Bordwell v. Williams (1916) · DecisionDepot

Bordwell v. Williams

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 18, 1916 No. L. A. No. 4892.Published

Before: Sloss, Henshaw, Angellotti

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Holding. A candidate for a primary election has the inherent right to withdraw their candidacy before the election, and courts have the authority under the primary law to order election officials to omit the name of a withdrawn candidate from the ballot.

Issues

Does a candidate have the right to withdraw their candidacy for a primary election after nomination papers have been filed?
Does the primary law authorize courts to order the removal of a candidate's name from the ballot after the Secretary of State has certified the list of candidates?

Disposition. affirmed

Quotations verified verbatim against the opinion

“the mere fact that he has once announced his candidacy for an office does not prevent him from withdrawing as a candidate whenever he sees fit so to do.”

“it is perfectly clear that the statute does not, either in terms or impliedly, prohibit a withdrawal before the election.”

“the statute contemplates a submission to the electors of a choice between persons who are candidates in fact”

Synopsis

APPLICATION for a Writ of Mandamus directed to the County Clerk of Orange County.

The facts are stated in the opinion of the court.

Samuel M. Shortridge, Catlin, Catlin & Friedman, Frank P. Doherty, C. E. Spencer, and W. S. Woodworth, for Petitioner.

Opinion — Sloss

SLOSS, J.

This is a proceeding in

mandamus

to compel the county clerk of Orange County to omit from the ballots to be prepared by him for use in the forthcoming primary election, the name of the petitioner, Walter Bordwell, as a candidate for the Republican nomination for the office of

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United States senator. The election is to be held on August 29, 1916. An alternative writ has issued and the respondent has made return thereto. The material facts are not in controversy.

Pursuant to the provisions of the “direct primary law” (Stats. 1913, p. 1379), a committee of five electors proposed the name of the petitioner as a candidate at the said primary election for the Republican nomination for the office of United States senator. They duly appointed verification deputies in the several counties, and nomination papers signed by the requisite number of qualified electors were filed in the county of Los Angeles and other counties. The signatures were examined and the registrars or county clerks of the various counties duly certified to" the Secretary of State a sufficient number of qualified electors to entitle the petitioner to have his name placed upon the primary ballot. Within the time allowed by the statute, i. e., not less than 35 days before the election (sec. 5, subd. 4), Mr. Bordwell filed with the Secretary of State his affidavit stating, in addition to the other matters required, that if nominated he would accept such nomination and not withdraw, and that he would qualify as such officer if nominated and elected.

The Secretary of State thereupon certified the name of the petitioner to the respondent and to the county clerks and registrars in the several counties, directing said officers to print on the primary ballot the name of the petitioner as a candidate for the Republican nomination for the office of United States senator.

After receiving such certificate, the respondent published, as required by section 10 of the act, the names and addresses of all persons, including the petitioner, for whom nomination papers had been filed in the office of the Secretary of State. He also caused to be prepared sample ballots including, among other names, that of petitioner, and has directed the printing of official ballots in like form.

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If, then, the petitioner has the right to withdraw his candidacy for the nomination, the right should be made effectual and operative unless some insuperable obstacle intervenes. We find no such obstacle in the statute. Much stress is laid upon the fact that under section 10 of the act, the. county clerk or registrar is required to publish the names which appear upon the certified list transmitted to him by the Secretary of State, and that this list is to contain the names “of each person for whom nomination papers have been filed in the office of such Secretary of State.” So, too, section 12, defining the form of ballots, provides “that the names of all candidates for the respective offices for whom nomination papers have been duly filed shall be printed thereon.” Undoubtedly the county clerk acts ministerially, and the information upon which he so acts is that received by him from the Secretary of State. But it does not follow that the certificate* of the Secretary of State must finally conclude everyone with respect to the form and contents of the ballot. Section 27 of the act authorizes an application to this court, to a district court of appeal or to a superior court, whenever it shall be made to appear “that an error or omission has occurred or is about to occur in the placing of any name on an official primary election ballot, that any error has been or is about to be committed in printing such ballot, or that any wrongful act has been or is about to be done by any. . . county clerk, registrar of voters . . . or other person charged with any duty concerning the primary election,” and authorizes the court to order the officer or person charged with such error, wrong, or neglect to correct the error, desist from the wrongful act, or perform the duty. This is broad language, and we think it was designed to vest in the courts a broad control over all officers performing duties in connection with the primary elections. With respect to the names of the candidates to be placed upon the ballots, the remedy is not, under this section, limited to an application to compel the Secretary of State to issue the proper certificate. The power of that officer to transmit certified lists of candidates expires 30 days before the primary election. After that date all duties connected with the preparation of the ballots are confided to the county clerks or registrars of voters. It cannot have been contemplated that an error or impropriety in a proposed ballot should be beyond correction after the Secretary of State had once issued his

