The record-union., 1897-09-04
PRIMARY LAW UPHELD.
City Trustees Are Directed to Observe Its
Requirements.

effect until January, 1898, and that is
the essential step. A legal act cannot
be done before the time prescribed for
it by law, and it is a qustion if it can
be done afterwards. Judge Wallace
has decided that it cannot. and that the
statute measA just what it said in pre-
scribing a fixed time for performing an
act.
Does this Act mean the January be-
fore. or after its passage? He supposed
that the Sacramento election was over
looked by the author of the bill. No
statutes are ex post facto or prospective
He quoted from decisions and claimed
that they held everything must be done
after the passage of the Act and that
the time was January. The petitioners
ask this court to name September for
electing these officers He thought Mr.
Hatfield agreed with him and quoted
from his published opinion on the law
Section speaks of counties" and
''cities and countless but omits "cities"
and he thought it was done purposely
and did not apply to Sacramento.
He argued that q mandamus was to
compel some one to do his duty, but the
board had not failed to perform duty
the time for doing which had not ar
rived yet. There is no way in which the
Election Commissioners can select these
officers now without destroying Sec
ton ).
Judge Hughes asked if Mr.. Devlin
| did not consider Section 5 mandatory
and the latter answered yes, but the
time had not come and the board had
no opportunity of obeying it. The law
fixes the time and till then the court
has no jurisdiction.
Judge Hughes said the Act took effect
Immediately on the Governors signing
it. and so stated. Elsewhere it provided
that officers should be drawn in Janu-
ary Mr. Devlin said the Act was not
passed till March and where there was
a conflict the whole law must be con-
sidered.
H. w. JOHNSON'S ARGUMENT.
Corporation Counsel Johnson said that
four members of the board who were
/ included in the writ had voted for the
ordinance and he wished to speak for
them. The Act took effect Immediately
and all primaries must be held in ac-
cordance with it. There are three man
datory provisions in it and can the ques-
tion of Section prescribing January
s
the officers is immaterial, but the man
ner of doing it is essential and applies
to the whole State. No matter when
they are selected, the essential part is
their selection in the mode prescribed.
He quoted from a Supreme Court de-
c.sion in the Fresno registration case,
in which the court interpolated ''at
least" into the law before 100 days"
! oil r1x q int
that it must promote the purpose of
the law. The object of this law is to
promote fair primaries in the State,
not only in 1898, but in 1897, and it says
SO when it provides that it shall take
effect Immediately. This is not a ques-
ton of mandate to do something next
January, but to do it Immediately. If
the ordinance is not passed tonight the
primary cannot be held under the law.
1t was absurd to say that if the board
did not select officers in January it could
not in February. The San Francisco
case was entirely different.
Mr. Hatfield said that the theory of
Mr.. Devlin seemed to be that the Off
GERS elected in January were perma-
nent, as there might be two or three
elections in one year. Names might be
wa
exhausted. If his contention was good,
they never could hold primaries on odd
years, but only for general elections.
He had no apologies to make for his
opinion as the Act is inconsistent, but it
is plainly the duty of the board to ap-
point officers. A serious point is the
penalty on any person running on petit
ton The Act says positively that no
/ 1,+ r9fa IA ha1
I lot unless selected by the convention.
! Section 81 prescribes who shall act
where there are no Election Commits
sioners. If they do not act. the remedy
is a writ of mandate. They can first
! call an election and then draw the
names If the court orders it, there is
no harm done to anyone and an appeal
is open and the Supreme Court will ad-
vance it and determine it. On the
other hand, if the court denies it, an ir-
reparable injury will be done, as it will
be too late to remedy.
! Mr.. Devlin said that he did not intend
to say that no election could be held in
/ 1899, but that in any year the officers
must be appointed in January. He
/ thought the law did not go into opera
/ ton until next January, and that the
| asked the court to construe the Act as
a whole and not destroy Section 5.
After q short consultation, the court
adjourned till 7:30 p. m
THE WRIT GRANTED.
| When the court convened again Judge
| Hughes said that the limited time pre-
| cluded more than the most cursory ex-
animation of the question by the court.
oil Of faa
! that granting the writ would do no ire
/ parable injury to anyone, while on the
| other hand, to deny it might work ire
/ parable injury, the court had unani-
mously decided to grant the writ asked
/ for. They believed it was for the best
/ interest of the city and that the people
/ would be best served by granting the
order The demurrer would be over
/ ruled, and permission given to answer
forthwith He believed there was time
/ to appeal, and it can be tested and the
question settled. The disposition of the
court is TO offer facilities for the MAX
/ ing Of an appeal.
Mr.. Johnson said it would have work
ed irreparable injury if the court had
decided the other way. The case is an
/ important one to the city and the peo-
! pie at large.
/ Mr. Hatfield said that, to be effective,
! the call for a primary must be made
1 before midnight.
| Judge Hughes said he would grant no
stay.
Mr.. Devlin said he wanted his rights
! in the matter, and the time was too
| short. As he understood the law. he
| could not appeal from a thing already