This is an original application for a peremptory writ of prohibition to prevent the Secretary of State from transmitting to the various county auditors the names of James F. Ailshie and Sam E. Blaine as the candidates to be voted for at the coming general election for the nonpartisan office of justice of the supreme court. A demurrer to, and a motion to quash, the petition were filed urging, among other things, that the court has no jurisdiction of the subject matter or of the action or of the person of the defendant. The cause was duly argued and voluminous briefs have been submitted, both for and against the granting of the peremptory writ. Due to the shortness of time before the holding of the general election it is a physical impossibility to consider and determine each and all of the questions raised and dismissed in the briefs of learned counsel whose arguments and briefs demonstrate *Page 791 a desire to be of assistance to the court in a proper determination of the important question here for decision.
We are asked, notwithstanding the decision in Koelsch v.Girard, ante, p. 452, 33 P.2d 816, in which we held the act now under consideration to be constitutional and valid, to now hold that act to be unconstitutional and void, and to set aside a primary election for the reason that the various county auditors did not agree upon the instructions to the voter to be, and which were placed upon the primary ballot. Some counties instructed the voters on the ballot to vote for one. In other counties instructions were placed upon the ballot to vote for two, and, in some counties there were either no instructions or the instructions were so vague and uncertain as to constitute no instruction. There were four candidates and but one position to be filled, and but two to be nominated. The primary election has been duly and regularly held. The canvassing board of each county has certified the returns to the state canvassing board and the latter board has certified the names of James F. Ailshie and Sam E. Blaine to the Secretary of State, as being the duly nominated competing candidates for the office of justice of the supreme court to be voted for at the next general election.
We are first called upon to determine whether or not this is a case in which a peremptory writ of prohibition will issue.
The rule would seem to be that the prerogative writ of prohibition should be issued with forbearance and caution, and only in cases of necessity, and that such writ will not issue if there exist an adequate remedy otherwise. In Little v.Broxon, 31 Idaho 303, 170 P. 918, the following language is used:
"This court has repeatedly held that neither the writ of prohibition nor mandate, of which it is the counterpart, . . . . is available where a plain, speedy and adequate remedy at law exists." (Olden v. Paxton, 27 Idaho 597, 150 P. 40; Lewis v.Mt. Home Co-op. Irr. Co., 26 Idaho 682, 156 P. 419; Fraser v.Davis, 29 Idaho 70, 156 P. 913, *Page 792 158 P. 233; New First Nat. Bank v City of Weiser, 30 Idaho 15,166 P. 213; Ex parte S.J. Jones, 160 S.C. 63, 158 S.E. 134, 77 A.L.R. 235, and note; State v. Superior Court, 162 Wash. 377,298 P. 716; Hall v. Wittmeier, 209 Ala. 355, 96 So. 327;Pacific Mut. Life Ins. Co. v. Toler, 187 Ark. 1073,63 S.W.2d 839; Halliburton v. Williams, 166 Okl. 248,27 P.2d 360; Dunn v. Justice's Court, 136 Cal. App. 269,28 P.2d 690.)
"The writ of prohibition is never granted where there is any other legal remedy. Hudson v. Preston, 134 Ga. 222,67 S.E. 800; Turner v. Mayor etc. of Forsyth, 78 Ga. 683, 3. S.E. 649." (Wright v. Wood, 178 Ga. 273, 173 S.E. 138.)
"Moreover, the writ of prohibition will never issue where there is another adequate remedy. In re MacFarland,30 App. D.C. 365; In re Rice, 155 U.S. 396, 15 Sup. Ct. 149,39 L. Ed. 198; Alexander v. Crollott, 199 U.S. 580, 26 Sup. Ct. 161,50 L. Ed. 317." (Poliszek v. Doak, 57 Fed. (2d) 430,61 App. D.C. 64.)
