Spreckels v. Graham , 194 Cal. 516 ( 1924 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Application for writ of mandate directing respondent, as county clerk of Marin County, to receive, examine, certify, and forward to the Secretary of State a certain document or set of documents purporting to nominate the petitioners as group candidates for the office of electors of President and Vice-President of the United States, to be placed upon the ballot and voted for at the approaching November election, the respondent having refused so to do. It must be conceded that the county clerk is a ministerial officer; that his duties are those prescribed by statute, and that a writ of mandate can only issue to compel him to perform an act which the law specially enjoins as a duty resulting from his office. It must also be conceded that the document or documents offered to the county clerk for his reception, etc., must have had their inception in unlawfulness; or, in other words, must, in their preparation, certification, and presentation to the county clerk for his action thereon have been based upon some statutory authorization of the persons so preparing and presenting the same, so to do. The petitioners herein allege that five persons, qualified electors of the county of Marin, joined in proposing these petitioners as candidates for nomination to the office of electors for President and Vice-President of the United States, to be voted for at the November election; and also joined in appointing verification deputies to serve in procuring, and who did procure, the signatures of voters to the nominating papers of these petitioners for such office, and did present the aforesaid nominating paper bearing the signatures of certain voters registered and residing in the county of Marin to the respondent, as county clerk of Marin County, for his examination, certification, and transmission to the Secretary of State.

Petitioners base their claims of right to be nominated as such candidates by direct petition of electors, and to have their names as such nominees printed upon the ballots at the November election, upon section 1188 of the Political Code and the provisions of the direct primary law therein referred to. The respondent contends that neither in its statutes referred to nor in any other law of this state has the legislature provided for the direct nomination by petition of candidates for presidential electors. He further contends that there is no provision in our laws for the nomination of several such candidates in a group by means of a single set of nomination papers.

Section 1188 reads as follows:

"A candidate for any public office for which no nonpartisan candidate has been nominated at any primary election may be nominated subsequent to said primary election, or in lieu of any primary election, in the manner following: A nomination paper containing, the name of the candidate to be nominated, with other information required to be given in the nomination papers provided for in the direct primary law then governing primary elections, shall be signed by electors residing within the district or political subdivision for which the candidate is to be presented, equal in number to at least one per cent of the entire vote cast at the last preceding general election in the state, district or political subdivision for which the nomination is to be made subject to the restrictions contained in said direct primary law.

"The provisions of said direct primary law as therein applied to nonpartisan offices, when the nomination to be made under this section is for an office for which nominations are made at the August primary election, and the provisions of that law as therein applied to primaries other than the August primary election and the May presidential primary election, when the nomination to be made under this section is for a municipal office or for any office to which that law does not apply, shall substantially govern as to the manner of the appointment of verification deputies, the form of nomination papers and the securing of signatures thereto, and fastening together of sections of the nomination paper containing such signatures, and the filing thereof with the county clerk, or the certification thereto by the county clerk and transmission thereof to the secretary of state or to the city clerk or secretary of the legislative body of any municipality, as the case may be, the filing of the candidate's affidavit, the payment of a filing fee, and all other things necessary to get the name of a candidate under this section upon the ballot, except that such provisions shall be directed toward getting the candidate's name on the ballot for a general or municipal election or a special election and not on the ballot for nomination at a primary election.

"In addition to the other matter required to be set forth on the candidate's nomination paper, it must also be set forth that each signer thereof did not vote at the primary election immediately preceding at which a candidate was nominated for the public office mentioned in said nomination paper; provided, that this statement shall be omitted in case no candidate was nominated at said primary election for the public office mentioned in said nomination paper.

"Upon the filing of a sufficient nomination paper and affidavit by any candidate nominated under the provisions of this section and the payment of the filing fees as herein-before provided, the name of such candidate shall go upon the ballot of the ensuing general or municipal election according to the provisions of section one thousand one hundred ninety-seven of this code."

