(specially concurring).
I fully agree with the majority opinion. I feel, however, that I should elaborate on the right of the Legislature to provide for proper election laws and then to discuss the provisions of the laws promulgated by that body.
With reference to elections the Oklahoma Constitution specifically provides (Emphasis ours):
Art. 3, § 4: “The Legislature shall enact laws creating an election board, * * * and shall provide the time and manner of holding and conducting all elections; * * *
Art. 3, § 5: “The Legislature shall enact laws providing for a mandatory primary system, which shall provide for a nomination of all candidates in all elections for State, District, County, and municipal officers, for all political parties, including United States Senators; * *
Art. 3, § 6: “In all elections by the people the vote shall be by ballot and the Legislature shall provide the kind of ticket or ballot to be used and make all such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot; ⅜ ⅝ }}
These provisions of the Constitution make it perfectly plain that it is the Legislature that has the power to make laws to preserve the purity of the ballot.
The only statutory law now in effect with reference to a run-off primary election contest, or recount, is 26 O.S.1951 § 391, supra. That section of the statute' confers jurisdiction upon the County Election Boards to conduct recounts under the super*533vision of a district judge arid provides procedure therefor.
Prior to 1925 a defeated candidate had two remedies for contesting an election. His first remedy was a recount of the ballots. If he lost the primary election on recount he had a remedy by an action in quo warranto to try title to the nomination. Whitaker v. State ex rel. Pierce, 1916, 58 Okl. 672, 160 P. 890.
In 1925 the right to contest a primary election by quo warranto was abolished by the Legislature. Senate Bill No. 395, S.L. 1925, page 145. That provision of the law is still in effect and is found in Title 25 O.S.1951 § 1531. It authorizes a civil action in the courts to contest a general election, but specifically provides it shall not apply to primary elections.
In Dabney v. Hooker, 121 Okl. 193, 249 P. 381, in a civil action in the district court of Oklahoma County, to try title to the nomination for Attorney General, this court recognized that* the old remedy of quo war-ranto in primary elections had been abolished in 1925 and held in the first paragraph of the syllabus as follows:
“At common law, there existed no right to contest in the courts the title to the nomination of a political party for public office, and none now exists unless specifically provided for by statute.”
In the body of the opinion it was said:
“Is there any authority, statutory or otherwise, which provides for a contest of this nature? At common law there existed no right to contest in the courts the title to the nomination of a political party for public office. Jarman v. Mason, 102 Okl. 278, 229 P. 459; Landsdon v. State Board, 18 Idaho 596, 111 P. 133; State ex rel. Hatfield v. Carrington, 194 Iowa 785, 190 N.W. 390; Bradley v. Board [of State Canvassers], 154 Mich. 274, 117 N.W. 649; State v. Woodruff, 68 N.J.L. 294, 52 A. 294. * * *
“ * * * and, as the law now stands, there is no provision of the statutes of this state authorizing a plenary action for the contest of a primary election; such rights being purely political, it could not exist except by virtue of some statute authorizing the same.
“The argument is advanced that to safeguard against fraud and corruption in primary elections a civil action should be allowed by this court .to contest such elections. With this we do not agree. This is not a legislative but a judicial body. We are concerned only with the law as adopted by the lawmakers. It is apparent that the Legislature, at the time of the passage of the amendatory act of April 9, 1925, intended to abolish the plenary action for contest of primary elections, when they provided ‘ * * * that this act shall not apply to primary election.’ At the time of the passage of said act, the Legislature * * * knew that it was inherently impossible to try by civil action a contest of a primary election between the date of such primary election and the general election, and for that reason, no doubt, limited the defeated candidate in a primary election to a summary proceeding by recount and mandamus to complete such recount as provided by statute. * * * They may have realized that it would be practically impossible for a defeated candidate in a primary election to institute an action to contest a primary election, try the same in the district court, and under the rules of procedure, grant the defeated party in such suit the right to appeal in the time intervening between the primary election and the general election. They also had knowledge, no doubt, that under our system of jurisprudence the question would become moot after the general election. * * *
“It has also been argued that a defeated candidate, who makes charges of fraud and corruption, should at least have an opportunity to establish the same, by proof. Be that as it may there is no statutory law authorizing a con*534test of a primary election such as was instituted in the district court of Oklahoma county.” :■
The rule of law established in the Dabney and Jarman cases was followed in Looney v. County Election Board of Seminole County, 145 Okl. 25, 291 P. 554, 71 A.L.R. 420.
In 1931, the Legislature passed Senate Bill 139, now 26 O.S.1951 § 391, providing for election hearings and recounts. There was apparent reason for the Legislature in the passage of this Act after providing for a comprehensive recount hearing by the Election Board in conjunction with the District Court, to use the following language in the same section:
“ * * * and upon the completion of such hearing, the election board shall render its decision, and such decision shall be final and conclusive of All rights involved. No continuance shall ever be granted for such hearing for any purpose, and no appeal to or review by the court ' shall ever be taken or had from any final decision of the proper board so had governing any primary election. * * *
“It is the intention and purpose of this Act to prevent appeals or reviews of any kind or character and no court shall have jurisdiction of or authority to. issue any enjoinder, proceeding, mandamus or process to inquire into, review or control the 'action of any election board pertaining to primary elections.”
These statutory provisions were quoted and relied upon in plaintiff-in-error’s brief, and no contention was raised in defendant-in-error’s brief as to the constitutionality of either of said statutes or any part thereof.
The Legislature realizing that for a court to try a primary contest was, as pointed out in Dabney v. Hooker, supra, impractical, provided a procedure it thought would adequately protect the rights of all candidates. The recount contest provision provided that the recount should be conducted before the election board sitting in conjunction with the. district judge. The 'Legislature no doubt thought such a remedy would fully and adequately protect the legal rights of all candidates. As a general rule, at least, the,wisdom of the Legislature in this respect has been justified. For example in 1950 there were 471,773 ballots cast for the two gubernatorial candidates in the run-off primary. A state wide recount was granted covering all precinct votes and absentee, ballots before the 77 different county election boards sitting in conjunction with a district judge which resulted in a net change of only 49 votes. This result spoke highly of the honesty, integrity, efficiency and impartiality of election boards throughout the 77 counties of the State. This recount was completed without delay. Had courts been permitted to assume jurisdiction after the. recount it would have been possible that litigation might have been commenced in each of the 77 counties of the State. Such a situation, considering time necessary to complete the litigation in each county, and the time necessary for appeal and determination of the appeals in this court could" have resulted in the riame of neither can-' didate being placed on the general election ballot. Such would have created a chaotic condition. Such 'situations were no doubt foreseen by the Legislature causing the adoption of Sec. 391, supra.
The confusion in the present case has resulted from the legality or illegality of only absentee ballots. Perhaps the Legislature in enacting the “Absentee Ballot Law” was too liberal in allowing a legal voter to vote an absentee ballot, or too liberal in the procedure leading up to the casting of such a ballot. If this be so the Legislature, no doubt, will make more rigid requirements for legal voters desiring to vote such a ballot.
This court has consistently adhered to the rule announced in the cases cited herein, supra, for a period of thirty years. I think it is the only workable rule. In any event, as the instant case demonstrates, it would be manifestly impossible for this court to rule on a multiplicity of election appeals in *535time to adjudicate the matters before the nm-off and general elections.