Concurrence — Henshaw

HENSHAW, J., Concurring.

I concur in everything that is said in the prevailing opinion. It certainly will not be questioned that an elector has the inherent right, under our system of government, of offering himself as a candidate for office, and, after having offered himself, to withdraw his name and retire from the political contest at any time that he sees fit. The sole limitation upon this unquestioned right is the limitation which may be fixed upon it by law. The only limitation which our law has seen fit to impose is that inferentially contained in the requirement of a candidate to make an affidavit that “if nominated” he will continue his candidacy for and seek election to the office. The legislature having seen fit thus to restrict the right of withdrawal after nomination, and having placed no restriction upon the right of withdrawal before nomination, under every canon of construction that right of withdrawal before nomination still rests with every candidate for office. Such was the unanimous view of the supreme court of Nevada in the case cited in the prevailing opinion. Therefore, no-right to withdraw his name as a candidate from the primary ballot is expressly or impliedly given to any candidate because it is not necessary that it should be expressly or impliedly given. The right is his unless it is taken away by positive law, and there is no positive law so doing. Nor is it necessary that there should be any specific mode prescribed by which any withdrawal can be effected. It is a reflection upon our jurisprudence to say that its general remedies are not adequate, as they were found to be by the supreme court of Nevada under a statute in all particulars identical with our own.

But conceding the right of withdrawal to exist, the dissentient view is that the legislature designed that this right should have no effect because the law also says that county clerks shall print the “names of all candidates for the re

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spective offices for whom nomination papers have been duly filed.” Such a construction is but the veriest sticking in the bark. . To attribute such a meaning to the legislature is deliberately and unnecessarily to charge it with the design of deluding and deceiving the electors of the state. For under that construction it is not denied that it means that the name of a candidate who has died may not, even though the fact be timely and officially brought to the notice of the county clerks, be omitted from the ballot to be printed; that if the sole candidate of a political party has been convicted of a felony and thus disqualified from holding office, the legislature designed in both such and all like cases that the name of the dead man and that the name of the felon should remain upon the ballot, notwithstanding that if they received a majority of the votes neither could take office, and the result would be either that a man whom the people by their votes had not selected would fill the office, or that the state must be subjected to the added and unnecessary expense of another election. I am unwilling myself to charge the legislature in its enactment of the primary law with any such stupidity or evil design. Nor is it necessary that this should be done, whenever, as here, notification of withdrawal, of death, or of legal disqualification to hold the office is under timely notice officially made known to the county clerk.

The provisions of the primary law calling upon the county clerks to print upon the primary ballot the names that have been certified to them by the Secretary of State, by every reasonable intendment means only that those names shall be printed unless changes shall have occurred within the contemplation of the law, such changes as in fact are contemplated and provisions for which are made by section 27 of the act quoted in the prevailing opinion, and the forced construction which unnecessarily is sought to be given to this, I repeat, convicts the legislature, without any express language to that effect, of a design to make the primary election ridiculous by compelling, to the deception of the voters, the retention of the name of a man who is dead or has been sent to the state prison.

Bordwell v. Williams

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Synopsis

Opinion — Sloss

SLOSS, J.

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Dissent — Angellotti

Concurrence — Henshaw

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