It will be noted that the section is composed of four sentences, only the first two having an important bearing upon the questions here involved. The first sentence purports to grant the substantive right and specifies its limitations and restrictions. It provides, in substance, as follows: "A candidate for any public office (for which no nonpartisan candidate has been nominated at any primary election) may be nominated. . . in the manner following: . . . [by means of nomination papers signed by the requisite number of electors], subject to the restrictions contained in said direct primary law." The second sentence specifies the procedural requirements necessary to be complied with by a candidate who would avail himself of the substantive right accorded by the provisions of the first sentence. For this purpose it divides all of such candidates into two classes and prescribes (by reference) one code of procedure to be followed by all of such candidates within one of the designated classes and another and different code of procedure to be followed by all candidates of the other class. Under this section, if the candidate aspires to art office for which nominations are made at the August primary, he must follow and conform to the procedural provisions of the direct primary law as applied to nonpartisan offices. If he is seeking a nomination to a municipal office or to any other office to which the direct primary law does not apply, he must follow and conform to the requirements of that law as applied to primaries other than the August or May presidential primary. Counsel for petitioners has so analyzed the provisions of this sentence and has graphically presented the result of the analysis in his brief in the manner following:

"Class Procedure.

1. Office for which Nonpartisan provisions nominations are made at of direct primary law. August primary. Provisions of direct primary 2. (a) Municipal office. law as therein applied to (b) One to which direct primaries other than the primary law does not August and May." apply.

It is at once apparent that petitioners do not come within the second class either in subdivision (a) or (b) thereof, inasmuch as they are not seeking nomination to a municipal office or to an office to which the direct primary law does not apply. They frankly concede this, and urge that by a process of liberal construction they can be regarded as candidates for an office for which nominations are made at the August primary. In support of this contention they point to section 3 of the Direct Primary Act (Stats. 1913, p. 1382), which provides that: "The August primary election shall be held. . . . for the nomination of all candidates to be voted for at the ensuing November election." If this provision were to be regarded as controlling and to be construed literally it would have the effect of excluding all independent nominations and limit the voting at the November election to those candidates alone who are nominated at the August primary. When other provisions of the primary law axe referred to it is at once apparent that such was not the purpose or intent of this provision. Petitioners argue that presidential electors are in effect "nominated at the August primary" even though indirectly through the subagency of a state convention. The acceptance of this contention would necessitate the ignoring of various other provisions in the direct primary law. That law is defined in its title as "An act to provide for and regulating primary elections, and providing a method for choosing the delegates for political parties to state conventions and for nominatingelectors of president and vice-president of the United States." (Italics added.) The August primary election is therein defined (section 1, subd. 2) as "The primary election held in August to nominate candidates to be voted for at the ensuing November election, or to elect members of a party central committee ordelegates to a party convention." (Italics added.) Section 2 provides: "All candidates nominated at a primary election for elective public offices shall be nominated by direct vote at such election held in accordance with the provisions of this act; provided, that electors of President and Vice-President of the United States shall be nominated as provided in subdivision two of section twenty-four of this act." Subdivision 2 of section 24 provides for the holding of a state party convention of each political party, the delegates to which are composed in part of the candidates of such party for legislative offices who were nominated as such at the August primary, in part of delegates who were elected as such at the August primary and in part of "hold-over senators" who were neither elected nor nominated at such primary. The functions of such convention are to formulate the state platform of the party, to elect a state central committee, and in presidential years to nominate the candidates of such party for electors of President and Vice-President. [1] The candidates for presidential electors so nominated cannot be justly said to have been nominated at the August primary. The most that can be said is that some (though not all) of the persons who afterward engage in the selection of such candidates are nominated at the August primary, while others of such persons are elected at such primary, and others of them were involved in the primary in no manner at all. Those of the delegates to the state convention who are in fact either nominated or elected at the primary are in nowise committed to the candidacies of any particular persons for presidential electors. Until the state convention has been held in September no one can know who are to be the nominees for presidential elector, and if such convention should not be held there would be no such nominees.

