Sbarboro v. Jordan

THE COURT.

This is an application by A. Sbarboro and twelve others for a writ of mandate requiring the secretary of state to place their names on the general election ticket to be used at the general election on November 5, 1912, as the candidates of the “Republican Party” for electors of president and vice-president of the United States, and to omit from said ticket the names of thirteen other persons who claim to be and whose names have been certified to said secretary of state as the candidates of such Republican Party for such office. The secretary of state, it is alleged, will place the names of such other persons on such ticket as such candidates, instead of the names of these petitioners, unless this court orders otherwise.

The facts upon which petitioners rely are fully set forth in their petition, and the question is whether upon these facts they are entitled to the relief sought.

Under our law for the nomination of candidates for electors of president and vice-president of the United States by political parties (Stats. 1911, Ex. Sess., p. 83), the candidates of any such party at the next election are required to be nominated by a convention composed of the so-called "hold

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over” state senators belonging to such party, and the nominees of such party for state senator and assemblyman throughout the state, selected at the direct primary election of such party held on September 3, 1912. Such a convention of the “Republican Party” was held at the time and place appointed by the law therefor, 114 persons participating therein as members. It is not disputed that all the persons attending said convention and participating as members in its proceedings were entitled under the law to which we have referred to participate therein as members, each of them being either a “hold-over” senator elected as and registered as a member of the “Republican Party,” or a nominee of such party for senator or assemblyman. We say this is not disputed, for although it is alleged that of the 114 persons participating as members in said convention, only thirteen were “Republicans” and the remaining 101 were not affiliated with the Republican party, and were mere intruders in the convention, it is subsequently alleged that each of said 114 persons who were nominees for the senate and assembly (being 100 of the 114) were nominated at the primary election held September 3, 1912, as Republicans, and that each had duly made and filed the affidavit required by law in which he stated that the name of his party is the Republican party, and that he intended to affiliate with said Republican party and vote for a majority of the candidates of said party at the next ensuing general election. There is no pretense that the same is not true as to the fourteen “hold-over” senators participating. Bach and all of those participating were qualified to participate in the convention as Republicans, so far as any test prescribed by the law is concerned. The sole basis of any claim that 101 of the persons participating as members of said convention were not affiliated with the Republican party and were disqualified from acting as members of the convention, is substantially that as members of such convention they repudiated the action of the convention of the National Republican. party held at Chicago in June of this year by adopting a resolution directly and positively repudiating the platform and nominees of such National Republican convention, and declaring it to be their intent and purpose to support the national platform and candidates of a new party known as the Progressive party, and by nominating as candidates for elect