Los Angeles daily herald., 1886-11-09
THE REGISTRATION QUESTION.
Opinion of Judge BrrnsOn on
Application for Ma N da mus.


and his application was denied. yogel
claimed that one J. Comocy, said to be a
deputy assessor in the office of Refugio Bill.
derrain, County Assessor. had taken his
name and other necessary legal require
ments as a voter for the purpose OF being
registered. Clerk Dunsmoor decided
that Comocy had never had his Motif
cation of appointment as deputy assessor
filed by Mr.. Bileerrain, as required by law,
and refused to register him. Vogel sued
out writ of mandamus before Judge Brun
son to compel the County Clerk to place his
name on the Great Register, and the follow
ing is the
OPINION OF JUDGE BRUNsoN,
This is an application upon notice for a
peremptory writ of mandate to compel the
defendant, as County Clerk, to enter upon
the Great Register the enrolment of petit
toner as made and returned BY the assessor
of the county. The question for present de-
termination arises upon demurrer to the
answer, and involves construction of sec
tion 1897 of the Politicsl Code, and especial
ly Of subdivision of that section.
The detailed provision for the registration
of vot srs Is found in that code from sections
1894 to 1l17 inclusive
Il is there provided that Great Register
is to be kept in the office of the County
Clerk. In that register he must enter the
names OF the qualified electors of the
county. Such entry must show first-The
name at Length. Second-The age, omitlDg
fraction of years Third-rhe country of
the nativity. FOurth-Place of residence
(giying Ward or precincD. II naturalzed
the time and place of naturalization. Sixth
The date of the entry of such person, and
each name must he numbered in the order
of its entry.
au,ar onv mama upOn the Great kqpistpr Ii
is, however, provided tnat the Assessor of
each ouuty must keep roll OF electors on
which, and upon like proof as is required
for the Clerk he must enroll the names of
any elector of the county making applica-
tion to him for that purpose. Such enroll
ments show the same facts as are required
| to be shown by the entry upon the Great
Register. and which have slready enum-
Grated At the end of every month the As
SCISSOR must return to the County Clerk a
| certified copy of all entries made upon his
| roll of electors during such months, and all
| atfid avits made for the purpose of procur-
! ing such enrolment, whereupon the Clerk
| must, at once, enter upon the Register the
names contained, aud the statements made
| in such return, and must file and preserve
tn affidavits returned to him by the AS
| sessor
The Clerk is forbidden to entor any name
upon the Great Register unless: l. Upon
| a certificate of registration in another
county, showing that such registration has
| been cAuCelleu, uuu upUu piOOi ny thC
affidavit OF the party that he is an elector of
the county in which he seeks to be regis
tered 2. Upon the return of the Assessor
| of the county. s. II a naturalized citizen,
upon the production of his certificate OF
naturalization, etc. A. If born in foreign
| country, upon his affidavit showing that by
| the naturalization of his father while he
was minor, he became citizen. 5. Upon
the judgment OF superior Court directing
such entry TO be made. 6. In other cases
upon the affidavit of the party that he is or
| would be an electOr of the county at the
next succ oeding election.
One of the six above enumerated condi
| tions must exist before the Clerk is au-
| thorized to onter the names of any person
upon the Great Register. and then subdi-
vision OF the same section (l097) furnishes
a universal rule for the government OF the
| Clerk acting under either OF the foregoing
subdivisions, and as follows:
ain every case the affidavit of the party
must show all the facts required to be stated
in the entry upon the Registry except the
date and the number OF the entry"
This subdivision. in my opinion, acts as
limitation upon each and every OF the pre-
ceding subdivisions of the section, and is
condition precedent to the entry OF any
name upon the Register. Ii the Assessor
returns copy of the entries upon his roll
withoul the required affdayits upon which
the enrolment was actually made accompa-
nying the same, then and in that case 1t is
not only not the duty of the Clerk to enter
|
ed, but to do so would be direct violltion
of the law. The return of the Assessor at
the end OF each month, of a certified copy
of all entries made upon his roll OF elec
tofs during such month, ana all affidavits
made for the purpose OF procuring such en-
rollment, are conditions precedent to any
action by the Clerk under subdivision OF
section 1927. already quoted. A return of
the affdavits without the roll, or re-
turn OF the roll without the affidavits would
be insufficient to authorize the Clerk to
make any entries therefrom in the Great
Register. AS connected with any enroll
ment by the Assessor, the Clerk has no DUTY
t, perform until the former makes his re
turn as required by law, and then 1t be-
comes his duty to examine atfidavits re-
turned with the enrolment, and. in each
| case, see whether or not they conform to
subdivision 7, OF section 1897 and if they do
not. he must not make the eutry.
Whether he is called upon 10 act upon
any return OF the Assessor, made at time
that is AT the end OF every month, am
not now called upon to decide. That the
Assessor is not legally G crmpellable to make
any returns of his enrolment, excepting at
the end of each month, admits of no con
troversy, and it may be a very serious
question whether the duty of the Clerk TO
act becomes fixed upon the returns by the
Assessor, made at his own caprice, or at
time other than that designated by the law; (;
or in other words. whether the duty of the
Clerk to make entries upon the Crest Regis
ter based upon the returns of the Assessor,
attaches until such time as the returns by
the Assessor becomes duty under the
| law. Can the Clerk be mandamused TO
act upon a return of the Assessor made ON
any day of the month or on as many
different days as there are days in the
month, or upon auy return other than that
made at the time and in the manner desig-
mated in the statute? Ii he cannot be com
| PEELED as a duty, to made the entries until
after the returns py the Assessor at the end
OF the month, has ne any legs right to make
| them upon returns made during the month
| from the enrollments made by the Assessor
during the same months If he has not is
the registration legal and Is the party whose
name Is thus enrolled legal voter. or can
| the vote be polled upon an election contest?
do not undertake to answer these ques-
tions, but the contingency may arise when
some Court OF competent jurisdiction will
| have them to answer. do, however, give it
as my unqualified opinion and decision,
! that the duty of transferring the Assessors
enrolment to the Great Register does not at
tach to the Clerk until after the Assessor has
| returned certified copy OF this enrolment
and the afiidayits rs required by law.
In this case petitioner alleges that with
| the enrolment the Assessor did return the
| affidavit which he made at the time his
name was taken.
The answer sass it is true there was
paper purporling 10 be an affidavit, sub
scribed by the petitioner, so returned, but
| that the same was not and is not an afl
dayit, for the reason that the person before
whom the same purports to have been veri
| fed, was not, at the time OF the purporte ed
verifcation an Assessor or Deputy Assessor
or other person authorized by law to ad-
minister an oath. The official title of the
party before whom the oatl purports to
have been taken, is that OF Deputy Assessor.
The oath was seemingly Administered by
this Deputy Assessor, on the 25th day of
October, 1886, and the answer alleges that at
that time there was no appointment in writ
ing of any such Deputy made by the Asses
sor. on file in the Office of the County Clerk,
nor was there any official oath of any such
Deputy then on file in his Office. The de.
murrer interposed by the petitioner admits
these facts, as stated In the answer.
An Assessor may have as many deputies
as are necessary, and whatever the Assessor,
as such, can do himself, he can do by
deputy. Was Jerry Comocy Deputy
Assessor, duly appointed aud authorized to
act as such. at the time he assumed to ad-