The San Francisco call. [volume], June 29, 1909, Page 2, Image 2

About The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913

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2
'COURrSfRIEND'
GETS SLAM IN
BIG DECISION
Frank Deering Not Mentioned
in Opinion but Is
Ignored /
Exhaustive Discussion of; the
Law by the Supreme *
Tribunal
* \u25a0 \u25a0- ' \u25a0 \u25a0».- *
amendment for which , the men in
charge of the bill fougrht co hard in
iho last days of the.legriFlatlve session.
The language of that portion of the
decision touching the title and the ad
visory vote on United States senators
leaves no room for doubt that failure to
adopt the advisory • plan would : havc
resulted in the rejection of the law.
After the general importance of the
decision as a whole sustaining the law,
Its most interesting and locally import
ant feature is that sustaining its parti
san character.
The court goes at length into the
question of prohibiting the printing of
a candidate's name on- the ballot of
more than one party, and expressly
rules that no candidate may have his
name printed on the official ballot of
a party with which he did not affiliate
and vote, If he voted at all, at the last
general election.
In this particular, and this alone, Jus
tice Angellotti .dissented from the
opinion of the court. He held that it
was beyond the. power of the legisla
ture to prohibit the nomination of a
member of one party by the electors
of another, and that since the electors
of one party could write the name of a
candidate of another party on his bal
lot there could be no good reason for
prohibiting the printing of such name
on the ballot of a party other than that
with which the candidate was affiliated.
The majority opinion was based on
the provisions of amended section 2^4
of article 2 of the constitution, which
gives the legislature the power to
prescribe the tests and. conditions gov
erning participation in primary elec
tions. The court holds that since the
constitution takes from the parties
the right of protection it was Incum
bent upon the iegislature to insure
i!ie integrity of parties, and that It
fl'asas essential to protect parties from
candidates not in sympathy with its
tenets and committed to its policies
as *Xt was to protect tiiem from elec
tors "belonging to other- parties, who,'
i:nder existing law, were restricted to
voting the primary tickets of the par
ties of the sworn choice. /> *•
The court rejected briefly the con
tention that the filing fees were uncon
stitutional as providing a property
<luallficaUon "'to the right, to hold office.
The fees were "held "not to be aprop
crty qualification and. wholly constitu
tional, since they were reasonable as to
amounts. SfrsM^v ,/\u25a0'\u25a0\u25a0-\u25a0.;\u25a0;
The question of ineligibility of a
candidate, defeated at a. primary elec
tion to Independent nomination for .the
sam-e office at the ensuing general elec
tion was not passed upon. The court
said that it would be sufficient', to pass
upon that when the question was
raised directly and. that in any event
it 'did not run to the life of the law.
\u25a0- T n £". opinion fraught with such vital
frnjiortance to 3.11 the people of Call
fofnia is not without humor in its
fcppHcation rather than Us phraseology,
frcering, \*frlend of the court," and
Francis J. Sullivan, candidate for union
labor nomination for mayor, and un
happ-y.*;her« o { ti )e only slugging fest
of the "campaign, furnished the motif
for the -fun -of the decision.
The court* declined to wipe out the
charters of 11 freeholder cities for
Deering, and without referring to Sul
livan by name, declined to' pass upon
his objections to the provisions of the
raw, 'dismissing them as unworthy of
ronpideration.
Deering "friend of the court," at
tacked the law from title to date.
The legal representatives of the social
ist party, who were as much in the
dark as was the public about the iden
tity of Deering's client, got a rise out
of the "friend of the court" by In
sistent declarations -before the court
that the socialist did not join In the
attack on the title. Deering, "friend
of ihc court," insisted that the direct
primary law must be rejected because
the title referred to United States sen
ators. According to the Lights of
Deering candidates for the United
States senate were not candidates for
public office.
The supreme court was -unable to
follow the "friend of the court" to that
length. It was of opinion that candi
dates for the United Stages senate
were candidates for public office, and
that while the people had no right to
elect them, the legislature undoubtedly
had the authority to give the people
r.n advisory vote In the matter of their
selection.
DeerSng, "friend of the court," also
oontcndexi that the law must fall be
cause it expressly excepted from Its
provisions the nomination of candi
dates for municipal offices In those mu
nicipalities having special methods pro
vided by ihcir charters.
Deering asked the court to reverse
itself and declare that municipal elec
tions were not municipal matters and
that charter law was not paramount to
general law. The court declined to re
verse itself. Despite Deering. "friend
of the court," the charters of San Diego
Los Angeles, Fresno. San Jose and
Berkeley are still intact.
The decision written by Justice Lori
gan is one of the most exhaustive de
cisions ever handed down In a direct
primary case, and there have been
something like 75 test cases decided in'
the 22 direct primary states. All the
questions that could run to the life
of the law have been passed upon. The
direct primary law and its application
are now in the hands of the people.
Eastern critics have agreed that the
California direct primary law is the
best direct nominations law yet en
acted. It is comprehensive. It is genu
ine direct primary — no more, no less.
With th'e- sustaining; decision- of the"
supreme court. The Call's fight for the
people is won. It remains for the peo
ple to make the same good use of their
direct primary law that the people of
other states have made of inferior
TEXT OF* DECISION'
Following Js the full text of the de
rision of the supreme court, sitting
\n bank, as to the direct primary Jaw:
June.
Bank.
Socialist party (a political party) and
Henry Hapelstein. as chairman of the county
committee, representinr said party in the
city aad county of San FrancUco, petitioner,
vs. Thomai Uhl, Thomas V. Cator, . Charles
Gildea, Hu«h Hclsaae and If. O, \u25a0 Weinholx
a* the board of election commissioners -of
the city and county of San Francisco, and
J. H. Zemansky, the rejistrar of voters of
said city and county, respondents.
