dissenting.
I dissent. Since the construction of the statute has an important bearing upon the exercise of the demo*696cratic process by which candidates submit themselves to the decision of the electorate, and by which the voters are to be fairly and intelligently advised concerning the claims of those who seek office, I deem it necessary to set forth the reasons which militate against the majority opinion.
The law concerning the filing of statements by candidates at primary elections now appears as OES 255.030 and OES 255.040, et seq. The two sections above-specified were enacted by Oregon Laws 1945, chapter 50, as a single section, which, for convenience, has been divided by the revisers of OES. As enacted and as now written, the controlling and relevant provisions are as follows:
“ Any candidate * * * may file * * * for publication * * 0 with his portrait cut, if he wishes, printed or typewritten statements, on the conditions set forth in OES 255.030 to 255.070, over his or their signatures, stating the reasons why he should Toe nominated.” OES 255.030. (Italics mine.)
“The Secretary of State shall reject any statement or other matter favoring or opposing any candidate * * * which, in his opinion contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress. Such statements shall not be filed or printed in the voters’ pamphlet. Nor shall any candidate be entitled to display in the pamphlet any cut showing the uniform or insignia of any organization which advocates or teaches racial or religious intolerance.” OES 255.040.
*697The words “portrait cut” as used, mean engravings of a “conventional photograph of a candidate’s face, or face and bust, not over five years old.” ORS 255.020. The provisions for the rejection by the Secretary of State of “any statement or other matter” because it is libelous, etc., is in the nature of a proviso. The right given the candidate is defined in the first portion of the section as enacted, which is now ORS 255.030, and the proviso is for the obvious purpose of limiting the right therein given.
In Mackenzie v. Douglas County, 81 Or 442, 449, 159 P 625, 159 P 1033, this court, after citing Black, Interpretation of Laws, § 107, said:
“A proviso is commonly found at the end of the act or section to which it applies, and it is usually introduced by the word ‘provided.’ This, however, is not necessary to determine its character. It is the matter of the succeeding words, and not the form, that determines its legal character: Id., p. 270. Section 110 of the same work reads thus:
“ ‘The natural and appropriate office of a proviso to a statute, or to a section thereof, is to restrain or qualify the provisions immediately preceding it. Hence it is a rule of construction that it will be confined to that which directly precedes it, or to the section to which it is appended, unless it clearly appears that the legislature intended it to have a wider scope.’
“ ‘The general intent will be controlled by the particular intent subsequently expressed’: 2 Lewis’ Sutherland, Stat. Const., §351.”
In State v. Young, 74 Or 399, 406, 145 P 647, this court said:
“* * * The office of a proviso is to limit or restrain preceding enactments, and cannot be held to enlarge the scope of such preceding enactment:
*698Again we quote:
“When we speak of the purview of a statute we mean the enacting part or body of the act as distinguished from other parts of it such as the preamble, the title, saving clauses and provisos: * * Olson v. Heisen, 90 Or 176, 178, 175 P 859.
In the same case, at page 178, this court, by Justice Harris, said:
“The appropriate function of a proviso is to restrain or modify the purview of the statute in which the proviso is found: * *
See also Meyers v. Pacific States Lumber Co., 122 Or 315, 259 P 203; Holman Transfer Co. v. City of Portland, 196 Or 551, 249 P2d 175, 250 P2d 929.
In the light of these decisions, it is apparent that the provisions for the rejection of the objectionable matter described in the statute, operate only to exclude portions of statements which would otherwise be within the purview of the provision granting the right to publish statements in the Voters’ Pamphlet. Applying these rules, it appears that OPS 255.030 is the only portion of the statute which affirmatively gives to any candidate any right to publish anything in the Voters’ Pamphlet. If the matter tendered for publication is a portrait cut, i.e., “his”, the candidate’s, portrait, or his statement “stating the reasons why he should be nominated”, it becomes the duty of the Secretary of State to publish it, unless the statement “or other matter” filed comes within the exclusionary provisions of OPS 255.040. If the matter tendered does not come within the right granted in OPS 255.030, then there is no right to publish and the exclusionary provisions become immaterial. Beyond “peradventure of doubt”, *699the purpose of the provisions now found in ORS 255.040 is to exclude from the purview of the statute matters which would otherwise fall within it, and those exclusionary provisions are in the nature of provisos.
