(dissenting). I agree fully with Mr. Justice TiMLiN’s views as to the merits of these cases; I do not share his doubt as to the meaning of the law. I am quite well satisfied that it can and must be construed as applying as well to every subordinate election district in the state as to the state at large, and means that in each election district a candidate for an office limited to the district must receive at the primary election at least twenty per cent, of the vote cast by his party for governor in that district at the last preceding general election in order that his name may be placed in the party column on the official ticket
In view of the importance of the case and the utterly indefensible character of this law, as it seems to me, I desire to add some comments of my own in as few words as I may, without elaboration or citation of authorities. We are guaranteed a republican form of government. That means a government where the sovereign power rests in the qualified electors and is actually exercised by officers chosen by them. ."When, therefore, the constitution defines the qualifications of electors, there is at once conferred upon those electors the right to vote, and that right no legislature can take away. There needs to bé no express guaranty of the right in the constitution; it is *52that right which makes the form of government republican. It cannot be taken away or materially impaired, because to take it away or materially impair it is to destroy the republican form of government. The right to vote means the right to vote effectively; not merely to cast a ballot under circumstances where it is certain that it can have no" practical effect, but to be able to record the voter’s will both as to men and as-to measures in the most effective manner which is reasonably practicable, consistently with the preservation of order and the securing of an. honest ballot.
There may be legislative regulation of this fundamental right for the purpose of preventing corruption or coercion of the electorate, for the purpose of making it impossible for illegal votes to be cast, and for the purpose of securing an orderly, speedy, and honest casting of the votes and ascertainment of the result.
All legislative restraints, conditions, or impediments to the-voter’s freedom of action which do not tend to accomplish one of these purposes, but which make it difficult for him to cast his vote with- the fullest practicable effect, either for principles or men in either state or national elections, have no constitutional justification for their existence. The weapon that “executes a freeman’s will” must be free if the man who-wields it is to be truly a freeman. It is true that political' parties as such have no constitutional rights guaranteed to them, and hence the specious argument is made that this law cannot be held unconstitutional because it affects or regulates, only the party and not the voter himself. This argument I regard as absolutely fallacious.
We all know that a republican government is and must be a government by party. Whether it would be better if it were otherwise is beside the question. All human experience up to the present time has shown that it cannot be otherwise so-long as human nature remains as it is. No significant change in governmental methods, no program of reform which is *53worth tbe name, no considerable scheme for the betterment of 'the race or the improvement of its conditions, can be instituted and carried through except by means of an organization such as we call a party. This is a condition and not a theory, and it must be recognized when parties are to be legislated against.
If, by legislation nominally directed against parties only, the individual voter stands in danger of being deprived of his ■effective voice in either state or national affairs, such legislation cannot be justified any more than direct legislation ■against the voter himself which has like effect can be justified. That such is the character of this legislation seems to me certain. While in terms aimed at a party, in effect it is likely at any time to deprive the diligent member of a great minority party of his right to effectively vote for the principles he believes in, because other members of his party are not diligent. This court has decided that no registration law can absolutely deprive a constitutional voter of his right to vote because of his own neglect to register his name, but must give him an ap-portunity to cast his ballot on proving his qualifications. Dells v. Kennedy, 49 Wis. 555, 6 N. W. 246, 381. Here, however, we have a law which is likely at any time to deprive •a legal voter of the possibility of easting an effective vote, not because of his own neglect, but on account of the neglect of others. I say “effective” vote, because it is common knowledge, so far as state or national elections are concerned, that the privilege of casting a vote in the independent column and not in any party column is of no value. Such votes are mere shots fired in the air. They are votes in fonn. They may •satisfy the unthinking voter, but they accomplish nothing. They are practically votes thrown away.
The member o'f a minority party is the person who is ■chiefly in danger of thus losing his power of effective voting. This is very plain, as it seems to me. Whether any considerable number of voters get out to vote at the primaries must always depend upon the interest felt by the voters in the re-*54suit. In a majority party there will always be interest, for there will always be candidates for the offices, both state and local, who will be pushing for the nomination and making active campaigns, because nomination will be considered almost, if not quite, equal to election. In a minority party, on the other hand, few persons will wish for the nomination and there will be competition only in rare instances. The consequence of this condition is not only certain as matter of theory, bnt equally certain as matter of history in this state. The fierce fight in the majority party will draw many of the lukewarm minority into the majority primaries; the minority primaries will be neglected; and thus it will be quite probable that the required twenty per cent, of votes will not be cast at the primary. When this happens on the primary vote for governor (as it has already happened once in this state prior to the existence of this law), the death knell of the party has been rung and the funeral ceremonies may well begin, for from that time on there can never be any standard from which to reckon the twenty per cent, in future elections. Nor can there be any resurrection, because the law apparently affords no opportunity for a new party to become recognized as such,, or for an old party which has once failed in securing the twenty per cent, to draw the breath of life again. Thus it may easily happen that a large body of voters composing nineteen per cent, of a great national party in the state may perform every political duty required of them and diligently attend the primaries, yet, because their party companions are-tempted to take part in the fierce contests going on in the ranks of the majority party, or are apathetic in early September and deem it more profitable to attend to their ordinary business rather than to go to the polls, may lose all power of effective voting, not only for one election but for all time to-come, unless the law be changed. When it is considered that in this manner diligent voters may be easily rendered unable-to effectively vote for Congressmen and for presidential elect*55ors and so be deprived of any voice in tbe great questions which are fought out in the political battle-field of the nation, the vicious character of this law becomes more apparent.