[2] The question then arises whether, viewing section 1188 as a whole and applying to it a broad and liberal construction, we can arrive at the conclusion that the legislature intended to provide thereby a means for the independent nomination by petition of candidates for presidential elector. This question is to be resolved by a consideration of the language of the section in the light of its legislative history and in comparison with the other provisions of our statutes relating to the subject matter thereof. If the first sentence stood alone it might be concluded that the legislature intended to apply to the office of presidential elector (assuming that to be a public office). But in that case we should also have to conclude that the legislative intent to provide a means for the independent nomination of candidates by petition had failed, being rendered nugatory by its uncertainty and ambiguity. This by reason of the provision thereof that the signing of nomination papers therein provided for is made "subject to the restrictions contained in said direct primary law." Turning to that law we find therein three different sets of restrictions as to the manner of the appointment of verification deputies, the form of nomination papers, the securing of signatures thereto and the filing and certification thereof. Each of these three sets of restrictions differs from each of the others in material respects. One set of restrictions applies to what may be termed partisan offices, the nominations for which are made at the August primary. The second applies to what may be termed nonpartisan offices, the nominations for which are made at the August primary, and the third applies to offices for which nominations are made otherwise than at the August or May presidential primary. If, therefore, the first sentence of section 1188 stood alone, the candidates, their supporters, and the public officers having to do with the matter of such nominations would be left entirely in the dark as to which set of restrictions should be referred to for the purpose of determining whether or not a would-be candidate had complied with the requirements of the law. When we refer to the second sentence of section 1188, however, we find that all these doubts and uncertainties are there resolved and cleared away, as to the procedure for the nomination of candidates for all offices other than presidential elector. It is there prescribed that certain specified restrictions contained in the direct primary law shall govern as to candidates for all offices for which nominations are made at the August primary, and that certain other specified restrictions shall govern as to municipal offices and all others to which the direct primary law does not apply. These two classes include all public offices of the state of California or any governmental subdivision thereof, with the sole exception of presidential elector (assuming that to be a public office). The remaining provisions of section 1188 cast no light at all upon the question here under consideration. The conclusion thus seems inevitable when we read the first and second sentences, each in the light of the other, that the legislature did not intend to provide thereby a means for the independent nomination of presidential electors.

A consideration of the legislative history of section 1188 and of the direct primary law tends to confirm this conclusion. [3] Certainly those two statutes must be considered together, and construed together as in pari materia, each referring to and supplementing the other. Prior to the enactment of the direct primary law section 1188 contained within itself all of the necessary procedural provisions for the independent nomination of candidates for the offices within its purview (Stats. 1907, p. 657). Upon the enactment of the direct primary law in 1911, section 1188 was at the same time amended by eliminating the procedural provisions therefrom and substituting a provision for the appointment of verification deputies "under the provisions of section 5 of the primary law" (Stats. 1911, p. 897). In 1913 the direct primary law was amended and at the same time section 1188 was amended so as to provide, "For the purposes of this section the provisions of said direct primary law as said sections apply to the nominees for judicial, school, county and township officers, shall substantially govern as to the manner of the appointment of verification deputies . . ." etc. (Stats. 1913, p. 1168.) In 1917 both statutes were again amended (Stats. 1917, p. 1341) concurrently to read as at present. [4] It is reasonable to suppose that if the legislature had intended to provide in section 1188 for the independent nomination of presidential electors and to prescribe the procedural provisions therefor in the direct primary law, there would be found in the latter some provision for the group nomination of candidates. But no such provision can be found therein. On the contrary, every phrase and expression contained in that entire statute which throws any light upon this question tends to indicate the legislative intent that separate nomination papers must be signed and filed in behalf of each candidate seeking to avail himself of its provisions. The words and expressions indicating such intent are too numerous for quotation here. They are found in nearly every line of the first three subdivisions of section 5 of the direct primary law and in numerous places in the succeeding portions thereof. There is every reason, however, why candidates for presidential electors should be nominated in groups. The law expressly prescribes that their names shall be placed upon the ballot in groups so arranged that a single vote may be cast for all the candidates within such group (Pol. Code, sec. 1197). That the legislature was not unaware of the wisdom of providing for group nomination of candidates in cases where such procedure is desirable is evidenced by the provisions of the presidential primary act which, while providing that the procedure to be followed shall be "substantially as provided in the direct primary law," contains also an express provision for the grouping of candidates upon a single set of nomination papers. The omission of any similar provision from section 1188 strongly indicates that presidential electors were not within the contemplation of the legislature in framing that section.

