McGee, In re

• Decision Date: 10 January 1951
• Citation: 36 Cal.2d 592,226 P.2d 1
• Parties: In re McGEE. MARKWORT v. McGEE. L. A. 21755.
• Court: California Supreme Court

Page 1

226 P.2d 1

36 Cal.2d 592

In re McGEE MARKWORT v. McGEE.

L. A. 21755.

Supreme Court of California, in Bank.

Jan. 10, 1951. ^*

Rollin L. McNitt and Edythe Jacobs, Los Angeles, for appellant.

Frank P. Doherty and Spencer E. Van Dyke, Los Angeles, for respondent.

CARTER, Justice.

Defendant, or contestee, a registered republican, and plaintiff, or contestant, a registered democrat, filed and qualified as candidates, each for both parties, at the June, 1950, primary election for the office of member of the State Assembly, sixty-fourth district. Defendant was nominated on both tickets at that election.

The Elections Code provides that any candidate at a primary election may contest the right of another candidate to nomination to the same office by filing in the superior court an affidavit alleging various grounds including ineligibility to the office in dispute. Elections Code, §§ 8600, 8603. Issue may be joined by the other candidate, Id. § 8623, and the matter heard by the court and decision rendered. Id., §§ 8624-8628. Either party may appeal to the District Court of Appeal within ten days after judgment below and that court must decide the case within ten days after the appeal is perfected. Id., § 8629.

Pursuant to those provisions, plaintiff commenced a proceeding contesting defendant's election at the primary on the ground that he failed to meet the requirement that: '* * * no person shall be a member of the Senate or Assembly who has not been a citizen and inhabitant of the State three years, and of the district for which he shall be chosen one year, next before his election.' Cal.Const., Art. IV, § 4. The trial court decided in defendant's favor and plaintiff appeals asserting in chief that the evidence is insufficient to establish that defendant was a 'citizen and inhabitant' of the state for three years next before his election as required by § 4 of Article IV of the California Constitution, supra.

While defendant contends that the judgment is amply supported by the evidence, he asserts that the trial court lacked jurisdiction to entertain the proceedings. In support of the latter position he relies upon the constitutional provision that: 'Each House (of the legislature) shall * * * judge of the qualifications, elections, and returns of its members.' Cal.Const., Art. IV, § 7. It is claimed that the assembly, to the exclusion of the courts, is the arbiter and forum for determining whether its members are eligible for the office. The first case touching precisely upon this issue was Allen v. Lelande, 164 Cal. 56, 127 P. 643, where a candidate had been nominated for the office of assemblyman. An examination of the record shows he was so nominated by direct primary election. Mandamus in this court was sought to compel the county clerk to strike his name from the ballot for the general election on the ground that he lacked the residence requirements of § 4 of Article IV of the California Constitution, supra. The court denied relief stating: 'The Constitution of the state (article 4, § 7) reads as follows: 'Each house shall choose its officers, and judge of the qualifications, elections, and returns of its members.' By that article the assembly is made the exclusive judge of the qualifications of its members. The law providing for an official ballot cannot be held to have changed the intent of the people in adopting that constitutional provision that the assembly should be the sole and exclusive judge of the eligibility of those whose election is properly certified. For this court to undertake to try the question of eligibility and to deprive the candidate of any chance to be elected would simply be to usurp the jurisdiction of the assembly.' (Emphasis added.) Allen v. Lelande, 164 Cal. 56, 57, 127 P. 643. Prior to the Allen case the court, in People ex rel. Vejar v. Metzker, 47 Cal. 524, was concerned with an appeal from a quo warranto proceeding contesting an election of a city councilman where the municipal corporation statutes gave the power to the council to judge election contests in language identical to that applicable to members of the assembly, supra. The court held the council had exclusive jurisdiction and the court none by analogy to the assembly provision. But in People ex rel. Swift v. Bingham, 82 Cal. 238, 22 P. 1039, the court held that exclusive jurisdiction could not be granted to a county board of supervisors by statute for the constitution conferred upon superior courts the right to entertain quo warranto proceedings. But doubt was cast thereon by McGregor v. Board of Trustees, 159 Cal. 441, 114 P. 566 and Carter v. Superior Court, 138 Cal. 150, 70 P. 1067, in the latter of which cases it was held that a provision that gave a council exclusive jurisdiction ousted the court of general jurisdiction in election contest cases. And it has been held that such statutes applying to local governments do not oust the courts of jurisdiction unless the legislative body is expressly given exclusive jurisdiction. McGregor v. Board of Trustees, supra; Dawson v. Superior Court, 13 Cal.App. 582, 110 P. 479.