. S. F. X«. 8285. -
This is an criminal application by the peti
tioners for a writ of mandamus to compel
tbe respondents— Hhe election commissioners \u25a0 \u25a0
and the registrar' ef voters of the city and
county of Saa Francisco— to receive petitions |
ud*, Hold '« primary election tinder the A so i
.- diUi fiimux law ef<l9Qs v am«ded"-ia\ I
Birect Primary Law Is Sustained In Sweeping Decision j
1907, the provisions Of. which are found in
the political code embraced in sections 1357
to 1375 Inclusive. \u25a0 \u25a0
The petition contains . all the necessary
averments showing that the socialist party is
a legal political entity entitled under the
terms of the primary law referred to to par
ticipate in any primary election to be held
under that law and to have a. writ of man
date issued as prayed for byMt if the said
primary law is still in force.
It is further averred that the socialist
party desires to file with said board of elec
tion commissioners its petitions pursuant to
the provision"( Political Code, section' l36l)
of said primary law declaring *its intention
to hold a political convention for said city
and county for the purpose of making nomi
nations of members of said party -as candi
dates for publio offices of said city and
county to be voted for at the election to be
held therein on November . 8, : 1909. - It is
further averred that it is • the . duty of said
election commissioners, pursuant to the pro
visions of said 'primary law, to hold* a pri
mary election in said city and county on the
second Tuesday in August, A. D. 1909, in
which fiaid socialist party is entitled to par
ticipate for the purpose of electing delegates
to a nominating convention \u25a0of said party
for said city and county; that the board of
election commissioners refuses to take any
steps or make any preparations for the. hold
ing of a primary election on said second
Tuesday of August, A. D. 1909, under said
act of 1905 as amended, but on the contrary
asserts that it does not intend to hold a pri
mary election on said second Tuesday in
August, but on the third Tuesday of said
month under the provisions of an act of the
legislature approved March 24, A. D. .1909,
entitled "An act. to provide for and regulate
primary elections and providing the method
whereby electors of political parties may
express their choice at such primary elections
for United States senators."
ACT COXTEXDED VOID
In the petition for the writ it is contended
by the petitioners that the act of March 24,
1909, under which the respondents are pro
ceeding to conduct said primary, election, is
null and void as contravening various sections
of the constitution of this state which are
set forth in the petition; that the act of 1905
as amended is still in forco and effect and
that it is the duty of the respondents to
proceed under the terms of that act and hold
a primary election on the second Tuesday of.
August, 1909, and to make the necessary
preparations for that purpose.
The respondents have demurred to the peti- -
tion and the matter is submitted for final
decision upon the demurrer.
The whole purpose of this .proceeding is to
test the validity of the primary election act
of March 24, 1909. -
In 1890 an amendment to the constitution
of the state was adopted (article 2, section
2>i) as follows: "The legislature shall have
the power to enact laws relative to the elec
tion of delegates to conventions of political
parties at -elections held and designated as
primary elections * • *" It was under
this constitutional provision that the primary
law of 1905, as amended in 1807, was en
acted, and it applied, as the constitutional
provision directed, solely to the election of
delegates to the conventions of political par
ties at primary elections.
In 1908 this constitutional amendment was
replaced by the existing section 2>4 of arti
cle 2 thereof, which provides, among other
things, that "the legislature shall have the
power to enact laws relative , to ±he election
of delegates to conventions of political par
ties; and the legislature shall enact laws
providing for the direct nomination of candi
dates for public office, by electors, political
parties, or organizations of electors without
conventions at elections to be known and
designated as primary elections; -also to de
termine the tests and conditions upon which
electors, political parties or organizations of
electors may participate in any such primary
election. It shall also be lawful for the
legislature to prescribe that | any . such pri
mary elections' shall be -mandatory and oblig
atory • • >•; provided, however, that un
til the legislature shall enact a direct pri
mary election law under [ the provisions of
this section the present primary -election, law
shall remain in force and effect. ".'\u25a0\u25a0'\u25a0' -\u25a0 - > -
It was subsequent to this last ' amendment
to the constitution that the act of March 24,
1909, was passed, and it purports -to have
been adopted in harmony with the mandate
. of- that constitutional amendment.
THE OBJECTIONS RAISED
-"Various objections are urged . against the
validity of the act, and we shall refer to the
particular provisions thereof as we consider
the special grounds upon which they are as
sailed.
! It is insisted first that the entire act is
void because it violates section 24 of article
4: of the constitution, which provides that
"every act shall embrace but one subject,
which subject shall be embraced in its title."
The act is entitled M Aa act to provide for
and regulate primary elections and providing
the method whereby electors of political par
ties may express their choice at j such pri
mary election for United Statea senator."
The particular points made are that the pro
vision in the title of the act relative to the
expression of a choice by the electors for a
candidate for United States senator is a dif
ferent subject matter from nominating can
didates for public office -provided for in the
title of the act referring to the regulating
of primary elections, and that the.constitu
tional provision' itself provides a distinct
and complete subject for legislation and is
limited to the \u25a0 making- provision ' for the
election of delegates to the conventions and
providing for the . direct nomination at pri
maries of candidates for public office; that a
United States senator is not a candidate for
public office in the sense that the words are
used in the constitutional provision, nor is
an advisory vote to advise the legislature . as
to such choice a direct nomination of candi
dates for psblic office.
W« can not agree with counsel on these
points. As far as the provision of 'the act
with . reference to an advisory vote relative
to United States senators is concerned, wo
think that the matter of such advisory vote
is; germane to the subject of a primary elec
tion. It is co held in State v. . Elaisdell, 118
N. -W. (X. Dak.) 14.1. 14$. The case of the
State v. Nichols, 97 Fac. (Wash.) 728, 730,
seems to be to the same effect. * ' '. sub
ject being germane so as not to fait within
the inhibition of the constitution relating ° : to
different subjects in the title of the act,
there it nothing in the point that the con
stitutional provision relative to providing for
a primary election excludes the right of .the
legislature to provide in a primary act for
the expression of a choice for United States
senator by the voters at a primary election.
Of cocrse, it is conceded that the matter of
selecting a United States senator lies with
the legislature as an elective body and that
such selection can not be made at a primary
election. What is provided for in the act on
this subject is, however, the giving of an
opportunity to voters of the parties partici
pating in the primary to express their choice
for a candidate ' for United : States senator.
