Ash v. Superior Court — 33 Cal. App. 800

Majority

p. 800

[Civ. No. 2347.

Second Appellate District.

May 31, 1917.]

GUY L. ASH et al., Petitioners, v. SUPERIOR COURT, etc., et al., Respondents

Headnote

Election Law — Cancellation op Registration op Voters — Parties to Action—Prohibition.—In an action brought by electors under section 1109 of the Political Code to compel a county clerk to cancel certain registrations of voters, such voters are necessary parties defendant under section 1111 of such code, and the court is without jurisdiction, in an action wherein the county clerk is the sole party defendant, to render a valid judgment of cancellation, and prohibition will lie to restrain the superior court from proceeding with the action until such voters are made defendants and served with lawful process.

APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court from proceeding with an action to cancel certain registrations of voters.

The facts are stated in the opinion of the court.

Ralph E. Swing, and Frank T. Bates, for Petitioners.

H. T. Dewhirst, in pro. per., and Cecil H. Phillips, for Respondents.

On the twenty-seventh day of March, 1917, an action was commenced in the superior court of San Bernardino County by Grant Holcomb and others, electors in'the city of San Bernardino, against the county clerk of San

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Bernardino County, to compel the clerk to cancel certain registrations of voters. The action was instituted in accordance with section 1109 of the Political Code, which reads as follows: “Any person may proceed by action in the superior court to compel the clerk to cancel any registration made illegally, or that ought to be canceled by reason of facts that have occurred subsequent to the time of such registration; but if the person whose name is sought to be canceled be not a party to the action, the court may order him to be made a party defendant.” Section 1111 of the same code reads as follows: “In an action under the authority of section eleven hundred and nine the clerk and as many persons as there are causes of action against may be joined as defendants.”

The object of the action was to obtain cancellation of registrations of three groups of persons separately listed in Exhibits “A,” “B,” and “C,” of the complaint. It was alleged that each of the persons named in Exhibit “A” does not reside in and has removed from the precinct within which his affidavit of registration stated that he resided at the time of registration. As to each of the persons named in Exhibit “B,” it was alleged that the affidavit of registration fails to show whether or not the registering person is able to read the constitution of the United States. As to each of the persons named in Exhibit “C,” it is alleged that his affidavit of registration stated a place of residence of the registering person which in fact was conducted as a lodging-house, but did not show what room or floor of such house of residence the registering person occupied; that as to each of the persons named in Exhibit “C” he was not in fact the proprietor or head of or the husband or wife of the proprietor or head of said house. The affidavits of registration referred to of the persons listed in Exhibits “B” and “0” were defective, in that they failed to show facts which are required by the provisions of section 1096, subdivisions 2 and 7, of the Political Code.

Petitioner Guy L. Ash is one of the persons named in Exhibit “A”; petitioner Mrs. Irene Hansen is one of the persons named in Exhibit “B”; and petitioner Frank Pohlmann is one of the persons named in Exhibit “C.” They present this petition on behalf of themselves and many other of the persons named in said exhibits. None of said persons are

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parties named in the complaint in the action of Holcomb v. Patty, and none of them have been ordered to be made parties defendant. The superior court in that action did, on March 27, 1917, make an order that the persons named in said exhibits appear before the court on April 5, 1917, and show cause why their registrations should not be canceled, and that notice of such order be served by mailing a copy of the notice to each of those persons at least five days before April 5, 1917. Aside from this procedure, no service of process has been made upon any person other than the county clerk, who is the sole party defendant. The order to show cause and the mailing of notices in the manner required by said order of court did not constitute any process of law which may be recognized as applicable to the case, and cannot be recognized as having any effect to bring those persons within the jurisdiction of the court.

The clerk has filed his answer in that action and, unless prohibited from so doing, the superior court will proceed to hear and determine the action without making said persons defendants and without service of any lawful process upon them or any of them.