The decision of this court in Wheeler v. Hall, 188 Cal. 49 [204 P. 231], seems, at first blush, to be in conflict with this conclusion, but I think that upon analysis it will be found not to conflict therewith. The question there concerned the right of a group of candidates for a board of freeholders to be nominated as a group by a single set of nomination papers, and this court disposed of that question by the terse statement that "there is no provision in the law that forbids several candidates for such an office, not exceeding the whole number to be elected, from having their names inserted in a single nomination paper and circulating it in that form." The question there arose under the provisions of section 7 1/2 of article XI of the constitution, which provides that "candidates for election as members of said board of freeholders shall be nominated by petition, substantially in the same manner as may be provided by general law for the nomination, by petition of electors, of candidates for county offices, to be voted for at general elections." The court was therefore constrained to make some practicable application of the procedural provisions of the direct primary law, regardless of whether or not the legislature had intended those provisions to apply thereto. In fact the legislature did not so intend, as it expressly provided in the direct primary law that "This act shall not apply to . . . the nomination of freeholders to be elected for the purpose of framing a charter." (Direct Primary Law, sec. 2; Stats. 1913, p. 1382; Stats. 1917, p. 1344.) The question before the court in the Wheeler case, therefore, was not a question of the legislative intent as to whether the procedural provisions of the direct primary law should be applied to the nomination of freeholders, because the legislature had unequivocally declared its intent that they should not. It was a question of giving practical effect to the mandate of the people as embodied in the constitution and of necessarily overriding the legislative intent in so doing. In the instant case, however, we are solely concerned with ascertaining and giving effect to the legislative intent.

A resort to the ordinary rules of statutory construction leads to the same conclusion. [5] The rule which requires us to construe the co-ordinate provisions of a legislative enactment so as to give some effect to each, if reasonably possible so to do, leads to the conclusion that the phrase "any public office" in the first sentence was not intended to apply to presidential electors, as to hold otherwise would be to conclude that the legislature had failed to effectuate its intent. The same result obtains if we apply the rule that several coordinate provisions of a statute shall be so construed, if reasonably possible, that they shall harmonize rather than conflict with one another. If, on the other hand, it should be concluded that there is here an irreconcilable conflict, the rule would apply that the provision last in point of time or place should prevail, and the same result would be reached.

[6] I think it not at all unreasonable to suppose that the legislature in framing and adopting this section did not consider that the office, or position, or duty, or charge, or trust of a presidential elector is a public office of this state. The question whether it does constitute such an office is at best not free from doubt. The supreme court of the United States, in the cases of In re Green, 134 U.S. 377 [33 L.Ed. 951, 10 Sup. Ct. Rep. 586], and McPherson v. Blacker,146 U.S. 35 [36 L.Ed. 869, 13 Sup. Ct. Rep. 3, see, also, Rose's U.S. Notes], did not hold that a presidential elector is a state officer, nor even that he is a public officer. They hold merely that he is not a federal officer. The janitor of a city hall is not a federal officer, but it does not follow that he is a state officer. The supreme court of Kentucky has held that presidential electors are public officers of that state within the meaning of certain of its statutes (Hodge v. Bryan, 149 Ky. 110 [148 S.W. 21]). That case was decided upon the authority of an earlier decision of the same court by a divided court, in which the dissenting opinion is to my mind the better and more soundly reasoned (Todd v. Johnson, 99 Ky. 548 [36 S.W. 987]). The supreme court of Idaho has held in a well reasoned opinion that presidential electors are not state officers (State v.Gifford, 22 Idaho, 613 [126 P. 1060.]). The definitions of office and officer vary widely in the different states and even in the several decisions of the same court. One of the broadest of the definitions which have found support in the authorities is "An employment on behalf of the government, in any station or public trust, not merely transient, occasional or incidental." (29 Cyc. 1363, note 16; see, also, 7 Words and Phrases, 6635-6638.) A conclusion generally accepted by the later authorities, including the courts of this state, is that a public office involves a delelgation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public (29 Cyc. 1363, note 18; 6 Words and Phrases, 4925). This court in its earlier decisions approved definitions which it later found necessary to discard as too broad. In Vaughn v. English, 8 Cal. 39, it was said that "The term officer, in its common acceptation, is sufficiently comprehensive to include all persons in any public station or employment conferred by government." That definition would, of course, include presidential electors as well as the city hall janitor. The case of Palmer v. Woodbury, 14 Cal. 43, involved the question whether or not a pilot appointed by the board of pilot commissioners was a public officer, and the court said: "It is difficult to conceive of a definition of a public office which would not embrace this appointment. The pilots are appointed by virtue of an act of the legislature; have a fixed term to their employments; have definite duties prescribed; fixed rates of compensation; are required to give bond, and are entitled to do all the business of pilots for the harbor of San Francisco. They are subject to penalties for misfeasance and malfeasance, and are protected by law in the enjoyment of their offices and emoluments." Later, in the leading case of Patton v. Board ofHealth, 127 Cal. 388 [78 Am. St. Rep. 66, 59 P. 702], this court entered into a careful consideration of the question what constitutes a public office in this state and arrived at the following conclusion:

