Los Angeles herald., 1909-11-23
MUSHET LOSES
IN HIS SUIT
FOR RECOUNT
CITATION FOR G. A. SMITH TO
APPEAR is DISMISSED
CONTEST THROWN OUT OF COURT
ON TECHNICAL GROUNDS
Campaign Committee Workers for the
Defeated Candidate Meet, but
Take No Conclusive
Action

JUDGE N. p. CONREY yesterda
sustained the defendants attor
neys' motion to dismiss the cita
ton for George A. Smith to appea
Friday morning in the superior cour
to answer in the hearing of the Mushe
election contest. The contest thereb.
is thrown out of court except for
motion to dismiss, which will be for
mality Friday.
The motion sustained by Judge Con
rey was made ION the ground and TO
the reasons that the said proceeding il
not an election contest within tn,
meaning Of the provisions of the code O
civil procedure, and that there is NJ
provision in law for the issuing of sucl
q citation or for the service thereof
and that the said George A. Smitl
therefore has not properly been serve.
with process in the said action"
The Mushet campaign committee dis
cussed the matter yesterday afternoon
but arrived at no conclusion fol
further action toward getting Mr.
Mushet's name on the ballot. The mat.
ter will be talked over again today anC
some course of action may be taken tC
continue the fight. The Smith sup.
porters regard the contest as a CLOSED
incident.
Alexander Victory Conceded
"It doesn't matter much who has
second place, so far as Alexander's ma
jority is concerned" remarked an at.
torney who heard the decision. Ever
prominent Smith workers admit that
the general opinion among the machine
Republicans is that Alexander will
have n walkaway."
In his dismissal OF the citation Judge
Conrey said:
The complaint shows that after the
returns from the primary election
were received they were canvassed
by the city council, meeting as the
duly and legally constituted cam
vassing board of said election; and
that thereupon the canvassing
board did declare that according to
said returns, the two candidates re-
ceiving the highest number of votes
for the office of mayor were George
Alexander and George A. Smith.
1t further appears that, according to
said returns as canvassed and de-
clared, the number of votes received
by the defendant Smith was only
nineteen more than the number re-
ceived by William G.. Mushet.
The plaintiff does not bring this
proceeding as an ordinary action at
law or suit in equity It is brought
as a special proceeding, claiming a
recount of the ballots. And it is
alleged that correct count of the
ballots cast at the primary election
would show that more votes were
legally cast for Mr.. Mushet than for
Mr.. Smith.
Claimed statutory" Election
The character OF this case, in that
1t is presented by plaintiff as only
statutory election contest, is further
shown by the fact that, instead of
serving a summons on the defend
ant, a citation was issued and
served. So it clearly appears that
II the law relating to election con-
tests Gncluding Herewith the pro-
visions of the. city charter, provides
for a judicial recount of the votes
cast at a primary nominating cleo
tion of the city of Los Angeles,
this motion to dismiss the citation
must be denied. But, if the said law
does not provide for such recount,
the citation must be dismissed.
1t was earnestly urged on behalf
of the plaintiff that the court should
deal with this matter broadly, as
dealing with public interests and
with questions of fundamental
right; and that, therefore, this de-
Cision should not be controlled by
any narrow rules of construction of
doubtful words or phrases. But,
also, II was very fairly admitted
that the court should not try to read
into the statutes, or charter any
provisions which are not there. I
am fully impressed with the import
ance of these considerations, and
shall endeavor to be guided by them
In this connection it should be
noted that the validity of the city's
primary election law is not at all
involved in this case If judicial
review of the ballots cast at a pri-
mary election is not now permitted
by the terms of the charter, and if
the people desire to give such per-
mission, 1t is within their power to
amend the charter. But it may be
that, for the purpose of a primary
nominating election, it would be
found better to accept the result OF
the returns as canvassed by the
city council rather than to bring
about the confusion of a contest
over the correctness of the returns.
Contest Laws Narrow
1t is also suggested, with some
reason, that the provisions of the
election contest law are not we'll
adapted to the requirements of a
primary election.
am not required here to express
an opinion upon these matters of
public policy, further than to OBJ
serve that the integrity of the
municipal election system is not at
stake in this proceeding.
This leaves the court entirely free
to inquire into the meaning of the
charter and the statutes, and to
construe them reasonably, without
any fear that either one of the
possible conclusions will produce
public calamity.
1t must first be admitted that the
general law relating to election con-
tests as set forth in the code of
civil procedure does not by it's own
terms include primary nominating
election.
That statute refers exclusively to
a contest of the right of any person
declared elected to an office
1t has been decided that where a
primary election was held under the
general primary election law of the
state, such election can be contested
in the superior court under the
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