Petitioners claim that the superior court is without jurisdiction to proceed against the clerk alone and order the cancellation of the registrations of the petitioners or any of the persons represented by them in this proceeding. The argument is that each registered voter has a vested right to have his name remain upon the register until it shall be removed by lawful authority; that therefore in any action to cancel the registration of his name he is a necessary party, and judgment adversely affecting his status as a registered voter cannot be rendered unless he has been served with summons or has voluntarily appeared in the action. It is further claimed that as to registered voters belonging to any of the classes comprised within said action, the provisions of section 1111 are mandatory; that the statement in that section that “as many persons as there are causes of action against may be joined as defendants” should be construed as reading to the effect that such persons “must be joined as defendants.” In this contention we agree with the petitioners. Primarily the register of elections is a public record created for the purpose of identifying qualified electors, in order to safeguard elections and preserve the purity of.the ballot-box. But it

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is equally true that a qualified elector who complies with the law has the personal right to have his affidavit of registration received and filed, and that it shall for the lawful period remain a part of the register. After his affidavit has been received and has become a part of the register of elections, he cannot be deprived of this right without some procedure which complies with the requirements of due process of law. In PoTilmann v. Patty, ante, p. 390, [ 165 Pac. 447 ], we said that in determining the sufficiency of the affidavits the acts of the clerk are of a judicial nature, and before accepting them it is his duty to pass upon the certificates and see that they are sufficient in form. “His acceptance of the certificates amounts to a judgment making them a part of the great register. Thereupon the qualified voter becomes entitled to have his name upon the great register, and the clerk is not vested with authority to thereafter remove it therefrom. If subsequently there should occur any facts of the description contained in section 1106 of the Political Code, that section states that the clerk must cancel the registration, or if any facts occur which result in a judgment of cancellation of a registration, it may be eliminated as provided by section 1109 of the Political Code.” There may be instances in which the action authorized by section 1109 of the Political Code may be prosecuted and a valid judgment rendered compelling the clerk to cancel registrations without bringing in as party defendant any person other than the clerk. This would sdem necessarily to be so in case of the death of the person registered. But whatever may be said of other instances of cancellation of registrations as provided by section 1106 of the Political Code, we think that the power of cancellation of a completed registration without notice to the person whose registration is sought to be canceled cannot be exercised arbitrarily and without notice under any of the circumstances included within the action now pending in the superior court. If the clerk should wrongfully attempt to cancel a registration, there would be a remedy by writ of mandamus to compel him to restore the name to the register. But if it be held that a valid judgment may be entered compelling the clerk to cancel a registration in an action wherein the person affected is not made a party defendant, such judgment would effectively stand in the way of any procedure against the clerk to compel recognition of the registered person’s rights. He

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would have been deprived of a vested right without any opportunity to defend that right, and yet there would be no further legal remedy. To this it is no answer to say that he may then have his name restored to the register by filing a new affidavit of registration; for the wrong may have been done during those days preceding an election when by law the right of registration is suspended.

We may say here, as was said by the supreme court of New York in a similar case, that if the statute may be properly construed to give a judge the right to prevent any person from voting by striking his name from the register—as under the existing law the names of voters must be registered for a specified period of time prior to an election—without adequate procedure to bring such person before the court, “then the provision is of a sweeping and revolutionary character and dangerous in the extreme. . . . Such a power so construed would be unconstitutional as to its exercise, would deny the right of suffrage granted by the constitution of the state, and would leave the election . . . entirely within the power of state judicial officers.” (In re Ward, 20 N. Y. Supp. 606 .)

It is ordered that the peremptory writ issue prohibiting the respondent court and the judge thereof from canceling or ordering to be canceled any of the affidavits of registration of the petitioners herein or of any other of the persons mentioned in and referred to in their petition, except such of those persons as shall have appeared therein or have been duly made parties defendant and served with lawful process within due time prior to the time of the hearing of said action in the superior court.

James, J., and Shaw, J., concurred.