Schostag v. Cator

BEATTY, C. J.

This is a petition for a writ of mandate to compel the defendants to issue instructions to the officers appointed to conduct the approaching primary election in the precinct where petitioner is registered to permit him to vote the ballot of any political party lawfully participating therein,

[602]

notwithstanding his refusal to comply with the requirements of a new section of the Political Code, known as section 1366a, which provides, among other things, that in all places where the Primary Election Law is in force each elector at the time of registering, or of transferring registration, shall declare the name of the political party with which he intends to .affiliate at the- ensuing primary election or elections, that such name shall then be stated in his affidavit of registration, and that he shall not be allowed to vote on behalf of any other party, or for delegates to the convention of any other party, by virtue of that registration, unless before the close .-of registration he announces and has recorded a change of his party allegiance. If he refuses at the time of registering to give the name of his party, that fact is to be stated in the record, and in such ease he is not permitted to vote at all at the ensuing primary, unless before the close of registration he declares his party allegiance by affidavit, stating the name of the party with which he is affiliated.

The petitioner contends that this section is unconstitutional, and the defendants are in doubt as to its validity, not only for the reasons urged by the petitioner, but for the additional reason that on the same day (March 19, 1907) that the act ,adding section 1366a to the Political Code was approved another act was approved adding a new section, to be known as section 1361a, which, it is suggested by counsel for defendant, brings both enactments in conflict with section 2% of .article II of the constitution, or, if either enactment can be held to be prior to the other, at least invalidates that act. "The point of this objection is that section 21/2 of article II, which empowers the legislature to provide for and regulate primary elections, while it authorizes the legislature to prescribe tests of the right of electors to vote at primary elections by direct enactment, or to delegate to the governing bodies of the respective parties the power to prescribe such tests, does not permit the legislature to partly exercise and partly delegate such power, but, on the contrary, by clear implication forbids any division of this function. We think this objection is over-refined. The legislature, by section 1366a (Stats. 1907, p. 677), has prescribed a test or condition to be complied with by all electors of every party who desire to participate in the primary elections, and by section 1361a (Stats. 1907,