"It seems to be reasonably well settled that where the legislature creates the position, prescribes the duties, and fixes the compensation, and these duties pertain to the public and are continuing and permanent, not occasional or temporary, such position or employment is an office and he who occupies it is an officer. In such a case, there is an unmistakable declaration by the legislature that some portion, great or small, of the sovereign functions of government are to be exercised for the benefit of the public, and the legislature has decided for itself that the employment is of sufficient dignity and importance to be deemed to be an office." (Italics added.)

The point was also emphasized in that case that the duties of the office there under consideration "cannot be said to be unimportant or purely ministerial or lacking in the requirements of judgment and discretion." In the recent case ofCoulter v. Pool, 187 Cal. 181 [201 P. 120], this court entered upon a careful and thorough reconsideration of the questions involved in the use of the phrases "public office" and "public officer" and arrived at the following conclusions:

"A public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. (State v. Jennings, 57 Ohio St. 415 [63 Am. St. Rep. 723, 49 N.E. 404].) A public officer is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the act performed by the officer the authority and power of a public act or law. The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting. There are other incidents which ordinarily distinguish a public officer, such, for instance, as a fixed tenure of position, the exaction of a public oath of office and, perhaps, an official bond, the liability to be called to account as a public offender for misfeasance or nonfeasance in office and the payment of his salary from the general county treasury." (Italics added.)