ACT DISTINCT AXD COMPLETE;
The act as a primary act is distinct and
complete as providing for direct nominations,
with the added feature relative to an ; ad
visory vote relative to United . States sen
ators. There is nothing in th* constitution—
either amendment 2'/ 2 of article 11, or any
other provision—which prohibits the legisla
ture from providing at » primary election for
an expression of a choice as to 'a candidate
for United States senator. It: is within the
general legislative power to do bo and that
It has provided for this, advisory vote at a
primary election is for the purpose . of con
venience and to save expense and that the
expression . of such choice might bo mads by
- the voters of the \ respective political parties
at the same time. and' under the same polit
ical machinery as is used at the general
primary. . Because conducted at .the same
time and under the same election machinery
it is not strictly a part of the primary elec
tion contemplated by amendment Z\' t of
article II of the t constitution.' It is some
thing in addition to it and, as said in the
Biaisdell case, > what , is : sought by \ the pro
vision is "merely the of an
incomplete party, nomination" ; an expression
of a* choice by the voters as to a candidate
for United States senator to be elected by the
legislatu-e. What the effect : may :be„ of
these provisions relative . to such choice by
the electors— whether at. all binding on the
legislature — is a matter of no present con
cern. We are; only , considering whether a
provision for such advisory vote expressed in
the' title of the act is germane to the subject
of ' a primary election also expressed \ therein
and whether legislation \in ? connection with
. primary laws .granting such right of ex
pression "of a choice-/- is '•\u25a0 prohibited" by
the ' constitutional i provision * particularly
under consideration or.- any other,, and
we are satisfied • that ? ' the \u25a0 ."subject ' of;
- the title giving the ripht to express such"
choice is germane ' to : the. subject of a", prl
\u25a0;' mary election, and that the , legislation •: on"
the subject embraced in; the I act, fn 5 question
is violative of no constitutional' provision.
; No* as to the objections which are . urged
against certain provisions' of - the ' act which
. it is claimed, render the entire act void.
Section 5 thereof provides that the name of
a'candidate shall not to on the official bal
lot at .the primary, election nnless, nomia*-.
tion ' papers : in' his behalf, are ' filed. These"
nomination papers must be \u25a0 signed ' and ; veri
fied by qualified \ electors and - must contain/
. *moar other : tbißirs/ * statement ' of th»
OJIE SA^T FBANGISCO CALL, TUESDAY-JUNE 29; 1909^
These are
The title does; not fall within the constitutional; inhibition against two subjects by inducing a-refer
• ence to;a:popular>advsoryxvote for United States senators at primary elections.-
The pemen to elec^Uniteid States senators must remain in the legislature^ but the legislature has
v the authority binder the constitution; to provide for an advisory vote touching the selection of
.candidates for the United : States senate^ Such candidates are candidates for public of fice.
• Graduated petitions -for places on the prirnarylballot are constitutional and the- legisl^
bound to make provision for participation in direct primary, elections by electors- who do not
a^politicalparty^ithinthe meaning of theiaw; \u25a0'\u25a0'\u25a0/.. C
Municipal elections are ; municipal matters and ? th c of cities having i special election;sys
'. tenr provided by charter from the operation of the drect prmary law s consttutonal. ; •- "
Reasonable filng. fees ;are not property qualfications of the right to hold public office;
Tlie .^! L ? il ; e - nieil ! : ;^ an affidavit from the candidate for nomination setting fortbhi^artisan affilia
'. tions is not ; unconstitutional and it is a reasonable regulation for the legislature to provide that
a candidate may-not have his name, printed on the ballot of more (than party
. /., the one' with which he voted at. the ilast? general election.! \u25a0'% v \u25a0; : - ->
political ']. party;: with- which, such:, qualified
electors affiliate, and a further declaration
on their part that they intend to support the .
candidate . named by ; them. These nomina
tion pepers |to the number lof a designated
percentage of the voters of the party of a
candidate— the percentage depending ; upon •
-whether he is a candidate for. a state, con
gressional district, county, city, or. city and
county office— must be signed by such voters,
and with the "nomination affidavit of the can
didate filed, before such candidate is entitled
. to a place on the primary ballot.
PRO VISION'S OF ACT .
It is further provided that the basis of
such percentage in each case— that is as to
the nomination of candidates by voters of his
party— shall be the vote of the party for its
candidate at the last preceding- presidential
election. But any other political i organiza
tion which, at such presidential or last state
election was represented on the official ballot
by either. regcJar party candidates or individ
ual nominees . only, -who had received 3 per
cent of the total vote at such presidential or
state election in the state of a political sub
division thereof in which the candidate seeks
the nomination,* may have a separate' primary
election ticket as a . political .party, ; ; It is
also provided that "nothing: herein shall be
construed as prohibiting the independent
nomination of candidates to be voted for at
any general election by* 'electors* or 'bodies
of electors' as provided by - section 1188 of
the political code • *.V The section
of the political code referred to allows the
nomination of candidates for public office by.
petition signed by electors* equal in number
to S per cent of the entire vote cast at the
last preceding election in the state, district,
or political subdivision for which the nomina
tion is to be made, and further authoriies
the designation by the signers of the peti- '
tion of a committee to represent said sign
ers collectively as a political party by any
same which may be selected and adopted'
- by them. ' . . .
-These .are practically all the provisions
in the act with reference to the nomina
tion of candidates.
It is insisted by the petitioner, that as- the
only method provided for the nomination of
candidates in the act -is one for their nomina
tion by "political parties" alone, that the
legislature has failed to. carry out the man
date of the constitution,' which, requires that
provision shall be made in any . legislation
with reference to a: primary.- election for the
nomination "of candidates by "electors,",
"organizations of electors;*.' as 'well -as polit
ical parties; that the act is incomplete legis
lation on a subject where full legislation is
constitutionally . required, :, and hence, - the -
act is void; that the 'provisions of the act 3
' saving to electors t or bodies of electors .the X
right to nominate candidates and "electors to
public office by petition as provided in sec- -'
.tion 1188 of the political code is a different • '
mode of nomination than the constitutional
. mode- of direct nomination at a primary, and
which, it is insisted by. petitioner, the con
stitutional mandate "require* shall hj f ac 
corded^to all classes that are mentioned in
• j the constitutional provision.
