¶1(concurring).
¶2I concur in the result reached in the majority opinion, but I think it was the *269intent of the legislature to permit the contest of the nomination for any office other than a county office, without giving security for costs or making a deposit in order to file the contest.
¶3Since the 1931 Act is now codified in the Code of 1940, such comparisons as are necessary will be made between sections of the 1923 Code and the Code of 1940.
¶4Section 656 of the 1923 Code required a deposit of $100 in the contest of any office filled by the voters of a single county, for example, some circuit judges and solicitors, but where it was a county office as distinguished from a state office, the deposit was •only $50. Section 656 is now § 380, Title 17. All reference to any deposit for a contest of a state office is dropped and the only deposit required by Section 380 is that of $50 for the contest of a county office.
¶5The pertinent part of Section 661, Code of 1923, is the same as Section 384, Title 17, with the exception that Section 661 provides for the contest of any office to be filled by a vote of the entire state or any subdivision thereof greater than a county, while Section 384, Title 17, provides for the contest of any nomination for other than a county office. Section 661 provides “and by making a security as elsewhere provided in this chapter”, while Section 384 provides, “and by giving security as elsewhere provided in this chapter.” In the 1923 Code, Section 662 provided for deposits ranging from $25 to $250 for contests of certain named state offices. I think it very significant that there is no counterpart to Section 662 in Chapter 2 of Title 17 of the Code of 1940, which requires no named deposit in any contest except the $50 in the case of the contest of a county office, as provided for in Section 380.
¶6But there are four sections in our primary election laws, two of which are mentioned in the majority opinion, which do require deposit or prepayment by either party. Section 385 provides that the clerk may be required to summon witnesses and to take depositions and that the party so requesting this service shall be responsible for the costs incurred. Section 390 provides for the payment in advance of the costs of summoning witnesses and their per diem and mileage if the chairman of the committee is requested to handle the summoning of the witnesses. Section 391 provides for the deposit of sufficient funds for the expenses of taking testimony before a commissioner. Section 392 provides for the furnishing of railroad fare to any witness who lives more than 40 miles from the place to which he is summoned.
¶7It seems that these are the items which the legislature had in mind when it said in Section 384, “and by giving security as elsewhere provided in this chapter.”
¶8This interpretation seems practical because a county committee’s treasury is usually small and limited, and a deposit for a contest would sometimes be sorely needed to help defray the expenses of the committee hearing the contest. But the state committee is usually not hardpressed for funds, and by its rules, it pays the expenses of its committee members who hear the contest. Moreover, if an elector were going to contest a statewide election, and desired to base the contest on alleged illegal votes cast in certain boxes in, say 15 different counties, to secure his proof he would have to make considerable deposits to defray the expenses as he went along, but it appears to be rather impractical to require him to put up a $50.00 deposit just because that is the amount required in a county contest.
¶9This brief statement includes some of the reasons why I think the legislature intended that no security or deposit of a named amount was to be required when a contest of a nomination for a state office was instituted, or to use the language of the majority opinion, slightly out of context, since “no security is specifically required in such a contest, the deposit was not necessary and jurisdiction was not dependent upon it nor affected by it.”