The opinion
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RILEY, J.
(concurring specially). For the reason that petitioner does not establish a clear legal right to the writ, it is believed the issuance of it should be denied.
The order of the State Election Board struck from the files petitioner’s notification and declaration of candidacy for Governor. The reason justifying the order was lack of good faith in petitioner’s candidacy for Democratic nomination to the office.
Petitioner’s surname is that of Turner; it is the same as that of Roy J. Turner, who is also a candidate for the same nomination and election at the same time, to the same office. The name is spelled the same; it sounds the same; and it is the same. Honorable John B. Turner made a famous name in the judicial annals of jurisprudence in the Southwest. He was a member of this court.
The public policy in Oklahoma, as evidenced by constitutional provision and statute, amongst other things, is one to preserve the purity of the ballot and to prevent and punish fraud in elections. The safety of the people is the supreme law — le salut du peuple, est la supreme loi.
Duplication in the filing of names of a candidate for nomination and election to a public office, and the use of names famous, is avoided under the public policy, by statute, Title 26, S.L. 1943, ch. 5, p. 87, sub. b, and by virtue of said statute the burden placed upon the person possessed of a similar name to that of another candidate, or of a famous person, in the field, is to show good faith. There is a time and place for all things.
No person, including petitioner, challenged the notification and declaration of Roy J. Turner to be a candidate for the Democratic nomination and election to the office under consideration at the ensuing election. A presumption obtains to safeguard his right to run and be elected without fraud or interference.
No such presumption can be indulged •to safeguard petitioner’s right or privilege of candidacy for the public office, irrespective of his previous reputation, intelligence, or good morals. He is a fraud and everybody knows it, or, by the exercise of good judgment should know it. Judges cannot be blind to that which everybody knows.
The candidacy of John Bunyan Turner, the petitioner, not only deters the other candidate of the same name in the exercise of his right, but it reflects upon all candidates for the Democratic nomination and election to the office of Governor, and it reflects upon the State of Oklahoma as well as upon this court.
Petitioner did not avail himself of the procedure provided by law to prove his good faith. The administrative process required of him that he enter a proceeding before the State Election Board 15 days “prior to the opening of the filing period for such office,” which was long before he filed his notification and declaration, so that the matter of similarity of names involved and occasioned by the duplication of his notification and declaration could have been' tried out in due time and petitioner’s good faith, if any, could have thereby been established. He is now in default. If the petitioner was not in default before the board at the time his name was stricken from the ballot, he was in default in failing to show, in the manner provided, his good faith.
This court may not properly extend to the State Election Board power and authority to forego the defaults of petitioner, and particularly his failure to file the pre-filing proceedings before the board at the time stated in the statute. That time has long since elapsed and the Election Board, as an instrument of administration in government and in the exercise of the particular function, having discharged its
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duty, power, and authority, became, was, and is functus officio. That ended the matter.
The error of the board in not consolidating the contests and in requiring more than one deposit of $250 is wholly immaterial. It was an intermediate error, if at all, not decisive or determinative of the merits of the final order by the board entered striking the name of John Bunyan Turner from the ballot. De minimis: non curat lex — the law takes no account of trifles.
If the writ is not to be denied as a matter of law, for failure of petitioner to show a clear legal right to the writ, and in that event consideration is to be given to the construction of a statute applicable to real candidates acting in good faith in a moot case as this, this court should also construe and apply the applicable statute in the equitable consideration and in the exercise of its original jurisdiction extending to a superintending control over all inferior courts, commissions, and
boards
created by law and should afford complete relief to all parties involved.
The highest of mandates of the law, the Constitution, sec. 7, art. 3, provides: “The election shall be free and equal.”
The truth of the matter is that consideration in equity of the subsequent error of the board, if any, and equitable consideration in the denial of the prerogative writ of mandamus and the ignorance of petitioner as to administrative proceedings and indulgence of the fraud of duplicate names by any agency intended to safeguard the purity of election and prevent fraud, but intended by those who file them to confuse the qualified electors of an enlightened state and to defeat the purpose of an election, is ridiculous.
The writ should be promptly denied upon construction, not by way of dictum as to the statute applicable to a real candidate in good faith, but as to Title 26, ch. 5, S.L. 1943, S.B. 118, p. 87. That act, by title, states the public policy as to famous and duplicate name filing of pseudo candidates and prescribes procedure as a condition precedent to placing a similar name on the ballot when the possessor of it acts in good faith.-
Section 1 of the act prescribes a pre-filing period of time for hearing before the board, and requires compliance. John Bunyan Turner, for his failure to comply, is entitled to no hearing whatever at the time the order was made, as a matter of law. He has no right in the premises, fair or unfair, with an attorney or without, before the board, or before any other agency of the people’s government. He and those who act for him in equity may take the issue to the people who have the discretion to amend or change the law as to the time of hearing as now provided by law, and as to the matter of change of the law intended to avoid similar names of candidates for office in Oklahoma and similar names to characters of history.
Nullis commandum sopere protest de injuria sua propia.
He who sticks at the letter sticks in the bark, i.e., does not get at the solid substance of the law. I find no necessity of a construction of the statute to which the unnamed per curiam opinion devotes a construction. When a real issue and a real candidate appears in court, that statute may receive an additional construction and one at variance with the per curiam opinion.