
    STATE ex rel. GRAY v. OLSEN et al.
    (137 N. W. 561.)
    1. Injunction — -Election—Restraining Secretary of State From Certifying Republican Nominations for Presidential Electors— Party Ticket.
    Where no -other republican Taft .presidential electors for the republican candidate for president have 'been nominated and whose names might appear on the regular republican ticket, a republican voter,, not being himself a candidate . for presidential elector or for any other office affected by the action of the republican state convention whose acts are complained of, ináy not- sue to restrain the secretary of state from certifying to county auditors the nominations for presidential electors selected by such state convention,, on the ground that his right to vote, -o-r his opportunity to vote for President Taft by means of the regular republican ticket on the official November election ballot, 'will be invaded; since the only effect of the injunction would be to leave a vacancy in the republican ticket on the official ballots as to republican nominees for presidential electors without protecting or operating to enforce or secure to plaintiff or any other' similarly situated republican the right or opportunity to so vote for Taft.
    2. Injunction. — Protection of Lawful Right Involved — -Relief—Idle or Useless Acts.
    An applicant for injunction, under Sec. 197, Code Civ-. Proc., has the burden of showing- he will be in some manner injured or deprived of a lawful right without the aid of such injunction, and that the injunction will give him the desired relief. Courts should not he required to perform idle or useless acts.
    3. Injunction — Judicial Notice of Political Situation — Evidence.
    The supreme court will take judicial notice of the present situation existing in this state; -and, so doing, held, that the showing made by plaintiff is not sufficient to empower the court to. grant the prayed for injunction.
    4. Statutes — Election—Primary Election Law — Referended Act— Emergency Clause.
    The “Richards Primary Law,” so-called,, is not now in force; that statute was never passed as or for the purpose of becoming .a law, but only for - the purpose of being submitted to vote under the initiative and referendum; this appears from its title. The emergency clause in said act does not operate to make it a la.w;, it is but ineffectual surplusage.
    5. Injunction — Action Ex Rel. Attorney General Not Involved— Political Party Not the People — ^Relief to Political Party.
    This application for injunction is not, and is not presented as a cause maintainable by the attorney general on- behalf of the people. Neither a political party nor a considerable membership thereof constitute the people of this state for the purpose of-seeking relief by injunction-to restrain the secretary of state from certifying to county auditors nominations for presidential electors; and whether the suit is brought by the attorney gen-, eral-on behalf of - the state, or -by a- private'individual as a. 
      member of the republican party on behalf of himself and others,' a proper cause for injunction1 under rules of equity must be established.
    Haney and Corson, J. J., dissenting.
    (Opinion filed September 23, 1912.)
    Application by the State, at the relation, of John Gray, against Oscar C. Olsen anid others as Republican .nominees for presidential electors, and S. C. Polley, as Secretary of State, for an injunction restraining the Secretary .of State from certifying to the county auditors the nominations for presidential electors selected by the Republican state convention.
    Demurrer to complaint sustained, and application for injunction denied.
    
      H. C. Preston, Perry P. Loucks, C. G. Shenvood, and Royal G. Johnson, Attorney General, for Defendants.
    We submit that the complaint presents no case upon which the jurisdiction of a court of equity can be founded. Green v. Mills, 69 Federal, 852.
    A court of equity will. not undertake to supervise the acts and management of a political parity for the protection of a purely political right. Winnett v. Adams, 99 N. W. 681.
    “A court of equity has no jurisdiction to enjoin officers of a state from issuing a certificate of nomination, the right involved being purely- political.” Anthony v. Burrow, 129 Federal, 784; People v. Rose, (Ill.) 71 N. E. 1124.
    Plaintiff makes -no claim that any one has a better, right to appear. on .the ticket as presidential electors than -defendants. Weaver v. Toney, 54 S. W. 732 (Ky.) ; State v. Dunbar, 85 Pac. 337 (Ore.); State v. Thorson,-9 S. D. 149; Shoemaker v. City of Des Moines, 105 N. W. 520 (la.) ; Fairchilds v. Ward, 151 N.Y. 359; 25 N. Y. S. 381.
    “The voice of the convention was the very- voice of the Democratic party. The work oif that convention is the law of the party and the courts cannot look beyond this work or this law because there is no other.” Cain- v. Page, 42 S- W. 336 (Ky.) ; Moody v. Trimble, 50 L. R. A. 810 (Ky.); Rose v. Bennett, 56 Atl. 185 (R. I.); State v. Crittenden, 64 S. W. 162 (Mo.) ; Clarke v. Morran, 63 Pac. 388(Mont.); State v.. Westo-n, 70 Pac. 5i9(Mont.) People v. Dis. Court, 74 Pac. 896 (Colo.) ; Davis v. Hamb-rick, 58 S. W. 799 (Ky.) Stephenson v. Board, 76 N. W. 914 (Midi.) ; Phelps v. Piper, 67 N. W. 755 (Neb.) ; Allen v. Clynn, 29 Pac. 670 (Colo*.); State v. Sturdevant, 62 N. W. 35 (Neb.); People v. Dist. Court, 31 Pac. 339 (Colo.); Kelfog v. Hickman, 21 Pac. 325 (Colo.) 30 Cyc. 768; State ex rel. Howells v. Metcalf, 18 S. D. 393; see this case, Independent Party Nominations, 57 Atl. 344 (Pa.) Davidson v. Hanson, 92 N. W. 93 (Minn.) Blaire v. Hinrickson, 37 N. C. 683 (Ill.) People v. Board, 55 N. Y. 393; State v. Martin, 62 Pac. 588 (Mont).
    It must be remembered that the law of 1909, provides the conditions under which the party nominees shall gO' upon the official ballot, and how the party convention shall be called, organized and conducted, — how can it be said that any act of the National Republican Convention ini Chicago, can in any way modify, change or nullify die legally called convention held at Huron, July 2, 1912. State v. Houser, xoo N. W. 964 (Wis.).
    The court is not the forum for the determination of questions of a political character, and it is not for the courts to say that it will be denied to these defendants the rights which belong to their membeiohip of the Republican party. State v. Board of Election Comm., 78 N. E. 1019; People ex rel. McKinley; (Ill.) 71 N. E-1124; State ex rel Kennedy v. Martin, (Mont.) 62 Pac. 588; Phelps v. Piper, (Neb.) 67 N. W. 755; 21 Am. & Eng. Ann. Case 269; Whipple v. Broad, (Colo.) 55 Pac. 172.
    Who is entitled tórname “Republican Party?” Whipple v. Hartzell, 55 Pac. 186 (Colo.) Ogg v. Glover, 83 Pac. 1039 (Rans.).
    
