The herald., 1896-01-23
Primary Election Law Decided
to Be Unconstitutional
JUDGE VAN DYKES OPINION
No Money Can Be Appropriated Under
1t by the Supervisors
The Injunction Asked for by ,Hartin c. Marsh
Granted-The Case to Be Appealed
to the Supreme Court


now primary election law unconstitu-
tional and restraining the supervisors from
appropriating any funds to carry out its
provisions. The suit was instituted by
Martin C. Marsh and was brought for the
purpose of testing the law. M. w. Conk-
ling represented Mr.. Marsh, while the in
terests of the county were in the hands of
Assistant District Attorney George M.
Holton. Ex-District Attorney H. c. Dillon
also filed brief ''as friend of the court"
and on behalf of "a certain body of citi-
sens," presumably the Populists. Mr..
Conkling attacked the constitutionality of
the law, which contention W as not opposed
by Mr.. Holton, while Mr.. Dillon supported
the validity of the act. Immediately on
the filing of the opinion Mr.. Holton gave
notice of appeal, and the case will be taken
to the supreme court at once.
Owing to the general public interest in
the matter, Judge Van Dykes able opinion
II given in its entirety as follows:
JUDGE VAN DYKES OPINION
The complaint or petition in this case
alleges that on the Sth of January. 1896,
the defendants, the board of supervisors,
passed resolution to the effect that they
would on January %, 1896, pK Koceed to ap-
propriate from the general fund of said
county sufficient money to provide for
CARRYING on and conducting the primary
election in this county according to the
provisions of the act passed at the last
session of the legislature, commonly
known as the primary election law,
Stat. 1895. P. 207 to 21S. The petit
ton also AYERS that the city and county of
San Francisco is the only city and county
of the frst-class and the county of Los
Angeles the only county of the second
class in this state, and that the act referred
to is only applicable to those classes,
and that in consequence thereof the said
act is unconstitutional and void. That
notwithstanding that the act is void the
defendants, the board of supervisors,
threaten to and will, unless restrained,
proceed to appropriate money from the
general fund of the county to carry
out its provisions and proceed to
purchase ballot boxes at the cost
of the said county of more than a
thousand dollars for the sole purpose of
carrying on said primary election. That
the expenses of conducting primary cleo
ton in said county under the provisions of
said act will be not less than twelve thou
sand dollars, all of which, by the terms of
said act, is made charge against said
county. That the plaintiff is a citizen and
taxpayer in said county, and he asks the
interposition of the court in the premises
to prevent the alleged illegal appropriation
of public funds. The district attorney,
representing the board of supervisors. in
terposed a general demurrer to the COM
plant. From the fact that the supervisors
under the law in question are required to
act without any further delay, it seems
necessary to have the matter at once de-
cided, as requested by counsel when the
case was submitted.
The first section of the act in question
declares that primary elections for dele
tive political conventions for the nomina-
ton of candidates for public office shall
hereafter be held in this state under and
pursuant to this act, and then it goes on to
say that conventions to nominate candi-
dates to be voted for by electors of the en-
tire state are known as state conventions,
and those to nominate members of con-
gress, board of equalization and railroad
commissioner, are district conventions.
All others are local conventions; and then
il provides that a general primary election
for the election of delegates to the state
ventions in the year 1896 and
every two years thereafter, shall
be held on the second Tuesday in the
month of July in that year, and the day for
holding such primary elections shall be
legal holiday, and the governor of this state
shall issue proclamation to that effect.
And in years when electors of president
and vice-president are voted for, a primary
election to elect delegates to a state con-
vention for delegates to the national con-
vention is provided for to be held on the
last Tuesday of March. (Sec. 25.) That
during the month of January of each year
in which the general election is to be held
1t shall be the duty of the board of election
commissioners, and where such board does
not exist, of the board of supervisors, as in
this county. to select from the last assess
ment roll names of not less than thirty
Ill
in the county, from the different
political parties as nearly equal as prac-
ticable, and these names are to be written
on pieces OF paper and folded and put in an
envelope and placed in box provided by
the election commissioners or supervisors,
rs the case may be, and that twenty days
before the day of holding the primary
election the board shall draw from the box
one person for each precinct to act as in
spector, and the clerk shall draw from the
box persons to act as judges and clerk of
the board, and these persons SO chosen are
to appear at the polling places and before
the time for opening the polls "take the
oath of office as prescribed in the general
election law" The act then provides the
manner of holding the primary elections
by this board of election officers
in the manner similar to conducting
general elections, including canvassing
the votes cast; and ''when the counting of
the ballots is completed the election Off
GERS in each such precinct shall officially
declare the result" And they are to fur
nish the candidates found elected with GER
ti6cates of election, that is, the delegates
elected to state conventions, county con-
ventions and district conventions. 1.-THE
primary elections for all political parties
or organizations within the state shall be
held at the same time under the provisions
OF this act. Each political party or organ
fxation may determine for itself how many
district conventions it will hold for nomi-
mating its various candidates, provided all
candidates which are to be elected with
in q given territory must be nomi-
mated in the same convention.
Delegates to a state convention may,
1T the option of a party, divide themselves
into district conventions to nominate men,
bers of congress. board of equalization and
railroad commissioners respectively; or
any party may at its option elect separate
delegates to compose any or all of such
district conventions (Sec. 13). The re-
turns from the district are to be canvassed
by the county clerk when he receives them,
who, thereupon. issues certificates to the
(Sec. 16). 1t provides for the form of the
ballot and the conduct of the election.
The supervisors are required to appropri-
Hte from the general funds of the county
sufficient sum to pay all necessary ex-
penses of holding such primary election
within such county (Sec. 1S). ANY act
denounced as an offense by the general
laws concerning elections in this state is
made ali offense in all primary elections
and punishable with like penalties (Sec.
m IL