Duncan v. Burke

• Decision Date: 03 May 1965
• Parties: Joseph L. DUNCAN, Contestant, Plaintiff and Appellant, v. Arley C. BURKE and Randolph C. Wills, Defendants and Respondents. Civ. 29375.
• Court: California Court of Appeals Court of Appeals

Page 85

44 Cal.Rptr. 85

234 Cal.App.2d 171

Joseph L. DUNCAN, Contestant, Plaintiff and Appellant, v. Arley C. BURKE and Randolph C. Wills, Defendants and Respondents.

Civ. 29375.

District Court of Appeal, Second District, Division 1, California.

May 3, 1965.

Arlo E. Rickett, Jr., Pomona, for contestant, plaintiff, and appellant.

Shirley, Johnson & Gustaveson, Marlin H. Shirley, Pomona, O'Melveny & Myers, Ray H. Lindman, Los Angeles, for defendant and respondent Randolph C. Wills.

No appearance for defendant and respondent Arley C. Burke.

WOOD, Presiding Justice.

In this primary election contest, the contestant appeals from a judgment in favor of the defendants.

The contestant, Joseph L. Duncan, and eight other persons, including the two defendants, were candidates, at the primary election held in the city of Pomona on March 9, 1965, for the office of Councilman for the Second Councilmanic District of that city.

According to the resolution of the City Council of Pomona, declaring the results of the primary election, the two defendants, Arley C. Burke and Randolph C. Wills, received the highest number of votes and were the two candidates who were entitled to have their names placed on the ballot for the general election to be held on April 13, 1965.

It appears that the ballot for the city wide primary election included the names of the nine candidates for councilman from the Second Councilmanic District, and that all the electors of the city were afforded the opportunity of voting for those candidates.

The contestant, Joseph L. Duncan, asserts that the city council, in canvassing the returns and declaring the results of the primary election, counted the votes of electors outside the Second Councilmanic District, as a part of the votes for councilman in the second district; that the votes cast by electors outside the second district should not have been counted; and that if only the votes of the electors of the second district had been counted, the contestant would have received the highest number of votes for councilman in that district, and would have been entitled to have his name placed on the ballot for the general election.

The resolution of the council shows that the contestant received 323 votes in the second district, and that Albert E. Bassett received 283 votes therein. The resolution also shows that in the city at large (i. e., all the districts) Mr. Burke received the highest number of votes, namely, 2,595 votes; Mr. Wills received the second highest number of votes, 1,417; and that the contestant received the sixth highest number of votes, 1,090.

Contestant asserts that according to the provisions of the new charter of Pomona (adopted in January 1965), candidates for the office of Councilman in each of the councilmanic districts shall be nominated by the electors of each district; that only the votes of the electors at the primary election within each district shall be counted, and that it was improper to count the votes of electors outside said district.

Contestant argues to the effect that section 401 of the charter should be interpreted as meaning that candidates for each office of Councilman shall be nominated by the electors of each councilmanic district at a primary election wherein only the electors of each such district may participate in the primary election for the office of councilman from that particular district. In support of such argument, contestant quotes a portion of said section, namely: 'Candidates for each office of Councilman shall be nominated from such district by the electors of such district * * *.' The remainder of the sentence so referred to is as follows: 'and shall be residents of such district but all Councilmen shall be elected by vote of the electors of the City at large.' (Italics added.)

Section 401 of the charter provides: 'MAYOR AND COUNCILMEN. The elective officers of the City shall be a Mayor and four Councilmen elected at the times and in the manner provided in this Charter. The Mayor shall serve for a term of two years and until his successor qualifies. Each of the Councilmen shall serve for a term of four years and until his successor qualifies. Candidates for the office of Mayor shall be nominated from the City at large and the Mayor shall be elected by a vote of the electors of the City at large. Each office of Councilman shall be a separate office and one of such offices shall be assigned to each of the four councilmanic districts of the City. Candidates for each office of Councilman shall be nominated from such district by the electors of such district and shall be residents of such district but all Councilmen shall be elected by vote of the electors of the City at large. The Mayor and four Councilmen in office at the time this Charter takes effect shall continue in office until the expiration of the respective terms for which they were elected and until their respective successors are elected and qualified as provided in this Charter. The term of office of each elective officer elected hereunder shall commence at the time of the official canvass and declaration of the results of the election at which he is elected.

'The Mayor shall be elected in each oddnumbered year. The Councilmen of the first and fourth councilmanic districts shall be elected in each fourth year after 1963. The Councilmen of the second and third councilmanic districts shall be elected in each fourth year after 1965.' (Italics added.)

The principal question herein relates to the meaning of the word 'nominated' as used in said section 401 in the sentence: 'Candidates for each office of Councilman shall be nominated from such district by the electors of such district and shall be residents of such district but all Councilmen shall be elected by vote of the electors of the City at large.' (Italics added.)

According to appellant, the word 'nominated,' as used therein means nominated by vote of electors of each councilmanic district at a primary election wherein only the electors of each district may participate in the primary election for councilman from that particular district.

According to respondent Wills, the word 'nominated,' as used therein, means nominated, pursuant to the Elections Code of California, as referred to in the charter, by filing a nomination paper, signed by the required number of qualified electors residing within a particular district, whereby the name of a candidate is placed upon the primary-election ballot.

Appellant, in support of his contention above stated (to the effect that said word 'nominated' means nominated at a primary election limited or restricted to a councilmanic district), cites section 1001 of the charter which provides: 'PRIMARY ELECTIONS. For the purpose of nominating candidates to be voted upon at the general municipal election and for such other purposes as the Council may prescribe, a primary election shall be held in the City on the second Tuesday of March preceding the general municipal election.' (Italics added.)

Also, in support of his contention, he cites section 1006 of the charter which provides in part: '* * * candidates for elective City offices to be voted on at the general municipal election shall be nominated at the primary election * * *.' (Italics added.)

These provisions of sections 1001 and 1006, referred to by appellant relate to nominations for the general election and state that such nominations shall be made at a primary election, but the provisions do not relate to a method of nominating councilmanic candidates for the primary election.

Respondent Wills, in support of his contention above stated (to the effect that said word 'nominated' means nominated by filing a nomination paper signed only by electors within a councilmanic district), refers to section 1005 of the charter. That section states: 'NOMINATIONS BY ELECTORS. Except as otherwise provided in this Charter and, in particular, except as otherwise...