It has been suggested that the maxim “expressio unius est exclusio alterius” may be applied here with the result that any matter not within the express prohibition as libelous, obscene and the like, should be deemed to come within the provisions of the statute which grants the right to publish “statements” and this, regardless of the relevance of such matter to the candidacy of the person filing the statement. This argument is, in my opinion, unsound. The maxim in question is to be applied with caution, and merely as an auxiliary rule to determine the legislative intention. Scott v. Ford, 52 Or 288, 97 P 99; State of Oregon v. Standard Oil Co., 61 Or 438, 123 P 40; O’Neill v. Odd Fellows Home, 89 Or 382, 174 P 148; Cabell v. City of Cottage Grove, 170 Or 256, 130 P 1013. In none of these cases was the court dealing with the words in a proviso nor do they contain any support for the argument that the maxim should be applied as has been suggested. The essential fact is that we are dealing with exclusionary provisions limiting a right otherwise granted. If a statement and portrait cut were offered by the candidate “stating why he should be nominated” and coming clearly within the grant of right contained in ORS 255.030, and if then, an attempt were made to add a new classification to the statutory list which authorizes the Secretary of State to reject a tendered statement, then I would agree that the rule expressed by the Latin maxim would be applicable. Since the proviso had listed the objectionable statements requiring rejection by the Secretary, no others would be implied. Such *700was the ruling of this court in Kruckman v. Smith, 126 Or 395, 398, 270 P 474, where the court said:
“* * * The inclusion of the exceptions in case of death, resignation, etc., in the statute to the rule that the trial judge must approve and authenticate the bill of exceptions would, under the well-known cannon of construction, exclude any other exception or condition not enumerated therein. Ex-pressio unius est exclusio alterius is a familiar maxim:”
This, however, is not the situation in the case at bar.
After careful search, I have yet to find an Oregon case in which a proviso, enacted for the purpose of limiting a right granted by the same act, has been held to have enlarged the purview of the right which it purports to limit.
It has been suggested that the words “statement” and “argument” are used interchangeably. I disagree. If the petitioner is to prevail at all, he must bring himself within the purview of OES 255.030 which alone affirmatively gives him any right to publish. The word “argument” is not to be found in that section nor in any other portion of the only law which governs primary election pamphlets, with the sole exception of one subparagraph. OES 255.050 relates to the duties of the Secretary of State and state printer. Paragraph 3 of that section provides for printing, binding and distributing the pamphlets. By way of example only, and not as a grant of right, that section says: “For example, the statements and arguments of all candidates seeking republican votes * * * shall be bound * * *”, etc., “but no * * * statement or argument * * * shall be included * * etc.
*701An entirely different provision is made in the case of the general election pamphlet in which party candidates compete against candidates from other parties. There, the granting clause expressly empowers political parties to file “statements and arguments” for the success of its principles and election of its candidates. Again, the law concerning initiative and referendum pamphlets affirmatively authorizes “any argument advocating such measure” or “opposing the same.”
The context within which the word “statement” is used in ORS 255.030 eliminates all doubt as to its meaning, regardless of its signification when used otherwise. The “statement” must be one “stating the reasons why he should be nominated.” Even if it should be assumed that such a statement might contain argumentative matter, it must still be directed to the issue “why he should be nominated”, and the question on the facts of the particular case will be whether the matter tendered is such a “statement” whether argumentative or not.
Attention has been called to the fact that on several occasions pictures and maps have been published in the initiative and referendum pamphlets as a part of authorized “arguments” for measures, and we are reminded that administrative construction “over a period of time “is considered persuasive, though not controlling. There have been a number of instances of this kind involving maps, but only when they were relevant to a proposed measure submitted to the voters. On the other hand, careful search discloses only one instance in which either a map or a picture (other than a portrait cut of the candidate) has been found in the statement of any candidate from 1902 to date. That one instance occurred in 1952 when the same person who is now before this court published a map of *702Western Oregon in the Voters’ Pamphlet along with his statement. Over many years no right snch as has been twice claimed by the petitioner has been exercised or recognized, and a single exception is surely insufficient to establish administrative practice “over a period of time.”
Our next question relates to the attempted employment of the writ of mandamus in this case. Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion, and upon equitable principles. Buell v. Jefferson County Court, 175 Or 402, 152 P2d 578, 154 P2d 188; State ex rel. Willamette National Lumber Co. v. Circuit Court for Multnomah County, 187 Or 591, 211 P2d 994. A relator is not entitled to mandamus unless he has a clear legal right to the performance of a particular duty sought to be enforced and unless the defendant has a clear legal duty to do the thing he is called upon to do. State ex rel. Scott v. Dobson, 171 Or 492, 135 P2d 794, 137 P2d 825; State v. Malheur County Court, 46 Or 519, 81 P 368. To justify mandamus, the matter involved must be substantial and of sufficient importance, and the writ will issue only to prevent injustice or great injury. State ex rel. v. Bare, 78 Or 540, 153 P 790.
