Norcop

This is an application for a writ of mandate to compel the respondent as Secretary of State to certify and declare the petitioner to be the duly nominated candidate of the Democratic party for the office of representative in Congress for the fourteenth congressional district of California, and to place the name of petitioner as such candidate on the official ballot to be used at the general election to be held on November' 8, 1932. In view of the necessity for an immediate decision in this matter, judgment was rendered without written opinion on the day oral argument was held, it being stated that an opinion would be filed later.

The petitioner was' registered as a member of and was thereafter affiliated with the Democratic party. At the primary election held on August 30, 1932, he was a candidate for the Democratic nomination for Congress in said district and his name appeared on the Democratic ballot as such. ITe did not seek the nomination of any other party. George W. Rochester was affiliated with the Republican party and sought the nomination for Congress in said district on both the Republican and Democratic tickets. At the primary election Rochester failed to receive the…

Without intending to inject Holy Writ into a political tangle, I base this dissent upon the doctrine that the “Letter killeth but the Spirit giveth life.”

The word “defeated” when interpreted as in the majority opinion, corrects no evil and serves no purpose except to injure the applicant in favor of others who have in no sense been injured by him. It may curtail the prerogative of the electors of the Democratic party by refusing them the right to select their own candidate, thus favoring the opposing party nominee when no just claim to preference can exist.

Rochester’s ineligibility left no nominee for Congress of the Democratic party. There was, of course, in no true sense anyone defeated for the nomination in that party. Why not allow the second in the running or anyone other than Rochester to have the place if the committee selects him? Statutes should receive a reasonable interpretation in the light of the abuses at which they are aimed. This question was considered at length in People v. Ventura Refining Co., 304 Cal. 286 [ 268 Pac. 347, 349 , 283 Pac. 60 ]; the California cases are there collated, the old law Bologna case is cited and the court then quotes with approval…