      A. J. Plowman, Chambers Reliar, and L. L. Stephens, for Plaintiff.
    This is a suit for an injunction to restrain the defendant, S. C. Polley, as Secretary of State, from directly or indirectly recognizing the other defendants, or either of • them, as candidates of the Republican party for presidential electors of South Dakota, and from certifying to. the county auditors of any county of the state .the name or description of .either of the above named defendants as the person named as a candidate of the Republican party of South Dakota, for the position of presidential elector from said state, etc.
    That the suit is brought by .the plaintiff in his own behalf and in behalf of all other citizens of South Dakota who are members of the Republican party, and similarly situated.
    The complaint alleges that at the alleged/ Republican convention held ait Huron on the second of July, 1912, the defendants, other than Polley, were attempted to be chosen as candidates- of the Republican party of South Dakota for tíre position of presidential electors- of said state, and that said defendants were not otherwise chosen. ' That -said defendants have procured an alleged and pretended certificate of nomination executed by the pretended chairman and secretary of said pretended -convention certifying that the 'said 'defendants had been duly nominated as the Republican nominees for the position of presidential electors of South Dakota, and filed the said alleged certificates of nomination in the -office of said Polley, as Secretary of State. Said defendants claim the right to have their -names- printed as -the regular nominees of the Republican party for presidential electors- to be v-o-tad for at the general election-, and that said Polley, as Secretary of State, has accepted said certificates as legal certificates of nomination, and has filed the same, and -has threatened to and intends to- and will certify the names of said defendants to the several -auditors' of -the counties of the state, with orders and instructions to have such names of -said defendants, except Polley, printed upb-n the official ballot at the general election- in November, 1912, as the- sole, 'exclusive, legal and regular nominees of th-e Republican party of South Dakota 'for the offices of said- five presidential electors.
    It is plaintiff’s contention that the defendants, other than Polley, have not been legally nominated, and that there is no- authority of law for filing s-aid certificate, and that s-aid1 Polley is acting without authority of law in certifying said names to the various county auditors of the state.
    Chapter 201, Ses®. Daws of 1911, being the primary law for the nomination of all party candidates, the defendants, -excepting Polley, -who -claimed -to- have been nominated a-s presidential electors at 'the Huron convention, on the first Tuesday of July, 1912, ware not nominated by -the voters of -the state; nor by a convention h-aving any authority -to do so. If appointed at -all, they w-ere appointed under the primary laws, of 1909-, but these were repealed by Section 156 o-f the primary law -of -1911, -p. 288. Section 104 abolished'all state conventions for the-nomination -of party candidates and principles for national, state, judicial’, county and legislative offices. Sec. 46, p. 257, Laws 1911, required the candidates for presidential eléttórs to -be nominated by petition; and Sec. 24, p. 252, provides: ■ ’ ’
    “Hereafter all panty candidates for all of the elective, congressional, state, county, legislative and district offices, and for the office of United States senator and presidential electors, and all party delegates and alternate delegates to the national conventions and all precinct, county, state and national committeemen, party state chairmen and majority and minority proposal committeemen shall be nominated, and party representatives elected, at the primary held in accordance with the provisions of this act.”
    This was not done. Not being elected) by the people in the manner provided by the legislature, and only claiming to be nominated by the Huron convention, which had been abolished by law, these .defendants, candidates for presidential electors, have no color of title or right to have their names placed on the ballot in November to be submitted -to the voters of the state. They claim to be the party candidates of the Republican party. That is an old established party that cast a vote and elected a governor at the last election. Therefore, these defendants, Claiming to be electors, cannot be nominated as republicans even by petition. If we apply ■the same rule that this court applied to the law of 1907 in Morrow v. Wipf, 22 S. D. 159, it applies to all organized parties.
    Right to vote is a civil right.
    That .the right to vote is a civil right granted by the constitution ;and laws of this state, and is within the protection of the law is shown by the following cases; Britton v. Board of Elec. Com’rs., 61 Pac. 1115, 129 Cal. 337; People v. Board of Elec. Com’rs. of Chicago, 77 N. E. 321 (Ill.) ; Murphy v. Curry, 70 Pac. 461-3 (Cal.) ; State v. Phelps, 128 N.-W. 1041-1045; Koerber v. Patek’, 123 Wis. 415-, 102 N. W. 40-42; Same v. Frear, 128 N. W. 1061; Baker v. Board of Elec. Com’rs., 68 N: W. 752.
    The right of suffrage is derived from the constitution of the state. State v. Weber, 105 N. W. 490 (Minn.) ; Pearson v. Board of Sup’rs. of Brunswick Co., 91 Va. 322, 21 S'. E. 483; United States v. Crosby, Fed. Cas. 14, 893; Healey v. Wipf, 22 S. D. 343. 117 N. W. 521; Spragins v. Houghton, ’3" Ill.' (2 Scam.)'377: Coffin y. Board Elec. Gom’rs. of Detroit, 97 Midi. 188, 56 N. W. 567; Clayiton v. Harris, 7 Nev. 64.
    ■ The proyision -of the Const. Art. II, Par. 1, declaring .that every rn-ale citizen shall, in all cases therein mentioned, be entitled to vote, requires no legislation -to give it effect; and' the fact that there was once a statute limiting voters to male citizens, which has been -repealed-, -does not have the effect -of not denying the right to females. People v. Barber, 48 Hun. 198,
    The right .of .suffrage is one whioh' its' possessor holds as a citizen of a state.,-secured by the constitution to 'him, and to be h-el-d on the -terms prescribed by that -constitution alone. , Huber v. Reily, 53 Pa.-St. 1x2, 23 Deg. Int. 228.
    The legislature cannot constitutionally abridge the right to vote, and a law in regulation thereof mu-st be reasonable, uniform and impartial. Monroe v. Collins, 17 Ohio St. 665; In- re Newport-Charter, 14 R. I. 655.
    The people by the adoption of the 'constitution fixed and defined in the -constitution itself what -qualifications a voter -shall possess to entitle him to vote, and the legislature cann-ot add an additional qualification. Morris v. Powell, 25 N E. 281 (Ind.); State v. Kelly, 32 So. 909 (Miss.); Pearson v. Board of Sup’rs. of Brunswick Co., su-pra.
    Art. VI., Sec. 19 -of Const.:
    “Elections -shall be free and equal, and n-o power, civil or military shall a-t any time interfere to prevent the free exercise of ■the right -of suffrage.”
    Right to name Republican- -party.
    The right to the use -of the n-ame “Republican” is a civil right, and a property right to whioh the republican party -has- obtained title by user..
    Where a -person- -does business alone under the name o-f a. bank and a chattel mortgage i-s made to 'him under that name, the legal title vesit-s in -him. Carlisle v.. People’s Bank,. 26 So-. 115 (Ala.)
    A person may -adopt any name in which to- transact business and may sue andi.be sued by such name. -Graham v, Eiszn-er, 28 Ill. App. 269; Clark v. Clark, 19 Kan. 522; In re Snook, 2 .-Hilt.' 566; England v. New York, P. Co., 8 Daly, 375. ,This case holds • a person .may acquire a new name ’by. gener.ai reputation and usage. ✓
    
