(dissenting).
I cannot agree with the majority opinion. It infers, without quoting directly the allegations of the plaintiff, Plunkett, that said plaintiff based his cause of action, as a qualified voter of Wagoner County, upon the claim that unless the defendant, Wagoner County Election Board, was restrained, or enjoined, from certifying to its previous tabulation of votes for State Senator in the primary election involved; and the evidence of illegal voting heard by the Court; and the votes, found to be il*538legal, decreed to be. null and void and prohibited from being counted, then his, and other legal votes, cast for Candidate. Payne would be cancelled and nullified by illegal ones cast for Candidate Russell.. Plainly his position that his constitutional right, and that of other qualified voters who voted for Payne, to a free and equal election, under Art. Ill, § 7, of the Oklahoma Constitution was violated — if illegal votes cast for Russell were given equal weight and value with theirs — is not a claim of the “total invalidity” of an election (referred to in the majority’s quotation from Garrett v. London, 107 Okl. 72, 229 P. 1074; nor is it the traditional and ordinary basis (or cause of action) for a candidate’s proceeding for a recount. Nor is it the usual basis for an action .to try title to an office. Certainly the constitutional right Plunkett asserts is not one that is peculiar, and exclusive, to him, but neither does he claim any interest in the office involved. (As far as his petition shows, he is not an aspirant to any office.) The emphasized portion of my last statement is the crux of the distinction between this case and Garrett v. London, supra, on which the majority relies for its holding (first syllabus) that “A qualified elector * * * is not a proper party plaintiff * * * ” in the present action. A reading of the complete opinion in Garrett v. London, supra, will show beyond doubt, that it is not analogous to the present case, either in facts or in principles of law applied therein. The- difference in the two cases is briefly indicated by the following' excerpts which include that portion out of whose context, the majority’s quotation was extracted. At page 74 of 107 Okl., at page 1076 of 229 P., reads in part, as follows:
“ * * * it is claimed that a number of qualified voters were illegally prevented from casting their ballots; that these electors, if permitted to vote, would have voted for plaintiff; that these votes so offered, would have been sufficient to overcome defendant’s majority, and cause plaintiff to have sufficient votes to entitle him to the nomination. * * * ” (Emphasis ours.)
And at page 76 of 107 Okl., at page 1078 of 229 P., from which the majority’s quotation is taken, it is said:
“Here again, the title to the office was claimed by the party who began the action. We are cited to no case within this jurisdiction, where a person not claiming title to the office or some peculiar interest therein has been permitted in his own name to prosecute an action to oust the encumbent of the office. The statutes giving this right of action were intended to protect the interest of one claiming the office; but it nowhere appears that it was intended that an individual should be substituted [for] the representative of the public at large to prosecute an action claiming the total invalidity of an election." (Emphasis ours.)
Nor does the majority opinion’s reference to actions in the nature of quo warranto and statutes concerning them, such as Tit. 12 O.S. 1951 §§ 1531 and 1533, relieve it from the fault of attempting to measure Plun-kett’s above-described cause of action by rules and statutes applicable to actions to try title to, or oust persons from, office, and to proceedings for a recount by a candidate. Quo warranto, or an action of that nature, is the proper way to try title to an office when it is being usurped by one not entitled to it. See Matney v. King, 20 Okl. 22, 93 P. 737, 745; Jarman v. Mason, 102 Okl. 278, 229 P. 459. Of course, a party claiming no interest in the office has no right to institute, in his own name, an action in the nature of quo warranto: Such an action can only be brought by, or with permission of, the attorney general or county attorney. But, this action is not of that character. Therefore, the cases of Cheek v. Eye, 96 Okl. 44, 219 P. 883, and the others immediately following it, in the majority opinion, are not applicable. The • “action” in the majority opinion’s broad statement of the rule for which it cites these cases is an action in the nature of quo war-*539ranto and those cases did not purport to make it applicable to injuries, generally, as the majority statement would infer. The gist and rationale of a substantial part of the majority opinion, when correctly analyzed, is simply that since an individual member of the public has no right to bring an action in the nature of quo warranto in his own name — nor an election'contest— that by the same token, Plunkett has no right to bring the action he has brought. This is faulty reasoning. The conclusion does not necessarily follow from the major premise. The fact that a