OBJECTIONS ARE ABSTRACT .
; These objections to the validity of the act
\u25a0appear to present an abstract question -as far
as the record before us discloses. The peti
tioner is a political party whose right to
participate, in ": a : primary is. conceded c and
there are no "electors',* or "organizations of
electors ' who are complaining as to the con
stitutionality of the law. This, however,
does not prevent the particular attack on the
act from being made nor relieve us. from the
necessity of. disposing of it/V.
Not much Stress is laid on the alleged fail.
, ure of the legislative to provide for the par
ticipation in primaries of -"electors" as dis
tinct from ."political - parties", or "organiza
• turns of electors.". , The j main argument lis
- addressed to, the difference in 'meaning be
.\u25a0 tween 'political parties'" and "organizations
-of electors." Ordinarily .there would = seem
to be no distinction in meaning between
<. these terms. They, would appear to be syn
onymous. It is claimed, however, by peti
tioner that there is this distinction, namely,
!w \ J ohtlclil - P"tiei".-. are > those which
theretofore had participated in a struggle at
the polls for political ascendancy: and that "
; organizations of electors", are those who
have not ;new. parties organized r to advance
some principle or measure .of public policy,
but which have not \u25a0 participated in any
election and that it is such new parties to
which the term "organizations of electors"
applies, and t whose, right to participate in
primaries must many act relating to a pri-'
mary law, be , provided for. "
,y r ?. ue , Ilot prepared, to say that this *
definition is -: not correct, ; but, conceding It
ttn i7 c - 04 . Perceive anything in
the constitutional provision which makes it
the imperative duty of the legislature to
provide any other, mode for participation" in
a primary than such as- ft has done. In "•'
reading the .: constitutional amendment ' .it
ZH*Z D^ t6d , ***}• While^ Jt P^Mes enact
ment by^the legislature for. the direct nomi
nation of ; candidates ; at primaries by "elect
ors, . political parties" or "organizations
of electors," it is equally provided that the
legislature may determine the tests T and '
conditions upon which such cUsses,' or either
««em, may participate \u25a0 in . such *. primary
election. Under :£his latter clause of the
constitution we think it was left to the
legislature .to provide ; any reasonable tests
or conditions under: which participation by
any of the classes ' mentioned in the primary '
la-s^ should ; be : had. and that the fixing of "
conditions under ", which practically only do
litieal parties - which had i. candidates :* for
presidential electors at -the last preceding
presidential election, . or ' political organiza
»tions which having no ; such candidates yet \u25a0
were represented, by. candidates on the offl--
cial ballot at said presidential' election: or
last preceding state ->. election ;: and received
a certain vote, should bo entitled to partici
pate, \ together .with the provision of the act '
with reference to section 11«8 of ' the politi- • •
cal code, was. a sufficient. compUance' with
the constitutional -requirement.. That' the
legislature was authorized : to : fix some tests
and conditions is clear.,. 1 In doing so It had '
a right to taka i into • consideration ', the ; po
litical situation ; of;, the s state . disclosed by
the existence of; political parties and politi
cal. organizations s with , which; £at the last "
presidential or state election,: the 'great ma- : ,
jority of the voters of the : state had allied'
themselves. The .< existence of * these politi- ;
cal parties \u25a0 and . political - organizations it '\u25a0*'
. could take notice of and legislate ; intelli
gently-concerning, « and- the particular : pro-"
visions of ! the act \u25a0 apply to such political
parties and . organizations.
: On ' the other hand, \u25a0organizations* of elect
ors as meaning something i different from po
litical parties, is an ;indefinte,. term." Such" -
organizations may ; as .well mean : aa as'socia- '
tion together of a few electors— -two. four or
;»ix— as a larger number.' "At best; it is but
an; indefinite ;subject of :legi»lation i and : one
which may 'present? difficulties: to a legisla
ture in the way of. determining either what
shall be considered organizations. of electors
or to provide for participation whan " defined.
There is nothing.; in? the i constitutional ' pro
vision "\u25a0' which '; requires 1 the,;; legislature . to ;
adopt ;a 'i universal r mode :• .; whereby all the
classes •: mentioned -may f participate..-- Under \u25a0
the power to provide tests and conditions -it*
> may \u25a0 prescribe different • tests : as to ? different ""- \u25a0
; ; classes, its' power ;heing £ limited, f however, •-
, to « providing; tests ; and conditions ; which '; are
• reasonablerand'not^arbttrary.y Asfaras po
- liticalr parties', and*"/ political organizations '-'•"'
are concerned, it has . provided } these ft tests
and conditions • a*s ? establ'shed -'.' a "mode -
: whereby, • they : may ;> participate C? against
. whieh^ no : objection ; upon I the ? ground "'\u25a0 of \u25a0 un- • ;
-^ reasonableness can .: be .urged/- > As-: to' ! that
..class^ the \u25a0 legislation ; is complete. \u25a0;\u25a0'• t \u25a0 \u25a0\u25a0
A.\ I.\ DEKI.MTE TKIIM ;
On 'the v. other " hand, it has" -not, > as it is
claimed ' by , petitioner^' failed : to ; establish a
±1 mode "t whereby,| classes other ,'i than i* political -• 1
< organizations \u25a0 may participate. :,; It ': has " saved :*V
'i\ to them the provisions 'of. section llßß of i the :
political * code. ; f ; the ' terms •; of ? that ;
section any electors -whether, formed inio m -
organization or not may petition to have the
names of \u0084 any. candidates ; they desire to
nominate placed upon the : official ballot to
:be ..voted , for at the : ensuing \u25a0 election, , and
may take any ) party * designation ; they • may
choose to adopt which does not conflict with
that of any party organization, and if at
the election their, candidates or the party
which, they represent receive the requisite
vote, such party, may at the succeeding pri
mary be entitled :. to - participate .therein.