      Usages long established and followed have to: a great extent die efficacy of law in all countries. They control the.construction and qualify and limit the foixe of positive enactment. Slidell v. Grandeur, in U. S. 412, 28 E. Ed. 321-324; United States v. De la Maza Arrendó, 6 Pet. 691-8, E. Ed. 547; Mitchell v. United States, 9 Pet. 711, 9 E. Ed'. 283; Buford v. IToutz, 133 U. S. 320, 33 E. Ed. 613.
    Only regularly and lawfully organized; conventions or primaries have a right to use the party name. McKnight v. Whipple, 35 Pac. 182 (Colo.) ; Whippel v. Wheeler, 55 Pac. 188 (Colo.) ; Duff v. Beckwith, 62 Pac. 838 (Colo1.) ; Phillips v. Curley, 62 Pac. 837 (Colo.).
    ■ A party has a right to use the device and name used by it at last similar 'election. Kratzer v. Allen, 50 Pac. 209. (Colo.) ; Ogg v. Glover, 83 Pac. 1039 (Kans.); .Baker v. Bd. Elec. ComTs., 68 N. W. 752 (Mich.).
    Where a name was adopted as a party designation and used for several years, and the party had a candidate for mayor, whose name is now on the official ballot, the candidate of another subsequently formed party cannot use the name' for designation. Brown v. Jensen, 90 N. W. 155 (Minn.)
    A 'candidate for congress of the former so called Social Democratic party, which has changed its name to the Socialist party, is noit entitled to have the abandoned title added to- the name of such candidate on the official ballot in the congressional district. Einid v. Scoitt, 92 N. W. 96 (Minn.) ; In re Moiiedge, 99 N. W. 35s (Minn.).
    A caption on a ballot to' -be used at an election which is calculated to induce the elector to conclude from an inspection of the caption or headlines only that the persons therein mentioned are of his political persuasion, when they or any of them are not of suoh persuasion is prohibited. Shield v. Gregor, 91 Mo. 534, 4 S. W. 266'; Porter v. Elide, 84 N. W.- 263 (Neb.).
    Injunction is the remedy. State ex rel. v. Moran, 63 Pac. 393-
    The civil courts 'have jurisdiction in injunction proceedings instituted to protect a personal right. Itzkovitch v. Whitaker, 39 So. 499, x E. R. A. (N. S.) 1147.
    The duty of the secretary of state to- give notices of the election of members, of the senate and' assembly under an apportionment act is not political, but is purely ministerial, and, if the act is unconstitutional, he may be restrained 'by injunction from proceeding under it. State v. Cunningham, 81 Wis. 440, 51 N. W. 724.
    An injunction will be granted to restrain the removal of the county record/s and offices to a new seat, on a petition alleging fraud and illegality sufficient to invalidate the legality of the proceedings, notwithstanding the statute provides a remedy by a new vote. Sweatt v. Faville, 23 Iowa, 321; Todd v. Rustad, 43 Minn. 400, 46 N. W. 73; Solomon v. Fleming, (Neb.) 51 N. W. 304-
    Primary law.
    Ch. 201, Sess. Laws 1911, -p. 249-289, commonly called the Richard’s Primary Election Law, Senate Bill'No. 309, was duly enacted by the Legislature and became a law not later than March 10, 1912, and is the law that should have governed the .primary election for the nomination of all candidates. An initiative petition was filed with the Secretary of State and by him presented to both houses, of the Legislature where.it became a part.of Senate Bill 309 and was passed by the Senate Monday, February 27, 1911, by an aye -and nay vote, there -being 36 ayes, absent and not voting 7, excused 2, and was passed by the House Thursday,March 2nd, 90 ayes, 10.nays, absent and not voting 3. It is endorsed “Received by the governor March 3, 1911, at 3:15 p. m.” The legislature adjourned that day, and it was filed by the governor with the secretary of state on March 9, 1911, at io;i5 a. m. zvithout any objections thereto1. The journals therefore show that the bill was passed by more than two-thirds majority in each house.
    The court will take judicial notice of the journals: Comers v. State, 5 S- D. 321, 58 N. W. 804; Ritchie v. Richards, 47 Pac. 607; Jackson v. State, 142 S. W. 1113. Court states it would take judicial notice of the legislative journals and judicial notice that an election was 'held for adoption of initiative and referendus act.
    Section 156, p. 288: “All acts or parts of acts in conflict with this act are hereby -repealed.” - '
    