In my judgment the legislature cannot thus impair the diligent voter’s right to cast an effective ballot. If it be desirable to enact legislation to keep the voters of one party out of the primaries of the other party, there are ways in which it may be done without penalizing the voter who has performed his whole duty. The punishment should be fitted to the crime and should be inflicted on the guilty party and not upon his innocent neighbor.
The act is wrongly entitled. It should be called “An act to ensure the gradual extinction of all minority parties.”
The following opinion was filed December 19, 1910:
BaeNes, J.The law under discussion may have been intended to accomplish any one of several purposes. I do not assume to know what its real object was. It may have been and probably was intended to prevent members of one party from voting for the candidates belonging to some other political faith in the primaries. If this be the object of the act, it is easy to imagine how its purpose could be more fairly and more effectively carried out by the enactment of a law of an entirely different character. But the legislature is not bound to adopt any particular means of bringing about such a result, and I am not prepared to say that the legislature was not acting within the field of its discretion in attempting to remedy the incongruity aimed at in the particular way in which it did. Assuming that the right existed to reasonably regulate primary elections in the manner attempted, the percentage adopted is not so high as to clearly indicate bad motives or sinister purposes. I reached the conclusion arrived at by the majority of the court, although by a somewhat different process of reasoning. I do not desire to do more than state my *56conclusions, as this case has already produced a bountiful supply of legal literature. In its practical workings and effect the law is likely to operate temporarily to the disadvantage and demoralization of minority parties. That it will do so permanently, I do not believe. After all, the people are imbued with a sense of fair play and have little tolerance for an unfair fight. Such a law should tend to revivify any minority party that had a spark of vitality left, rather than to relegate it to the oblivion of the past with other “has beens.” So I believe that laws of this kind react on those responsible for their passage when their import becomes generally known. I have no sympathy with this law, but this is beside the question. The constitution places the lawmaking power with the legislature. Except as it may be prohibited from exercising that right by that instrument or otherwise, it has just as much power to pass a bad law as it has to pass a good one. When it acts in the field of its discretion its action is not subject to revision or to any censorship other than that which the majority of the people may thereafter exercise through the ballot..
The constitution nowhere recognizes political parties. It provides that every male person of the age of twenty-one years or upwards, belonging to any of the several classes enumerated, who shall have resided in the state, and in the election district in which he offers to vote, the required length of time, “shall be deemed a qualified elector at such election.” Sec. 1, art. Ill, Const. This is the only provision of the constitution which it is argued is violated by the so-called “twenty per cent, law.” The constitution simply prescribes what qualifications the elector must have before he is entitled to vote. It purports to confer no right except that to vote where the elector possesses the requisite qualifications. The twenty per cent, law does not undertake to prescribe any qualification for the elector, nor does it assume to prevent him from voting for any person or persons whom he wishes to vote for. It simply *57provides tliat before a political party can Have recognition as such, on the official ballot it must have cast a certain vote at the primaries. To say that, because the constitution requires ■a resident of the state to have certain qualifications before he can vote at all, it also guarantees that any political party with which he chooses to affiliate shall occupy a regular place on the official ballot, is in my judgment altogether too far fetched. I fail to see where one result follows as the logical consequence of the other. I am unable to bridge what I deem to be the chasm between the qualification of the voter and the right of á political party to a place on the ballot, and to hold that there is any constitutional disqualification of the voter because his party may not cast the required number of votes at the primary to secure a place on the ballot. It seems to me that the object of the 1909 amendment to the primary election law is too remote from the provision of the constitution referred to to be considered as an invasion of it. A law cannot be declared unconstitutional unless it clearly appears that it is so, and I am unable to see any such clear violation of the constitution as would warrant me in condemning the law.
This court adopted the rule at an early date that a law may be declared void though it violate no specific provision of the constitution. Durkee v. Janesville, 28 Wis. 464. This rule has been subsequently followed. At best it is a rule that should be sparingly applied. That deference which one coordinate department of the government owes to another forbids the exercise of such power except in extreme cases. It is only where a law operates unequally and perpetuates plain and palpable injustice, incompatible with the natural and inherent rights of the individual, that it should be held void where it does not run counter to any constitutional guaranty. I do not think that ch. 417, Laws of 1909, falls within this category of legislative acts or that it runs counter to the preamble or declaration of rights in the constitution, assuming that those provisions can be construed as having any applica*58tion. whatever to the right of suffrage. I supposed it was the settled law of this state that “mere party fealty and party sentiment, which influences men to desire to he known as members of a particular organization, are not the subjects of constitutional care,” and that, so long as “the right of the individual to vote for the candidate of his choice is not interfered with,” the constitutional right guaranteed is not infringed. State ex rel. Runge v. Anderson, 100 Wis. 523, 536, 76 N. W. 482.