Schauer v. Peek

THE COURT.

By this proceeding in mandamus the petitioners, as the incumbent Presiding Justice and Associate Justices of the District Court of Appeal of the Second Appellate District, Division Three, seek to compel the respondent, as Secretary of State, to accept and file their respective declarations of candidacy to succeed themselves and to certify their nominations to the proper officers. Respondent has demurred generally to the petition.

Division Three of the District Court of Appeal of the Second Appellate District was created by the Legislature in 1941 (Stats. 1941, ch. 1179, p. 2934 Pol. Code, § 758b). The Governor thereafter appointed petitioner B. Rey Schauer as Presiding Justice and petitioners Clement L. Shinn and Parker Wood as Associate Justices of such newly created division of the District Court of Appeal. Their appointments were duly confirmed by the commission on qualifications (Const., art. VI, sec. 26) and each has since qualified and is now the commissioned and acting incumbent of the office to which he was so appointed. As such appointees the petitioners hold office until January, 1943, and under the cited constitutional provision it is essential, if they are to succeed themselves in their respective offices, that each “Within thirty days before the sixteenth

day

of August next preceding the expiration of his term . \\ . file with the officer charged with the duty of certifying nominations for publication in the official ballot a

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declaration of candidacy for election to succeed himself.” This being done, the constitutional section then provides that “the name.of such candidate shall be placed upon the ballot for the ensuing general election in November in substantially the following form:

Within thirty days before August 16, 1942, each petitioner herein tendered to respondent for filing a declaration of candidacy for election to succeed himself, each requesting that there be placed upon the ballot the following proposition:

“Shall .............................. be elected to the

(Name)

office for the term prescribed by law?” Respondent has refused to accept petitioners’ declarations of candidacy and to certify petitioners’ names for publication in the official ballots in the form above set forth, or in any form which does not specify the exact day, month and year upon which the term for which each petitioner proposes to be a candidate shall expire.