Duncan v. Burke

WOOD, P. J. In this primary election contest, the contestant appeals from a judgment in favor of the defendants.

The contestant, Joseph L. Duncan, and eight other persons, including the two defendants, were candidates, at the primary election held in the City of Pomona on March 9, 1965, for the office of councilman for the second councilmanic district of that city.

According to the resolution of the City Council of Pomona, declaring the results of the primary election, the two defendants, Arley C. Burke and Randolph C. Wills, received the highest number of votes and were the two candidates who were entitled to have their names placed on the ballot for the general election to be held on April 13, 1965.

It appears that the ballot for the citywide primary election included the names of the nine candidates for councilman from the second councilmanic district, and that all the electors of the city were afforded the opportunity of voting for those candidates.

The contestant, Joseph L. Duncan, asserts that' the city council, in canvassing the returns and declaring the results of the primary election, counted the votes of electors outside the second councilmanic district, as a part of the votes for councilman in the second district; that the votes cast by electors outside the second district should not have been counted; and that if only the votes of the electors of the second district [173]had been counted, the contestant would have received the highest number of votes for councilman in that district, and would have been entitled to have his name placed on the ballot for the general election.

The resolution of the council shows that the contestant received 323 votes in the second district, and that Albert E. Bassett received 283 votes therein. The resolution also shows that in the city at large (i.e., all the districts) Mr. Burke received the highest number of votes, namely, 2,595 votes; Mr. Wills received the second highest number of votes, 1,417; and that the contestant received the sixth highest number of votes, 1,090.

Contestant asserts that according to the provisions of the new charter of Pomona (adopted in January 1965), candidates for the office of councilman in each of the councilmanie districts shall be nominated by the electors of each district; that only the votes of the electors at the primary election within each district shall be counted, and that it was improper to count the votes of electors outside said district.