      See. 157: “There being- no adequate law in this- state, providing for the nomination of party principles, candidates for elective offices, delegates and committeemen, by a direct primary vote, nor provision -how to determine what shall constitute an official party endorsement to appointive offices, or orderly representation within the party, an emergency is hereby declared to exist and this act shall take effect and be in force immediately upon its passage and approval.”
    When the -bill was returned to the secretary of state it did not bear the governor’s signature or approval and if approved, it was approved by operation of law, as set forth in the constitution and statutes in existence at the time.
    Sec. 1, Art. Ill of Const, of South Dakota: “The legislative power shall be vested in a legislature which shall consist of a isenate and house of representatives. Except that the people expressly reserve to themselves the right to propose measures, which measures the legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the legislature may have enacted shall be -submitted to a vote of the electors of the state before going into- effect, (except such laws as 'may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions).
    Provided, that not more than five 'per centum of the qualified electors of the state shall be required to invoke either the'initiative or -the referendum.
    This section shall not be construed so as to deprive the legislature or any member thereof of the right to propose any measure. The veto power of the executive shall not be exercised as to measures referred to a vote of -the people. This- section shall apply to municipalities. The enacting clause of all laws approved by vote -of the electors of the state shall be: ‘He it enacted by the people of South Dakota.’ The legislature shall make suitable provisions for carrying into effect the provisions of this section.”
    We .also cite: Section 22, Art. III. Const.; Sec. 9, Art. IV. of Const.; Tarlton v. Peggs, 18 Ind. 24.
    Sec. 23, Rev. Pol. Code,- 1903, pg. 5: “Any laws which the legislature may have .enacted1, except laws which' may be necessary for the immediate preservation of the public peace, health and safety, support to the state government and its existing institutions, shall, upon the filing of a petition as hereinafter provided, be submitted to a vote of the .electors of the state 'at the next general election. * * *”
    Section 23 excepts laws containing the emergency clause. Our contention is that this bill is excepted by Sec. 1, Art. Ill of the 'constitution by reason of its containing the emergency clause, and is excepted by Section 23 of the Political Code above. Being excepted by the constitution or statute it was necessary to pass it in the same manner as though no initiative petition had been filed therefor. It could be approved by the governor either by signing it with his approval or it could become .a law by operation of law by reason of the failure of the governor to return it to the secretary of state within ten days 'after the adjournment of the legislature without his objections thereto. In brief, it became a law by operation of Sec. 9, Art. IV of "the Constitution. The legislature declared there was .an emergency and that the act should take effect and be in force immediately upon its passage and approval, and it is for the legislature to decide and determine what circumstances, conditions or facts make an. emergency and the. courts have no authority to review or adjudicate the finding of the legislature on the question of emergency. State ex rel. Lavin v. Bacon, 14 S. D. 405; Mark v. State, 15 Ind. 98; Day Land & C. Co. v. State, 68 Tex. 526, 4 S. W. 865; Hendrickson v. Hendrick-son, 7 Ind. 13; Carpenter v. Montgomery, 7 Blackf. 415; Biggs v. McBride, 17 Ore. 640, 21 Pac. 878, 5 L. R. A. 115; Bennett v. Seng’stacken, 113 Pac. 863; Dallas v. H-allock, 44 Ore. 258, 75 Pac. 204; Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710-720; Sipe v. People, 56 P. 571.
    Emergency clause.
    Tarlton v. Peggs, 18 Ind. 24, holds:
    “An act was filed in the 'secretary of state’s office on the day of the legislature’s adjournment, at an hour later than such adjournment, by the governor, but. without his approval, and without objections thereto being filed. I-t declared the existence of an emergency and that it should be in force from and after its passage. Held- that the act beoame -a law from and after the time of ■such filing.” Galveston R. Co. v. Lynch, 55 S. W. 389; Texas v. Stevens, 103 S. W. 481.
    