With this provision in their behalf they are
entitled to nominate candidates in any event
and to : participate jin - the J primary elections
if they receive the required vote to bring
them within < the conditions of the general
primary law. Of. course, it is contended
that this mode of nominating under section
1183 of the political code is not granting a
right to participate in the present primary.
True, but it ; does give them an ! opportunity
to participate in future primaries. It pro
vides a test and condition under \ which
electors or organizations of electors j may
acquire the status of a political party and
may go into a. primary with the same rights
as any other party. - It is no valid objection
that this mode does not provide ; for present
participation in primaries. It provides,'how
ever, how participation may be had— the con
ditions under which it may be availed of —
and as they secure the right when the tests
or conditions are met, we think • the rights
which are conferred by the amendment on
electors or organizations of electors - are
secured. It is true petitioner presents strong
reasons why | the - constitutional amendment
should be interpreted so as to hold the legis-
lature is * required to ' make direct provision
for the present right of . participation in • a
primary upon all classes mentioned in the
constitutional provision. It is, :: however, a
universal principle to be applied [to the con
struction of . statutes that such , a construc
tion shall be given as will sustain " the i law,
and, • notwithstanding the contention of the
petitioner to : the contrary, we " are of ', the
opinion : that the * legislature may adopt any
reasonable tests 7or conditions . and provide
any mode which in effect secures the rights
of all such classes and that, by the provision
in the act. with reference to section 1158, it
has done so. <K.
It is provided by section 2 of the act here
in question that its provisions as to primary
elections shall not, apply "to the nomination
of officers of municipalities whose charters
provide a \u25a0 system 1 of -nominating' candidates
for such offices.", : ; ..
It, is claimed that this exception from the
operation of the act of chartered municipal
ities renders the act void, it being insisted
that the act in question is not . general, ' but
is'special and local because it exempts munic
iualities operating under' charter from the
application of its provisions. / \u25a0
There are various municipalities in , this
state having charters^ which provide for the
nomination |of municipal officers by methods
distinct from each other and different j from
'-- the - mode laid down under {he primary : law
' under discussion. They ; systems of
I their own for the nomination of .municipal
'\u25a0? officers- The city and county* of San.Fran
\u25a0;-\u25a0 cisco under /its charter' provides 'that • its
elections for municipal officers shall be held
/under the general law of the state governing
elections, and, hence, : the primary law ap
v plies^to'it as a general. law. '--• y : \u25a0 \u25a0
It is contended by petitioner that under the
. constitutional mandate it is required that th*
primary law shall apply to all elections, in-
I eluding elections for municipal of fleers. If
| this I were true \ there | would be merit |in the
claim of petitioner because the act in so far
' ' as it attempts to • exempt chartered munici
palities would result in the failure on- the
part of the legislature to execute the pro
j . visions of the constitution by making the law
applicable to all elections; that | instead of
- providing: a general law, one special in ' its
character has been enacted. But we do not
I think the position of , petitioner, tenable.
' While the act exempts . chartered • municipal
' ities from its : operation -it is not thereby
I rendered special or local. / The constitutional
' provision under, which the primary : law was
> enacted does ' not •' in ; terms - require the pas
,- sage of an . act . which . would apply to \u25a0 all
elections. It is obvious from its, terms that
'<\u25a0 the law which 'the legislature 'was called
• upon to enact was a law \u25a0 applying to general
g elections ; elections that j were conducted ' on
.party lines, and .that the legislature was' not
,* required to pass a law applying. to municipal*'
g ities which * might , or ; might not [ happen ?. to
be conducted on such lines, and whose can
'\u25a0 didates might represent purely municipal pol-
icies or local issues. There, is nothing- in th»
constitutional provision making any primary
| law enacted thereunderi applicable in charter
elections. The law enacted under/ the ccn
;' stitutional provision stands as far as munici
palities are concerned the. same as any. other
general ; law which under - the ' constitution^
" (section 6/ article xl) i snot binding . upon
\u25a0a municipality as . to matters ; which'; are
strictly municipal affairs. •'« That the: election
> of municipal officers is , strictly a municipal
- affair goes without question- : It is . held in
- People V.; Hill, 125 Cal. tie./that city • char
ters prevail over the general -law as far; as
L regulating L the method /-in which a charter
, election ; be conducted. 'If : section 2Vi re
•ferred to : charter elections as being; within
\u25a0'- the ; scope of any legislation' required v to , be
enacted under it, there would be no room for
t discussion of this point. All the ' constitu
'\u25a0 tional j provision lequires,'- however,, is the
iv passage of a general law relating to primary
:, elections. , As far. as municipal elections ara
> concerned, they being * municipal affairs, it
-;can not control them. Under these views the
'}. exemption ; of . municipalities ' did v not' render
the act unconstitutional for want of general
i". application .to : all \u25a0 elections. . \u25a0 , ;
The act provides for; the payment of .. cer
> tain i fees- by :\u25a0\u25a0 candidates :on . filing , with . the
3 proper officer ? their : nomination - papers and ,
-affidavits of- candidacy. These- fees apply to:
- all nominees— state, district, county and mu
\u25a0;• nicipal— and range from $50, to " be ; paid by
R a candidate for state office," to $10 to be paid :
\u25a0by county, legislative \u25a0or municipal officers/
where • the . selection .of candidates for mv- :
\u25a0 ' nicipal office is held under. the primary law.
