(dissenting).
I concur in the Court’s holding that the plaintiff is entitled to a declaratory judgment, and the requisite jurisdiction exists for the plaintiff to maintain this action. In this regard I agree with the trial court in its citation of Ervin v. Collins, 1956, Fla., 85 So.2d 852, in which the court there says, “When the public interest is involved a more liberal rule governs who may appropriately bring an action of this kind and prosecute it to this court, if need be.” I believe the public interest doctrine is fulfilled because whatever concerns the office of Governor is of public interest.
The other issue before this Court to which we must address ourselves is the constitutionality of SDCL 12-6-2. This statute read as follows:
“No person shall be nominated under the provisions of this chapter for election to the office of Governor for a third successive term.”
This provision was added to SDC 1939, 16.0208, by the Session Laws of 1947, Ch. 84, § 1, and has continued as the statutory law since that date, even though the attempt to repeal has been made. The only office in the State of South Dakota presently covered by the prohibitions of this statute is that held by the plaintiff.
The right to nominate is vested in the legal voters of the state, a right which they cannot be deprived of by the Legislature. 25 Am.Jur.2d, Elections, § 128, p. 814; People v. Brady, 302 Ill. 576, 135 N.E. 87; State ex rel. Mills v. Stewart, 64 Mont. 453, 210 P. 465. The above statute, expressing the will of the legislative body of the state, does not deprive the legal *664voters of this state from nominating the plaintiff as an independent candidate. Such statute limits itself to nominations and primary elections under the provisions of SDCL 12-6 and such nominations are referred to in that chapter as party nominations. The Code also provides in SDCL 12-7 that candidates for public office may be nominated otherwise than by primary elections and provides how this may be done.
That one method of securing a nomination may provide additional difficulties for a prospective candidate than some other method, or in some instances may be advantageous because voters of the opposite party may favor the candidate over their own party candidate, or even because a prospective candidate may feel more at home in seeking the nomination of the voters of his own political persuasion are all legitimate concerns of the plaintiff, but that cannot be any concern of the Court. Neither are they a proper test of its constitutionality where the method provided by the Legislature is reasonably appropriate to preserve the integrity of the nominating process. It is to this last concern, namely, the integrity of the nominating process, that this dissenting opinion is directed.
In 29 C.J.S. Elections, page 377, the headnote under § 130 reads as follows:
“The right to become a candidate for election to public office is a valuable and fundamental right. The legislature may, however, prescribe the qualifications of a person who desires to become a candidate for office, but provisions in that regard must be reasonable and not in conflict with any constitutional provision. A candidate must possess the statutory qualifications and electors cannot nominate as a candidate one who is disqualified to accept the nomination.”
This headnote is amply supported by the authorities cited therein.
Originally nominees for public office were designated by self-appointed individuals. The system was early succeeded by party conventions and because of public dissatisfaction with the *665political manipulations of conventions, they have been largely succeeded by direct party primaries. Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894.
Nomination of candidates for public office is regulated and controlled by statute in a majority of the jurisdictions. Mairs v. Peters, Fla., 52 So.2d 793; People ex rel. Kell v. Kramer, 328 Ill. 512, 160 N.E. 60. It is generally conceded that even in the absence of constitutional authorization the Legislature may invoke measures reasonably appropriate to secure the integrity of the nominating process in the exercise of police power and in so doing it does not unduly interfere with the freedom and equality of elections or the constitutional right of suffrage. 25 Am.Jur.2d, Elections, § 130, pp. 816-17. “* * * most attempts to invoke the guaranties of the privileges and immunities, due process, and equal protection clauses of the Fourteenth Amendment to the Federal Constitution against state action which assertedly interfered with an individual’s nomination for or election to a state office have been unsuccessful.” Id. § 131. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497, reh. den., 321 U.S. 804, 64 S.Ct. 778, 88 L.Ed. 1090. Annotations 11 L.Ed.2d 1063, 23 L.Ed.2d 78.
If a statute requires that a candidate possess specified qualifications as a prerequisite to nomination, he must possess those qualifications at the time of his nomination. State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592.
There is in the case at bar no constitutional question involved, either of the State of South Dakota or of the United States of America. The right to be declared the nominee of a party to a certain office is not the right to an office or a franchise nor is it a constitutional right. Bradley v. Board of State Canvassers, 154 Mich. 274, 117 N.W. 649.
“Eligibility to hold the office must depend upon whether the candidate claiming to have been elected to it possesses the constitutional qualifications if the office be one created by the Constitution, or the statutory qualifications if it be one created by statute, * * * But whether one is eligible to run for office as the *666nominee of a party by getting his name on the ballot at a regular election, under its device, depends upon whether he possesses the political qualifications and party affiliation prescribed by the primary election law, entitling him to become its nominee; and this is true whether his nomination is secured through the voters of the party in a primary election or its committee in filling a vacancy.” Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753.
The right of one to become a candidate in a primary election for nomination by a political party is created by statute, or by party rules and regulations, and can be exercised only on the conditions prescribed. State ex rel. Denny v. Members of Caddo Parish, Democratic Executive Committee, 201 La. 483, 9 So.2d 657; Roberts v. Cleveland, 48 N.M. 226, 149 P.2d 120, 153 A.L.R. 635. If one cannot fill the requirements so as to be the candidate of the political party of his choice, he may still be a candidate at the general election by independent petition or by “write-in”. Preisler v. City of St. Louis, Mo., 322 S.W.2d 748; Cole v. Tucker, 164 Mass. 486, 41 N.E. 681; City of Jackson v. State, 102 Miss. 663, 59 So. 873; De Walt v. Bartley, 146 Pa. 529, 24 A. 185.