      In our case the governor could.not 'return it to -the legislature on account of its adjournment, but the constitution, Sec. 9, Art. IV., required him to file it with the secretary of state with his objections. There were no objections and therefore the act became a law. Town of Seven Hickory v. Ellery, 103 U. S. 423, 26 R. Ed. 435; State v. Wheeler, 89 N. E. 5; Evans v. Commonwealth, 15 ,Ky. R. R. 606; Boggs1 v. Commonwealth, 15 Ky. E. R. 653; Opinion.of Justices, 3 Mass. 567; State v. Holdien, 23 So. 643, 76 Miss. 158; Henry'v. Carter, 40'So. .995, 88 Miss. 21; Statecup v¡ Dixon, 136 Ind. 9, 35 N. E. 987; Capito v. Tapping, 64 S. E. 845, 22 L.'R. A. 1989 (W. Va.); Atlantic Coast L- R. Co. v. Mallard, 43 So. 755 (Ela.) ; Norris v. Cross, io5: Pac. 1000, is a case from Oklahoma. ' ■ ’
    Our constitution excepts all laws containing an emergency clause and includes initiated bills that have the emergency clause as well as all others. People^ v. Scott, 120 Pac. 126; Evans v. Commonwealth, 15 Ky. R. R. 606.
    The fact that a petition was’filed with the secretary of state and by him submitted to each of the houses of the legislature petitioning for -the enactment -and submission- of the measures embraced in Oh. 201, Sess. Raw-s 1911, in no way affects the validity of the act, for -the reason that as enacted by the legislature it contained -the emergency’ clause and all bills, measures or laws containing an emergency clause, and that were passed by a two-thirds majority of each 'house, are expressly excepted from Sec. 1, Art. Ill, being the clause of the constitution authorizing the initiative and referendum. This court has heretofore so held in its- decision rendered in the case of State ex rel. Ravin v. Bacon, 14 S. D. 394, 85 N. W. 225, the opinion being filed April 3, 1901.
    This case was -affirmed by the Supreme Court in -the case of Kadderly v. City of Portland, supra.
    This amendment to the constitution (Section 1, Art. 3) was adopted b.y a.vote of the -people held November 8, 1898, and -the legislature of 1899 enacted .what is now section 23 of the Political Code, p>. 5, Rev. Codes of 1903, which expressly provides that:
    “Any laws which the legislature may have enacted, except laws which may be necessary for the immediate_ preservation of the public peace, health and safety, support to the state govermneni 
      
      and its existing institutions, * * * shall be submitted to- a vote of the electors of the state at the next general election.”
    The legislature that enacted this statute evidently construed this amendment to the constitution as not ineluding those lazes therein excepted, -containing an emergency clause. The amendment itself, in the latter part thereof, contains- this clause: “The legislature shall make suitable provision for carrying into effect the provisions of this section,” and section 23 was the provision made by the legislature of 1899, and it contains the exception of emergency laws, so -that there is no provision of law for submitting an initiated law containing an emergency clause to a vote of the people. If this clause, Sec. 1, Art. Ill, i-s to -be construed, that an initiated law containing an emergency clause must be submitted to the people, it would virtually be a repeal of section 22, Art. Ill of the constitution. This certainly was not intended. To give to the constitution such a construction would make it impossible for the legislature to give immediate effect ito any initiated law by -air emergency clause, for under the present condition of the law, it could only be voted on at a general election. In case of insurrection, pestilence or any -other emergency cause, the whole power of the ■state might be suspended by filing a referendum -petition containing the signatures of -only five -per cent of the voters of the state.
    To give section 1 a construction that an initiated bill, containing an emergency clause, must be -submitted to the people would be to deny to the legislature the right the constitution itself absolutely protects, for the section prohibits the courts from so construing it as to deprive the legislature of the right to propose any measure.
    
    If the people shoul-d disapprove of the -action of the legislature .in adopting- and enacting- an initiated-law by adding thereto an emergency clause, the people have an ample remedy. They may initiate a bill for its- repeal in toto and have the question of repeal submitted to the people, and in this manner the people may repeal it, or the legislature itself on such a bill may add thereto the emergency ■ clause and effect the repeal at once.
    Sec. 1, Art. Ill, also contains this clause: “The veto power of -the executive shall not be exercised as to- measures referred to the people.” ■
    If a bill contains an emergency clause it is exc.epted. from this section, and is not a measure referred to a vote of the people, and is not withdrawn from the veto power. It must be treated -by the executive as any other bill not referred and must be approved or returned with his objections as the constitution provides. Senate Bill 309 was filed by the governor in the office of the secretary of state March 9, 1911, without objections and therefore became a law.
   McCOY, P. J.

