The opinion
Mr. Justice Carter, specially concurring:
I agree with the conclusions reached in the foregoing opinion. The questions involved, however, are of such public importance that I have deemed it advisable to offer some further suggestions bearing on the questions raised in the briefs.
Counsel for petitioner earnestly argue that" the provisions of the Australian Ballot law, invoked to prevent the name of the relator in the petition from being placed twice upon the ballot, are in effect repealed by the amendments heretofore passed to certain sections of said Ballot law. That law was enacted in 1891. (Laws of 1891, p. 107.) The last proviso in section 5 of that act as then passed stated that “the name of any candidate whose ñame may appear in any other place upon the ballot shall not be so added by petition for the same office.” This is the only provision in the original act referring in any way to a candidate’s name appearing more than once on the ballot.
Sections 3 and 8 of said Ballot law were amended in 1897 by an act that went into force July 1 of that year. (Laws of 1897, p. 211.) By this amendment a proviso was added to section 3, stating “that the names of' candidates shall not be placed upon the ballot more than once for the same office or under more than one party appellation or title.y The amendment to section 8 provided, among other things: “In case the certificate of nomination or petition, as provided for in this act, shall contain or exhibit the name of any candidate for any office upon "more than one of said certificates or petitions, (for the same office,) then, and in that case, the Secretary of State or county clerk, as the case may be, shall immediately notify said candidate of said fact and that his name appears unlawfully upon more than one of said certificates or petitions, and that within five days from the receipt of said notification said candidate must elect as to which of said political party appellations or groups he desires his name to appear and remain under upon said ballot, and if said candidate refuses, fails or neglects to comply with the provisions herein, then, and in that case, the Secretary of State or county clerk, as the case may be, shall not permit the name of said candidate t© appear or be printed or placed upon said ballot under any or either of said political party appellations or groups.”
In 1898 a primary election law was passed, (Laws of 2:898, p. ix,) and at the same session section 3 of the Ballot law was again amended by striking out the proviso added by the amendment of 1897 and inserting in place thereof a proviso which stated that in any county, city or village or incorporated town which had adopted the Primary act in question, candidates could not have their names printed on said official ballot unless they had been nominated in accordance with the provisions of said Primary act. (Ibid. p. 10.) This proviso is still a part of said section 3.
In 1903 section 8 of the Ballot act was again amended, but the only change in the reading of the act as amended in 1897 was as to the number of days in which the nomination papers should be filed with the Secretary of State or proper clerk. The same provision above quoted, which was inserted in the section by the amendment of 1897, was reénacted by the amendment of 1903. (Laws of 1903, p. 174.)
Sections 3, 5 and 8 are now part of the Ballot law with provisions stated as above indicated. There has been no change or amendment ‘in any of these sections, or in any other section of the Ballot law, affecting the question here under discussion since the dates mentioned. If any of the primary laws have amended any of these sections of the Ballot law it has beeft by implication and not by direct reference. Manifestly, when the legislature re-enacted the provisions of section 8, requiring the candidate, if his name appeared in more than one certificate of nomination or petition, to elect as to which party appellation or group1 he desired his name to appear and remain under upon said ballot, the legislature was not of the opinion that the primary laws theretofore passed had repealed, by implication or otherwise, the provision in question. Indeed, it seems obvious from the fact that section 3 was amended so as to provide that candidates must be nominated by the provisions of the Primary law, that the legislature clearly intended the provision of section 8 here in question to apply to candidates nominated under the Primary act. I find no specific provision in the present Primary law that in any manner weakens the force of this reasoning.
The argument that sections 58 and 59 of the present Primary law necessarily repeal, by implication, the provision in question of section 8 of the Ballot law was raised in People v. Czarnecki, 256 Ill. 320 , and held without merit.
Counsel for petitioner most urgently insist that the provision of the Ballot law in question is contrary to public policy and therefore unconstitutional. In the case last referred to, this court passed upon that very question. To hold as now contended by counsel would be to overrule what was there decided. That decision not only passes upon the question that the name of the candidate cannot be added to the ballot by petition, but also, by its reasoning, upon the question that such name cannot appear twice on the ballot for the same office, no matter whether nominated by political parties or by petition. I agree with the argument of counsel that the right of the voters to write the name of a candidate on the ballot on election day is of little practical value as affecting the results of an election in large cities, with their thousands of voters. This is especially true with a ballot' where there is a circle at the head of each-ticket, as in this State. However much any member of this court might agree with the argument of counsel that the voters should have the right, particularly in local matters, to have the name of a candidate printed on the ballot more than once for: the same office under different party headings, if desired, that argument, under People v. Czarnecki, snpra, is clearly one to be addressed to the legislature for an amendment to the law, and .not to the courts under the law as it now reads. This conclusion is in full accord with the previous holdings of this court, and with the argument so frequently advanced that courts should not by their decisions overrule the plain purpose of statutes as ¿nacted, no matter how unwise the members of the court might deem such legislation.