In the instant case we have no question of a conflict between a statutory grant of jurisdiction to a local legislative body and a constitutional provision investing power in the courts. All provisions concerned here are in the constitution and we think that § 7 of Article IV, supra, confers exclusive jurisdiction on the legislature to judge the qualifications and elections of its members. The powers of the government of the state are divided into the legislative, executive and judicial, and neither shall exercise the powers of the other 'except as in this Constitution expressly directed or permitted.' Cal.Const., Art. III, § 1. And there is expressly vested in the legislature, the power to judge the matters here involved, Cal.Const. Art. IV, § 7, supra, a power which is judicial in character. Barry v. United States, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867. Hence we conclude that it was intended to be exclusive in the legislature, and that Allen v. Lelande, supra, is correct in so holding. The overwhelming weight of authority under identical federal and state constitutional provisions is in accord. See cases collected State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 107 A.L.R. 205. Furthermore, it has been held that the legislature cannot curtail its jurisdiction by delegating it to the courts. See Dinan v. Swig, 223 Mass. 516, 112 N.E. 91; Ashley v. Wait, 228 Mass. 63, 116 N.E. 961, 8 A.L.R. 1463; Greenwood v. Registrars of Voters, 282 Mass. 74, 184 N.E. 390; Reif v. Barrett, 355 Ill. 104, 188 N.E. 889; Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427; In re Hunt, 191 A. 437, 15 N.J.Misc. 331, court may decide issue but not conclusive on legislature; State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A.L.R. 348; Sutherland v. Miller, 79 W.Va. 796, 91 S.E. 993, L.R.A.1917D; State ex rel. Smith v. District Court, 50 Mont. 134, 145 P. 721.

It is urged, however, that the constitutional power conferred on the assembly over elections and qualifications of its members, Cal.Const., Art. IV, § 7, does not extend to or include primary elections. It has been so held. State ex rel. Cloud v. Election Board, 169 Okl. 363, 36 P.2d 20, 94 A.L.R. 1007; Leu v. Montgomery, 31 N.D. 1, 148 N.W. 662. The contrary view has been taken. State ex rel. Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504; Lucas v. McAfee, 217 Ind. 534, 29 N.E.2d 403, reaffirmed on denial of petition for rehearing 29 N.E.2d 588. In the Zimmerman case, an injunction was sought to prevent the certification as republican nominee of one nominated in a primary election for the office of United States Senator on the ground that he was disqualified as he held a state judicial office. The court held that under the United States Constitution, the Senate had exclusive jurisdiction to decide the elections and qualifications of its members, U.S.Const., Art. I, § 5, and that such provision included primary elections. The court stated 24 N.W.2d at page 506: 'The contention that the election process is wholly within the jurisdiction of the state and no conflict can arise until some candidate has been certified to the United States Senate as the elected representative of the state is unsound.

'The proceedings up to and including the issuance of the certificate of election are wholly within the control of Congress. It was formerly held that primaries were not a part of the election process but that is no longer the established law.

'In Newberry v. United States, 1921, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913, the Supreme Court of the United States left undecided whether primaries were a part of elections and therefore subject to federal control. The question left undecided in the Newberry Case was decided in United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 and the doctrine was affirmed in Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. In Smith v. Allwright the Court held: 'The right of a citizen of the United States to vote for the nomination of candidates for the United States Senate and House of Representatives in a primary which is an integral part of the elective process is a right secured by the Federal Constitution.'

'It was further held that when as in the Allwright Case the primary became a part of the machinery for choosing officials. state and federal, the same test to determine the character of discrimination or abridgment should be applied to the primary as are applied to the general election.

'The Court overruled Grovey v. Townsend, 1935, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292, 97 A.L.R. 680, which had held to the contrary.

'There can be no doubt that under the laws of the State of Wisconsin the primary election law is an integral part of the election process. No person can become a candidate of a...