State Ex Rel. McAulay v. Reeves , 196 Wash. 1 ( 1938 )

The principle enunciated in State ex rel. Chealander v.Carroll, 57 Wash. 202, 106 P. 748, that the officer whose duty it is to receive a declaration of candidacy, has the right to determine the eligibility of such declarant for the office for which he desires to be a candidate, is unsound, as the authority to determine the eligibility of the declarant is a judicial power which has not been conferred upon or vested in such filing officers. Whether subsequently we, without written opinion, disregarded the rule announced in the case cited is unimportant. That authority, which a majority (five) of this court refuse to overrule, is not distinguishable from the case at bar. It is controlling, and under the rule of stare decisis I must follow same.

This cause was heard by the court En Banc, with seven judges sitting, two judges not participating. As there is not a constitutional majority, either to grant or deny the application, the writ must be denied.

The one upon whom is imposed the burden of sustaining the affirmative in this court cannot be granted relief in the absence of a constitutional majority on either side of the question presented. Bloss v. Equitable Life Assurance Society, 176 Wash. 1,28 P.2d 303, 33 P.2d 375.