Gett v. Board of Supervisors , 111 Cal. 366 ( 1896 )

Beatty, C.

J.—This is an original proceeding in which the petitioner asks a writ of mandate to the supervisors of Sacramento county, commanding them to perform the duties imposed upon election commissioners and boards of supervisors, by the act of March 27, 1895 (Stats. 1895, p. 207), relating to primary elections.

The act, by its express terms, is restricted to counties of the first and second classes (Stats. 1895, sec. 26, p. 218), and, consequently, has no application to Sacramento county, or any other, "except the city and county of San Francisco and the county of Los Angeles, unless the contention of petitioner can be sustained that the classes referred to in said section 26 are those defined in section 4006 of the Political Code as originally enacted, which reads as follows:

“ Sec. 4006. For purposes other than roads and highways the counties of this state are classified as follows: 1. Those containing twenty thousand inhabitants or over constitute the first class; 2. Those containing eight thousand and under twenty thousand inhabitants constitute the second class; and 3. Those containing less than eight thousand inhabitants constitute the third class.”

This section was a part of title II of part IV of the Political Code relating to the government of counties as the same was regulated prior to the adoption of the present constitution. By the act of March 14, 1888, entitled “An act to establish a uniform system of county and township government ” (Stats. 1883, p. 299), the whole law upon this subject was revised and the old law in most respects superseded. This being so it is extremely doubtful whether the classification established by section 4006 of the Political Code is continued in force for any purpose whatever, but, conceding that it may be in force with respect to some matters regulated by statutes passed prior to the new classification contained in the act of 1883, we have no doubt that th.e reference in the primary election law is to the classes defined in the latest County Government Act, and not to the classes established by section 4006 of the Political Code. It follows, therefore, that neither this petitioner nor the respondents have any interest in the determination of the question which they have attempted to submit, i. e., the constitutionality of the act of March 27, 1895, and that it ought not to be decided upon such attempted submission.

Writ denied and proceeding dismissed.

McFarland, J., Harrison, J., Garoutte, J., Van Fleet, J., Temple, J., and Henshaw, J., concurred.