The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1909-09-25
COURT WIPES
F|CK[RT FROM
LABOR TICKET
Judge Murasky's Oral Decision
Is Against Plural NOmi-
nations
Ruling Also Takes Other Names
OFF Ballots of More Than
One Party

fact that it is new legislation and
rather revolutionary in its nature. But
there is a. provision FOR the payment
OF fees and expenses Of candidate
at the primary election who has hled
such provision for one who is voted
for by having his name written in.
There is an enumeration OF expenses
and character of expenses. which a
candidate may incur, which enumera-
ton does. not apply 10 any but a can :
didate whose name is printed on the
ballot IL may be said, perhaps, tnat
an elector whose name is not printed
on the ballot is not. In the sense gsed
o re ,o S1aSrte ,6a ana here
would have no standing, because under
section 29 il is only candidate in
the election OF another candidate who
has a right to institute a proceeding.
There is no direct provision for writ
only language upon that subject be-
ing contained in the instruction to
voters which is placed at the head le..a
providing for a recount. A recount
would be special proceeding; and
while il may be true that a court
having jurisdiction would provide a
method or remedy, the procedure
should be provided for in the statute.
'REC0UNTs FUTILE
tt would also seem that recounts
might be futile because OF the lack of
time-cbmplete recounts, assuming that
there We're several. and the taking Of
an appeal from any judgment that
might be arrived at in any recount.
The defeated party in a recount would
have q right, of course, to appeal TO
the supreme court from any judgment
rendered therein. and ] take it that the
determination of any such matter could
-
aRfter the general election had occurred.
I ana Of the opinion. gentlemen. that
the demurrer should be sustained, and
81 is so ordered.
DOODLE DEEs UNDoNE
BY deciding that the supreme court
had construed the intent of the legis-
lature 10 confine the activities of cleo
tors TO their own parties in the pri-
maries, Judge Murasky not only wiped
out Fickert's union labor nomination
but also wiped out the independence
league ticket. which was composed.
with a single exception, of members of
other parties. In addition to that cruel
blow the decision denied the right of
John McDougald to the democratic
nomina ton for treasurer and Thomas
+. Boyle's right to the union labor
nomination for auditor. McDougalo
has the republican nomination and
Boyle was forced off the union labor
primary ballot by the supreme court
decision in the test case. His name
was written in according to the Nc
Carthy program after the auditor spa ce
had been left blank on the ticket
Matt Sullivan contended that the de-
cision did not affect Heney's right TO
the democratic nomination, because
Heney had not been candidate for
the nomination of his own or any
other party at the primary election
Of
that the terms of the decision were
not Invisible in favor of Heney sent
Sullivan to the juvenile court with a
question for Judge Murasky He re-
turned with the following statement
which he said had been agreed to by
Judge Murasky:
HENEY POINT NOT RAISED
The question propounded to Judge
Murasky fHeney's eligibility to demo-
cratic nomination. was not before the
court and not in its mind at the time
of rendering its decision. The ques-
ton was not raised or discussed. The
court did hot intend to decide that an
elector could not write in the name of
one who was not the candidate of any
party and who happened TO be a men,
Der Of party other than his own
In other words the distinction
drawn by Sullivan in Heney's case is
that the decision does not affect the
right of the democrats to nominate a
republican If that republican is not a.
candidate for republican nomination.
Charles NJ. Fickert could not see it
that way. He said:
Il am not prepared to admit that
Judge Murasky has correctly construed
the intent OF the law as to the right
of electors OF one party to writ in
the name Of candidate oe another
party. ! do not know that an appeal
would do any good and / have not
made up my mind what ] will do
about it. | will probably decide TO-
morrow. But surely, If Judge Mu-
rasky is right about my ineligibiIity to
the union labor nomination his decision
must be construed as declaring Heney
ineligible to the democratic nominal
ton. l think the decision takes me
off the union labor ballot and TIeney
of the democratic and independence
league ballots. We both lose a party
nomination"
QUESTION OF VACANCIES
Judge Murasky's decision raises an
other question which the election COM
mission is anxious to have decided
and which in the absence of a supreme
court decision might result in absurd
3ty. The direct primary law provides
that vacancies may be filled by the
party county committees What would
be the position of the election COM
mission If, after accepting the deci-
sion of Judge Murasky as depriving
Fickert and HeRey Of places on the
union labor and democratic ballots re-
Epectively, the county committees of
these parties should name Fickert and
Heney as the candidates chosen to fill
Nacancies2 1t would of course be an
absurdity and an obvious attempt to
accomplish by indirection what the
law says shall not be done directly.
but the election commission has no
Judicial functions. 1t could not decide
the question.
Unfortunately Fickert's case was
taken into the superior court instead
of the supreme court. where the ques-
lions raised must go and quickly, since
The commission has but five days in
which to prepare the copy for the
pficial and sample ballots.
MAY DROP THEM ALL
The election commission will prob
ably decide this morning to refuse TO
print the names of Fickert on the union
labor ballot. Heney on the democratic
and independence league ballot and
so on down the list of candidates. af-