stitution what are the tests of a legal voter at a general election; but of what avail is the express language of that instrument on that subject if the legislature may nevertheless fix other and different tests before one can take the first steps necessary to enable him to take part in that election? The plain implication is that nowhere on 374 the way to the general election can additional tests be required. It is said in People v. Board of Election Commrs. of Chicago, 122 Ill. 9, 77 N. E. 321, that "every eligible person has a right to be a candidate for office without being subject to unreasonable burdens. The voters have a right to choose any eligible person, and he owes a duty to the public to qualify and serve"; and again: "There can be no discrimination between candidates based on the ground that one has money and chooses to pay for the privilege of being a candidate, and the other has no money or is unwilling to pay for being a candidate": See, also, People v. Williams, 145 Ill. 573, 36 Am. St. Rep. 514, 33 N. E. 849, 24 L. R. A. 492. If the legislature can require the candidate to buy his way to office, it simply lends the legislative sanction to an additional means of corruption quite as vicious in principle as any which the primary law was intended to correct. Section 127 of the constitution permits the legislature to prescribe the penalties for failing, refusing or neglecting to vote. If the law under consideration is valid, it becomes possible for the legislature to penalize both for failing to vote and for voting.

The supreme court of Illinois and Nebraska, in addition to the quotations already made, have given additional reasons for their invalidity, which we must notice and approve as applicable to the law in question. In 1901 the legislature of Illinois enacted a primary election law by which anyone desiring to become a candidate for governor, United States senator, or Congress was required to pay a fee of one hundred dollars and each candidate for state senator fifty dollars, and for member of the House of Representatives, twenty-five dollars; and in considering the constitutionality of that requirement, that court said: "These payments bear no relation to the services rendered in filing the papers or the expenses of the election. They are purely arbitrary exactions of money to be paid into the public treasury as a monetary consideration for being permitted to be a candidate. The payments are not intended to be a compensation for filing papers"; and held requirements as to fees unconstitutional: People v. Board, 122 Ill. 9, 77 N. E. 321. The legislature of Nebraska in 1905 also provided a primary election law, and in relation to the payment of fees

required of candidates (one per cent of the emoluments of the term) that court said: "It is to be observed that the amount thus required to be paid before one can have his name submitted to the voters at the primary is fixed arbitrarily, and wholly regardless 375 of the services performed in filing nomination papers. A person aspiring to be nominated for clerk of the district court would be required to pay perhaps two hundred dollars, a candidate for the nomination of county clerk probably forty dollars; other candidates for county office different sums, ranging between the two extremes. Is it competent for the legislature to impose burdens of this character on those desiring to become candidates for public offices, the nominations for which come within the provisions of the primary election law? Can a test of ability to pay fees of the magnitude mentioned be made as to one's right to be voted for at a primary election? It is at first glance apparent that these enormous fees prevent many from becoming candidates for party recognition who otherwise would be willing to yield to a public demand that they become candidates for public office. It is said the fees required to be paid in the manner stated are for the purpose of defraying the expenses of the primary. It is not so stated in the act. It is expressly provided the expenses of the primary are to be paid out of the public treasury. It is not, therefore, required of us to pass upon the question of the power of the legislature to require those submitting their names to be voted for at a primary to pay the expenses of the election. It appears from the act itself that there is no relation between the charges made for filing nomination papers as therein provided and the expenses incident to a primary election, nor to the value of the services in filing the nomination papers. The charges are arbitrary and unreasonable. They make the pecuniary ability of the person to pay the same a test as to his qualification to become a candidate for party nomination. The law is as objectionable as if the test was based on a property qualification or the amount the elector had contributed to the public revenues. The primary election contemplated in the act may not in and of itself be an election within the meaning of the constitutional provisions, which guarantee that 'all elections shall be free,' and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise: Const., art. 1, sec. 22. It is, however, a means to an end. It is a part of the election machinery by which it is determined who shall be permitted to have their names appear on the official ballot as candidates for public office." "To say that

the voters are free to exercise the elective franchise at a general election for nominees in the choice of which unwarranted restrictions and hindrances were interposed 376 would be hollow mockery. The right to freely choose candidates for public office is as valuable as the right to vote for them after they are chosen": State v. Drexel, 74 Neb. 776, 105 N. W. 174. The supreme court of Minnesota, in State v. Scott, 99 Minn. 145, 108 N. W. 828, in passing on the provisions of the primary election law of that state, which require the payment of a fee of twenty dollars when the petition of the candidate is required to be filed with the Secretary of State, and ten dollars when filed with the county auditor, referring to the Nebraska and Illinois cases cited, apparently approves of those decisions as applied to the fees required by the laws of those states, for it says: "We need not deny that both acts were arbitrary and unreasonable in the exaction of fees"; but held that the fee of twenty dollars or ten dollars requested by the Minnesota law was not an unreasonable regulation.