It is insisted that this: provision with ref-.
erence to the imposition of fees renders the
• ; act ;void, : as such imposition :is in • conflict
i .with article I,, section 24, of the constitution,
\\u25a0; which prescribes that no ? property a qualifica
tions shall ever be required of. any. person to
; i vote or.; hold office, v
1 ' ilf this Position , of petitioner were sound,
,• =v however, it would not have the ' effect of ; in
: - validating * the i entire i act." This r provision
could be declared : unconstitutional ; without
-: affecting the ' general . scheme ; of • the ! primary
; law, '- as { it :' is . not ; such ) an > essential \ part iof
i Jhe law that " if; itj-were ; eliminated * the \u25a0 rest
• of the act could not stand, we are sat
; lsfied that 'the weight of authority is against
the position of petitioner. ?. The constitutional
- provision under , which the i primary ." law ' waa
„ passea gives < the . legislature ;the right ; to fix
.Hhe conditions upon which 'participation iin a
:.- . primary.- election may be < toad. ' : • Uiider • this i
-grant of power, it hasithe right to determine
- - what are reasonable : regulations' under ..which !
,' the right to participate in : the primary s may
;• be exercised. It is not claimed that the fees
are unreasonable, but the right to' exact them
*;at all is questioned. ' . - '\u25a0\u25a0-.'\u25a0:^ v -
It is 'provided : in the act "that i these fees
± are to be paid i into the county, or j municipal
! treasury a when " they > are pa id % by- : county ;; or
\u25a0 ; municipal candidates : and ; when' paid \u25a0. by \ can
\u25a0• didates , for, state or district : nominations .are
•J, to :. be 1 apportioned and f- paid .\u25a0 by: the state
.-•- treasurer^ to the county treasurer .of ; the
- \u25a0 counties in which . such ! candidates \u25a0 aro ito '\u25a0 be- -
,^ voted f or. , The validity : of • the ' provision ; re
< quiring • the , payment \u25a0of j fees \u25a0is - sustainable, ";
Sunder the constitutional amendment,'as I being
V within . the power .' of i the ' legislature ito s pro
*:,vide X reasonable y conditions, f or f the "
•* of-:, the i rights by i the ! primary flaw/ 5
I As -said by. one . court -, to which" \ this 'question :
; was npresented: : ; VThe:right:to;exact airea-:
" sonable , fee : for . the privilege \ of. running 'for '\u25a0
:i_ office may > be-' sn«Uined,*; on 5. the '£ principle
that ; fees .in -; actions and j proceedings "in
\u25bacourts.iand-for^fllingfandirecording^papers.
\u25a0: are sustainable ;i namely,* that 'those who i seek
- the .benefit sof a^ particular I prooeedinr 1 pro^;
. \u25a0 videdibyj law ; mayj be ; compelled to i reimburse
the state] for a' portion of ; the 1 costs* ', the ' stats f
.incurajin i maintainingithe.;instnimentalityJto'
:•; * an^ : Wto.icffwt the puticulw; proceeding;:
In other -words the state asks the candidate
for office under a particular law to reimburse
it fora part of the expense it incurs in car
. ryinff ; that \u25a0 law into ' effect. - This clearly , th«
state may - lawfully 'do. " ( Stato v: Nichols,
-97 Pac. (Wash.). p. 728, 730.) > *
Aside from. this su«h a provision is a rea
. sonable restriction and provides an orderly
and systematic ', method by which the people
| may. select their , candidates for ; public office.
Tho exaction of a fee tends to prevent an in
discriminate ; scramble : for office, where it is:
fixed at an amount that will impose lfo hard
' ship upon' any. person for .whom there should
be any, desire to vote as a \ nominee for. any
office, and \ yet ; enough to ' prevent .the ', whole
sale , fllinff of petitions for of
any one regardless of whether or not he Is *
desirable candidate. \u25a0". It.ia. but. a reosonabla
means adopted by tha legislature to regulate
primary \ elections for the selection : of candi
dates for/public office". :.\ And the constitu
tional provision that no-property qualification
shall, be required or. any person to vote or
« hold office I is ' not violate d by such provision
as to, the", payment of a~fee,-but;is a reason
t able : regulation prescribed by t the legislature
on, the = wise assumption' that any , candidate
who is of sufficient worth to stand before the
people as a candidate for publio office and
whos* candidacy, calls for the payment of the'
fee required by.the act will be at no diffi
culty -to pay the required amount." (State W
Scott, 108 N..W. (Minn. 829. See also Mont
gomery 'v.";Schlef,"B2 S.*W;( Ky.) 389.)
it,is. true/ cases that-hoidto a
contrary. view: People v. Election Com., 221
111. 21; tStato v. Dfexe!, 105 S. W.
(Neb.) 174, 179; Johnson .v: Grand Forks
County,' ll3 N.-w.' (N." Dak.') 1071. '
But as v pointed ; out in SUte » v. Scott,
supra, the provisions 'of the act' involved in
State v. iDrexel and- People iv. V Commission- !
ers, supra,, called for, in. the first of these
cases,: the -payment of'afee based on th«
emoluments of, the of flea to, which , the can
didate aspired, and; in the' second case- the
fee was. made to correspond with, the lm- :
portance of, the office v from \ the standpoint
of flif nity and> influence, aii - well- as from
the standpoint of emolument. In both these
cases- it was -held that the, fees : imposed .
were arbitrary, and unreasonable: bore no
relation ,to, the .service^ rendered' and mad*
the . ability of a person to pay the' test of
his qualiitications. .' While these cases - held" '
that the provisions of the -act respectinff
fees were arbitrary- and unreasonable, still
it was recognized in both of them, that some
reasonable -regulation mig-ht bo adopted .by
the lerislatnro to control a I primary ' elec
. tion for -the -selections of candidates f or •
office,', and within- the view- of the cases '
, cited by -us as sustaining ' the v imposition
of a fee it is apparent (that the charje as
made in _the act of our , legislature in \u25a0 ques- 1
tion was a. reasonable regulation upon the
subject.:;.-;The' other case cited by petitioner
— Johnson ;.v. Grand -Forks County, supra—
while grounded to a large extent upon State
v. Drexel .": and Peoplo ,r. '•; Commissioners,
supra, ~ is: based also : on considerations inde
' pendent of those , set forth in those . cases
and sustain the petition of .petitionen.lThis.
