Samuels v. Hite

California Supreme Court

Samuels v. Hite

216 P.2d 879, 35 Cal. 2d 115, 1950 Cal. LEXIS 320

CourtCalifornia Supreme Court

DecidedApril 13, 1950

DocketL. A. 21445

StatusPublished

Cited by7 cases

This text of 216 P.2d 879 (Samuels v. Hite) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Samuels v. Hite, 216 P.2d 879, 35 Cal. 2d 115, 1950 Cal. LEXIS 320 (Cal. 1950).

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SCHAUER, J.

Petitioner, a qualified elector and taxpayer of Belvedere Township, seeks mandate to require respondent Hite, as registrar of voters of Los Angeles County, to omit the name of Frank F. Solis, as candidate for the office of justice of the peace of the Class A justices’ court of Belvedere Township, from the official ballot. Petitioner contends that Solis does not have the qualification for office prescribed by section 159a of the Code of Civil Procedure. We have concluded that this contention is correct.

Section 159a (Code Civ. Proc.) provides, “No person shall be eligible to the office of justice of the peace, of a justices’ court of Class A, unless he shall have been admitted to practice before the Supreme Court of this state, for a period of at least two years, and shall have had not less than two years actual practice of law in this State; provided that the provisions of this section shall not apply-to an incumbent, or to the election of an incumbent in such judicial position.”

Mr. Solis is not an incumbent. He was admitted to practice on January 4, 1949. Thus he is not now, and will not at the time of the election (June 6, 1950) have been admitted to practice for two years, but he will have been admitted to practice for two years when the term of office begins (January 8, 1951).

The courts of the various states have difEered as to whether, when the time for existence of conditions of eligibility for office is not specified by the applicable statute or constitution, the conditions must be present at the time of election or merely when the term of office begins. (88 A.L.R. 812; 143 A.L.R. 1026.) In this state, however, it has long been the law that a candidate, to be “eligible” (when the time of eligibility is not expressed), must be qualified at the time of election; the word “eligible” means “capable of being chosen—the subject of selection or choice.” (Searcy v. Grow (1860), 15 [117]*117Cal. 117, 121; in accord are Sheehan v. Scott (1905), 145 Cal. 684, 686 [79 P. 350], and Bowring v. Dominguez (1935), 3 Cal.2d 167, 170 [44 P.2d 299]; see, also, People v. Leonard (1887), 73 Cal. 230, 234 [14 P. 853]; Helwig v. Payne (1925), 197 Cal. 524, 528 [241 P. 884]; People v. Purdy (1897), 21 App.Div. 66 [47 N.Y.S. 601]; People v. Purdy (1897), 154 N.Y. 439, 442 [48 N.E. 821, 61 Am.St.Rep. 624].) Ward v. Crowell (1904), 142 Cal. 587 [76 P. 491], relied upon by respondent, is distinguished in the Sheehan case, supra.

The fact that, unlike section 159a (Code Civ. Proc.), other provisions of law expressly prescribe that a candidate’s qualifications shall exist “preceding his election” (Cal. Const., art. YI, § 23; Code Civ. Proc., §§ 156, 157, 159, 103g) does not change the settled judicial definition of the word “eligible.”

It is therefore ordered that a peremptory writ of mandate issue forthwith.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.

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SCHAUER, J.

Petitioner, a qualified elector and taxpayer of Belvedere Township, seeks mandate to require respondent Hite, as registrar of voters of Los Angeles County, to omit the name of Frank F. Solis, as candidate for the office of justice of the peace of the Class A justices’ court of Belvedere Township, from the official ballot. Petitioner contends that Solis does not have the qualification for office prescribed by section 159a of the Code of Civil Procedure. We have concluded that this contention is correct.

Section 159a (Code Civ. Proc.) provides, “No person shall be eligible to the office of justice of the peace, of a justices’ court of Class A, unless he shall have been admitted to practice before the Supreme Court of this state, for a period of at least two years, and shall have had not less than two years actual practice of law in this State; provided that the provisions of this section shall not apply-to an incumbent, or to the election of an incumbent in such judicial position.”

Mr. Solis is not an incumbent. He was admitted to practice on January 4, 1949. Thus he is not now, and will not at the time of the election (June 6, 1950) have been admitted to practice for two years, but he will have been admitted to practice for two years when the term of office begins (January 8, 1951).

The courts of the various states have difEered as to whether, when the time for existence of conditions of eligibility for office is not specified by the applicable statute or constitution, the conditions must be present at the time of election or merely when the term of office begins. (88 A.L.R. 812; 143 A.L.R. 1026.) In this state, however, it has long been the law that a candidate, to be “eligible” (when the time of eligibility is not expressed), must be qualified at the time of election; the word “eligible” means “capable of being chosen—the subject of selection or choice.” (Searcy v. Grow (1860), 15 [117]*117Cal. 117, 121; in accord are Sheehan v. Scott (1905), 145 Cal. 684, 686 [79 P. 350], and Bowring v. Dominguez (1935), 3 Cal.2d 167, 170 [44 P.2d 299]; see, also, People v. Leonard (1887), 73 Cal. 230, 234 [14 P. 853]; Helwig v. Payne (1925), 197 Cal. 524, 528 [241 P. 884]; People v. Purdy (1897), 21 App.Div. 66 [47 N.Y.S. 601]; People v. Purdy (1897), 154 N.Y. 439, 442 [48 N.E. 821, 61 Am.St.Rep. 624].) Ward v. Crowell (1904), 142 Cal. 587 [76 P. 491], relied upon by respondent, is distinguished in the Sheehan case, supra.

The fact that, unlike section 159a (Code Civ. Proc.), other provisions of law expressly prescribe that a candidate’s qualifications shall exist “preceding his election” (Cal. Const., art. YI, § 23; Code Civ. Proc., §§ 156, 157, 159, 103g) does not change the settled judicial definition of the word “eligible.”

It is therefore ordered that a peremptory writ of mandate issue forthwith.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.

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216 P.2d 879, 35 Cal. 2d 115, 1950 Cal. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuels-v-hite-cal-1950.

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