Don v. Pfister

In this matter a peremptory writ of mandate in accord with the alternative writ heretofore granted was ordered issued at the close of the oral argument, the views of the court being very briefly expressed from the bench. That the ground of the decision may be understood, it is proper to very briefly state it in writing.

The question presented was whether or not an elector is entitled to state in his affidavit of registration the name of the political party with which he intends to affiliate at the ensuing primary election, notwithstanding the amendment of section 1096 of the Political Code, at the regular legislative session of 1915, [Stats. 1915, p. 289], by striking from said section the provision that an elector may state this in such affidavit.

The question is one that must necessarily be decided in accord with the law as it now exists, entirely regardless of certain acts adopted at the recent extra session of the legislature, which, by virtue of the referendum provisions of our constitution, are not as yet effective, and which are still subject to be suspended until the next general election by the filing of a petition for a referendum thereon.

It is conceded by all that the partisan portion of the Primary Act of June 16, 1913, [Stats. 1913, p. 1379], as it now exists, a valid subsisting law of the state, is practically rendered a nullity, if the amendment of section 1096 in 1915 deprived an elector of the right here sought to be exercised. No one could qualify for a party primary as required by the Primary Act, either to sign nominating petitions for candidates for party nominations, or to vote at a party primary. The Primary Act, from beginning to end, shows the absolute necessity for party registration in order to make it a workable system for party primaries at all, and learned counsel for respondent frankly admitted that the expressed design of its framers was that no one could participate in any of the party primary elections provided for thereby unless in his affidavit of registration he had stated the name of the political party or organization with which he intended to affiliate. This was the "test and condition" provided in the Primary Act upon which electors might participate in such a party primary, and that the legislature had the right to prescribe such a test in the Primary Act itself cannot be doubted in view of the language of section 2 1/2, article II, of the constitution.

Under these circumstances, it is not surprising that the framers of such Primary Act should substantially provide therein, as they clearly had the right to do, and as we think they have done, that electors should be allowed to register in such a way as to make them eligible to participate in the party primaries provided thereby. In our opinion they did this, in a way not novel at all in legislation, by referring to section 1096 of the Political Code, as it then stood, and practically making it a part of the Primary Act. The language is, "And all the provisions of section 1096 of the Political Code, so far as they are consistent with the provisions of this act, are hereby made applicable to primary elections within the meaning of this act." They had done the same thing in the Primary Act of 1911, [Stats. 1911, p. 769], and, in a still earlier Primary Act, when section 1096 contained no provision for statement of party affiliation, they had so expressly referred to section 1366a of the Political Code, which contained such a provision. We are satisfied that it must be held that it was the intent to make this section, as it then stood, in so far at least as this matter so vital to the maintenance of the act is concerned, an integral part of the primary law itself for so long as such primary law required the registration to show party affiliation. Conceding the power of the legislature to legislate in this manner, i. e., by incorporating the provisions of some other statute by reference, as must be conceded, we have remaining simply the question of intent, and, as to that, we have already indicated our views. The case then is simply that presented inPeople v. Whipple (No. 2), 47 Cal. 592, where an act provided that township assessors shall have all the powers, and perform all the duties of county assessors prescribed by the provisions of the general Revenue Act of 1861, and wherein it was held that the subsequent repeal of the act so referred to did not operate to defeat or curtail the scope of the act in which the reference was contained, "for the legal effect of such reference, in the first instance, is the same as though the act so referred to had been inserted therein in extenso." This is a principle well sustained by the authorities, and is applicable whenever the intent is apparent to make by reference another provision of law an actual part of the law under consideration. Section 1096, so far as essential to the maintenance of the party primary provisions of the Primary Act, was thus made an actual part of such act, and the legislature could not subsequently affect such Primary Act by simply amending said section 1096, so as to eliminate party registration.

As stated from the bench, the decision of the court was based on this ground, as to which all participating agreed, although other grounds were stated by some of the justices in addition.

It follows that petitioner is entitled to the relief sought, and accordingly a peremptory writ of mandate was ordered issued.

Sloss, J., concurred.