The conclusions there reached have been followed inFoucht v. Hirni, 57 Cal.App. 685 [208 P. 362], and Curtin v.State of California, 61 Cal.App. 377, 390 [214 P. 1030]. It is difficult, perhaps impossible, to frame a definition of public office or public officer which will be sufficiently accurate, both as to its inclusion and its exclusion, to meet the requirements of all cases. But two elements now seem to be almost universally regarded as essential thereto. First, a tenure of office "which is not transient, occasional or incidental," but is of such a nature that the office itself is an entity in which incumbents succeed one another and which does not cease to exist with the termination of incumbency, and, second, the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial. If these elements are essential to a public office, it follows that presidential electors are not public officers and are therefore wholly without the purview of section 1188. But I am not prepared to go the length of holding that presidential electors are not public officers. There are approved definitions sufficiently broad to include them as such. A definition sufficiently accurate to meet the requirements of one case may be found inadequate to another. The real question herein is not whether presidential electors are public officers, but whether the legislature in using the phrase, "a candidate for any public office," in section 1188, intended thereby to make the provisions of that section applicable to presidential electors. It may be conceded that they are public officers and still it is not unreasonable to suppose that the legislature in framing that section did not so regard them. They have no tenure of office other than transient; they have no duties to perform which involve the exercise of judgment or discretion in the slightest degree, and neither are they vested with any portion of the governmental powers of sovereignty, either legislative, executive, or judicial. Their office, if it be an office, has no real existence except for a few hours on the second Monday in January following the presidential election. Their sole function is to perform a service which has come to be nothing more than clerical — to cast, certify and transmit a vote already predetermined. It was originally supposed by the framers of our national constitution that the electors would exercise an independent choice, based upon their individual judgment. But in practice so long established as to be recognized as part of our unwritten law, they have been "selected under a moral restraint to vote for some particular person who represented the preferences of the appointing power" (Miller, Const. U.S., p. 149), "simply to register the will of the appointing power in respect of a particular candidate" (McPherson v. Blacker, supra). [7] They are in effect no more than messengers whose sole duty it is to certify and transmit the election returns. In this respect their powers, duties, and functions seem not greatly different from those of the messenger provided for in Political Code, section 1310, and, like him, they are entitled to compensation for the services rendered, upon presentation of an account therefor, certified by the Secretary of State, audited by the controller and paid out of the general fund in the state treasury (Pol. Code, secs. 1312, 1322). What is here said is not intended to reflect in anywise upon the character, qualities, or standing of the petitioners or of those persons who have been selected by the several state conventions as candidates for presidential electors. It is well known that such candidates are commonly chosen with a view to their high qualities of character and reputation, but the fact remains that the sole public duty to be performed by them after election involves no exercise of judgment or discretion and no portion of the "sovereign powers of government." It was probably out of consideration for the circumstance that by the unwritten law the sole function of presidential electors is to "represent the preferences of the appointing power" that the legislature in abolishing the convention system and substituting therefor the direct primary for the nomination of candidates for all state offices has always excepted presidential electors from the operation of the substituted system. It seems evident that the legislature in framing and adopting section 1188 did not regard presidential electors as public officers, and had no intention of providing therein for their nomination. [8] The plainly indicated legislative policy is that candidates for presidential electors shall be nominated only at a state convention of a party or political organization, at which a party platform shall be formulated, candidates for President and Vice-President indorsed, and a group of electors selected who shall be identified as representing the policies expressed in such platform and as committed to the candidacies so indorsed. The platform so formulated may not accord with the national platform of such party, and the candidates for President and for Vice-President so indorsed may not be those who were nominated at the national convention of such party. (Sbarboro v. Jordan, 164 Cal. 51 [127 P. 170].) But, in any event, the presidential electors so nominated are understood to represent and to be committed to the party policies and the presidential and vice-presidential candidacies so indorsed at such state convention. Upon this understanding the voters predicate their choice for presidential electors at the November election. Some significance is no doubt to be attached to the circumstance that in section 1197 it is provided that "the names of candidates for the office of electors for president and vice-president shall be arranged in groups. . . ." [9] Even if the legislature in using the word "office" in that connection had used it with the particular intent of thus creating a public office, it would not ex proprio vigore have had such effect (Coulter v. Pool, supra). There is no reason for supposing that by using the word "office," as it was used in section 1197, the legislature intended to create thereby a public office. That section is wholly concerned with provisions designating the form of the ballot and the order in which the names shall appear thereon, and it is apparent that the word "office" was there used merely as a convenient means of expressing the legislative intent as to the manner in which the names of candidates for presidential electors should be printed upon the ballot, and for no other purpose. [10] The suggestion has been made that by a process of liberal construction it can be concluded that candidates for presidential electors may be nominated according to the form and in the manner specified in section 5, subdivision 3, of the direct primary law. I am unable by any process of reasoning to arrive at this conclusion, but assuming it to be correct, we must also conclude, I think, that the petitioners herein have not brought themselves within the terms of that section and subdivision. It provides, "Verification deputies appointed as provided in subdivision 2 of this section . . . may . . . obtain signatures to such nomination paper of such candidate for such office. . . ." Subdivision 2 provides that the five electors who join in proposing a candidate for nomination must be registered as intending to affiliate with the same political party and that they must make affidavit to this effect, which was not done in the instant case. Subdivision 3 provides that "Only qualified electors of such county or city and county, registered as intending to affiliate with the political party by which the nomination is to be made, shall be competent to sign such section," and that the signer shall make affidavit that he has registered as intending to affiliate with such party, which has not been done herein. The only exception to the universal application of these requirements is "when the office for which the candidate is proposed is a judicial, school, county, township, or municipal office. . . ." And plainly the office of presidential elector, if it be an office, does not come within this exception.

