DISSENTING OPINION
Draper, J.The problem presented should be approached with diffidence, keeping in mind the fact that the purpose of the constitutional provision is to maintain inviolate the integrity of the legislative branch of the government, free from any encroachment by the executive or judicial branches, and to safeguard the untrammeled functioning of the legislative branch without interruption, confusion or embarrassment.
The fact that the Debates in Indiana Convention 1850 discloses no mention of primary elections furnishes no assistance and is certainly not controlling. Primary elections were practically unheard of at that time. As said in United States v. Classic (1940), 313 U. S. 299, 85 L. Ed. 1368, 61 S. Ct. 1031:
“We may assume that the framers of the Constitution . . . did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is *121of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.”
That the statutory provisions under consideration are wholly ineffective to authorize the pursuit of such proceedings in connection with general elections of legislative candidates, as distinguished from primary elections, is well settled in this jurisdiction. State ex rel. Acker v. Reeves (1951), 229 Ind. 126, 95 N. E. 2d 838; State ex rel. Beaman v. C. Ct. Pike Co.; Gibson Co. (1951), 229 Ind. 190, 96 N. E. 2d 671. This court concluded in those cases that by Article 4, §10 of our Constitution sole and exclusive jurisdiction to determine the results of a general election of legislative candidates is vested in the House of the General Assembly, and that the statutory provisions under consideration are, to the extent they provide otherwise, unconstitutional and void.
Primary elections are no longer “family affairs.” The days when a political party could frame its own rules and devise its own machinery for the selection of nominees for public office are long since past. The enormous growth of city populations and the complexity of modern political life furnished such opportunities for fraud, corruption and close control that primary elections have generally been provided for, regulated and controlled by statute. It is now well *122established that a primary election is an integral part of our election system, and not merely a means whereby each political party determines for itself who its candidates will be at the general election. The right of a qualified voter to register his choice of candidates at such an election is a fundamental constitutional right. State ex rel. Buttz v. Marion Cir. Ct. (1947), 225 Ind. 7, 72 N. E. 2d 225, 170 ALR 187; United States v. Classic, supra; Smith v. Allwright (1948), 321 U. S. 649, 88 L. Ed. 987, 64 S. Ct. 757; State v. Zimmerman (1946), 249 Wis. 237, 24 N. W. 2d 504.
A question involving the qualifications of a legislative candidate who appeared to have been nominated in a primary election arose in Lucas v. McAfee (1940), 217 Ind. 534, 540, 29 N. E. 2d 403, 588. In that case Lucas was declared nominated in the Democratic primary election to be one of the two candidates for the Indiana Senate from Lake County. He received more votes than did McAfee, who thereupon filed an action for recount and contest in which he relied on the provisions of Burns’ 1933, §49-303 which prohibits any person from holding office if he has been convicted of a crime, and on §29-2301, which provides that an election contest may be had on the ground that the contestee had theretofore been convicted of an infamous crime.
This court there held that by Article 4, §10 of our Constitution exclusive jurisdiction to determine the qualifications of a candidate for the General Assembly was vested in the respective Houses of the Legislature; that the courts have no jurisdiction thereof; and the fact that the controversy arose out of a primary election contest was immaterial. We there said:
“The controlling circumstance in this case is that the appellee McAfee has undertaken to in*123voke the jurisdiction of a court to determine the qualifications of a person seeking a seat in the state Senate. The fact that the controversy arose out of a primary election contest is immaterial so far as the substantial issue is concerned. The answer would necessarily be the same however the question arose. ... As to these particular officers, the specific terms of the Constitution transcend the statutes and deprive the courts of jurisdiction of the subject-matter.”
In denying a petition for rehearing, the court said that only the Legislature could determine controversies of fact arising out of the application of the law, and continued:
“The appellee McAfee contends that when such controversies arise in connection with a general election, they- are for the respective Houses of the General Assembly, but that when they arise out of primaries, they are for the courts. We cannot agree with this conclusion.”
While the matter of a recount was not then before this court, the principle which ruled that case seems to be of assistance here. The courts may not engage in a proceeding which has for its purpose the determination of the qualifications of a contestant in a primary election. If, as that case expressly holds, the constitutional provision prohibits a judicial inquiry into the qualifications of a legislative candidate at a primary election, there would seem to be no valid reason why the same provisions would not prohibit judicial inquiry into the eligibility of such candidate for legislative office insofar as the purity of such primary election or the votes cast thereat are concerned.
An election is an integrated process. The primary election is an essential forerunner of the general election. It is an indispensable and inseparable part and parcel thereof. It is an element without which an *124election would be incomplete. A general election cannot be held unless candidates have been nominated. If, as it appears, the primary election is an integral part of our election machinery, and so is essential to the completeness thereof, it is difficult to see how the judicial branch of our government may isolate any one component part from another part, and exercise an authority as to one which in its very nature must vitally affect and perhaps dominate the whole. In some jurisdictions opposition in the general election is so feeble that the candidate nominated in the primary, or perhaps in a “run-off” primary, is always elected. In some of the counties of this state nomination is generally tantamount to election.1 If the nomination of legislative candidates, particularly in those counties, can be finally determined in a proceeding in which the authority of the judicial branch has been invoked and exercised, the right to judge the election of such candidates would seem to have been effectively removed from the domain of the legislative branch, in which it is exclusively placed by Article 4, §10 of our Constitution.
I do not understand the petitioner below as even contending that the courts can do so. He insists that the appropriate House of the General Assembly is the final judge regardless of what part has been given to the courts to play, and the legislature has the power, he says, “to either adopt or reject the findings of the *125recount commission or any determination made by the 'coyrt in the event of a judicial determination.” (emphasis supplied)
If that be true, and I think it is true, the effect of the legislation under consideration would be to impose upon the judicial department of government the investigation of a matter not resulting in a binding judgment, not finally fixing the rights of parties, and not ultimately determining a state of facts; an activity in which the judicial branch is not required to engage. Dinan v. Swig (1916), 223 Mass. 516, 112 N. E. 91.
Judgments of courts are not “tentative.” They are not, or at least should not be, idle ceremonies or futile proceedings. Under Art. 3, §1 of our Constitution, which marks the separation of the legislative, the executive and the judicial departments of the government, it does not lie within the power of the legislative branch to set aside, vacate, annul or ignore the final judgment of a court acting within its jurisdiction.
It seems to me that a fair recognition of and adherence to the equal division of governmental functions would require courts to leave all questions involving the elections, qualifications and returns of legislative candidates entirely to the legislature. In the Beaman case, supra, we said only last year that “if the effect of said Art. 27 is not an adjudication of the election and returns of members of the Legislature it approaches so near thereto that it may interfere with the constitutional right of each house of the Legislature to judge the elections and returns of its members.” I think it would be appropriate to say the same in this case.
I do not, of course, mean to intimate that the votes cast for legislative candidates at a primary election may not be reexamined, their validity redetermined *126and their number retabulated. I do think that such a proceeding is beyond the scope of the legitimate activity of the courts while they are acting judicially.
Gilkison, J., concurs.NOTE.—Reported in 107 N. E. 2d 666.
Dubois and Martin Counties are involved here. Under the legislative apportionment acts of 1879, 1885, 1891 and 1921, the counties of Dubois and Martin constituted a joint representative district entitled to one representative in the General Assembly, and in every general election held since 1879 in which a joint representative for such joint district was elected, 23 in number, the nominee of the Democratic Party was elected.