In Kabadian v. Doak, 65 Fed. (2d) 202, 62 App. D.C. 114, the court says:
"In Bedford v. Wingfield, 27 Gratt. (Va.) 329, the Supreme Court of Virginia said that the writ of prohibition 'issues only in cases of extreme necessity . . . . It is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ, that the party aggrieved has another and complete remedy at law.' "
The writ of prohibition will not issue even in case of encroachment, usurpation or abuse of judicial power or the improper assumption of jurisdiction, if there be an adequate and applicable remedy, by appeal, writ of error,certiorari or other method of review, available. (Ex parte S.J.Jones, supra.) The writ of prohibition is not favored and is issued with caution. (State ex rel. Poston v. District Court,31 Wyo. 413, 227 P. 378, 33 A.L.R. 1082.) *Page 793
If there was another adequate remedy open to petitioners prior to the holding of the primary election, and if by resorting to such remedy the questions now sought to be raised could have been raised and determined, the writ should not issue. The case of Koelsch v. Girard, supra, was an action instituted prior to the primary election against the Secretary of State to compel the latter to file nonpartisan declarations of candidacy of Judges Koelsch and Winstead to be voted for at the primary election, it being the contention of the Secretary of State that the act here in question was unconstitutional and void, for which reason he refused to certify the names of said candidates to be placed upon the nonpartisan election ballot. The writ of mandate was issued and the names, not only of the candidates for the office of justice of the supreme court, but, also the names of all nonpartisan judicial candidates were placed upon the nonpartisan judicial ballot, to be voted for, and they were voted for at the primary election.
While it is true that the constitutionality of said act was not attacked upon the specific grounds now urged, if the act is subject to attack for the reason or reasons now urged by petitioner, it was subject to the same attack at the time this court considered the case of Koelsch v. Girard, supra. (McEntire v. Williamson, 63 Kan. 275, 65 P. 244.) The same ambiguities, the same uncertainties, the same lack of uniformity now complained of existed then, and at all times subsequent to the passage of the act by the legislature and the signature of the Governor attached thereto. When the declarations of candidacy of the respective judicial candidates were filed with the Secretary of State the act was subject to the same attack that is now being made upon it, but no effort was made and no proceedings were had to enjoin the Secretary of State from certifying to the county auditors the names of the respective candidates for judicial offices, on the ground that the act was unconstitutional and void. Neither was a proceeding in mandamus or any other action instituted for the purpose of having the court determine what, if any, instructions to voters should *Page 794 be placed upon the primary ballot. The Secretary of State is an executive officer and if he should refuse to do what he ought to do mandamus may reach him, and if he should attempt to do what he ought not to do he is amenable to injunction. We do not wish to be understood as saying that this was the specific remedy or the one remedy which should have been followed, but if there was any remedy at law or otherwise, and we think there was, whereby the questions now sought to be raised could or should have been raised prior to the primary election the writ should not issue. In support of the position above taken it would seem that the case of State ex rel. v. Jepsen, 46 Nev. 193,209 P. 501, is in point. It would seem obvious that had the petitioners in Koelsch v. Girard, supra, remained silent and permitted their names to be certified down to the county auditors to be placed upon the partisan ballot and an election held, that they could not now be heard to say that the election was void and that their names should have been placed upon the nonpartisan judicial ballot.
Did the petitioner, by voting in the primary election without objecting to or questioning the validity of the act now involved, thereby availing himself of the privileges and benefits of said act, waive his right to question the validity of the act after the primary election was held? It may be conceded that the authorities are not uniform upon this question. We question, however, the soundness of the doctrine that plaintiff, after failing to question the instructions to voters placed upon the ballot, and after failing to raise objections to the act involving its constitutionality, and having himself participated in the election, can now raise the issue as to the correctness of the instructions so placed on the ballot or the invalidity of the act, he having waived his right so to do. It would seem that petitioner has placed himself within the rule announced in Brady v. Place, 41 Idaho 747,242 P. 314, 243 P. 654, wherein it is held that a party seeking to enforce a statute or to avail himself of its provisions may not question its constitutionality. Petitioner sought to avail himself of the provisions of the act. *Page 795 While it may be true that the rule announced in Baker v. Scott,4 Idaho 596, 43 P. 76, construing I. C. A., section 33-807, is not an adequate remedy in a situation such as we have before us, the principle of law therein announced would seem to be sound, namely: That if the petitioner had an opportunity under the law to have had any of the alleged errors in the ballot corrected, or an opportunity to question the constitutionality of the act upon any ground, before the election, having neglected to avail himself thereof, he cannot now be heard to urge such objections, when their recognition would avail, not only to defeat the express will of the voters, but to disfranchise thousands of legal voters.