. ;at best," presents a conflict of authority, but
with a preponderance in favor of the validity
of the imposition' of a fee and in our judg
ment * the --, conclusion ' reached in the - cases
we have cited and , which sustain the im
position of such fees as a reasonable regu
lation are the most satisfactory. .
AFFIDAVIT WITH PAPERS
The act provides -that when, the nomina
tion papers :of a ; candidate are filed they
shall be accompanied by an affidavit of such
candidate declaring, . among other things, #the
name of his party and that of the office for
which he desires to be a candidate; that he
affiliated with said party at the last pre
ceding , election, ' and either that he did not
vote thereafter or voted for a majority of the
candidates of said j party .at said next pre
ceding general . election, and intends to so
vote at the ensuing election.*
It is insisted that this provision requiring
such an oath is violative of section 3, article
20, . of .the constitution, which prescribes' the
form of- oath to be ' taken : by ' one before en
tering the duties of an. office and which de
clare V that "no . other oath, declaration
or test shall be . required as a qualification
for any office "; or public trust." , But this
section .has -. nothing ; to - do .' with ; any : oath '
which may be required to be taken by a can- '
didate 1 at ; a , primary ; election. Elt only ! ap- j
plies to persons who have been appointed or
elected to office and are, about. to assume a *
discharge of;th» duties thereof. : :
; The - power jis vested in ' the legislature,
under section 2\ i : of article 2, " to determine
the tests and conditions upon; which partici
pation in : . a , primary election may « be had
either *hy : electors : as voters thereat or by
electors as candidates thereunder. The right
is thus I conferred to prescribe ' any • reason
able test, ; and it is; the iduty of the legisla
, ture to s prescribe one. Such a test is pro
vided for in section 1366 A of the Political
Code as to electors wherein it is provided
that an elector when- registering shall de
clare the nanw ; of the political party with
which . he ; intends to affiliate at the ensuing
primary - election./^ And it further , provides
that he - shall not be , entitled to vote ; unless
he states at , the, time 'of .registration the
name of the I political ' party i with which . he
intends to affiliate, nor; shall* he be permit
tod to vote on behalf of any party other than
the party , designated in . his registration.
(Schostag vs.; Cator, .lsl Cal.' 600.)
- ;, The right ; and duty ; of the ; legislature to
prescribe j a test for electors voting at a pri
mary can \u25a0 not ' bo questioned, nor do , we per- .
ceive any reasonable grounds for questioning -
th« validity of a test as. to candidates. : The
obvious purpose of a primary, law . is to p re-
P3 iiflP^|h TR B^l IS EHmjHhk BtBL EsSfßssl ipsBEfPS •fflSßaS^
.. \u0084 \u25a0 .~- 1 . \u25a0 \u25a0'\u25a0- • ' - : -_. \u0084-,•\u25a0..„ «\u25a0 7 -'•\u25a0*-. V - - - " \u25a0 sbbsisWlbbsTJbl ssaw Ibbbß .^^^Bsbsbssb*^ " " sWB
Roinidtrip rates July 1, 2, 3, 4, 5, 6, 7. Aug. 9, 10, 11, 12,
m. Sept: 7,:8,.9, 10, 13, 14, 151
\u25a0 0maha v;...:..^ 560.00. Chicago. ......$ 72.50 Washington $107 50
-Kansas City.... 60.00 . St. Pau1.......* 73.50 Philadelphia * 108.50
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St. L0ui5.. ..... 67.50 Bos^n .:..... 110.50 j Montreal /".*!.! 108!50
;;Rates to (many other points on application. Liberal stop^-
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serve the integrity of parties. The neces
sity for maintaining the integrity of such par
. ties is recognized in the constitutional pro
vision : with reference to primary . elections.
The right which once exclusively, vested in a
political party, to supply its m 4«sts aa to
the rights of one to participate im'ita pri
mary elections has been modified fender the
constitutional provisions empowering ths leg
islature also to prescribe tests,- and it ia the
duty of the legislature when legislating upon
- the subject of- primaries to so legialata a* t»
*.. maintain the integrity 'of 'parties and the
-integrity of any political party and the sue
; cess and , f urtherancw ; of its principles • and
- policies; is best atUined through legislation
= > which .will permit participation in its affairs
> by. those only. who are devoted to its princi
ples and policies. It is manifestly proper
to permit only those to
/.^participate -with a. party • at a primary . elec
tion who ar« i»' sympathy, with the aims of
. the party ; those -, who ; are * committed ,to its
'principles and in sympathy with and loyal to..
-its tenets.-'ln ; order-taaffect thir end it- is
just as .desirable to prescrile a test-whereby
\u25a0the right of a person to become a candidate
of t a party: at ; a - primary election shall be
determined - as , it is to furnish a test by
' . which an elector shall bo permitted to vote
. , for a party candidate at ' such ' as • election.
SUSTAIX PART" Yv IXTEGRITV'
\u25a0 All these matters tend to sustain party in
tegrity, which is one of. th« chief aims of
a primary election law. If th« indfscrimi
nato right to voto with any party afar prt
; : mary_wera gives to electors whether th«y
were in accord - with - the principles ef the
party or not it would soon tend to destroy
all party . organisation. So to permit per
; sons to , become indiscriminately \u25a0» tho candi
dates of -' any or - all parties -at a ' primary
election would tend to have the same effect.
