Brailsford v. Blue

[336]

McCOMB, J.

Petitioner asks this court for a writ of mandate to restrain Jack Blue, as County Clerk of the County of Alameda, State of California, (hereinafter referred to as “respondent”) from making any reference to Judicial Office No. 2 of the Municipal Court for the Oakland-Piedmont Judicial District in the County of Alameda, State of California, (an office now held by petitioner) on the ballot to be prepared and printed for use by the electors at the primary and general elections in 1962.

Facts

(1) Edward J. Smith was a duly elected, qualified and acting Judge of the Municipal Court for the Oakland-Piedmont Judicial District in Alameda County for a term of office expiring on January 7, 1963. For the purposes of the elections to be held in 1962, this office has been designated as Judicial Office No. 2.

(2) Judge Smith died on September 21, 1961.

(3) On October 2, 1961, petitioner was appointed by the Governor of this state to fill the vacancy caused by the death of Judge Smith.

(4) Petitioner took the oath of office on October 27, 1961, and is now, and ever since has been, performing the duties of such office.

(5) Less than 10 months exist between the date of the occurrence of the vacancy above mentioned and the forthcoming primary election to be held on June 5, 1962.

(6) Respondent is charged with the duty of conducting the election of judges in said judicial district, and it is alleged in the petition that he intends to, and unless otherwise ordered by this court will, include Judicial Office No. 2 of the Municipal Court for the Oakland-Piedmont Judicial District in Alameda County, now occupied by petitioner, on the ballot in the primary election of June 5, 1962, and, if necessary, on the ballot in the general election of November 6, 1962.

This is the sole question presented:

In view of the provisions of

the.

last sentence of section 71180 of the Government Code, should Judicial Office No. 2 of the Municipal Court for the Oakland-Piedmont Judicial District in Alameda County be placed on the ballot at the primary election to be held on June 5, 1962?