¶1 concurring in the result, but on different grounds, delivered the following opinion.
¶2 When on motion leave was originally sought for the filing of this proceeding, I objected to the granting of the motion. It was clear to my mind that the relators had no right to a mandamus for the placing of Mr. Puller’s name on the official ballot as a candidate for District Judge in opposition to Judge Street, the nominee of the Democratic party for the position, selected in the preceding primary election; it being shown that Puller participated in the primary election as a Democrat and subscribed to the pledge that he would support iis nominees at the general election. It seemed to me then, as it does now, an absurdity to say that a man could enter a party primary; subscribe to the pledge and obligation imposed by the statute law, to support the nominees of the primary; thereby obtain the right to participate in the primary; and then in the general election could lawfully become a candidate against a nominee of the primary. This conclusion was reached by determining, not whether there was anything unmoral about Puller’s candidacy, but whether it was lawful. That, in my opinion, was the only thing to determine about it. It *41 was in open disregard of the obligation of a valid, a plain, and a vital statute. It was therefore in my judgment unlawful.
¶3 In the refusal of the mandamus, I therefore of course concur. But the case, in my opinion, is not to be disposed of upon any such ground as that advanced for the decision by the majority of the court.
¶4 Fuller’s candidacy was either lawful or unlawful. The right to this mandamus should be decided accordingly.
¶5 If it was lawful, as it seems to me the majority opinion inevitably declares it, since according to its holding Fuller could become the candidate without violating any legal obligation or right, it should not be denied because in the view of the court there was merely something bad about the morals of it.
¶6 A court, it is true, has a discretion in respect to the awarding of a mandamus. But the right to so vital a thing as candidacy for public office should not depend upon a court’s view of its morality. It should depend alone upon the written law, and should be judged alone according to the law.
¶7 In a free country, any man, in the absence of a disqualifying statute, has the right to run for public office. Under free institutions, if his candidacy be not prohibited by positive law, it should not be denied.
¶8 If as tested by the law it is rightful, and is wrongful only as tested by morals, the ballot is the best place to settle the equities of it.
¶9 If it be only in breach of good faith, but not in breach of any law, and is to be condemned only in conscience, the voters at the election may be, and should be, trusted to attend to its moral phases. I do not think a court should concern itself with them.
¶10 The decision of the majority is that the obligation imposed by the statute, requiring a participant in a primary election to subscribe to a pledge that he will support the nominees of the primary, is only a moral obligation. This is in accord with their holding in the Woman Suffrage Case, in answer to the proposition there urged that the statute making women eligible to vote in primary elections was invalid because they would necessarily be required to take this pledge, a pledge they could not perform; since, admittedly, they could not at that time vote in general elections. It is now said in this majority opinion that the proper interpretation of the phrase “to support the nominee,” as intended by the Legislature in exacting it of women voters, is “to uphold by aid or countenance.”
¶11 The pledge required by the statute can not well have one meaning for men voters, and another for women voters. It has never had but one primary meaning; and that is, “to vote” for the nominee in the general election. A party nominee, with an opposing candidate against him, would be in an enviable position in a general election with just the “countenance” of his party associates. He would *42 doubtless have a new sense of the value of his nomination. Where the rivalry of parties was strong, the eagerness with which .a party nomination would be sought under this interpretation of the duty of the party membership, can be left to the imagination.
¶12 The decision further is, that though the relators are independent voters, having in nowise taken part in the primary election, and are shown here to have fully complied with the law governing the proposal by independent voters of an independent candidate, they are not before the court with "clean hands,” since Fuller’s becoming such a candidate even at their instance and petition, while not a violation of any legal duty, would be a breach by him of good faith.
¶13 The relators are seeking the mandamus here; not Fuller. The relators have not breached any faith. They were under no kind of obligation to Judge Street or to the political party which nominated him in the primary. They were under no duty not to oppose him in the general election with a candidate of their own. Their right to Mr. Fuller as their candidate would be equal to the right of the Democratic party to Judge Street as its candidate, if there were nothing in the law making the candidacy of Mr. Fuller illegal. Nothing can be held in my opinion as denying them this right and disqualifying and barring their candidate, but the written law. Nothing but the written law should be interposed between them and that right. The decision means that if Fuller had privately solicited Judge Street to become a candidate and promised him support, the relators should be denied the right to propose him as- an independent candidate, though the law did not forbid Fuller’s candidacy and he was under no legal obligation not to become a candidate. There is no difference in morals between a man’s violation of his private word and his violation of his public word.