private citizen has no peculiar or particular right or interest in the office involved is good reason for holding that he cánnot institute an election contest or bring a quo warranto action in his own name. It is no reason, however, for holding that he cannot bring the type of action Plunkett has brought He claims no ■right or title to any office. He merely seeks to enforce his constitutional right to “free and equal” suffrage — a personal right guaranteed him by the Oklahoma Constitution. And he asked for a court inquiry and judgment that would protect his legal vote in the senate race. When such inquiry, or trial, was held, and judgment- rendered -in the trial court, it had the effect of changing the result of the race for State Senator in Wagoner County — and, as an ultimate consequence, changed the result of that race in the whole district. But that was no concern or object of Plunkett’s, as long as the court’s judgment .preserved to him his right, under Art. Ill, § 7, supra, and sec. 6, of the Oklahoma Constitution. If, as the trial court determined, Plunkett’s vote, and like votes, in the election board’s tabulation were allowed to be cancelled -by illegal votes, then, under the great weight of precedent from other states having provisions in their Bills, or Declarations, of Rights, or Constitutions, like Art. Ill, §§ 6 and 7, supra, the right given or reserved to those voters under those-provisions was violated in the Wagoner County tabulation. In California, the ■ qualifications of voters are set forth in its Constitution’s Art.’ II, as they are in Art. Ill, of our Constitution. In Pierce v. Superior Court, 1 Cal.2d 759, 37 P.2d 453, 456, 460, 96 A.L.R. 1020, in a special opinion by Justice Langdon, it is said:
“The right to vote in this state is granted, and the qualifications of voters are prescribed in our Constitution, article 2, § 1. The status of the voter, if we must call it that, is established by the constitution, and not by legislative enactment. The legislature has prescribed certain regulations by the registration laws, which must be followed before the voter having the constitutional qualifications can exercise his franchise. But registration is not an element which determines the status of a voter; he'may be a qualified voter, though unable to vote in a particular election because improperly registered. [Citing, cases.]”
In State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041, 1046, 35 L.R.A., N.S., 356, the court said:
“So the right to vote is one reserved by the people to members of a class and 'as so reserved; guaranteed by the declaration of rights and by section 1, art. 3, of the Constitution. It has an element other than that of mere privilege. -It is guaranteed both by the Bill of Rights, and the exclusive intrustment of voting power contained in Section 1, art.-3, of the Constitution, and by the fundamentally declared purpose of government; and the express and implied inhibitions of class legislation, as well. Such declared purpose and the declaration of rights, so far as they go, and the equality clauses, — constitute inhibitions of legislative interference by implication, and with quite as much efficiency as would express limitations, as this court has often held. [Citing cases.]
“Thus is given the right to vote a dignity not less than any other of many . fundamental rights.”
In State v. Staten, 46 Tenn. 233, it was held:
*540“The elective franchise is a right which the law protects and enforces, as jealously as it does property in chattels or lands. It matters not by what name it is designated — the right to vote, the elective franchise, or privilege of the elective franchise — the person, who, under the Constitution and laws of the State, is entitled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind, which men may have and enjoy.”
The next question is: Of what does this right, guaranteed by our Constitution, consist? The answer is found in Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am.St. Rep. 457, one of the most cited and followed cases on this subject. There the court said, 66 P. at page 718:
“Article 2, § 1, provides that all elections shall be free and equal. To be free means that a voter shall be left in the untrammeled exercise, whether by civil or military authority, of his right or privilege. * * * The word ‘equal’ has a different signification. Every elector has the right to have .his vote count for all it is worth, in proportion to the whole number of qualified electors desiring to exercise their privilege. Now, if persons not legitimately entitled to vote are permitted to do so, the legal voter is denied his adequate, proportionate share of influence, and the result is that the election, as to him, is unequal; that is, he is denied the equal influence to which he is entitled with all other qualified electors. [Citing cases.] So that the ' term ‘free’ and ‘equal,’ used as they are, correlatively, signify that the elections shall not only be open and untrammeled to all persons endowed with the elective franchise, but shall be closed to all not in the enjoyment of such privilege under the constitution.” ■ (Emphasis ours.)
