People Ex Rel. Jones v. Zemansky

THE COURT.

Notwithstanding its title, this proceeding, in so far as it can be considered by us, is in effect simply one by Charlotte F. Jones to obtain a writ of mandate compelling respondents to issue certificates of nomination to her and another, as candidates for judges of the superior court of the city and county of San Francisco, by reason of the votes received by them respectively at the recent primary election. As to neither herself nor the other candidate, who does not join in or assent to the petition, are sufficient facts alleged to ■make a

prima facie

case for relief, in that it is not made to appear that either was a “majority candidate” under the provisions of section 23 of the Primary Act (Stats. 1913, p. 1404; Stats. 1917, p. 1356), that is, one receiving.a majority of all the votes cast in San Francisco at said primary election, and that there were not four such “majority candidates” nominated at said primary. If this was the situation, neither she nor the other candidate named in her petition was entitled to a certificate of nomination in view of certain provisions of said section 23, as to the validity of which provisions we can perceive no serious question. Furthermore, as to herself, her name not having been printed on the primary ballot and her forty-nine votes having been received from persons writing in her name on the ballot, it is not made to appear that she received a sufficient number of votes to equal the number required for a nomination paper, so as to entitle her to a certificate of nomination, under a provision of subdivision 9 of section 5 of the Primary Act.

[805]

It is further claimed by petitioner that the whole Primary 'Act is violative of our constitution. The establishment of any such claim would effectively bar her from receiving the certificate of nomination sought, and it is therefore unnecessary to consider the points made by her in that regard.

The application for a writ is denied.