¶14 The sole ground of the decision is that the hands of relators are to be regarded as "unclean” because Fuller’s candidacy would be a violation of his public word — not a violation of a legal duty. I do not consider the condition of the relators’ hands as the real question in the case, or, in view of the real question, of any importance.
¶15 The true question is whether Fuller’s candidacy would violate a legal right of Judge Street as the nominee of the primary in which Fuller participated, — a right entitled to the law’s protection. If it would violate no such right, it is difficult to see how a court has any authority to interdict it or deny it legal standing.
¶16 The question must be determined by the nature of Fuller’s duty in the premises. The nature of a right which issues from a duty, is necessarily that of the duty. If Fuller’s obligation not to become an opposing candidate was only a moral obligation, the corresponding right of Judge Street to be unopposed by his candidacy could not be other than a moral right. It would be á legal right — a right *43 entitled to the law’s protection, only because of Fuller’s obligation being a legal obligation. This is the whole of the case. The law will not enforce purely moral obligations. It enforces, and can enforce, only legal obligations.
¶17 The importance of the decision therefore becomes manifest. It involves, not only whether duties and obligations imposed by valid laws are to be classed by this court as only of moral force, but the far-reaching question as to whether a party nomination under our statutes has any legal standing or integrity as against the candidacy of one pledged and bound by them to support and not oppose the nominee.
¶18 The effect of the opinion of the majority of the court is to announce that any one taking part in the primary is thereafter legally free to oppose such a nominee, even to becoming a rival candidate; that in the eyes of the law he is free to destroy and defeat the very purpose of the primary; that the law will require of him a solemn obligation for a fair and lawful purpose, and in the same breath absolve him from all legal duty to respect it.
¶19 While my protest is futile, I emphatically dissent from a holding by this court which deprives these statutes of all their strength and by which the primary system of this State, as safe-guarded by them, is virtually stricken down.
¶20 The purpose of a primary is not alone to make a choice of party candidates. It is to make a choice binding upon the party membership, particularly those who participate in the primary, whereby the strength of the party will be combined and unified for the success of its nominees at the general election. Each member of the party is entitled to vote his preference in the primary. But the essence of the primary is its binding effect upon those who enter it. No one is obliged to enter it, but if a party member does not expect to be both morally and legally bound to respect its result, he ought to stay out of it. The consideration for his agreement to vote for its nominees is the benefit accruing to him from the same agreement made by all the other party members participating, whereby the ultimate election of his choice of candidates, if selected in the primary, will be furthered, and, at all events, the party will be afforded in the general election a united voting force for the election of its nominees. As a loyal member of the party he is supposed to"be concerned in the success of its nominees, whether they be the choice he expressed in the primary or not.
¶21 The primary is a barren, useless proceeding unless it binds those who take part in it, to vote for its nominees. Because of this palpable fact, the statute requires that those entering it pledge themselves to so vote. Only by making this pledge are they entitled to take part in it.
¶22*44 If in the face of this statute one who makes that pledge is only morally, but not legally, bound to observe it, the statute is a farce. It means that the .statute has no virtue as a law, but is only a moral sanction. It was not needed as a moral sanction. It would be bad morals to violate such a pledge though there were no statute on the subject. The moral obligation would exist without the statute. Then why write a statute to express it? The statute could not create the moral obligation. Nor could the statute add anything to it. Legislatures cannot create moral obligations, nor impose them as such. That belongs to a higher power. Statutes are not written with any such design. They deal with legal obligations or duties and legal rights. Unless intended to have the" full force of a law; to express the command of the sovereignty of the State as a rule, not advisory, but imperative; to impose, not an obligation purely moral and belonging exclusively to the tribunal of conscience, but a duty cognizable in the forums of the law; and to create a corresponding right which the law will recognize, maintain and protect, the statute might as well never have been writtén.