See also People ex rel. Lindstrand v. Emmerson, 333 Ill. 606, 165 N.E. 217, 62 A.L.R. 912, and Littlejohn v. People, 52 Colo. 217, 121 P. 159, 161, Ann.Cas.1913D, 610. Among the jurisdictions in which the above-quoted Oregon case has been cited and quoted with approval, is our own. The view that our constitutional guarantee of “free and equal” elections means that no impediment or restraint of any character, either direct or indirect, shall be placed upon the. voter, obtained the approval of this Court in Richardson v. Gregg, 144 Okl. 102, 290 P. 190, 193, citing Ex parte Wilson, 7 Okl.Cr. 610, 125 P. 739.
Granting, but not conceding, that the principal question involved in the ordinary election contest is a political one, and that the so-called “right” to public office sought to be enforced therein is not such a “property right” as a court o.f equity will enforce ■(as the authorities quoted in the majority opinion indicate) the right Plunkett asserted, and the questions affecting it, whose determination he sought in the present action, was not such a right, or question. And, it was no insurmountable obstacle to the trial court’s assumption of jurisdiction, that no statute exists specifically authorizing such an action. While it is true that Art. Ill, § 6, supra, directs that the Legislature, among other things, “make all such other regulations as may be necessary to * * * preserve the purity of the ballot * * and said section, in so far as it contemplated that" the Legislature enact laws to carry out its provisions, cannot be said to be self-executing, 16 C.J.S., Constitutional Law, § 53, Plunkett’s right to have his vote given all the weight and value a legal vote was entitled to, under the “free and equal” provision, sec. 7, supra, is not a right which needs defining by statute to make it enforcible, as plainly shown by the foregoing authorities. It is a fundamental right, guaranteed by the Constitution to all qualified voters; and, as such, needs no statute to define either it, or an injury to it. In addition to the foregoing authorities, see 11 Am.Jur., Constitutional Law, §§ 73-76, inclusive. If said section not be construed as self-executing, then the Legislature, by its non-action, could emasculate it. Ibid, sec. 75. But, the courts in up*541holding causes of action based on said right, have, in effect, held to the contrary. And, said right is just as alive and effectual in a primary election, as when involved in a general election. In the fourth syllabus of Craig v. Bond, 160 Okl. 34, 15 P.2d 1014, 1015, this court reiterated the following syllabus from Dove v. Oglesby, 114 Okl. 144, 244 P. 798:
“ ‘Under our scheme or plan • for holding elections and exercising the right of suffrage as provided in article 3 of the Constitution, primary elections are made a component element of the right of suffrage. They are made a necessary prerequisite to a general or final election, and the free exercise of the right of suffrage is, just as necessary in primary elections as in general elections, and hence, the provisions in section 7, art. 3 of the Constitution apply in primary elections the same as in general elections.’ ”
In this connection, see also People ex rel. Breckon v. Board of Election Com’rs of Chicago, 221 Ill. 9, 77 N.E. 321, 323, Ann. Cas. 562. After quoting extensively from Ladd v. Holmes, supra, the Court in the Wilson case, supra, said:
“The election provisions of the Constitution and the mandatory primary election law were intended for the protection of the party, and of the citizen in his rights as a member of a political party, and guarantee to him the right to express, through his ballot, at a primary election his wish as to the conduct of the affairs of his own party, and his preference in the selection of the candidates for office within his party. If this was not so, an elector participating in a primary election would he powerless, and without any method or means of protecting this right conferred upon him by the Constitution and law.”