In McGrane v. County of Nez Perce, 18 Idaho 714, 112 P. 312, Ann. Cas. 1912A, 165, 32 L.R.A., N.S., 730, this court, quoting with approval from In re Town of Groton, 63 Misc. 370,118 N.Y. Supp. 417, said, as follows:
"It cannot be the purpose of the law to afford an opportunity for those interested in the results to proceed to a vote and count, without objection or protest, and then, when the result is adverse to their wishes, to give them another chance upon a palpable error which could have been corrected had they called attention to it; but, aside from the absurdity of such a holding, the principles enunciated in People ex rel. Hirsh v.Wood, 148 N.Y. 142, 42 N.E. 536, are applicable to this proceeding and sufficient to require a denial of this application. It is there said (page 146 of 148 N.Y., page 537 of 42 N.E.): 'We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even wilful misconduct of election officers in performing the duty cast upon them.' . . . . It is not difficult to say in advance of their action what they should have done and should not have done. The law is clear, and it was the unmistakable duty of the officers to follow its mandates, but we are now confronted with a condition and not a theory. They have acted, and the election has been held. The electors have cast their votes. The electors have already been subjected to the predicament of casting their votes under circumstances which at least rendered *Page 796 it possible for the secrecy of their ballots to be invaded. . . . . After all these things have occurred, the question arises as to whether the court shall visit the results and penalties of the negligence or wrongfuldoing of the election officers upon the innocent electors and declare their votes illegal and the election void, and thereby rob the people of their right to suffrage until the time arrives for another election. The question is simply reduced to this; shall the electors be visited with two invasions of their rights instead of one. Shall they be deprived of the right of suffrage for the time being because their officers have acted negligently or wrongfully in the preparation of ballots, or shall the election be sustained and the penalties, if any, be visited upon the parties responsible for the errors or wrongs which have been committed. . . . . Under the law of this state, a general election can only be held biennially, and so if it is not held on the day fixed by law, there will be no other general election for two years thereafter, and in the meanwhile the old officers will hold until their successors are elected and qualified. . . . . Two wrongs will no more make a right in law and government than in morals. To follow up the wrongful preparation of ballots with setting aside the election would only be adding another injury to an already outraged electorate."
Conceding that the various county auditors, lawfully or otherwise, caused instructions to be placed upon the ballots which were conflicting and not uniform throughout the state, and thereby certain electors were misled and did not vote their full strength, or if certain electors were permitted under the instructions to vote in excess of their voting strength, and others voted only their voting strength, would we be justified in setting aside the election and disqualifying the thousands of electors who did vote their full voting strength and the thousands who voted only a part of their voting strength, and should we visit upon the electors the penalty of disfranchisement, particularly in view of the fact that the names of all candidates appeared upon the judicial *Page 797 ballot and all candidates' names were before, the electors from which to choose, it being necessary that there should be double the number of candidates nominated for the one position to be filled? It would seem to be the general rule that the voter should not be deprived of his rights as an elector, nor disfranchised, by the errors, wrongful acts, fraud or mistakes of election officers, if it is possible to prevent it (Pickett v. Board of County Commissioners, 24 Idaho 200,133 P. 112; Huffaker v. Edgington, 30 Idaho 179, 163 P. 793;Jaycox v. Varnum, 39 Idaho 78, 226 P. 285; McGrane v. Countyof Nez Perce, supra; People v. Wood, 148 N.Y. 142,42 N.E. 536), and, that where there is a neglect on the part of one to avail himself of a right to call upon the courts to compel the legal and proper performance of the duties imposed upon election officials, he cannot, when the result of the election is announced and he finds his candidate defeated, ask the court to nullify the expressed will of the voters, for a reason which he could by reasonable diligence have had corrected prior to the primary election.
"The rule is apparently well settled that, where a party fails to take any steps to correct errors in the ballot, he cannot after being defeated at the polls, be heard to complain of error in the ballots, which he had knowledge of and might have corrected prior to the election. Sawin v. Pease, (6 Wyo. 91) 42 P. 750; State v. Stein, 35 Neb. 848, 53 N.W. 999;Baker v. Scott, (4 Idaho 596), 43 P. 76; Bowers v. Smith,111 Mo. 45, 20 S.W. 101 (16 L.R.A. 754), 33 Am. St. 491; Allen v.Glynn, 17 Colo. 338, 28 P. 670 (15 L.R.A. 743), 31 Am. St. 304; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80 (28 L.R.A. 502).
"The fact that the case grew out of a general election while the present one grows out of a primary election makes no difference. Both are elections within the rule." (People. v.Wood, supra; State ex rel. Brooks v. Fransham, 19 Mont. 273,48 P. 1; State ex rel. Curtiss v. Superior Court, 140 Wash. 518,249 P. 274; Martin v. McGarr, 27 Okl. 653, 117 P. 323, 38 L.R.A., N.S., 1007; Atkinson v. Roosevelt *Page 798 County, 71 Mont. 165, 227 P. 811; Nance v. Kearbey,251 Mo. 374, 158 S.W. 629, 631.)
The writ will not issue.
Justice Givens concurs in the conclusion that the writ should not issue.