Hedlund v. Davis

• Decision Date: 05 October 1956
• Citation: 47 Cal.2d 75,301 P.2d 843
• Court: California Supreme Court
• Parties: Earl F. HEDLUND, Petitioner, v. Alice DAVIS, as County Clerk of the County of Tehama, State of California, Board of Supervisors of the County of Tehama, State of California, Earl Davies, Albert Pryor, Clarence Mendenhall, Lynn Raymond and Walter Dale, as Members of said Board of Supervisors, Respondents. Edward J. Allen, Real Party in Interest. Sac. 6750.

Page 843

301 P.2d 843

47 Cal.2d 75

Earl F. HEDLUND, Petitioner, v. Alice DAVIS, as County Clerk of the County of Tehama, State of California, Board of Supervisors of the County of Tehama, State of California, Earl Davies, Albert Pryor, Clarence Mendenhall, Lynn Raymond and Walter Dale, as Members of said Board of Supervisors, Respondents Edward J. Allen, Real Party in Interest.

Sac. 6750.

Supreme Court of California, In Bank.

Oct. 5, 1956.

Earl F. Hedlund, in pro. per.

Rawlins Coffman, Red Bluff, for respondent Davis.

No appearance for respondent supervisors.

Edward J. Allen, Red Bluff, in pro. per.

SCHAUER, Justice.

Earl F. Hedlund petitions for a writ of mandate to be addressed to the county clerk and to the board of supervisors of Tehama County. Petitioner asks that respondents be directed to perform such official duties respectively as under the law devolve upon them to the end (1) that the office of district attorney of the County of Tehama shall be placed upon the ballot at the general election to be held on November 6, 1956, in order that a qualified candidate may be elected at such general election to serve for the remainder of the unexpired term of Bruce Werlhof, who was elected in November, 1954, for a term which is to expire in January, 1959, and who resigned from such office on June 11, 1956; (2) that there shall be accepted, examined, and otherwise dealt with in accordance with law all independent nomination papers which may be timely tendered by candidates for the office of district attorney of the Counry of Tehama, to be voted on at the general election of November 6, 1956; and (3) that there shall be printed on the ballots to be used at the general election of November 6, 1956, in the County of Tehama, the name or names of any person or persons who pursuant to law may be found to have qualified as a candidate or candidates for the office of district attorney of such County of Tehama, pursuant to the provisions of sections 3000 et seq. of the Elections Code of the State of California.

Due to the industry of petitioner, of the incumbent district attorney as a real party in interest, and of counsel for respondent county clerk, the issue before us has been fairly, promptly, and concisely presented. It is purely one of law. From the petition and the returns thereto filed by the county clerk, and by the incumbent district attorney, ¹ it appears that at the time of the holding of the primary election in California on June 5, 1956, and thereafter until June 11, 1956, one Bruce Werlhof was the duly elected and acting district attorney for Tehama County; he had been elected for the term which will expire in January, 1959. On June 11, 1956, subsequent to the primary election, Werlhof resigned his office effective immediately, and immediately thereafter respondent board of supervisors appointed Edward J. Allen to the office which had been made vacant as above noted; the board purported to appoint Allen to serve 'for the 'unexpired term" of Werlhof, although, petitioner contends, by virtue of the charter provisions of the County of Tehama the appointment of Allen is, and can be, effective only until the general election on November 6, 1956.

On September 11, 1956, petitioner caused a statemnet to be published in the newspapers of Tehama County stating that in his understanding of the law the term of the incumbent district attorney will expire on November 6, 1956, and that the people have the right to elect their district attorney on that date. His published statement concludes, 'I am making this public announcement of my intention in order that, should my construction of the law be correct, every attorney who is interested in the office will have a fair and equal opportunity to seek it * * *'

On September 14, 1956, petitioner and Allen, the incumbent district attorney, ² each tendered to the county clerk $180 for prepayment of the filing fee required by law, and received from her appropriate nomination forms. The clerk at that time informed them, however, that she was 'conditionally' accepting the fees and 'conditionally' issuing the nomination papers and that because of shortness of time for the completion of the nomination procedure provided by sections 3000 et seq. of the Elections Code she could not assure them that the name of either petitioner or Allen would actually appear on the ballot at the November 6 election or that an election would in fact be held for the office of district attorney on that date or that she might not demand, as a condition to the acceptance of nomination papers when completed, a court order requiring her to accept such papers.

Sections 3000 et seq. of the Elections Code provide for the type of independent nomination procedure which petitioner seeks to follw here. Sections 3046 to 3050, inclusive, prescribe the form and substance which the nomination papers shall follow. Such nomination papers, according to section 3043, shall be filed not more than 65 nor less than 40 days before the day of election. September 27 is the fortieth day before November 6. There is a further provision, however, in section 3045, that 'Not more than five days before the first day, and not less than five days before the last day on which a nomination paper may legally be filed, it shall be * * * left with the county clerk for examination, or for examination and filing'; the last day for compliance with this last requirement would be September 22 which, being a Saturday, the parties agree would make the last day fall on September 21. The alternative writ herein was issued on September 19.

Both petitioner and Allen circulated their respective nomination papers throughout the County of Tehama and filed them with respondent county clerk on or before September 21. That official, at the date of her return, was in the course of examining them, although she alleges that 'she is unaware of any vacancy in the office of district attorney of the County of Tehama.'

The basic issue before us is whether under applicable law the appointment of the incumbent, Allen, is inherently effective for the full unexpired term of Werlhof, which will terminate in January, 1959, or whether such appointment terminates at the general election ³ to be held on November 6, 1956. If the appointment as a matter of law carries over for the full unexpired term then no vacancy will exist in the office of district attorney to be voted on at the November 6, 1956, general election, but if petitioner is correct in his contentions then the office should appear on the November 6, 1956, ballot, together also with the names of candidates for that office who have qualified as such under the independent nomination procedures.

The charter of Tehama County (art. IX, § 6; Stats.1917, p. 1891) provides, 'Whenever a vacancy shall occur in an elective office in this County other than a member of the Board of Supervisors the Board of Supervisors shall fill such vacancy, except as otherwise provided in this Charter, until the election and qualification of his successor. In case of any such vacancy there shall be elected at the next general election an officer to fill such vacancy for the unexpired term, unless such unexpired term ends on the first Monday after the first day of January next succeeding the election, in which case the election shall be for the unexpired term and for an entire new term in addition.' (Italics added.)

The Constitution of this state declares,...