Our Constitution, in its Art. III, § 6, by use of the word “shall” enjoins upon the Legislature the mandatory duty, see State ex rel. Ogden v. Hunt, (Okl.) 286 P.2d 1088, of making “all such * * * regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot ; * * In its Art. II, § 6, said document says:
“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong * *
In its Art. VII, § 10, said document invests district courts with “original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is' by this Constitution, or by law, conferred on some other court * * - Noté that the last cited article and section says “some other court”, and does not make the vesting of jurisdiction in an election board, an exception to the matters over which the district courts are therein given jurisdiction. There is nothing about the prescriptions in Art. III, §§ 4, 5, and 6 (describing what the Legislature “shall” do with reference to holding elections) which relieves that body from discharging its duty under the last portion of section 6, supra, to “preserve the purity of the ballot”, and to protect qualified electors’ right of suffrage in “free and equal” elections, under Art. Ill, § 7, supra. Nor do the cited portions of Arts. II and III relieve the district courts of our state of the duty enjoined upon them by Art. II, § 6, to afford a remedy for every wrong; or that divests said courts of the power to do so, vested in them by Art. VII, § 10, of jurisdiction in all cases except those wherein jurisdiction has been “conferred upon some other court * * * ”. In this connection, I find no fault in the construction placed on § 6, Art. II, supra, by Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 942, (cited in the majority) that it is a “mandate to the judiciary and was not untended as a limitation upon the” Legislature. But-that answers no question in this case. Here, the Legislature, as all must recognize, has not attempted to exceed such “limitation” in any way; unless Tit. 26 O.S.1951 § 391, was intended to encompass, and provide a remedy for, wrongs to private citizens in Plunkett’s category, as I say, it was not. *542Said section nowhere mentions any “parties in interest” except candidates. If we recognize that Plunkett’s cause of action is not the same as that upon which a candidate proceeds for a recount, then no statute has yet been enacted that gives him a remedy for such wrong. Of course, sec. 6, Art. II, is a mandate to the judiciary; but it is also self-executing. See Mayes v. Pitchford, 26 Okl. 129, 109 P. 821; State ex rel. Smith v. Brown, 24 Okl. 433, 103 P. 762. And, as I have pointed out, since there is no statute either authorizing or denying such a citizen the right to bring an action like Plunkett instituted, the district court violated no law (as the majority opinion infers) in assuming jurisdiction to try it. Self-executing provisions of the Constitution, such as Art. Ill, § 7, and Art. II, § 6, supra, of course do not necessarily exhaust legislative poiver, or restrict or prevent the Legislature from acting in the fields they cover.; hut any legislation enacted in such, fields must be capable of being reconciled and harmonized with the Constitution, or said legislation is unconstitutional. 11 Am.Jur., sec. 76, supra. The following excerpt from the opinion in the Adams case, supra, is quite revealing as- to the view upon which its decision was based. There it was said [63 Okl. 52, 162 P. 942] :
“Neither do we think it (Art. II, sec. 6) was intended .to prevent a-particular remedy for given causes of action in certain courts of the state, nor was it intended .to deprive the Legislature of the power to abolish remedies for future accruing causes of action (where not otherwise specifically prohibited), or to create new remedies for other wrongs as in its wisdom it might determine.”
I can agree with that view, but I say that if, by sec. 391, supra, the Legislature intended to give anyone a remedy for a wrong such as Plunkett asserted in this case, then such remedy must be complete, and include the right to a judicial review, or it takes from such a complainant thereunder, a constitutional right which is “otherwise prohibited”, i. e., by the due process clause of the Oklahoma Constitution, Art. II, § 7. In this connection see State v. Staten, and, 18 Am.Jur., Sec. 44, supra. The Workmen’s Compensation Act, 85 O.S.1951 § 1 et seq., dealt with in the Adams case, supra, did not purport to prevent judicial review of awards thereunder. On the contrary, it specifically provided for such review, as it had to, in order to afford due process. The majority opinion does not deal with this unconstitutional feature of sec. 391, supra, and consequently renders no decision upon one of the prime issues presented by this appeal. It merely calls it “a comprehensive plan for a recount hearing * * * The trial court held that in so far as, by its prohibition against court review of the Election Board’s decision, said section purports to deprive the courts of jurisdiction to protect a qualified voter’s rights under the “ ‘free and equal election’ ” provision of the Constitution, said statute is void and unconstitutional. He was correct. He was aware that under this court’s opinion in Brickell v. State Election Board, mentioned in the majority opinion, the Wagoner County Election Board, in arriving at the decision it reached in the recount, could not determine — and it had not determined —“such questions as ' * * * illegal voting * * * After discovering that Sec. 391, supra, affords no protection for such right of qualified voters who had cast legal ballots as against other ballots, which were apparently legal, but were in fact illegal, the trial judge concluded that this being so, the plaintiffs could invoke the jurisdiction of a district court possessing equitable power to give them relief under the constitutional mandate that “courts of justice” shall afford “speedy and certain remedy * * * for every wrong” Art. II, § 6, supra, and, under Art. VII, § 10, supra, investing district courts with “original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred upon some other court * * * The trial judge thereupon recognized, and gave effect to, one of the commonest grounds upon which the courts have exercised jurisdiction *543of cases involving elections, namely, the complainants’ lack of an adequate remedy at law. (See the cases cited and digested in the Annotations at 1 A.L.R.2d 588). He recognized that, by enacting sec. 391, supra, the Legislature had not effectively complied with the mandate the Constitution gave it. by Art. III, § 6. This court recognized, at least as early as Looney v. County Election Board, 145 Okl. 25, 291 P. 554 (10th syl.) that where the original decision in an election contest is “judicial", in nature, it must be subject to "court supervision", or judicial review. Consequently, if the Wagoner County Election Board had purported to determine the judicial question of which of the absentee ballots, valid on their face, had not been executed as specified by the Absentee Ballot Law,, and' therefore were not entitled to be counted — (which said Board did not purport to determine) — then its. decision would of necessity have been subject to judicial review, in dependent of sec. 391, and notwithstanding said section’s unconstitutional provisions prohibiting such review.
