Cohn v. Isensee

This is an original petition for a writ of mandate to compel respondent, as the city clerk of the city of San Buenaventura, to provide for the use of the voters at a recall election, to be held in that city on the twenty-seventh day of this month, official ballots with blank spaces wherein the voter may write the names of persons whose names are not printed on the ballot.

It appears from the petition, to which a general demurrer has been interposed, that, following the filing of a recall

The matter now presented to us involves the question whether certain provisions of sections 1196 and 1197 of the Political Code—provisions that require the official ballots for every election of public officers to have thereon a blank space or spaces to permit the electors to write in the names of persons whose names are not printed on the ballot—are applicable to elections for the recall of elective officers in incorporated cities and towns held under the act entitled “An Act to provide for the recall of elective officers of incorporated cities and towns,” approved January 2, 1912. (Stats. (Ex. Sess.) 1911, p. 128.)

No question relating to remedy or parties is made. Petitioners and respondent both seek a decision on the merits of the only question presented, namely, the construction of the act for the recall of city and town elective officers. The importance of the question would justify a most painstaking examination of the grounds of our conclusion, but the

The act to provide for the recall of elective officers for incorporated cities and towns and the two Political Code sections in question are in pari materia. One statute (the code) deals with the general subject of elections in comprehensive terms; the other (the recall act) deals with but a part of the general subject of elections, but deals with that part in a minute and definite way.

In determining the question with which we are confronted —the proper construction to be placed upon the act for the recall of elective officers of incorporated cities and towns— we are not embarrassed by any possible conflict between the comprehensive scheme for recall elections .provided by the constitution itself, where the person sought to be recalled is a state officer, and a general law of the legislature. (See article XXIII of the constitution for the scheme provided thereby for the recall of an elective public officer of the state.) The legislature, by this same article of the constitution, is expressly empowered to enact laws prescribing the procedure for the recall of elective officers of cities and towns. The language of the organic law is: “The recall shall also be exercised by the electors of each county, city and county, city and town of the state, with reference to the elective offices thereof, under such procedure as shall be provided by law.” It was pursuant to this authorization that the legislature, at its special session held shortly after article XXIII was adopted, passed the act of January 2, 1912, providing for the recall of elective officers of incorporated cities and towns.

The act for the recall of elective city and town officers provides a comprehensive scheme of recall election. As a part of that scheme, the act describes what shall be printed on the recall ballot. It does not, however, expressly declare, as do sections 1196 and 1197 of the Political Code, that the ballots shall be printed with blank spaces to allow the voter to write in names not printed on the ballot. So far as pertinent, the language of the recall act is: “There shall be printed on the recall ballot, as to every officer whose

The code sections, so far as their provisions are pertinent, read: Section 1196: “. . . It shall be the duty of the clerk or secretary of the legislative body of any incorporated city or town to provide separate ballots for every election for city or town officers in which the electors, or any of the electors, of such city or town, participate, and to cause to be printed in such separate ballots the name of every candidate whose name has been filed with such clerk or secretary in the manner provided for by law. All ballots shall be not to exceed twenty-four inches in length, . . . and below the printed names of the candidates for each office, the necessary blank space or spaces to permit an elector to

It will be noticed that the code provides that there shall shall be but one form of ballot for all candidates for public office (sec. 1197), and that at every election for city and town officers the ballot furnished by the city clerk shall contain the “necessary blank spaces to permit an elector to write in names of persons whose names are not printed on the ballot.” (Sec. 1196.)

[1] Though it is the general rule that a special controls a general statute, without regard to' their respective dates, still it is not always or necessarily true that a special law entirely excludes from its field of operations the provisions of a general law, where the two can occupy the same domain without any inherent antagonism. [2] We are of the opinion that the recall act of January 2, 1912, and the two sections of the Political Code from which we have quoted, should be read together with a view to giving effect to what we deem to be a consistent legislative policy, namely, to provide that at each and every election held in this state at which a candidate for public office is to be voted for, whether it be a general municipal election or a special municipal election for the recall of an incumbent, none but offi-.

