Ellis v. Wheatly

ANGELLOTTI, J.

These were applications for writs of mandate to compel the city clerk of the city of Stockton to print upon the official ballot to be used at a municipal election held in said city on May 16, 1905, the names of the various candidates nominated for city officers by the Republican and Democratic parties respectively.

The applications were heard by this court on May 2, 1905, upon demurrers interposed to the petitions, and at the conclusion of the argument orders were made directing the issuance of the peremptory writs as prayed, it being then stated that a written opinion giving the reasons for the decision would be filed.

The city of Stockton is one of the cities of the state where the provisions of the primary law are obligatory and mandatory (Pol. Code, sec. 1372), and no convention can be recognized as in law entitled to make nominations therein unless the delegates thereto are elected under the provisions of such law. (Pol. Code, sec. 1368.)

In this case the delegates of the respective parties making the nominations were in fact elected at a primary election held in all respects as required by the Primary Law,—i. e. an election held under the direction and control of the city council, on the day fixed by law, after notice duly given by said council, which notice contained the names of both the Republican and Democratic parties as parties entitled to nominate candidates to be voted for at the municipal election and entitled to participate in said primary. The ballots provided by the council for said election contained the names of said parties, with directions as to the number of delegates each was entitled to, and appropriate spaces for the insertion of the names of persons to be voted for as such delegates. The re

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turns of said election were regularly canvassed by the city council, and certificates of election issued by that body to the persons who subsequently organized the respective conventions, nominated the candidates, and regularly certified the nominations to the respondent, who received and filed such certificates.

The Republican and Democratic parties were, in fact, entitled to participate in said primary upon complying with the provisions of section 1361 of the Political Code. That section, in effect, requires that the governing committee of the political party entitled to participate must file with the city council “at least thirty days before the date of such primary election” its petition stating its intention to hold a convention, showing in detail the apportionment of delegates, and requesting that a place be given it on the official ballot. The governing bodies represented by petitioners did file with the city council their respective petitions, in due form, in ample time to enable the council to give the proper notice and furnish the proper ballots. The primary election was held on April 4, 1905. The petitions of the respective parties to be allowed to participate therein were filed with the council on March 8, 1905. The resolution of the council calling the election was adopted March 13, 1905, and notice of such election was commenced to be given on March 16, 1905.