In its statement of the facts, the majority opinion purports to describe certain findings of the trial court with reference to the manner in which the absentee ballots, and the affidavits therefor, were executed and cast and filled out; and. it mentions said court’s finding that there was no fraudulent conspiracy to secure illegal votes. These are matters correctly pertaining only to the merits of the case, and have no place in an opinion on the preliminary question of the trial court’s jurisdiction to try the case. However, since the majority opinion mentions them, I think it appropriate to set forth just what the trial court’s findings were, on these matters. I therefore quote them verbatim as follows:
“IX.
“Several hundred of the absentee ballots cast in Wagoner County, Oklahoma, in the Senatorial Run-Off Primary election of July 24, 1956, were cast under onr or more of the following circumstances :
. “1. Application was not made by the elector either in person or by mail to the Secretary of the County Election Board, or done so by an agent authorized by law.
“2. Persons voted by absentee ballot who were not absent from the County and Election precinct where they reside on election day, and who had no intention of being so absent at the time the application was made, and who were not suffering from any sickness or physical disability.
“3. Persons voted absentee ballots for a variety of reasons of personal convenience such as, “busy plowing,” “fishing”, “no baby sitter”, “wished to avoid the hot sun”, “went to another part of the county to work for a candidate on election day”, “had sick people at home they couldn’t leave”, or voted “because spouse was away and voted absentee.”
“4. Persons who were incapacitated by sickness or physical disability were issued absentee ballots well in advance of the date of the election, without designating an agent ½ writing to procure the same- election day.
“5. The absentee elector did not make ’ and subscribe to an affidavit before any notary public or officer or person authorized to administer' oaths.
“6. The absentee elector cast a ballot not only for himself but for other members of the family.
“7. Some person other than the absentee elector either marked the ballot or signed the affidavit, or the elector handed his ballot to an agent unsealed.
“X.
“There were more than enough absentee ballots cast without complying with the statutory requirements to change the result of the Senatorial Run-Off Primary Election of July 24, 1956, between the Plaintiff and In-tervenor, but it is not possible to deter*544mine with mat/w-jatical certainty ■ tire number of ballots so cast.
“XI.
“The evidence shows a concerted campaign on the part of numbers of persons interested in the re-election of Senator John W. Russell to secure absentee ballots in his behalf. The weight of the evidence does not indicate that these persons were conspiring to secure fraudulent or illegal votes by corrupt or illegal methods, but it is equally clear that ignorance, carelessness, and a desire to get as many as possible, for their candidate, caused them to violate in wholesale fashion the provisions of the Oklahoma Statutes. Among both agents who supplied applications and voters who voted absentee ballots personal convenience was the only test of the right to cast such ballots.” (Emphasis ours.)
Among the trial court’s conclusions of law was the following:
“When there are widespread and flagrant violations of the mandatory provisions of the absentee balloting laws on the part of hundreds of voters in a run-off primary election, and the ballots so cast are illegal ballots and it is not possible to accurately separate the legal from the illegal and determine within any narrow margin the true vote for each candidate, the Court may reject the ballot returns from the entire absentee ballot box and should do SO'.” (Emphasis ours.)
The majority opinion does not discuss the validity of such a conclusion in the present case, under the rule dealt with in the Annotations at 155 A.L.R. 677, at pages 682, et seq.; and, of course, that is not called for, if the trial court had no jurisdiction of the case.
