Murphy v. Curry

HENSHAW, J.

Plaintiff's pray for a writ of mandate, directing the secretary of state to certify to the registrar of voters of the city and county of San Francisco the nomination of Edward J. Livernash as the candidate of the Democratic party for member of the House of Representatives from the fourth congressional district. Mr. Livernash had received the nomination from the Union Labor party, and also from the Democratic party. Each of the parties filed with the secretary of state, as required by law, a certificate in due form of the nomination of Mr. Livernash. The Union Labor party’s certificate was the first filed. The certificates were in accord and complied with the provisions of sections 1189 and 1192 of the Political Code. Section 1197 of the same code contains the following provisions: . . . “Where a nominee has been assigned to or has chosen another column, pursuant to the provisions of this act the title of such office shall be printed in such party column, and underneath such title shall be printed in brevier capital type the words ‘No nomination. ’ . . . The name of a candidate shall be printed only once upon the ballot, and if any candidate is nominated by more than one certificate of nomination, he must by a writing, signed and verified by him and filed with the officer where the cértifieate of nomination is filed, choose which of such party designations he desires to have his name printed under. Such writing, if filed with the secretary of state, must be filed at least twenty-seven days before the day of election. . . . and if any such

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candidate shall not have so chosen, his name shall he placed upon the ballot under the designation of the party named in the certificate of his nomination which was first filed.” Mr. Livernash declined to make the election contemplated by the law,, and the secretary of state, relying upon the plain language of the statute, has refused to certify to the registrar of voters that Mr. Livernash has been nominated by the Democratic party. If the provisions of the law above quoted are valid, Mr. Livernash’s name will appear upon the ballot but once, and that under the party designation of the “Union Labor Party”; while under the party designation “Democratic Party,” and in the space set apart for the printing of the name of the nominee for the House of Representatives, will be printed “No nomination.” It is insisted by petitioner that the provisions of the law which work this result are illegally discriminating and violative of sections 11 and 21 of article I of the constitution of this state.