[3] The rule is that all consistent statutes which can stand together, if related to the same subject, shall be construed together, and with reference to the whole system of which they form a part, and shall be harmonized, and effect given to all, if this can consistently be done, so as to make the law consistent in all its parts and uniform in its application and results. (Lambert v. Board of Trustees, 151 Ky. 725 , [Ann. Cas. 1915A, 180, 183, 152 S. W. 802 ].) [4] Where, as here, it does not clearly appear that the legislature intended to prescribe by the special statute all the rules'that should govern recall elections, and where, as here, it does appear that the language of the general statute is so comprehensive that it literally embraces the subject matter of the special statute (sections 1196 and 1197 make express provision for every election for city or town officers in which the electors of the city or town participate), the special will not exclude the general statute from the field that it occupies, unless there is a necessary repug

The purpose of all rules of construction is to ascertain, if possible, the intention of the legislature. For it is the legislative intent that must control. Respondent’s contention amounts to this: Though the special act does not, in so many words, say that no space shall be left on the ballot wherein the elector may write the name of any person who is his choice for the office that may become vacant by the recall of the incumbent, nevertheless, this result must follow from an application of the maxim expressio unius est ex- clusio alterius. [5] This maxim expresses but one of the 'canons of interpretation. It should not be used as a guide for the construction of a statute when, if adopted, its application would invalidate the very statute sought, to be construed, by making it violative of some constitutional inhibition. Only by holding that the general statute (that is, the provision of the Political Code that requires blank spaces to be on the ballots), occupies with the special statute the field covered by the latter, can we avoid invalidating the special act.

The constitution of this state guarantees to every qualified elector the right to vote at all elections that may be authorized by law. “Every native citizen of the United States, every person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and every naturalized citizen thereof, who shall have become such ninety days prior' to any election, of the age of twenty-one years, who shall have been resident of the state one year next preceding the election, and of the county in which he or she claims his or her vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law.” (Const., sec. 1, art. II.)

It is apparent from a reading of the a'ct for the recall of elective city or town officers, that all ballots to be used at recall elections held thereunder are required to be printed and furnished at the public expense, just as at all other elections; and that the use of any ballot other than such as may be furnished by the state is absolutely prohibited. If, therefore, the ballots that are required to be used at a recall election have no blank space wherein the voter may

It is no answer to say that the voter, by filing a nominating petition, may have the name of the nominee of his choice placed upon the ballot. He may not be able to induce the requisite number of electors to join with him in so nominating the candidate of his choice. If the narrow construction of this act that respondent contends for be the only permissible construction, the voter is deprived of his constitutional right of suffrage—deprived of the right of exercising his own choice; and where that right is taken away, there is nothing left worthy to be called the right of suffrage—the boasted free ballot becomes a delusion. To justify a construction that would make such consequences possible, the legislative language should be so clear and unequivocal that it cannot with reason be said that room is left for any other permissible construction.

[7] It is a well-recognized canon of interpretation that, where a statute is fairly susceptible of a construction that

In the light of the foregoing considerations,. we are satisfied that it was the intention of the legislature that the requirement of sections 1196 and 1197 of the Political Code with respect to blank spaces on the ballots, wherein the voter may write the names of the candidates of his choice, should apply to recall elections held under the recall act of January 2, 1912, just as in the ease of every other election of public officers.

There is another consideration which impels us to this construction of the act in question. It is this: If the requirement of the code sections relative to blank spaces on the ballots should be held not to be applicable to municipal recall elections, then it would be possible for the act for the recall of elective city and town officers to defeat its own purpose. The purpose of the recall statute is to enable a majority of the voters, voting at any recall election, to remove an unfaithful or undesirable incumbent of any elective office of the city or town. But if, as in the instant case, no nominating petition has been filed nominating a candidate for the office, and if, therefore, no name of such nominee be printed on the ballot, then even though a majority of the voters vote ‘Yes’ on the question of the incumbent’s recall, their purpose must be frustrated if they are not to be permitted to write in the name of any person as their choice for the office. The language of the act is that if a majority of the voters shall vote “Yes” on the question of recall, then “said incumbent shall thereupon be deemed removed from such office upon the qualification of his successor.” But if, as in the present case, no candidate’s name is printed on the ballot, and if no voter can write in the name of any person as his choice for the office,

For the foregoing reasons we think the demurrer should be overruled and a peremptory writ issued as prayed.

It is so ordered.

Sloane, J., and Thomas, J., concurred.