The San Francisco call., 1896-01-23
NEW ELECTION
LAW is VOID,
Important Decision of a
Los Angeles Superior
Judge.
IT WAS A TEST SUIT.
Action to Enjoin the Supervis-
ors From ApprOpriating
Money.
THE LEGAL AUTHORITIES CITED
An Appeal to Be Taken to the Su
preme Court as Soon as
Possible.

tional ana VOID.
The suit was an application brought by
Martin Marsh to enioin the Board of Su-
pervisors from appropriating money to
carry out the Act. The case will be ap-
pealed at once to the Supreme Court.
Judge Van Dykes opinion is as follows:
The complaint or petition in this case al
leges that on the Sth of January, 1896, the
defendants, the Board of Supervisors. passed
resolution to the effect that they would on
January Do, 1896, proceed to appropriate from
the general fund OF said county sufficient
money TO provide for the carrying on and con-
ductng the primary election in this county
according 10 the provisions OF the act passed
at the last session of the Legislature, COM
monty known as the primary election law.
Statutes OF 1895, pages 207 TO 21S.
The petition also AYERS that the City and
County OF San Francisco is the only city and
county OF the first 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 cOnse-
Quence thereof the said act is unconstitutional
and void. That, notwithstanding that the act
is void, the defendants-the Board of Super
viSOrs-threaten 10 and viii, unless restrained,
proceed TO appropriate money from the general
fund OF the county 10 carry out its provision
and proceed TO purchase ballot boxes at the
cost of the said county Of more than $1,000
t0r the sole purpose OF carrying on said prim-
That the expenses OF conducting a primary
election in said county under the provisions
of said ect viii be not less than $4,000, all of
which, by the terms of said act. is made a
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 appro-
priatiOn OF public funds.
The District Attorney, representing the
Board OF Supervisors, interposed q general de-
murrer 10 the complaint. From the fact that
the Supervisors under the law in question are
required TO act without any further delay il
seems necessary to have the matter at once
6ad Qc fn6 hxr qp11Tl CaE Hvh fl1a
case submitted. The first section of
the act IN question declares that primary
elections for delegates to constitute
the various representative political con-
ventions for the nominations OF candidates
for public Offices shall hereafter be held in
this State under and pursuant TO this act, and
then il goes on TO say that conventions TO
nominate candidates be voted for by the
electors ofThe entre State and known as State
conventions and those to nominate members
OF Congress, Board OF Equalization and Rail-
road Commissioner are district conventions,
All Others are local conventions
And then II provides that general primary
election for the election of delegates TO the
State and various local and district conven-
tOns in the year 1896, and every two years
thereafter, shall be held on the second Tues
day in the month OF July in that year, and the
day Tor holding such primary elections shall
be legal holiday, and the Governor of this
State shall issue proclamation 10 that effect.
And in years when electors of President and
Vice President are voted for primary cleo
tiOn 10 elect delegates to q State Convention
for delegates TO the National Convention is
provided for to be held on the last Tuesday in
March section 25). That during the month of
January OF each year in which the general
election is 70 be held, it 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 essessment-roll names of not
less than thirty electors residing in each pre-
cinct in the county from the different political
parties as nearly equal as practicable, and
these names are 10 be written on pieces OF
paper and folded and put in an envelope and
placed in a box provided by the Elec-
ton Commissioners OF Supervisors,
the case may be, and that twenty days
before the holding OF the primary election
the board shall draw from the box one person
from each precinct to act as inspector, and the
clerk shall draw from the box persons to act as
judges and clerk OF the board, and these per-
sons so chosen are TO appear at the polling
places ana before the time for opening the
polls "take the oath of Office as prescribed
In the general election law"
The &C then provides the manner of holding
the primary elections by this board of election
officers IN the manner similar to conducting
geneTal elections. including canvassing the
votes cast and when the counting OF the
ballots is completed the election officers in each
such precinct shall officially declare the re-
suit; and they are to furnish the candidates
found elected with certificates of election
that is the delegates elected to State cOnven-
tons, county conventions and district conYen-
tiOns.
The primary elections for all political parties
or organizations within the State shall be held
a. the same time under the provisions OF this
act. Each political party or organization nav
determine for itself How many district conven-
tions 1t VIII hold for nominating its various
candidates, provided all candidates which are
TO be elected within a given Territory must be
nominated in the same convention.
Delegates TO a State convention may at the
option OF q party, divide themselves into dis
trict conventions to nominate members of
Congress, Boards OF Equalization and Railroad
Commissioners respectively, or any party may
at its option elect separate delegates to COM
pose any or all Of such district conventions
(secton 13).
The returns from the precincts are TO be
canvassed by the County Clerk when he re-
ceives them, who thereupon issues certificates
TO the delegates OF the different conventions
(secIion I6). It provides for the form Of ballot
and the conduct OF the election.
The Supervisors are required to appropriate
from the general funds OF the county sutfi-
cient sum to pay all necessary expenses OF
holding such primary election within such
county (section 1S).
An act denounced as an offense by the gen.
eral laws concerning elections in this State is
made n ohense in all primary elections and
punishable with like penalties (section 20).
"No candidate can have his name printed
upon any ballot to be voteo for as candidate
for public Office at any general election in this
State until he shall have been nominated by
convention composed OF delegates chosen as
provided in this act"
The language of the act as well as its whole
scope and purpose shows that it is general in
its nature. II relates to conventions held for
state officers, also district conventions com
posed OF more than one country, and
provides that candidates cannot be
voted Tor public Offices at general
elections in the State unless they have
been nominated as specified in the act, still by
section 26, near the close of the act, il is de-
cared that il shall take effect and be in force
only IN counties in the first and second classes.
Inc last act classifying counties, passed jan
uAFy %, 1895, is based upon the Federal
census Of 1890, and provides that all counties
CONTAINING a population OF 100000 in
nagllants Ia and over shall belong to
anu aanu De known as counties of the
hrst class, and counties containing
a population of 100000 and under 200, 900
81 snall DeIong TO and be known as counties of
tnS T, second ono class-Statutes 1895, p. l and 2.
-, ane court therefore, takes notice of the fact
Cit at tne a1 Only county OF the first class is the
only county OF the second class is The comfy of
d9o 60o aAancgeies; In Welsh VS.. BramIet 90 Cal,
ZtgrZZo' .s1;-"' the supreme Court says:
Inc Legislature has not the general au-
thorlty 10 enact laws for the Counties by
classes, nor Is " authorized to make classic
cAllon OF counues ior any purpose of legisla-
6