Plaintiff makes application -for injunction restraining defendant Sarpuel C. Polley, as Secretary of State, from certifying to the various county auditors the nominations for presidential electors selected by the Republican state convention held at Huron July 2d, under the provisions of the primary law. The "electors .so nominated are also defendant^. Plaintiff as a Republican voter' and elector, by his petition, claims the right to such injunction on the ground that such presidential eelctors selected at said Huron convention were not and are not Republicans-, and that their selection and the placing of their names upon the official ballots in the regular Republican column results in a fraud upon-plaintiff and .-all other Republican voters of this state who desire to vote for President Taft by means of the regular Republican ticket. Defendants have demurred, and also moved to -quash plaintiff's petition on the ground- that the same does not state facts sufficient to warrant the injunction relief demanded by plaintiff. "

It is the -contention, among- others, of -defendants that as no other Republican, or Taft, electors have been nominated whose names might in any manner appear on the regular Republican ticket in !the Republican column, plaintiff would be in no different or better position if the injunction were granted than he is now, in so far as his said- political right to vote for President Taft on the regular ticket is concerned. - We are of the opinion that this contention of defendants is -well taken. Plaintiff is- not a candidate .himself for presidential elector, or for any other office affected by the action of the 'Huron convention. The specific right which plaintiff claims will be violated and invaded i-s that of voting, or the opportunity of voting, for President Taft by means of the regular Republican ticket on the official ba-llots to be -used at die November election. The only effect of the injunction, if granted, would be to prevent the names, of these electors appearing in the Republican column in the Republican ticket on the official ballots, and would accomplish nothing further than to leave a vacancy in the Republican ticket on the official ballots as to- Republican nominees for presidential electors, and would in no manner -protect or operate to enforce or secure to plaintiff, or any other Republican so situated, the right or opportunity to vote f-or President Taft by means of the regular Republican ticket on the official ballots.

It seems' to be generally held that the applicant for an injunction has the burden of showing that he would in some manner be injured or deprived of some lawful right without -the aid of such injunction, and that by the granting of such injunction he would obtain tire deired relief. Section 197, Code Civ. Pr. It is another general rule or principle of law that courts should never be required to perform idle or useless acts.

The granting of the injunction, as prayed for by plaintiff, under the circumstances of this case, and in view of the present situation- existing in this state, with reference to the nominaton for Republican presidential electors, of which this court will take judicial notice, would- he air empty and idle aot in so far as it would affect the right or opportunity of plaintiff, or any other Republican so situated, to vote for President Taft by means of tire regular Republican ticket on the official ballots. On this ground we are therefore of the opinion that -the showing made by plaintiff is not sufficient to empower the court to grant the prayed for injunction.

Another contention of plaintiff is that chapter 201, Session Raws of 1911, commonly known as the “Richards Primary Law,’’ is now in full force and effect as a law of this state. We are of the opinion that this contention is not tenable. W-e are of the opinion that this statute was never passed as- or for the purpose of becoming a law, but only for the purpose of being submitted to a vote of the people under the- initiative and referendum, as conclusively appears from the title of the act itself. It is contended that, because this act contains an emergency -clause, it was not -therefore submitta-ble -to a vote of the people under the referendum. If this act had-, in the first instance, been passed as a law intended to take -effect immediately' u-p-on- its passage- and approval, and a referendum petition ther-eon seeking to submit said law to a vote of the people had been duly filed, then this contention- of plaintiff would 'have been applicable, but, not having been so passed, the emergency clause thereof is nothing more than.' ineffectual 'sur-plusage.

Some of our associates contend that the injunction prayed for by plaintiff should be granted on the ground that this is an ex rel. action maintainable by the Attorney General of the state on behalf of the people of the state, and' that it is the people of the state who are injured by the names of the defendants, nominees for presidential electors, appearing on the official ballots in the Republican column, and, on account of the allegations contained in plaintiff’s petition, that the Attorney General has refused to institute this action in the name of the people of the state plaintiff’s demand for injunction should be granted. Neither plaintiff nor his counsel have presented or argued any such contention or question, nevertheless, .we are of the opinion that this contention is also untenable. Whether this action be maintainable by the Attorney General on behalf of the state, or by private individuals as the members of a political party, does not relieve the party plaintiff, whoever it may be, from making out a good and proper case or cause for injunction under the rules of equity applicable to the granting of such relief. Again, we cannot concur in the view that this is a.cause properly maintainable by the Attorney General on behalf of the people of this state. We are of the opinion that neither a political party nor any considerable number of the members thereof constitute the people of-this state for the purpose of seeking relief by injunction such as demanded in the petition in this case. Plaintiff in his petition, in substance, states that he is a Republican voter and elector of this state who desires to vote for President Taft, and that this action is -brought by himself as such voter and elector and also on behalf of all other Republican voters so situated, and that he is injured and defrauded of his said right to- so vote by reason o-f -the presence of the names of .defendants, electors, appearing on the regular Republican ticket. Conceding that plaintiff has legal capacity to sue and maintain this action as a party plaintiff for himself and other Republican voters similar situated, still he must show that he and all others so- -similarly situated, would be beuefitted -by the grantin g'of said injunction by- riving him the right or opportunity of which he claims to be so 'deprived by defendants. Plaintiff by the Very allegations of his petition is not seeking relief on behalf of the whole people of the state ’ or in which the whole .people of the state might be interested, but only as an elector who desires to vote in a particular manner 'by means of a particular ticket. We are of the opinion that the case of State ex rel. McCue v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741, cited by our associates, has no possible application to this case. In that case a voter and citizen of North Dakota brought a similar action to contest the constitutionally of the North Dakota primary law in relation to the preferential vote for the office of United States Senator. There can be but little question but what the issue in that case was a public one affecting the whole people of the state. In the case at bar the constitutionality of the primary law is not assailed by plaintiff, but the relief which he demands is based on the alleged fraudulent action of a majority of the delegates to the Huron convention in nominating-persons claimed by plaintiff not to be Republicans at the present time, and therefore asks an injunction to prevent the names of those chosen by said convention as nominees for presidential electors appearing on the regular Republican ticket. The Republican party of this state by and through its regular organization is not here asking for such relief; neither is it shown that the regular officers or committeemen or any of them of the Republican party have ever refused to1 institute such proceedings, or that any of them even desire such proceeding. No other candidates for presidential electors claiming to be Republicans are asking to be substituted in place of defendants on the official ballots, and neither is palintiff asking to have any other Republican nominees so> substituted. Therefoie we are clearly of the opinion that the relief sought in this action by virtue of the allegations contained in plaintiff's petition is not of such a public nature as to give the whole people of the state a public interest therein, and is not maintainable in the name of the people of the state.