A political party is an organization of. elect
ors belie vinj in certain principles concerning
governmental affairs and ; urging the adop
tion and execution of "• those ' principles
through the election of their respective can
didates at the polls. : The . existence of such
. parties, '. the " dominant party: and the parties
I in • opposition to " it lies at the foundation of
our government, and it is not expressing- It
'too strongly to say that such parties are es
sential to its very' existence. -The -design of
the * primary ' law is not to destroy political
,_ parties,, but, .while carefully preserving their
\u25a0\u25a0 integrity, to work out s ref orma in their
methods of administration. Such being the
purpose of the law, it is not only proper to
prescribe such a test, but tha absence of
such a test would tend to work tha absolute
. disintegration and' destruction of all parties j
except for the saving power within theeparty
- itself of prescribing its owa tests aad regu
lations. The power of a political party to
\u25a0 prescribe a test for any of its members
seeking preferment at its hands may not b«
doubted,, and if th» party can prescribe such
a test so also can tha legislature. Thus the
legislature, in the interest . of party inte*
,rity, not only wisely, but as a duty sought,
by .test requirements, to confine the right of
electors to vote for candidates of a party to
those who had registered a* j affiliating -with
the party, and likewise confined the right ef
• person to have his name printed upon tha .
of fical ballot as a candidate for nomination
by a party at such primary election to one
who in his affidavit declared that he afftli
. ated with such party at tha last preceding
election, " and who voted, if ha voted at all,
for a majority of the candidates of tha
1 party at such election, and intends to se vote .
; at tha ensuing election. Under the test pro
: vided in this act a person can have his nam»
[ . printed on tha official ballot only as a can
, didate at a primary of the party with which
he affiliated at the last general election.
. Likewise, under tha act an elector can only
< vota for tha persons to be candidates of tha
party with which he has ; registered that Be
affiliates. These provisions deny tha indis
criminate right of a person to become a can
didate upon the official ballot of all parties
or of any other party with which he is affili
ated, as \u25a0it denies also , the indiscriminate
Tight of an elector to vota for persons aa
the candidates of any other party than tha
one he has declared his affiliation with.
Both of these tests' appear to us to be ' rea
sonable oacs and such as, under tha constitn
_ tional provision relating to primary elec
tions, the legislature was authorised to pro
vide.
Tha act further provides that a candidate .
: defeated at a primary election shall be ineli
• giblS for nomination to the same office at
' the ' same election. It Js insisted that this
provision is void. Tha determination of this -
- question may ba properly reserved to a. case
when it - arises. It is sufficient here to say -
that if this provision be void this fact would
not operate to invalidate tha remainder of
.tha law.- '-.. - \ - , :
These are tha only points which we deem
need* particular discussion. Other attacks
made upon the validity of the act, while
considered, wa do not discuss, as they ara
'not deemed of sufficient importance to war
rant it. •
V The petition for the writ is denied.
We concur:
MELVIN, j.
HENSHAW, J.
SLOSS, J.^
- '. ' « SHAW. J.
• ' BEATTY, C. J.
LOBIGA2T, J.
YOUTH ON BICYCLE KILLED— Lo« Angeles.
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street today and instantly killed.
Constipation the Cause
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633 KEAItXY STIIEET, S. P.
I'MTED STATES BRANCH
STATEMENT
05- THE CONDITIONS A>D AFFAIRS O? TH3
NORTHERN ASSURANCE
Company Limited .
OF LONDON, ENGLAND, on the 31st day of
December. A. D. 1&0 S. and for the year end-
lug on that day. Published pursuant to the
provisions of Section 611 of the Political Code
and compiled from the annual statement filed
with the Insurance Commissioner at the Sui*
Real estate owned by company 1173.000.00
Cash market Value of all stocks and
bonds owned by company $3,913,373 00
Cash in company's office 752.53
Cash la banks 150.8U.4s
Interest and rents due and accrued.. 44.320.44
Premiums In due course of collection 472.501.93
Dae from other companies for rela-
# suraoce on losses already paid.... • 14.495.07
Total auets „ .»4.«nt.i«a..v>
LIABILITIES
Losses adjusted and onpaid $32,343.33
Lo«sea In process of adjustment or la
suspense I«.«12.8S
Losses resisted, lnclndlns expense*. . 79,553.83
Gross premiums en Sre ris&s running
one year or less. $2,173,780.34; re-
insurance. 50 per cent.. 1,089,390.27
Gross premiums en sre rtsks runnlaf
more than one year. $2.034,5C3.23;
reinsurance pro rata 1,333.783 93
Taxes due and accrued 71,536.83
Reinsurance premiums and retara
premioms 23,243 89
All other liabilities. 7.178.44
. Total Uabllltlet .*3.0fi3.527.5n
IXCOM3 — — — -
Net casn actns!!/ received for fire
premiums $3,821.65X71
Beceived from Interest and dlrtdeeds
- on bonds, stocks, loans aad from
all other sources.. 181.1*2.93
Received for rents.. :. 9,000.00
Received from bead office 194,808.89
Received from sale of bonds depos-
ited with Ohio and Virginia 180.373.00
Total Income. .S3.3fia.flw.iei
EXPENDITURES
Net amount paid for fire 1055e5..... 51,574,243.83
Expenses of adjustment and settle-
ment of losses 34,603.24
Paid or allowed for. commission or
brokerage 4C5.937.3?
Paid for salaries, feea aad other
charges tor officers, clerks, ate. . . 808,980.33
Paid .for itate, national and local
taxes " 88,080.60
Gross loss en sale or maturity of
ledger asaets 14,397.30
All other expenditures 948.323.20
Total expenditures.... *3.4?r.?ft1.0'»
fire.
Loases incurred daring the year. ...51,501,340.73
RISK 3 AND PREMITJM3
' I Fire Rtaks. | Pmnhima.
Net amouat of risks
written during the
year.. $368,510,798 $4.591.199i23
Net amount of risks
expired durlnz the
year " ........ $388,510,798 $4^91.199.23
Net asioant In force '
December^ 31. 1908 474.585. 47S 5.1Ut.ff43.77
GEO. W. BABB, Attorney.
Subscribed and swora to before me thia 23 1
day of January. 1909.
EDWIN Y. CORET.
Commissioner for California la New York.
U'entern and Pacific Coast Departments
G. H. LERMIT, J. C CORBET.
Manager. Asat Jlanacer
CHICAGO. 111.
FRANK L. HTJ>*TER. Resldeat Maaager f
For San Francisco nnd Bay Counties.
535-MO '\u25a0'. Merebants Exeaaaare Bulldlac.
SAN FRA.XCISCO. CAL.
I .Want to Loan Money? j
USE CALL WANT ADS |