It has also been held to the effect that the Legislature has power to prescribe qualifications for holding office in addition to those prescribed by the Constitution, provided they are reasonable and not opposed to the Constitution, and holding that the statutory qualification that one must be a qualified elector at the time of filing his notification and declaration to become a candidate in a primary election for nomination as a candidate of his party for a member of the house of representatives does not conflict with the constitutional requirement that members of the house of representatives must be at least 21 years of age at the time of their election. Stafford v. State Election Board, 203 Okl. 132, 218 P.2d 617.
The appellant contends that SDCL 12-6-2 was an unconstitutional enactment when adopted by the Legislature and also is unconstitutional under the amendment to the Constitution adopted in 1972. The Constitution when SDCL 12-6-2 was enacted provided:
*667“No person shall be eligible to the office of Governor or lieutenant governor except a citizen of the United States and a qualified elector of the state, who shall have attained the age of thirty years, and who shall have resided two years next preceding the election within the state or territory; nor shall he be eligible to any other office during the term for which he shall have been elected.”
And the present Constitution now provides:
“The Governor and lieutenant governor must be citizens of the United States and residents of the state of South Dakota for two years preceding their election. They shall be jointly elected for a term of four years at a general election held in a non-presidential election year. The candidates having the highest number of votes cast jointly for them shall be elected. Commencing with the 1974 general election, no person shall be elected to more than two consecutive terms as Governor or as lieutenant governor. The election procedure shall be as prescribed by law.”
There is no conflict in the constitutional provisions with the statute. The constitutional provision has to do with the qualifications of the person elected to the office of Governor. Without such qualifications he would not be eligible to hold the office of Governor, but eligibility for nomination by a particular political party may require its own qualifications. Of course they cannot be repugnant to the Constitution and they are not. They are simply a part of the primary procedure which may be considered a part of the election process or procedure “prescribed by law”.
25 Am.Jur.2d, Elections, § 174, states:
“Every eligible person has the right under a constitutional guarantee of free and open elections to become a candidate for public office. As a general rule, one is eligible if he has the qualifications to fill the office for which he seeks to be a candidate. It does not necessarily follow, however, that- he can be a candidate of a particular political party.”
*668Again, this Court in State ex rel. Howells v. Metcalf, 18 S.D. 393, 100 N.W. 923, held:
“To what extent, if at all, the rights of organized political parties should be recognized and regulated by law, is a matter of public policy, to be determined by the legislative department; a matter which does not concern this court. Its duty is done when it gives effect to the legislative will as expressed in statutes which do not conflict with any provision of the federal or state Constitution.”
And in Healey v. Wipf, 22 S.D. 343, 117 N.W. 521, the Court stated:
“In considering legislation relating to the regulation of party nominations great care should be taken to discriminate between preconceived notions regarding the wisdom of such regulations and the application of constitutional limitations upon the legislative power. The elective franchise is not a natural right. It is a privilege which may be taken away by the power which conferred it; and the only limitations upon the power of the Legislature to regulate its exercise and enjoyment are the express and implied limitations found in the federal and state Constitutions.”
And as set out in 59 A.L.R.2d 719, the law is:
“The purpose of a limitation against eligibility for continued re-election to the same office would appear to be to avoid the temptation to use the office improperly in an effort to sustain tenure. Not only is the idea of intrenchment in office repugnant to the national concept that no one has an inherent right to office, but the possibility of corruption in particular offices has inspired constitutional and statutory measures of prevention which have been recognized by the courts.”
*669Appellant’s position is and has been consistently throughout this proceeding that SDCL 12-6-2 has added another dimension to the qualifications set forth in the Constitution relating to his particular office. I have shown that this is not true inasmuch as the Constitution does not address itself to primary elections. This is an important distinction but for fear some may believe it highly technical rather than logical, I would point out that the various constitutional provisions do not in any way mention the primary election nor the need for petitions nor the number of signers on petitions, nor various other reservations and limitations, which reservations and limitations might be considered a qualification limiting one’s right to run for the office of Governor. This is especially true of the constitutional provisions prior to the amended Constitution of 1972 pertaining to the office of Governor, which amended Constitution contains at the last line the following: “The election procedure shall be as prescribed by law.” Prior to the time of this amendment such words were not contained in any constitutional provisions which pertained to the Governor’s qualifications and yet, one would not argue very seriously that the primary qualifications and disqualifications were unconstitutional because they provided for qualifications such as one person securing the highest number of the votes or a certain percentage of the total votes before he could be the party nominee.
These qualifications were not covered by the Constitution until at least its latest amendment in 1972. I also point out that because it has been amended by containing the words “the election procedure shall be as prescribed by law”, there is now even more reason to sustain the constitutionality of SDCL 12-6-2 than ever before. It has been constitutional since its very enactment in 1947.
In Maloney v. Kirk, Fla., 212 So.2d 609, the court said:
“It is elementary that the legislature may enact any statute not forbidden by the state or federal Constitution. But necessarily implied prohibitions are as binding as those expressed in specific language.”
*670The law in South Dakota is to the same effect. The statute is not forbidden by the state or federal Constitution nor by any necessarily implied prohibition. It is valid and relates only to party nominations as opposed to the qualification of a person holding the office of Governor.
As to the eligibility and qualification of plaintiff, I would not hold that he cannot be a candidate, but what I do hold is that he is barred from being nominated by the Democrat party or any party, as provided by SDCL 12-6-2.
I would affirm the lower court’s holding and, consequently, I dissent from this Court’s holding to the contrary.