[11] It has been suggested that the conclusion here reached operates to limit unjustifiably the right of suffrage. In my opinion it does not so operate. It operates to limit not the right of suffrage, but the privilege accorded to candidates of having their names printed upon the ballot. If that privilege be not accorded to these petitioners, every qualified elector of the state will nevertheless have the right and the opportunity to cast his vote for them at the general election by writing their names upon the ballot in the spaces which will be provided thereon for that purpose. I agree, of course, that the exercise of the right of suffrage in this manner is less easy and convenient than it would be if the voter were enabled by stamping a single cross in a square to cast his ballot in favor of thirteen candidates, and that the right to pursue the easier and more convenient method, if it were accorded by the provisions of the law, would be in the nature of a substantial right, to be secured, if necessary, by action of the courts. But the legislature has seen fit, indeed of necessity has been required, to prescribe certain conditions and restrictions as a condition precedent to the exercise of such right, with which conditions and restrictions petitioners herein have failed to comply. [12] In subdivision 9 (b) of section 1 of the direct primary law (Stats. 1917, p. 1343) is prescribed a mode of procedure by which could have been accomplished the nomination of a group of candidates for presidential electors other than as candidates for one of the existing political parties, and as a result of which the names of such candidates would have been printed in a group upon the ballot at the November election. In prescribing such conditions the legislature acted well within its constitutional powers. (Const., art. II, sec. 2 1/2; Socialist Party v. Uhl, 155 Cal. 776 [103 P. 181]; Hart v. Jordan, 168 Cal. 321 [143 P. 537]; Don v. Pfister, 172 Cal. 25 [155 P. 60]; Heney v.Jordan, 179 Cal. 24 [175 P. 402].) The case of People v.Smith, 206 N.Y. 231 [99 N.E. 568], which was governed by the provisions of the New York constitution, and the cases of Eaton v. Brown, 96 Cal. 371 [31 Am. St. Rep. 225, 17 L.R.A. 697, 31 P. 250], and Murphy v. Curry, 137 Cal. 479 [59 L.R.A. 97, 70 P. 461], which were decided prior to the adoption of article II section 2 1/2 of our constitution, cannot be regarded as authority to the contrary.

[13] I agree that for the purpose of ascertaining the meaning and effect of section 1188 it is our duty to give a liberal construction to its terms and provisions. But the legislative mandate commands no more liberal construction of this section than of every other section to be found in any of the codes (Pol. Code, sec. 4; Civ. Code, sec. 4; Pen. Code, sec. 4; Code Civ. Proc., sec. 4). The command for a liberal construction found in the direct primary law is limited in its application by its own terms to that statute, and the legislative solicitude there expressed is in behalf of "the real will of the electors," not in behalf of candidates or would-be candidates. That act contains numerous and detailed provisions and restrictions prescribing the things which must be done and which must not be done by one who would become a candidate at an election. [14] Notwithstanding the mandate for liberality contained in that act, it is manifest that one who would avail himself thereof to procure the placing of his name upon the ballot at an election must comply, at least substantially, with those provisions, requirements and restrictions. To hold otherwise would be to nullify those provisions and thus defeat the main purpose of the act. [15] I believe that it would be our duty, in the absence of any legislative mandate, to apply a liberal construction to such provisions as are here under consideration, but I am of the opinion that to construe section 1188 as providing for the nomination of presidential electors would "require an unwarranted reading into the law of language not put there by the legislature and not necessitated either by reason of ambiguity or obvious error" (Street v. Bertolone,193 Cal. 751 [226 P. 913]). As we said in another recent case, "Courts are not clothed with legislative power. . . . We are not at liberty to extend the application of the law to subjects not included within it, either by express language or by fair implication" (In re Okahara, 191 Cal. 353 [216 P. 614]). There may be good reasons for concluding that the best interests of the people of the state would be served by making provision for the independent nomination of candidates for presidential electors, but if the legislature in its wisdom has not seen fit to so provide, this court has no right to supply the omission.

The petition is denied and the alternative writ discharged.

Richards, J., Shenk, J., and Waste, J., concurred.