The San Francisco call., 1909-06-29


under that law and to have a writ Of man.
GATE issued as prayed for by il 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 I361)
OF said primary law declaring its intention
TO hold political convention for said city
and county for the purpose of making noni-
nations OF members Of said party as candi-
dates for public Offices of said city and
county 70 be voted for at the election to be
held therein on November g. 1903. It is
further averred that il is the duty Of said
election commissioners, pursuant TO the pro-
visions Of said primary law. to hold a pri-
msry election in said city and county on the
second Tuesday in August, a. D. 1909, in
which said socialist party is entitled to par
ticipate for the purpose of eleeting delegates
to nominating convention Of said party
for said city and county; that the board of
election commissioners refuses to take any
steps OF make any preparations for the hold
ing OF primary election said second
Tuesday of August, A. D. 1909, under said
act Of 1905 as amended, bat on the contrary
asserts that 1t does not intend 10 hold pri-
mary election on said second Tuesday in
August, but on the third Tuesday of said
month under the provisions of act Of the
legislature approved March "a, 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 senator's"
ACT CONTENDED VOID
In the petition for the writ it is contended
by the petitioners that the act of March "a,
1903, under which the respondents are pro-
ceeding to conduct said primary election is
nun and VOID as contravenlng 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 force and effect and
that il is the duty Of the respondents to
proceed under the terms of that act and hold
primary election on the second Tuesday of
August, 1908, and to make the necessary
preparations for that purpose.
The respondents have demurred to the petit
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 "a 1909.
In 1880 an amendment to the constitution
Of the state was adopted (articIe e. section
2la) follows: ''The legislature shall have
the power 70 enact laws relative to the cleo
tion of delegates to conventions of political
parties at elections held and DESIGNATED as
primary elections $" It wSs under
this constitutional provision that the primary
law OF 1905, amended in 1907, 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 1905 this constitutional amendment was
replaced by the existing section ga of arti-
Gle thereof, which provides, among other
things, that the legislature shall have the
power TO enact laws relative to the 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-
I'll the legislature shall enact direct pri-
mary election law under the provisions of
this section the present primary election law
shall remain in force and effect"
It was subsequent to this last amendment
TO the constitution that the act of March "a,
lso9 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 shall refer to the
particular provisions thereof as we consider
the special grounds upon which they are as
sailed.
It is insisted hrst that the entire act is
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 IAN act to provide for
and regulate primary elections and providing
the method whereby electors of political par-
ties may express their choice at such pri-
mary election for United States 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
rGo+o Trr4 al C<o4. = 1.r
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 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
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 direct nomination Of candi-
dates for public Office.
We can not agree with counsel on these
points. As far the provision of the act
with reference to an advisory vote relative
to United States senators is concerned, we
think that the matter of such advisory vote
Is germsne to the subject of a primary cleo
tion. It is so held in State V Blaisdell lis
State v. Nichols, 81 Pac. (wash.) 72s, $50,
seems to be 10 the same effect. sub
Ject being germane so as not to faif within
the inhibition of the constitution relating 70
different subjects in the title of the act
there is 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 course, it is conceded that the matter of
selecting a United States senator lies with
the legislature elective body and that
suck selection 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 candidate for United States senator.
ct DISTINCT AND 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 the constitution
either amendment 21a of article IL or auv
other prcvision-which prohibits the legisla-
ture from providing at a primary election for
an expression Of choice as 10 a candidate
for United States senator. It is within the
general legislative power to do so and that
il 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 be made by
the voters Of the respective political parties
at the same time and under the same polit-
ical machinery is used at the general
primary. Because conducted at the same
time and under the same election machinery
Il IS not strictly part Of the primary elec-