SHENK, J. This is an application for the writ of mandate to compel the secretary of state and the Registrar of Voters of Los Angeles County, respondents herein, to omit from the ballot to be used at the general election to be held on Tuesday, November 5, 1946, any reference to the office of Judge of the Superior Court, County of Los Angeles, Office No. 10. An alternative writ was issued. The matter is submitted on the petition and general demurrers thereto showing the following facts:
On November 5, 1940, the Honorable John Beardsley was elected to succeed himself as Judge of the Superior Court in and for the County of Los Angeles. The term for which he was then elected was six years, expiring in January, 1947. He was a candidate for reelection at the primary election held on June 4, 1946, the office being designated on the ballot as Office No. 10. He was opposed at that election but received a majority of all the votes east for that office and was therefore elected for a full term commencing in January, 1947. He passed away on June 10, 1946.
It is alleged in the petition that the respondents intend to, and unless otherwise ordered by the court will, include in the offices to be filled at the ensuing general election in November [767]the office of Judge of the Superior Court, Los Angeles County, Office No. 10, and will place upon that ballot as a candidate the name of any qualified person who is nominated for that office pursuant to division 5, chapter 3 (§ 3000 et seq.) of the Elections Code, together with a space provided for a so-called “write-in” candidate.
The present proceeding is appropriate to the end sought. (Code Civ. Proc., §1085; Gage v. Jordan, 23 Cal.2d 794, 800 [147 P.2d 387]; Donham v. Gross, 210 Cal. 190, 193 [290 P. 884].)
It is the position of the petitioner that by reason of Judge Beardsley’s death a vacancy occurred in the office theretofore occupied by him, which vacancy may only be filled by the governor under section 8 of article VI of the state Constitution as adopted on November 2, 1926, and that the person so appointed will hold office until January 3, 1949.
The respondents contend that the current vacancy occurred at a time which will permit the nomination by petition pursuant to sections 3000 et seq. of the Elections Code, or that some person may be elected to that office by the “write-in” method.
Section 8 of article VI of the Constitution provides as follows: “The term of office of judges of the superior courts shall be six years from and after the first Monday of January after the first day of January next succeeding their election. A vacancy in such office shall be filled at the next succeeding general State election after the first day of April next succeeding the accrual of such vacancy by the election of a judge for a full term to commence on the first Monday of January after the first day of January next succeeding his election. The Governor shall appoint a person to hold such vacant office until the commencement of such term.”
The language just quoted is plain, explicit and free from ambiguity. There is no necessity or opportunity to resort to judicial construction to ascertain its meaning. When the facts in any particular case come within its provisions it is the duty of the court to apply and enforce it. The respondents contend that circumstances were shown to justify a refusal to apply it in Bearden v. Collins, 220 Cal. 759 [32 P.2d 604], and that they likewise appear in the present case. It will appear from the following discussion that the facts here presented call for its application.
The Constitution, section 2% of article II, by amendment [768]adopted November .3,1908, gave the Legislature plenary power to enact laws relative to nominations of delegates to conventions of political parties and for the direct nomination of candidates for public office at elections to be known and designated as primary elections. Section 23 of the Direct Primary Law (Stats. 1913, p. 1404) provided that in the case of but one person to be elected to a judicial office at the November election, the name of the candidate who at the primary election received a majority of the total number of votes cast for all the candidates for such office, should be the only one for such office placed on the official ballot at the ensuing November election. Prior to 1926 the nonpartisan offices for which candidates might be elected at the primaries did not include judicial offices. Consequently situations similar to that presented in Miller v. Childs, 28 Cal.App. 478 [152 P. 972], became possible. There the question was whether the foregoing provision of the Direct Primary Law prevented the election of another by the “write-in” method. In that case Childs, who sought nomination for the office of superior judge in Del Norte County, was defeated for the nomination at the primary election of 1914. Miller, his opponent, received a majority of all the votes cast for nominees for the office at the primary, and his name was the only name printed on the ballot at the November election. But after his defeat for the nomination Childs conducted a “write-in” campaign for election to the office in November and he received the majority of the votes cast. Miller contested, but it was held that Childs was duly elected because the provision that the name of the candidate who received the majority vote at the primary should be the only one for such office “placed on the official ballot” at the ensuing November election, did not prevent another candidate’s name being written in by the voters.