It is insisted that the reasons for the Illinois and Nebraska decisions do not apply in this state, because our law requires a space on the official ballot for writing additional names of candidates which was not provided for in one of those states, and for the further, reason that our constitution carries no requirement that all elections shall be free and equal. We are, however, satisfied that neither of such distinctions affects the principles involved, and think they need no answer in addition to what we have hereinbefore given. We may add that courts hold that the expression "free and equal" has no reference to payment of fees. For these reasons we think the provisions of the law in question attacked in this action are invalid, and so hold.

The respondents argue that the appellant should have applied to the court for a writ of mandamus to compel the auditor to cause his name to be printed upon the ballot without the payment of a fee, and that, by failing to do so, he waived his right to question the constitutionality of the act. A discussion of this proposition is unnecessary, because the plaintiff alleged in his complaint that there was insufficient time before said primary election for the candidates named in the complaint to institute an action or any special proceedings either at law or otherwise, for the purpose of compelling the county auditor to place their names upon the ballot, and that they were compelled by reason of this fact to make the payments demanded. The defendants by de

Am. St. Rep., Vol. 125-43

murrer to the complaint admitted this allegation and the case comes to this court on the pleadings, and we are precluded from inquiring into the facts 377 further than is admitted by the demurrer of the defendants. We must take such admissions as true. We must, therefore, hold that the procedure adopted in this case was proper. Lest this opinion be misconstrued, we add that it applies to no part of the act referred to, except that requiring the payment of a fee.

The district court erred in sustaining the defendant's demurrer, and its order doing so is reversed.

All concur.

The Power of the Legislature to Regulate Elections is undoubted, provided the elective franchise is regulated and not denied. The legislature has no power expressly to deny or take away the right, or unreasonably to abridge or impede its enjoyment by laws professing to be merely remedial. Its power is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise and by preventing its abuse. All reasonable latitude should be given the legislature in the exercise of this power of regulation, but statutes must be reasonable, uniform, and impartial. They must be calculated to facilitate and secure, rather than to subvert or impede, the right to vote: See notes to Chamberlain v. Wood, 91 Am. St. Rep. 685; Livesley v. Litchfield, 47 Or. 248, 114 Am. St. Rep. 920.

GRADY v. SCHWEINLER.

[16 N. D. 452, 113 N. W. 1031.]

BAILMENT-Liability for Death of Animal.-Where a person hires a horse, without any special contract, the law imposes on him the duty to take ordinary care of the animal; and in case of its death without his fault, he is not responsible. (p. 678.)

BAILMENT-Liability for Death of Animal.-Where a person hires a horse and agrees positively and unequivocally to pay for the animal if he is unable to return it for any reason, he is liable for the death of the horse while in his possession, though without his fault. (p. 678.)

Lee Coombs, for the appellant.

Herman Winterer and D. S. Ritchie, for the respondent.

454 MORGAN, C. J. Plaintiff brings an action for damages against the defendant for the value of a stallion delivered by him to the defendant on a contract of bailment. The stallion was delivered to the defendant for serving his mares for the agreed sum of five dollars a foal. The complaint alleges plaintiff's ownership of the stallion, the value

thereof, his delivery to the defendant under an express contract that defendant would return him to the plaintiff, and, in case that he should be unable to return him, then defendant would pay plaintiff the value of said stallion, and that plaintiff demanded his return to him or payment of the value thereof, which was refused by the defendant. judgment is demanded for the sum of four hundred dollars. The answer admits that said stallion was delivered to the defendant for the purposes alleged in the complaint, but denies that he agreed to pay for said stallion in case of his inability to return him upon demand. The answer further alleges that the stallion was sick when delivered to defendant, and that plaintiff knew of such sickness, and, that in consequence of such sickness, the stallion died soon after his delivery to defendant, without any fault or negligence on his part. A jury was impaneled, and, at the close of plaintiff's case, the trial court directed a verdict for the defendant, and judgment was thereafter entered on the verdict, and plaintiff has appealed from said judgment.

The only assignments of error relate to the action of the court in directing a verdict for the defendant. These assignments render it necessary to determine the plaintiff's rights under the contract as set forth in plaintiff's evidence. The motion for a directed verdict was based upon the alleged grounds that the evidence shows that the stallion died before the contract of hire under which he was turned over to defendant had terminated, without any fault or 455 negligence on defendant's part, and that the contract of hire was not binding on defendant, for the reason that a return of the stallion became impossible by reason of his death without any fault on defendant's part. The question is squarely presented whether plaintiff can recover under the facts, independent of any question of negligence or fault on defendant's part. The complaint contains no allegation of fault or negligence as a basis for recovery, but is framed upon the theory of liability on a contract of hiring, and in addition, of insurance, if the horse was not returned. Plaintiff's evidence was as follows, which must be assumed to be true for the purposes of this appeal. Plaintiff testified: "He said, 'I will take the horse and return him in as good or better shape than I got him, and, if I don't, I will, pay for him. I am good for him.' I agreed to let him have the horse to breed his mares at five dollars a colt, provided he returned the horse as he got him, and, if he didn't,