¶1(dissenting.)
¶2I am unable to concur in the views of the court in this case and therefore respectfully dissent. The question involved is of far greater and more serious importance than whether the contestant or contestee shall hold and discharge the duties of .the office of Commissioner of Public Safety of the city of Duluth. The constitutional right of the electors of the state freely and without restraint to cast their ballots for candidates of their choice, and to have them counted as cast, is the fundamental issue presented, is of far reaching importance for future guidance of legislation along the-line of the Duluth charter, and entirely overshadows all other considerations.
¶3*415The facts are fully stated in the opinion and need not be repeated. That the provisions of the Duluth charter violate the constitutional rights of the electors of that city seetíis clear and beyond serious discussion. The Constitution (section 1, article 7) provides that every citizen meeting the requirements there prescribed “shall be entitled to vote … for all officers that now are, or hereafter may be, elective by the people.” This is an express guaranty of a right or privilege which cannot be denied, or substantially impaired or abridged by legislation. It is a civil privilege protected by the! fundamental law, to be exercised by the elector, or not, at his option, and in no sense a legal duty imposed by law. It is a duty in the sense that it is a personal obligation the citizen owes to the state and to society, but it has never been declared by court or legislature an imposed legal duty which the elector must perform either in whole or in part. And it may safely be said that, prior to the adoption of the Duluth charter, no legislative authority has ever attempted to declare that an elector must cast his ballot for a particular number of candidates or not vote at all. Under the Constitution the right of franchise must be free and untrammeled to the end that the elector may freely cast his ballot for such candidates as he deems worthy of election, and that he is here deprived of that right is clear. If the decision in this case affirming the validity of this requirement is followed and applied in the future, there is no limit to which the legislature may not go in restricting and substantially embarrassing the right of franchise. It may say, as does the Duluth charter, that if the elector casts his ballot for a less number of candidates than are to be elected to a particular office, the ballot shall be void. It may command the elector to vote the entire ballot, or be deprived of the right to vote for any of the candidates appearing thereon, and if he fails to do so that the ballot cast by him for some of the candidates shall be void. The legislature may also say and declare that if several constitutional amendments are to be voted upon each elector shall cast his ballot upon all, one way or the other, or not at all. In my opinion the legislature has no such power, and any statute so providing would be a nullity. As I understand the facts in Bott v. *416Wurts, 62 N. J. L. 107, 40 Atl. 740, cited in the opinion of the court, the decision there rendered does not uphold any such legislative power. In the case at bar two commissioners were to be elected. There were 8 or 10 candidates whose names appeared upon the official ballot. Several ballots were cast for contestant only, and by force of the Duluth charter, the validity of which is affirmed by this court, the ballots so cast are thrown out, resulting in a declaration that a candidate who received the minority vote at the election is declared elected to the office. If this does not deny the right of the elector to vote for candidates of his choice, ignoring those to whom he is opposed, it is difficult to imagine a statute that would have that effect. While it is true, as remarked in the opinion of the court, that statutes are not to be lightly set aside, it is equally true that the right of franchise, standing as it does at the foundation of our free institutions, is just as sacred as the right of the legislature to enact laws. Its protection is safe-guarded by the Constitution, and is beyond legislative impairment. The suggestion in the opinion that one of the purposes of this provision of the Duluth charter was to prevent combinations of voters in favor of one candidate is without force. If combinations of this kind are formed, the purposes thereof can readily be carried out by voting for the preferred candidate alone, and then writing into the ballot the name of some person, not a candidate at all, and marking the cross opposite his name, thus wholly circumventing the intention of the charter, by the exercise of a right the opinion concedes to each elector. The result intended to be guarded against may be accomplished by this idle ceremony.
¶4In my opinion the charter of Duluth upon this subject arbitrarily violates the rights of the electors and should be declared void.
¶5Mr. Justice Philip E. Brown concurs in this dissent.