(dissenting).
We wholly disagree with the majority opinion reversing the judgment of the lower court. It is- our view that all four of the appellees, as candidates for public office, were entitled to a place on the general election ballot under the column headed “Other Candidates”. Our dissent was noted in the minute order of October 16, 1958, and we now state our reasons therefor.
Our general views on the scope, purpose and operation of the laws governing the right of a qualified elector who as- a private citizen seeks to procure a nomination, other than by primary election, under A.R.S. § 16-601, and a place on the ballot as provided by A.R.S. subsection E of section 16-844, are quite fully set forth in the majority opinion in Cavender v. Board of Supervisors, 85 Ariz. 156, 333 P.2d 967 (a companion case decided this date), hence need not be repeated here.
We submit that the majority opinion is not based on the problem presented by the record before us. The opinion states:
“The specific question presented in this case is: after the primary election, may a person become a candidate for public office at the general election under the provisions of A.R.S. sections 16-601 and 16-844, supra, under the party designation; in this case ‘Repub*169Mean’, where the RepubUcan Party failed to nominate a candidate to such office at the primary election ? * * ” (Emphasis supplied.)
This does not at all square with what the learned trial court actually decided. As proof, we quote excerpts from the court’s minutes of October 9, 1958:.
“The questions raised by the Petitioner and the answer thereto are very interesting, both as a practical matter and also as a legal matter. The respondents have taken such (sic) that the petitioners have no right to be placed on the general election ballot under the Republican column, and Court agrees with that position of the response. However, the petitioners further request that they be placed on the ballot under the column ‘Other Candidates’ as provided in Section 16-844 thereof, and particularly Subsection E.
“It is this Court’s position that the right and true interpretation of 16-601, to conform with all the election laws in the State of Arizona and to give it a meaning that the Legislature intended that it should have provided a means for placing a candidate on the ballot other than by primary, and that a person complying with Section 16-601 is then bound by 16-844, Subsection E thereof, and as such cannot appear under any organized party designation under the general election column thereof, and that the only place that his name can appear is under the far right hand column designated ‘Other Candidates’.
^ ‡ ‡ jji j{C ^
“The Court does hold that they are entitled to be listed as a candidate in the far right hand column under the column designated ‘Other Candidates’, and the Petitioner is instructed to prepare in proper order writ to conform with this ruling, ordering the Board of Supervisors to conform with the rulings of the Court as to such writ, by placing the candidate in that particular column on the ballot.”
While it is not the issue presented by this appeal, we readily agree with the conclusion reached by the trial court, which is apparently shared by our brethren of the majority, that after a primary election there is no method by which the Republican party, as such, could nominate as its official candidates, and have placed under its column on the general election ballot, the names of appellees. (The only exceptions to this rule — none of which are in point here — are those set forth in A.R.S. § 16-604.) Hence, we feel that the lengthy discussion in the majority opinion relative to various- constitutional provisions and Code sections dealing with primary election matters, are wholly beside the point.
*170Furthermore, to our minds, the fact that in the instant case the Republican party failed, in the primary, to nominate anyone for the four elective positions- sought by appellees, is of no consequence, nor does it have any bearing upon the problem presented, because legally the situation would be the same had the Republican party in the primary completely filled up its ticket.
The majority, after reciting that appellees had used the word “Republican” as the designation to appear (in parentheses) immediately above their names in the column headed “Other Candidates”, holds:
“ * * * It follows that they [appellees] were not entitled to have their names appear on the ballot at the general election. * * * It does not merely prohibit their names from appearing in the Republican column on the ballots at the general election but, it prohibits the appearance of their names anywhere on the ballot.” (Emphasis supplied.)
We believe this drastic holding is unwarranted. The record conclusively shows the issue as to use of the word “Republican” by the appellees was not passed upon by the trial court. We again quote from the minutes:
“The question was not argued or presented to this Court of whether or not all the petitioners had a right to designate the Republican Party and still appear on the right hand column under ‘Other Candidates’ column, and therefore the Court is not passing on that point." (Emphasis supplied.)
Therefore, a reversal upon this ground would appear to be wholly unjustified.
Next let us assume that what we consider the real issue had been properly presented and decided favorably to appellees by the lower court, i. e., that they might use the word “Republican” as a designation in the “Other Candidate” column; still we do not believe such a holding could be reversed for there is nothing in the statute that forbids such use. Under the statute one may utilize such designation as he chooses so long as he uses not more than three words for that purpose. Had the legislature deemed the use of the words “Republican” or “Democrat” misleading or deceptive it doubtless would have prohibited same. It is universally held that the wisdom of a statute is a matter for the legislature and not for the courts. Local 266, etc. v. Salt River Project Agr. Imp. & Power Dist., 78 Ariz. 30, 275 P.2d 393.
It appears to us that the majority, in holding that appellees- are prohibited from using the word “Republican” when the statute does not so provide, are in effect legislating. It is fundamental that a court cannot legislate but must construe the law as written, Reichenberger v. Salt River, etc. District, 61 Ariz. 465, 150 P.2d 758; courts do not make law, since such function *171is left to legislature, Collier v. O’Neil, 63 Ariz. 320, 162 P.2d 124; the Supreme Court has no right to legislate, State v. Phelps, 67 Ariz. 215, 193 P.2d 921; Morgan v. Board of Sup’rs, 67 Ariz. 133, 192 P.2d 236.
We subscribe to the doctrine that the statutes here involved should be liberally construed in favor of those of our citizens who desire to run for office. Sims Printing Co. v. Frohmiller, 47 Ariz. 561, 58 P.2d 518. The majority, we believe, have in this instance departed from this salutary rule.
These are our reasons for dissenting.