The views we have expressed render it unnecessary to consider or pass upon other questions presented by the record and argued by counsel.

The demurrer of defendant may be sustained and the application for injunction denied.

HANEY, J.

(dissenting). It is stated in the complaint that this proceeding is instituted by “the plaintiff” on his own behalf and also on behalf of all other citizens of the United States and of this state, who are members of the Republican party and similarly situated: that the “.plaintiff” is an elector of this state qualified and entitled to vote for presidential electors at the coming general election in this state: that the Atorney General was requesed o institute the proceeding; and that he has refused so to do. In my opinion an eelctor, upon the refusal of the Attorney General to prosecute, ma ymaintain a proceedin ginvolving questions pertaining to the sovereignty of the state, its franchises and prerogatives, and the liberties of its people, in this court, in the name of the state. In such a proceeding, the state, not the elector, is the plaintiff, and the 'latter’s- interest, other than- -as an elector, is- immaterial. In other w-orcfe, in such -a case, whether on the relation of 'the Attorney General or an elector, the Attorney General having' declined to act, it i-s wholly immaterial what effect, if any, the result of the proceeding may have upon the relator. State v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741; Everitt v. Board, 1 S. D. 365, 47 N. W. 296. The distinction between an action or proceeding instituted in the name of the -state on the relation- of the Attorney General or in the name o-f the state on the relation of an elector, the Attorney General having refused to act, -and an a-ction instituted by an individual to enforce or protect a right peculiar to- himself and others, similarly situated, was not considered in State ex rel. Cranmer v. Thorson, 9 S. D. 152, 68 N. W. 202, 33 L. R. A. 582. There was no allegation in the co-m-plaint in that case regarding the refusal of the Attorney General to prosecute the proceeding. In the title of that case, Cranmer, not the state, should have been named as “plaintiff.” But, no objection appearing to- have been raised, the proceeding was regarded- as the suit of a private person governed by the rules applicable to ordinary actions in equity. Therefore, that case is not an ¡authority which ¡should govern the -ca-se at bar, if the -complaint discloses a state of facts involving questions pertaining to the sovereignty of the state, its franchises, and prerogatives and the -liberties of its -people. - In my opinion the complaint, liberally -construed, with -a view o-f -substantial justice, as it should be discloses such a state of facts, notwithstanding the superfluous declaration- that the suit is brought -on behalf of the relator, erroneously designated- as “plaintiff” and others similarly -situated. Therefore, with profound respect for the judgment of my learned Associates, I dissent from the conclusion that the demurrers to the complaint should be sustained on the ground that the relief -sought-would he of no benefit to the relator.

In view of the conclusions reached by a majority of the court regarding the interest of the relator, no useful purpose- would be served by an extended discussion of other phases of the case. I-t is sufficient to state that, in my opinion, this court is authorized by the onstitution and statutes of this state and its former decisions to determine in this proceeding whether the names of the defendants, other than the Secretary of State, should appear as candidates for presidential electors in the Republican column on the official ballot which every elector of the state will be required to use if he votes* at the coming- general election; that whether such names shall so appear is a legal .question affecting- -the legal rights of every elector of this state, regardless of party -affiliation; that, upon- the facts as they stand admitted for the purposes of defendant’s demurrers and “motion to quash/’ such names should not so appear on such ballot; -and that the Secretary of State should be restrained -from- so certifying the- same. These views necessarily lead to the conclusion that the demurrers and “motion to quash" should be overruled, without -reference to* the Richards ■proposed primary law, which, in my opinion, did not go into- effect by operation of the emergency clause contained in the measure as submitted by the Legislature.

CORSON, J.

(dissenting). I fully concur in the dissenting opinion of toy Associate, Judge Haney; but, in view of -the importance of the case, I deem it proper to- add thereto some further reasons, why this -court should retain- jurisdiction of the case, and grant the injunction therein prayed for restraining and' enjoining the Secretary of State from placing the candidates for presidential electors on the ticket under the head of the Republican ticket. . The law of this state provides that an elector may, if he desires to vote the entire ticket of his party, make a cross in the circle at the head of the ticket of his party, and thereby vote for all candidates whose names appear on such ticket. In -case, therefore, the candidates for 'presidential electors selected by the convention at Huron on July 2d ¡are in favor of a president -and vice president in opposition to the nominees -of the regular Republican convention held in Chicago in June, 1912, -a cross in the circle at the head of the ticket of the Republican party would constitute a vote on the part of the elector for the entire ticket, and necessarily be a vote in favor of electors in opposition to the regular nomination by the national Republican convention. Hjence, every Republican elector, in order to avoid voting for the candidates for Republican elec-dors in opposition to the -candidates -of -the national Republican -convention, will be -compelled to- omit the .-cross in the -circle at the head of the party ticket, and make a cros-s in -the circle at the left of the name of each candidate for whom he desires to vote. He will, therefore, be denied a very important right, -and be compelled to perform much additional labor in preparing his ballot on the day of election.

