I concur in the judgment.
The result reached in the majority opinion is highly desirable as it avoids what has been termed a “hit-and-miss, slipshod, irregular election” (see State v. Claussen, 216 Iowa 1079 [250 N.W. 195]) for the important office of judge of the superior court. I deem it unfortunate, however, that the majority of this court has thought it necessary or proper to overrule in any measure the ease of Bearden v. Collins, 220 Cal. 759 [32 P.2d 604]. While that case was decided by a divided court, the majority opinion there placed a workable, common-sense construction upon section 8 of article VI, based upon a reading of the entire section in the light of its history and purposes, and in the light of other sections of the Constitution, rather than a construction based upon a literal reading of a single sentence, which construction will admittedly lead to confusion and to absurd results in many cases.
As was said in Bearden v. Collins, supra, at pages 761 and 762: “Clearly, the provision does not contemplate a deferred election in a year when the general law provides for a regular election to fill the new term to begin the following year. Therefore, when a term is expiring at the close of the year of a general election, the occurring of a vacancy at any time in such year is a false quantity, except that, under the last sentence of said provision, the vacancy can be filled by the Governor, until the commencement of the new term. Moreover, in order to harmonize the first sentence of said provision and other related provisions of the Constitution with the sentence under construction, it is necessary to give it the above meaning.” In other words, whenever by reason of the approaching expiration of the term of an incumbent in the following January, an election to fill the new term is scheduled to take place at the general election in any given year, that election must proceed to completion in that year regardless of any vacancy which may occur at any time in that year, whether before or after April 1, by reason of the death or resignation of the incumbent. The majority of the court there refused to rest upon a literal construction of a single sentence of section 8 of article VI of the Constitution, which construction would permit an incumbent to resign at any time after April 1 and either (1) thereby defer the pending election for two years, or perhaps longer, if the next appointee *772should similarly resign two years later and after April 1, or (2) thereby nullify the results of a completed election of the successful opponent of the incumbent or nullify the results of a completed election of a successful candidate in an election in which the incumbent might not have been a candidate. The dissenting opinion in that case apparently recognized such difficulties when it there said at page 764: “If under a different state of the facts its literal enforcement would lead to an absurdity or tend to thwart the preferential right to elect, that situation may adequately be dealt with when it arrives.” In other words, such literal construction admittedly cannot stand the test under all circumstances.
As I read the majority opinion in. the present ease, it not only expressly overrules Bearden v. Collins, supra, “insofar as it is inconsistent with the conclusion” reached, but it also contains language which seems to indicate the adoption in toto of the views expressed in the dissenting opinion in that case. This leaves the law in a state of confusion as election officials and candidates for the office of superior court judge will be compelled to speculate, whenever an incumbent dies or resigns after April 1 in the election yetar at the end of his term, as to whether a majority of this court will adhere to a literal construction of the single sentence of said section 8 of article VI or will abandon such construction because in the particular circumstances they may feel that such construction “would lead to an absurdity or tend to thwart the preferential right to elect. ’ ’
In my opinion, the views expressed in the majority opinion in Bearden v. Collins, supra, are sound and there should be no departure from those views. The underlying purpose of the adoption of section 8 of article. VI of the Constitution was to avoid confusion in the operation of the election processes but the majority opinion hiere tends to create, confusion as above indicated. In the ballot argument, quoted in the majority opinion, it is said: “If a vacancy occur after April 1 of an election year, the time is too short to circulate petitions.” This is not true in the ejection year at the end of an incumbent’s term when an election is to be held in the normal course and all persons know before the beginning of that year that an election is to be held and that petitions may be circulated. The section under consideration was designed to defer an election to SU a vacancy occurring after April 1 only in those general election years in the middle of *773a term of the incumbent when no election would normally be held in that year for the incumbent’s office. In such years, any attempt to get the election processes into operation to fill an unexpected vacancy occurring after April 1 would almost necessarily lead to confusion and to a “hit-and-miss” election. The section was not designed, however, to disrupt the normal election processes in the general election year at the end of the term of the incumbent and thereby to deprive the electorate of the right to participate in an election at least once in each six years for the office of judge of the superior court. To adhere to a literal construction of the single sentence under consideration might deprive the electorate of that right for an indefinite period, for every normal election for the office to be held in the last year of the incumbent’s term might be deferred at the will of the incumbent or by the hand of fate.
The views expressed above do not, however, lead me to the conclusion that the writ should be denied under the circumstances presented here. In the present case, unlike the Bearden case, the election had been completed at the primary with the election of Judge Beardsley for another term. The only question here is whether the death of Judge Beardsley, following his election at the primary, should be held to open the door to a “hit-and-miss” election at the general election in November of this year. In my opinion, the answer to this question should be in the negative despite the fact that I believe such conclusion necessitates the overruling, at least in part, of DeWoody v. Belding, 210 Cal. 461 [292 P. 265], which case was likewise decided by a divided court. I agree with the majority opinion in that ease insofar as it holds that the candidate who was successful in obtaining a majority of all votes cast at the primary was “elected at the primaries,” that such election “was in effect a final election,” and that the death of the successful candidate after the primary “did not convert the primary election into a nominating election.” I do not agree, however, that the subsequent death of the successful candidate rendered such election “abortive.” While his subsequent death prevented him from later qualifying for the office for the new term, it did not affect the validity of his prior “final” election. There the election processes had spent their full force for that office for that year and a second “final” election should not have been held for that office at the general election of that year *774but should have awaited the orderly procedure provided for the primary and general election two years later. The same situation is presented here and no second “final” election should be held for the office in question at the general election this year. I therefore believe that DeWoody v. Belding, supra, should be overruled insofar as it is inconsistent with the views above expressed.
In the present ease, it should be said in justice to respondents that their opposition to the issuance of the writ was apparently fully justified by their reliance upon the majority opinions in Bearden v. Collins, supra, and DeWoody v. Belding, supra. But the result of sustaining the position of respondents would be to compel the holding of a “hit-and-miss” election in November, at which election any person obtaining a mere plurality of votes by the “write-in” method or otherwise would be elected. In my opinion, there is nothing in our election laws which requires or permits the holding of a second “final” election of this type.
In ordering the writ to issue, it appears absolutely necessary for this court to disapprove, at least in part, one or the other of the majority opinions in the above mentioned cases. The majority of this court has deemed it proper to disapprove, at least in part, the majority opinion in Bearden v. Collins, supra. It appears to me preferable to disapprove, at least in part, the majority opinion in DeWoody v. Belding, supra. While it is regrettable that the members of this court find themselves divided in their views on this important phase of the law governing elections, I feel impelled to express my views in opposition to the disapproval by the majority opinion here of the construction placed upon said section 8 of article VI by the majority opinion in Bearden v. Collins, supra. That construction is one which will in all circumstances avoid the interruption of the normal election processes by the possible occurrence of unexpected vacancies while such normal election processes are operating, and is a construction which will clearly indicate the course to be pursued by the officials charged with the duty of supervising the operation of such election processes.