The opinion
RILEY, C. X
(dissenting-)'. The public policy in the state of Oklahoma involves and includes the mandatory primary system for selection of public officers. By section 5, art. 3, Constitution, it is the duty of the Legislature to provide such a system. This has been done. The system provided constitutes the exclusive method for selecting- candidates by the political parties.
“Shadow filings” tend to destroy this feature of our governmental system. It is not so much the privilege of candidates that is to be considered by the courts and boards in such cases, but in a larger measure it is the right of the sovereign citizens that they be not confused in their choice of officers who are to be chosen by them. It is their right that this governmental policy and function be not destroyed or hampered.
Whenever two men of the same names are filed for the same office, it is probable that a fraudulent filing exists. As a practical thing, in view of numerous other filings as usually exist in this case and in this state, no one of those possessed of the same name can be nominated. The counters at the election are confused in their tallies and an intolerable condition exists. Wisdom would seem to dictate to one possessed of a name already -filed, unless fraud
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exists in that filing', that he await a more opportune time to serve the public, or that he seek preferment to some similar office.
G. B. Fulton, the first candidate filed for the office involved, seeks a writ of mandamus to strike the name of Elmer L. Fulton, who subsequently filed, “or for such other and further relief as may seem meet and just” to the court.
The spirit of modern law is to grant relief according to facts shown. Our courts are not bound down nor hedged in by useless and antiquated forms. It can no longer be properly said that one seeking redress from grievances must speak the magical words of an ancient formula, but the spirit of modern law is to look to the facts and not to the form or prayer for relief. By legislative act and judicial construction the distinction between forms of law and equity are abolished in this jurisdiction.
Herein, if the applicant shows he has not been fully heard before the board, this court should compel such a hearing by the writ sought.
On the very day that contestee filed his counter petition the board held it sufficient in spite of the fact that after a three-day checking of the names the contestant showed by certificates of precinct registrars and county clerks that the names contained on the petition were not sufficient in that only 213 of them were registered as required by law.
The law (chapter 98, S. L. 1927) requires a counter petition to be signed by a designated number of qualified voters of the district affected, duly registered as members of the political party affected. And “such petition * * * shall contain the post office address of each signer, and the county precinct in which such signer is a registered voter.”
The evident purpose of the requirement of the petition as to address and precinct registration is to allow an inquiry into the question of fact as to registration and affiliation with the political party concerned.
When a challenge occurs as to the sufficiency of the counter petition as in this ease, an inquiry must precede determination. A hearing contemplates a reasonable opportunity to adduce evidence. A writ of mandamus is necessary herein to secure this right to petitioner, and should issue out of this court to compel a hearing by the board as contemplated by law.