¶23 There is a marked difference between the moral law and municipal law. The moral law is of divine origin. Municipal law is.a human institution. The moral law is compulsory upon all persons in their relations with each other and in their duties to each other and to their Maker. Broadly speaking, it is the foundation of municipal law. Many of the latter’s rules and doctrines proceed from its principles and reflect them. But much of municipal law arises from considerations other than pure morals — from the importance of certainty, from expedience in many instances, and from the necessity for rules in accord with the average conduct of mankind. At certain periods the common law included many arbitrary rules, sometimes pure dogmas, in which there was no semblance of morality. For some of those ancient rules Lord Coke said no reason, even, could be given and none was supposed to be given. Therefore, the precepts of the moral law, except as the municipal law has embodied them and'diffused them through its own doctrines and statutes, are left for their enforcement to the individual conscience. As purely moral obligations they essentially belong to the realm of conscience. There are many moral duties that are not legal duties. There are many legal duties — made so by the common law and particularly by the statute law — that are not moral duties.
¶24 But whether moral duties or not, once they are imposed by a valid statute, they become legal "duties. The object of the statute in such case is to make them legal duties, resting no longer alone in moral authority, but imposed as legal obligations as" a part of the law of the land and conferring legal rights upon those to whom they are owing — duties whose violation means something more than the mere *45 pains of conscience, but for whose infraction the law will provide a remedy, as it does, and must do, for the protection of every legal right.
¶25 It is inconceivable that a duty commanded or a right conferred by a valid statute may be denominated as only a moral duty or a moral right. Or that a valid statute is to be held as impotent to convert what may also be a moral duty into a legal duty.
¶26 Such a proposition simply reduces itself to a denial of the validity of the statute. The purpose of such a statute is plainly to make the duty one charged and commanded by law. Otherwise, it would not be made the subject of positive law. If it be a duty so commanded by law, it is a legal duty. It can have no other character, unless the power to command it by law be denied.
¶27 In actual effect, this is what the holding of the majority of the court comes to. The invalidity of the statute requiring the pledge is not expressly declared in their opinion, but it might as well be. The opinion intimates that, in their view the statute would be invalid, as an infringement of the right of free suffrage, if the duty to respect the pledge it requires be held a legal duty. Therefore, says the opinion, as avoiding question as to the statute’s validity if held to impose a legal duty, it will be “construed” as charging only a moral duty.
¶28 There is nothing about the statute to construe. It is one of those statutes which do not admit of construction. If valid, it imposes a legal duty. If it does not impose such a duty, it is only because the Legislature was without the power to command the duty. Unless it imposes a legal duty, the statute is merely an impressive recital of the existing moral obligation, and is not entitled to be called a law. Holding it, by construction, as charging only a moral duty, denies the duty any legal nature and hence the statute any legal effect. This holding, therefore, merely means that question as to the statute’s validity is to be avoided by an adopted construction which deprives it of any legal force.
¶29 There is no authority for holding a legislature to be without the power to enact a primary election statute requiring as a legal obligation such a pledge as this one. The constitutionality of such statutes has often been expressly affirmed. State v. Drexel, 74 Neb., 776, 105 N. W., 774; State v. Michel, 121 La., 374, 46 So., 430; Rebstock v. Superior Court, 146 Calif., 308; 80 Pac. 65. There is no suggestion in any decision that the obligation created by such a statute and the pledge under it, is only a moral obligation. State v. Michel (La.) plainly treats the primary voter’s taking part in a statutory primary as itself creating a legal obligation to respect its result and support its nominees. It is in that view that it is said in that opinion that the statute requiring him to so agree “did *46 not undertake to add anything to his legal obligation.” The legal obligation was recognized as existing and as growing out of participation in the statutory primary.
¶30 Aside from authority, such a statutory pledge cannot, in reason, be held invalid because there is imposed a legal duty to respect it. Agreement by the primary voter to support its nominees by voting for them, is absolutely essential to the integrity of the primary. Unless it so binds those taking.part, it is without purpose or effect. The constitutionality of the primary as a method for making party nominations, with this as its aim and end, has never been denied. To allow participation in the primary without such agreement and its performance would result in the disruption of any party. A law which would countenance a voter’s right to enter a primary and his perfect freedom thereafter to destroy and defeat its very purpose, would be void on its face.
¶31 With the primary voter clearly without any right to enter the primary unless he agrees to abide its result and support its nominees, how, in reason, is any constitutional right of his impaired by a statute which, in subjecting the primary to the control of the law, requires, if he does enter it, such agreement of him as a legal obligation. With the primary recognized as a constitutional method of making party nominations, and such agreement by the primary voter being the essence of the system, how can it be unconstitutional to impose performance of the agreement as a legal duty? How is any right of suffrage denied by such a requirement?