Again, the insertion of the names- of the -candidates for presidential electors proposed under -the- head of the Republican party will necessarily result in- obtaining the votes of -a 'l-arge number of Republican electors who are favorable to the candidates selected by the Republican national convention, but who by inadvertence or mistake will as they usually -do make a -cross in the circle at the head of their party ticket, and thereby appear to vote for the candidates nominated by “the -progressive” party at its Chicago- convention held in August, 1912, which would in- effect result in perpetrating -a fraud upon such electors.

Again, the candidates sought to be placed upon the ticket under the head of the name of the Republican party for presidential electors having -declared-, as it i-s alleged in the complaint, that they will not vote .for the -candidates selected by the Republican national convention -at Chicago, have no right to a place upon the party ticket under the name of the Republican party from the mere fact that they claim to have been seleoted as Republicans- at the primary election. It may be true that the delegates to- that convention were selected at the primary election in June as delegates to the state convention as -members of the Republican party; but it appears from the -complaint that after their said -election as delegates to the -state -convention -they seceded from- the national Republican party and joined what is dominated the “Progressive party,” which subsequently in Augus-t of the present year nominated- -candidates for president -and vice president of the United States in opposition to the candidates of the national Republican convention in June, and they had no right, therefore, to continue to act -as members of the Republican party in the Huron convention of July 2d, and the ticket so selected by them for presidential electors should.have no place on the ticket under the head of the Republican party ticket.

As an illustration of the position of those delegates favorable to the new progressive party, let us suppose that a majority of the 'delegates to the state convention as Republicans had prior to the convention in Huron of July 2d, concluded to support the Socialist party, whose presidential nominee is Mr. Debs, and had in that convention selected candidates for presidential electors favorable to the election of the candidates for president and vice president of the Socialist party; would it be contended by any one that the socialist ticket thus selected should be placed as a Republican party ticket on the ballot? I.think there could scarcely be found a person in the state who would approve of such a proceeding. Again, suppose as an illustration that a majority of the delegates selected at the primary in June as Republicans had after their election and tille holding of the national Republican convention, ’ being dissatisfied with the nominees of that convention, decided that they would support the Democratic ticket, and had, therefore, selected the candidates for presidential electors favorable to the election of the candidates of the democratic party at their national convention, would any one claim that such candidates- should go -upon the Republican party ticket on the ballot? We apprehend that there would be no difference of opinion among the people of the state as to the propriety of excluding such candidates from being-placed upon the Republican party ticket. As I view this situation, there is no distinction between' the cases I have supposed and the case before its under the complaint which for the purposes of the demurrer must be regarded as true. In my opinion, therefore, it is the duty of this court to enjoin the Secretary of State from presenting the names of the candidates selected at the Huron convention to be placed upon the Republican party ticket.

It is claimed by the defendants, and seems to be the view -of the majority of the court, that in view of the fact that the re-lator and the other members of the Republican party in the state co-ul-d not -if those candidates were. excluded from their party ticket vote for the candidates nominated by the national Republican convention for president and vice president, therefore the relator and the other members of the Republican party of the state would not be prejudiced by placing the names cl the candidates selected by the Huron -convention for 'presidential electors- upon the Republican, party ticket. But I think I have shown that this contention is untenable, and that the Republican party as such has a right to the protection of the court ag'ainst there being placed upon their ticket candidates -representing a party to which the Republican ■party is opposed.

In expressing these views I do not wish to be understood as indicating my own private opinions as to the merits or demerits of the nominees of the respective conventions held in June and August of the present year, as I am considering the case as presented by the relator, which, as before stated, for the purposes of the demurer must be taken as true. The relator and those similarly situated would have, perhaps, been in a little more favorable position in this court had the Republican delegates withdrawn from the convention and organized another convention and selected their candidates for presidential electors when it became evident that a majorit)?- of the members of the convention had concluded to support the candidates of a party in opposition to the national Republican convention, and selected a list of electors favorable to the election of the nominees of the Republican national convention held -in June, but the fact that they inadvertently omitted to withdraw from the convention and to select such a list of candidates does not in my opinion- affect the right of the relator and the members of the Republican party of the state to have excluded from their ticket the names of the candidates tha were selected by the Huron convention.

I have not deemed it necessary to cite any authorities in sustain the view I have herein expressed as the -decisions -upon election cases are so numerous and based upon so many different statutes that it is difficult to extract therefrom any general rule applicable to this subject. The law of this state, however, under the Australian ballot system and the primary system- enacted by the Legislature, has placed the -primary election and conventions held thereunder as well as the general election under the laws ’of the state, and in my opinion it is the duty of this court to- protect the various -political parties in the righs thus conferred upon them by the -statute law, and to enforce the observance of those laws upon all parties, and to p-ro-t-ect the rights .-of the individual electors in <th.e exercise of their elective privileges, and to protect 'the rights of parties in .the exercise of the duties devolved upon them by the legislative enactments, and to prevent any one of the political parties in this state from adopting any mehod that may prevent the individual voter from exercising any rights granted him by the Constitution of this state and the laws enacted thereunder.

Whether or not the candidate's for presidential electors selected by the Huron convention may now be placed upon the ballot as candidates of the “Progressive party” by petition or otherwise is not now before ms, and therefore upon that subject I express no opinion.

In conclusion my judgment is that this court should issue an injuction enjoining and restraining the Secretary of State from certifying to the county auditors the names of the proposed presidential electors selected at the Huron convention upon the Republican party ticket.  