It remains only to apply the law to the facts. The petitioner has tendered $200 as payment for two pages of the Voters’ Pamphlet. The first page, as described in the majority opinion, contains a map, apparently representing Western Oregon and containing many hundred black and white squares. The only printed matter on this page is in type of different sizes, the letters varying from small to some measuring five-eighths of an inch in height. The second page consists of a print, nearly four inches in height, which, *703by a stretch of imagination, might be called a “portrait cnt” of a statue which represents Sacajawea with a baby on her back and her right arm outstretched. On this page, types of varying size are employed. The cut of Sacajawea bears no possible resemblance to a conventional photograph of the candidate’s face, or face and bust, nor is there any evidence that the photograph or bust is not over five years old. OES 255.020. The matter thus tendered fails to qualify under the only statutory provision which authorizes any portrait cut. The only other provision of law authorizing the printing of any material at the instance of a candidate for nomination is the one permitting printed or typewritten statements “stating the reasons why he [the candidate (not Sacajawea)] should be nominated.” The statements thus authorized are to be printed on the conditions set forth in OES 255.030 to 255.070. OES 255.040 contains the provisions for rejection of objectionable matter already mentioned. OES 255.050 refers to “all such statements and portrait cuts” and describes the duties of the Secretary of State and state printer who is to print “ this material in pamphlet form, printing the pictures of candidates with and as a part of their statements, where such portrait cuts are offered.” (Italics mine.) OES 255.060 provides that the printed matter in the pamphlets shall be set in eight point Eoman face type, single leaded, a requirement with which the tendered material fails to comply. These are the only provisions relative to the issue.
In my opinion, no clear legal right to the performance of the particular duty sought to be enforced has been shown and no clear legal duty on the part of the Secretary of State to file a portrait cut of a statue of Sacajawea under the authority to file statements “stating the reason why he [the petitioner] should be nomi*704nated” has been shown. I am also of the opinion that the matter involved is not substantial or of sufficient importance and that the issuance of the writ is not necessary to prevent injustice or great injury. The argument supporting petitioner’s case was irrelevant and frivolous. The same conclusions should, I believe, be reached as to the printing of the map of Western Oregon, at least under the circumstances here shown. It seems too obvious for argument that neither the picture nor the map state the reasons why the petitioner should be nominated.
It is said that a right of appeal to an administrative body is given to any candidate whose statement has been rejected under the provisions of OES 255.040 and no appeal is provided for the protection of one 'who files a statement which is excluded because not within the general purview of OES 255.030. The decision of the majority in this ease sufficiently establishes that such a person can have a judicial and more speedy remedy by mandamus if the court finds that the matter tendered should have been accepted. I agree that any refusal of the Secretary of State to publish a proper statement would authorize this court to take jurisdiction in mandamus and compel performance, if a clear duty were shown, which in this case appears to me to be conspicuously lacking.
In my opinion, the Secretary of State has no discretion to refuse any statement in writing which complies with the provisions of OES 255.030 except as granted in OES 255.040. Whether or not a statement presented for publication in the Voters’ Pamphlet comes within the purview of OES 255.030 is a question of law for judicial determination. There is no danger that any Secretary of State will be permitted to “sub*705vert the free flow of political discussion” so long as this court sits.
I cannot believe that the majority of the court would hold that the statute gives to the candidate the right to include in the Voters’ Pamphlet a cut of the Tower of Babel or of the Taj Mahal, or of a movie actress. They would surely draw the line somewhere by requiring that the matter printed have relevance to the issue. To me it seems that the line should be drawn where the legislature drew it. It is no more difficult for this court to determine “relevance” in this case than in any other legal controversy. I see no more reason for holding that a statue of Sacajawea should be held to be a “statement” of the reasons why a candidate should be elected or a portrait cut of the candidate than there is for a similar ruling as to the picture of Pocahontas or of Marilyn Monroe. I am constrained to predict that this decision will lead to innovations and frivolities in the Voters’ Pamphlet which will add nothing to the information of the voter or the dignity or fairness of the electoral process.
I hope it has been made clear in this dissent that I do not recognize any power of censorship in the Secretary of State authorizing him “to reject arguments which he believes irrelevant.” If he should attempt to do so, the remedy is in this court. If the candidate submits his portrait cut and a statement, stating the reasons why he should be elected, no one would have any power to exclude the statement from the Voters’ Pamphlet.
Warner, A.C.J., and Ltjsk, J., join in this dissent.