¶32 None is denied. There is no abridgment of the right to vote. Nor of the right to vote just as the voter contemplated when he entered the primary. The primary is only a pre-determination by him of his choice of candidates, in which he willingly participates and takes an active part. It is a lawful method for the selection of the candidate of his party, and of himself as a member of the party. He is under no compulsion to adopt it as a method. He has a right to stay out of the primary. But if for purposes of his own and to sub-serve his interest as a voter he enters the primary, and in common with the other members of his party makes use of it for the selection of a candidate to be voted for by him at the general election, he would be in poor position to say that his voluntary adoption of the method operated as an abridgment of his right of suffrage. Having availed himself of it in aid of that right, he would not be heard to say that its just obligations were an impairment of the right.
¶33 The integrity of the primary as a common and lawful method of the people for making party nominations is a matter of constitutional concern, as well as the right of suffrage. A reasonable law which only fairly protects the primary, as does the requirement of this statutory pledge in imposing a just legal duty upon the primary *47 voter, cannot be considered as any abridgment of the right of suffrage.
¶34 That a statute imposing a given duty does not provide a criminal penalty for the violation of the duty, or even a civil penalty, does not change the nature of the duty. There are many legal duties, imposed by statute and not arising from a statute, for whose breach no express penalty is provided. Nor is the nature of the particular duty altered because on account of certain features of it or peculiar circumstances, the law will leave its breach to other remedy than specific performance. There are many legal duties of this class, also.
¶35 But the rights which grow out of and are founded upon all such duties, whether those for whose breach no penalty is provided, or those whose specific performance will not be enforced, the law will protect, and for their protection afford appropriate remedy. It. does so only for the reason that the duty from which the corresponding right proceeds, is a legal duty. In this way the law compels observance of the duty. It is to be presumed that it will provide an appropriate remedy for the breach of every duty which it rightfully imposes.
¶36 Let it be supposed, for illustration, that instead of this application for the certification of Fuller’s name as an independent candidate being refused by the Secretary of State, it had been granted and Fuller had acquired the full status of such a candidate. Is it to be doubted that Judge Street, as the nominee of a primary in which Fuller had participated and taken the pledge required by the statute, would be entitled to the law’s protection of his candidacy from such unlawful candidacy on the part of Fuller? Or that the law would fail in a remedy for its protection?
¶37 To what end have these nominations been subjected to the law’s control and regulation if the law will not safe-guard their integrity by protecting the rights of those who obtain them? If a right conferred or recognized by statute is not to be protected, defended and enforced by appropriate legal method, then we must abolish the maxim that the law will grant no right and permit no wrong without a remedy.
¶38 In Gilmore v. Waples, 108 Texas, 167, 188 S. W., 1037, the nature of the rights growing out of these primary election statutes was discussed. It was there held, not that they are moral rights, but that they are legal rights, because founded upon the statute law, and as such entitled to the law’s protection.
¶39 In the illustration just given, the right of Judge Street so entitled to protection would proceed only from its character as a legal right— a legal right growing out of Fuller’s legal duty under the statutory pledge, not to oppose him as a candidate, but to vote for him. Why ? *48 Not because of any statute expressly forbidding Fuller’s candidacy under such circumstances, since there is no such express statute, but for the reason that the statute requiring the pledge and his giving it in the primary as effectually prohibits his opposing candidacy as would a statute so written in terms.
¶40 If the statute does not have that effect, it has no effect. It required that Fuller agree to support the nominee. He did so agree in obedience to the statute, as the means of entering the primary. Judge Street as the nominee became a beneficiary of the agreement and Fuller’s obligation to respect it. In virtue of the statute the duty to perform the agreement became a legal duty; the right of Judge Street as a beneficiary of the duty became a legal right; and it would command the law’s protection, as any other legal right.
¶41 But the law does not enforce purely moral obligations. They create no legal rights. Hence in such a situation as is above instanced, if Fuller’s obligation be only a moral one there would be presented the anomaly of an utter denial of any legal redress for the protection of a nominee under the statute against the opposing candidacy of one who as á participant in the primary was by the statute pledged and bound not only not to oppose him, but to support and vote for him. These statutes are a travesty if such a result may have their sanction.
¶42 They do not give any such sanction, as this Court distinctly declared in Gilmore v. Waples. They do not, because the rights they confer and the duties they impose are legal rights and legal duties. Those rights and duties could be nothing else and be the subjects of the statute law of the State.
¶43 Opinion filed Jan. 10, 1921.