Probably to prevent similar results in other cases the people in November, 1926, adopted section 2% of article II of the Constitution providing for the inclusion of the judicial office in the nonpartisan offices for which candidates might be elected at the primary election. The pertinent portion of that section reads: “Any candidate for a judicial,, school, county, township, or other nonpartisan office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidate seeks nomination, shall be elected to such office.” In the argument to the voters it was said that the constitutional [769]amendment was designed to cure an injustice existing in the law which did not include the judiciary among the nonpartisan candidates who could be elected at the primary election, and to put the judiciary on a parity with other nonpartisan officials. There was no argument against the measure.
The method of filling vacancies in the office of judge of the superior court was changed in 1926. Prior to that time when a vacancy occurred section 6 of article VI of the Constitution (as revised in 1879) vested in the governor the power to appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, the election to take place at the next succeeding general election, and the person so elected to hold office for the remainder of the unexpired term. At the general election of November, 1926, the present section 8 of article VI above quoted was adopted to replace the then existing provisions of section 6 of that article. At that election the following statement was made to the voters, with no counterargument: “The election of judges of the superior court for a ‘short term,’ which is sometimes for only a few weeks between election day and the following January, is done away with, and whenever a vacancy occurs prior to April first of an election year a judge will be elected at the general election to hold office for the full term of six years. If a vacancy occur after April first of an election year the time is too short to circulate petitions and satisfactorily prepare for an election at the August primary, and in such case the governor will make an appointment to fill the vacancy until the next election year.”
The amendment eliminated the principal objectionable feature from the prior provision which was the election of a successor to hold office for the remainder of the unexpired term. This was the so-called “short term” referred to in the argument. Since then the election has been for a full six-year term instead of an unexpired term. In order, however to give the candidate sufficient time to prepare and file his nomination papers and the people sufficient time to consider a successor for a full rather than a partial or “short” term, it is also provided that the successor should not be elected at the next succeeding election if the vacancy occurred in an election year after April first.
In Bearden v. Collins, supra (220 Cal. 759), the vacancy [770]occurred on April 19th in an election year. Nevertheless it was there held that the election of a successor for a full six-year term should take place in the same year, which was the last year of the incumbent’s term, because there was yet time in that year for the election processes to function. The result in that case is not controlling on the facts presently before the court and insofar as it is inconsistent with the conclusion herein that ease is overruled.
Here a candidate to succeed the incumbent (being the incumbent himself) upon expiration of his term of office in January, 1947, was elected at the 1946 primary, and died shortly thereafter. The respondents contend that nevertheless an opportunity should be afforded to file independent nominations, and that the voters should not be deprived of their privilege to “write-in” a candidate’s name at the forthcoming November election. The difficulty with their position is that as to the selection of a successor to take office upon the expiration of the incumbent’s term, the elective processes have already spent their force. By the self-executing provision of section 2% of article II of the Constitution (see DeWoody v. Belding, 210 Cal. 461 [292 P. 265]; Kerr v. Russell, 209 Cal. 36 [285 P. 311]), a successor was elected, and there is no election for that office to go before the people in November. It is argued that the death of the incumbent following his reelection left a vacancy in each of two terms, that is, a present vacancy in the occupied term expiring in January, 1947, and a vacancy in futuro in the term to which he was elected for the six years commencing in January, 1947. Actually any “term” for which Judge Beardsley had been elected ceased to exist when he died. The vacancy in the office is a continuing one which lasts until a new six-year term shall commence in January, 1949, for a person elected at the 1948 election. The situation calls for an appointment to fill the office until the new term commences.
It follows that the respondents should be directed to omit from the ballot to be used at the forthcoming general election any mention of the office of Judge of the Superior Court, County of Los Angeles, Office No. 10.
Let the peremptory writ issue accordingly, effective immediately.
Edmonds, J., Carter, J., and Schauer, J., concurred.