to the matter in question than in respect to any other power lodged by the constitution in it exclusively. It has no more authority to abdicate its funo tions by descending from its constitutional status as a repository of federal appointing power, to the level of a mere agency to effectuate the result of a popular choice, as indicated by a vote of the people, than it has to provide that the justices of this court shall, in applying the law, submit to be guided by popular advice or judgment.
*373If the system as stated is not the best policy, independently ■of fundamental limitations, it "can only be legitimately changed by the power of the people of the country at large, in the exercise of their constitutional right to change the constitution. There can be no legitimate mere state interference, and all ingenious contrivances to that end should fail and fail utterly. If a course of action which, with good motives or bad motives, could successfully improperly interfere in one field it could do so in all directions, and the skill of those who might be impatient of the fundamental restraints which, properly applied, would limit their capacity to vitalize their theories of government, would not be found inadequate, in practical effect, to subvert the constitution altogether; that instrument which has been characterized by statesmen on two continents as the greatest single achievement of the human mind in the century in which it was produced.
The logic of the court’s opinion on this last branch of the case, to me, seems unanswerable. If the primary act were ■construed as imposing upon members of the legislature, either the legal duty or moral obligation to abide by the verdict rendered at the election, it would require judicial condemnation. It can only be supported on the theory that it is merely advisory, from the standpoint of citizen petitioners as of the time of holding the primary, and of much, or little or no significance whatever, according to circumstances.
It might manifestly be the duty of members of the legislature belonging to a particular party to vote for some other person than the one petitioned for by members of such party, who voted at the primary. He might have but a small minority support of the party though having a plurality. He might be found on investigation not to be truly representative ■of the party principles. The aspect of his candidacy might entirely change in the interim between the primary and exercise of the appointing power, so that the advice of the party petitioners who voted at the primary, under different circum*374stances could not properly bave any weight and the petitioners would, in the new situation, as largely concur in their former advice being ignored as they did in giving it. So it is not only the right but the sworn duty of' members of the legislature to exercise their respective official judgments, giving to the result of the circumstantial preference suggested at the primary, just such weight as, in their wisdom, may seem best and no more. In that view, the part of the act under discussion is sustainable and not otherwise, and such is but elaborating the views of the court, as I understand them.
Construed as the court construes the primary law, and as I view it, consistent with the court’s decision, it is free from the imperfections which have been commonly pointed out as grounds for condemning it and it is, throughout, a fair, sensible, constitutional piece of legislation. Of its wisdom I need not speak. If the practice under it and the common criticisms of it have been upon a false theory, one which if incorporated therein would render it destructive and void instead of regulative and beneficial, that is not the fault of the law, but of the people in following false theories, as I think, instead of asserting and enjoying their constitutional rights, which are rather conserved than injuriously interfered with, by the law.