However, I think said court did have jurisdiction. In my opinion, the Legislature, by its enactment of Tit. 26 O.S.1951 § 391, has not purported to pre-empt (to the exclusion of tne prerogative and duty of courts under Art. II, § 6, supra) the field of affording relief for the violation of the fundamental right guaranteed qualified voters by our Constitution to “free and equal” suffrage, as distinguished from “political rights” such as holding office, or of ousting others therefrom. It would consequently follow that the plaintiffs.herein, as such voters, had no adequate remedy at law, or by statute; and were entitled to invoke the equitable powers of the district court to provide them one. If, however, said election recount law be interpreted as such a pre-emption, and as prescribing such a voter’s exclusive remedy for the violation of such a right — then, as the trial court held — it is null, void and unconstitutional. Thus, under either view, i. e. (1) if sec. 391 did not provide plaintiffs a remedy; or (2) if it should be ignored as a nullity for providing them only an incomplete one, without the right of judicial review therein prohibited, and was therefore unconstitutional under the due process clause — the trial court correctly assumed jurisdiction of this case.
“The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. It imposes no duties, confers no rights, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it.” — Town of Medford ex rel. Fuss v. Early, 194 Okl. 566, 153 P.2d 633, 634.
I think the majority opinion should have affirmed the trial court’s jurisdiction, and then (and only then), it would have been proper and just to have considered the record, and the substantive law applicable to the evidence, and to have determined therein whether the trial court had adjudged this case correctly on its merits.
In his “specially concurring” opinion, Justice Williams says he believes Payne “was entitled in his recount proceedings to assert the alleged illegality of certain *545absentee ballots, notwithstanding the decision of this court in” the Brickell case. This individual view is the only apparent basis for said opinion’s preceding representation that: “Plaintiff Payne apparently abandoned his remedy under that provision of law * * * If, by the indefinite term “certain absentee ballots”, Justice Williams is referring to the absentee ballots that appeared on their face to be valid, but were not (under the provisions of the Absentee Ballot Law) then his statement concerns a matter which Payne, as well as the Wagoner County Election Board, knew could not be inquired into under the unequivocal statement of our views on the subject in the Brickell case. And, I reiterate that the Wagoner County Election Board did not attempt to inquire into, or rule upon, the validity of those ballots. If the majority of this court is now of the opinion that, under the proper interpretation of Section 391, supra, the Election Board could, and should, have received evidence and ruled upon such matters, then it should overrule the incorrect pronouncement made in the Brickell case, and clarify “the extent and scope” of such recounts which, the majority opinion expressly, and the Williams’ opinion tacitly admit “is not entirely clear * * *
If there had occurred in this case, what Justice Williams says could have occurred, and, after the Election Board’s decision, Payne, as suggested by Justice Williams, had applied to this court for the “proper writ”, then he would have been confronted (as he was in this case) by Section 391’s unconstitutional prohibition against court review. This points up the unreal position, revealed in both the majority opinion and the Williams’ opinion, that the constitutionality of said section is not an issue in this case. As hereinbefore mentioned, the trial court specifically held that in so far as said section purported to provide plaintiffs a remedy, to the exclusion of court jurisdiction, it was unconstitutional and void. How can this court correctly reverse said judgment and determine that said section did provide them a remedy, despite its provision excluding court review, without determining the constitutionality of said provision? To state the question, is to answer it — in the negative! I have hereinbefore shown that said section is unconstitutional. Neither the majority, nor any of the specially concurring opinions, directly question or anszver, what I have said about its unconstitutionality. They merely say that that is not an issue, or that said section furnishes a remedy.
It is obvious from an examination of the other special concurring opinions filed in this case, that certain matters referred to therein, other than those I have mentioned, if pertinent at all, would be so, only upon consideration of the case on its merits. Nothing said therein gives the majority opinion any support of substance on the question of jurisdiction. The “time element”, or considerations of expediency, furnish no valid ground for denying litigants’ fundamental rights. See State ex rel. McGrael v. Phelps, supra. As the majority opinion undertakes no decision on the merits of the case, the individual views expressed in the “concurring” opinions, warrant no further attention.
In accord with the views herein expressed, I dissent.