The opinion
Rudkin, C. J.
(dissenting) — I regret my inability to agree with the conclusion announced by the majority of the court in this case, and the importance of the questions involved calls for, or at least justifies, a brief statement of the reasons for my non-concurrence.- The opinions of the,majority are based upon the ground that the direct primary law, so-called, does not prohibit the acts committed by the respondent, and does not render him incompetent to qualify for the office to which he has been elected; or, more properly speaking perhaps, upon the ground that the language of the act is so obscure and cloudy and the penalty so severe that a court should not enforce the penalty which follows as a matter of course upon its violation. The only provisions of the act which have any special bearing upon the question under consideration are §§'28 and 29, which read as follows:
“Sec. 28. No person shall, in order to aid or promote his own nomination to a public office under the provisions of this act, or any amendment thereto, directly or indirectly, him *584 self or through another person, give, pay, expend or contribute, or promise to give, pay, expend or contribute any money or other valuable thing, except for personal expenses. The words ‘personal expenses,’ as used in this act, shall include only expenses directly incurred and paid by a candidate for traveling and for purposes properly incidental to traveling, and for writing, printing and perparing for transmission any letter, circular or other publication not issued at regular intervals, whereby he states his position or views upon public or other questions; for stationery and postage, for telegraph, telephone and public messenger service, and for other similar expenses, and for the necessary expense of hiring halls or other rooms for the purpose of holding meetings to address the voters and others upon public questions and matters relating to his candidacy.
“No person shall be competent to qualify for any public office, who shall have, prior to the holding of any primary election, paid, or promised or agreed to pay, either directly or through another or in any manner whatsoever, to the owner, publisher, manager or representative of any newspaper, any sum of money or other thing of value, for any article or published statement in a newspaper wherein the electors are advised or counseled to vote for such candidate, or his fitness or qualifications for office are set forth, or his photograph or biography is published.
“Sec. 29. It shall be unlawful for any owner, proprietor, editor, manager, officer, clerk, agent, reporter, or employee of any newspaper,magazine or periodical printed or published in this state, to take, accept, or receive, or agree to take, accept or receive, for himself or any other person, or persons, firm or corporation, either by himself or any other person, persons, firm or corporation, any money, gratuity or other valuable consideration or article of value for or on account of or as a consideration for such newspaper, magazine or other periodical supporting or advocating the election or defeat of any candidate or candidates at any primary election. Any such owner, proprietor, editor, manager, officer, clerk, agent, reporter or employee of any newspaper, magazine or other periodical violating the provisions of this act shall be deemed guilty of a misdemeanor and shall be fined in any sum not less than $25 and not more than $500 or confined in the county jail not less than 10 days or more than six months or be pun *585 ished by both such fine and imprisonment: Provided, however, Nothing herein shall prevent any person or persons, firm or corporation engaged in the publication of any newspaper, magazine or periodical from receiving for publication and publishing any matter, article or articles advocating the election or defeat of any candidate or candidates and receiving a consideration therefor,-if such articles so published or printed have placed at the beginning thereof in plain type of black-faced Roman capitals in a conspicuous place, the statement ‘PAID ADVERTISEMENT.’ But this section shall not be, construed as permitting the payment for any publication prohibited by section twenty-eight of this act.” Laws 1907, pp. 472, 473.
The language of these sections may be somewhat involved, as suggested in the majority opinions, but when the act is read in its entirety and construed as a whole, its meaning is plain and obvious. Section 28 declares in express terms that no person shall be competent to qualify for a public office who shall have paid to the owner or publisher of a newspaper any sum of money for any article or published statement wherein his photograph or biography is published, and it is very apparent to my mind that a statement that the respondent was a candidate for the office of lieutenant governor on the republican ticket, accompanied by his photograph, is a published statement wherein his photograph is published, within the intent and meaning of the act. The majority say that the published article or statement must advise or counsel the electors to vote for the candidate, or set forth his fitness or qualifications for office, as well as publish his photograph or biography, before it comes within the prohibition of the statute; but this view is, in my opinion, manifestly erroneous, for at least two reasons. In the first place, the publication of an article or statement advising or counseling the electors to vote for a candidate, or setting forth his fitness or qualifications for office, without more, is a plain and palpable violation of the act and works a forfeiture of the office, and it would be an idle formality for the legislature to provide that such acts, *586 when accompanied by the publication of the candidate’s biography or photograph, would have the like but no greater effect. In the second place, to permit a candidate for office to pay for the publication of his photograph accompanied by a statement of the office to which he aspires, in a newspaper published at regular intervals, is in direct violation of the provision of the first part of § 28, which prohibits a candidate from paying or contributing money to promote his candidacy except for personal expenses, and defines “personal expenses” in a manner that of necessity excludes the expenditures made bv the respondent in this case.
The claim is advanced that the provisions of § 28 are in a measure nullified, or at least rendered obscure, by the provisions of § 29. I am unable to discover the slightest conflict between the two sections. The former is directed solely against the offending candidate and provides a penalty for its violation. The latter is directed solely against the offending newspaper and provides a penalty of a different kind for its violation. Furthermore, the last clause of § 29 contains this express provision: “But this section shall not be construed as permitting the payment for any publication prohibited by section twenty-eight of this act;” and, as we have seen, the - publication in question -is- twice 'prohibited by § 29.
Reference is made in the majority opinion to an opinion of the attorney general of this state, but I deem this of no consequence. The opinion of that officer cannot obscure a statute which is otherwise plain, though it may elucidate a statute which is otherwise obscure. Furthermore, the attorney general is only required by law to give written opinions to the governor and other state officers on legal and constitutional questions relating to the duties of their respective offices, or to either branch of the state legislature or committees thereof on constitutional or legal questions, when requested so to do* Bal. Code, § 169 (P. C. § 8379). An opinion of the attorney general, not authorized or required by law, stands upon no different footing from the advice of any other counsel, and *587 cannot be looked to or considered by a court in construing a public statute of the state. The will of the people as expressed at the polls should ordinarily prevail, but the mode of exercising that will is regulated and controlled by the constitution and laws of the state, and when there is a conflict between the two, the latter must prevail.
Inasmuch as the majority opinion fails to consider other objections urged by the respondent, I will not allude to them, further than to say that I find them without substantial merit.
The writ should issue as prayed.
Fullerton, J., concurs with Rudkin, C. J.