leged in his answer, demanded, as a condition in the acquisition of the title and the adminprecedent to said delivery, that the claimants istration of the trust and for reasonable should each pay all costs and charges, includ- charges for the services of the trustee, will ing the amount assessed as attorney's fee, exceed $1.00 per lot," nevertheless an addiwhich, however, was not separately itemized tional sum could be levied and collected by as such. It is also alleged that, after the the trustee, because of a collateral contract payment of $1,000 to plaintiff by defendant, between the attorney and the lot owners. In certain actions were brought which caused pursuance of this theory, it is alleged in the defendant to refuse further payments until complaint that each lot owner freely and the court should determine the respective voluntarily paid the amount assessed for rights of the plaintiff and the inhabitants of plaintiff's fee. The court found, however, the town site; that by its decision in the case that a large number of the "assessments" for of Jennett v. Stevens, 34 Nev. 128, 116 Pac. plaintiff's fees were paid by the lot owners 601, the Supreme Court of Nevada held that "without protest or objection," but that some under section 7 of the statute, in accordance of them were paid "under protest and upon with which defendant believed he had been the representations by said trustee that the acting, he was not authorized as trustee to amount would be repaid to such claimants if assess and receive the fees to be paid over it should be decided that the collection thereto plaintiff in accordance with the pleaded of was unlawful; but the evidence does not contract; and that by that decision the max-disclose what payments or what proportion of imum charge which could be made by the the payments, if any, were so paid under protrustee was $5.50 per lot, which had been test or upon objection." Obviously, such collected by defendant as trustee for proper and legal items, exclusive of attorney's fees. The answer also contains allegations that the money on deposit in the state of Nevada is withheld from defendant's possession and control by virtue of an injunction issued in a suit still pending; and that, the Nevada courts having assumed jurisdiction and control of the trust and of the fund collected thereunder, the courts of California are without jurisdiction in the matter. The court found in favor of the plaintiff on all material issues. The theory upon which the learned judge of the trial court decided the case is revealed, we believe, in the findings: That defendant collected the aggregate and unitemized sum of $9.50 per lot; "that said money was paid with the understanding that the said defendant claimed a lawful right to demand of said lot claimants the said sum of $3.45 per lot for the use of plaintiff, and that the plaintiff claimed the right to recover the said sum; that the said defendant then received said money for the benefit of this plaintiff and as a matter of convenience to the parties in interest, and that the collection of said money was not involved within his duties as trustee nor as judge of the district court of the state of Nevada in and for the county of Esmeralda, and that he had full power and authority to receive said collections outside of his duties as trustee and judge as aforesaid." amounts as were paid under protest must have been collected by Judge Stevens under color of his official power as trustee, and it does not follow, merely because the sums assessed against other lot owners (which did not reveal by itemization the purposes to which the component parts were to be devoted) were paid without protest, that therefore they were delivered to and received by the trustee, not in the supposed execution of the trust, but partly in compliance with a contract involving the payment of larger fees than those allowed by the statute for the services of an attorney. The court also found: "That the evidence does disclose that adverse claims have been made upon said fund now on deposit in Goldfield, Nev., and a restraining order issued purporting to be on behalf of certain of said lot claimants in the courts of Nevada against the payment of said fund on account of plaintiff's claim for attorney fees." The court found that the trustee refused to recognize the original contracts whereby plaintiff demanded $10 per lot, and that after arbitration which was satisfactory to plaintiff said trustee, pursuant to said arbitration, "apportioned and assessed" $3.45 against each lot. There is no pleading nor finding that this modification of the contract was ratified by the lot owners, yet it is found To sustain these findings, without which that they paid the exaction, not to the trustee the judgment against the defendant person- under compulsion, but to him personally in ally-not as trustee, for he is not sued in compliance with the agreement, as matter of that capacity-cannot be supported, it is convenience, so that he might deliver the necessary to hold that Judge Stevens acted, money to their attorney. Respondent's theory not in his official and fiduciary capacity un- and contention is that by accepting the servder the law of Nevada, but that he collected ices of the attorney and by paying the the fees for plaintiff as the latter's agent. amount assessed the lot owners ratified the Yet no agency is alleged in the complaint. new contract made for them by the trustee It is the theory of respondent (and the su- and the attorney. Yet there is no pleading perior court accepted that view) that al- nor finding that the lot owners even knew of though the Supreme Court of Nevada, in the the arbitration. When they paid less than interpretation of the statute governing the $10 a lot, they must have known that no colpower of the trustee, has decided, in Jennett lection was being made under the original v. Stevens, supra, that "a fee may not be contract. They are presumed to have known paid which, together with moneys expended that under the statute the trustee might make a charge for attorney's fees. How could they know, when they paid either with or without protest the amount "assessed" by the trustee against their lots, that they were executing a new contract made by arbitrators whom they did not appoint and ratified by those having no authority to act for them? To ask the question answers it. All of the evidence tends to show that defendant acted at all times under the belief izing the Legislature to prescribe tests and POWERS-PRIMARY ELECTION LAW. The question of what provisions of Direct Primary Law of June 16, 1913, as amended in 1917, are essential to attain the objects contemplated by Const. art. 2, § 22, authorizing enactment of primary election laws, is one peculiarly within the domain of the Legislature. 3. CONSTITUTIONAL LAW 48- PRESUMPTION OF VALIDITY. In determining whether any provision of Di 4. CONSTITUTIONAL LAW 48-DETERMINA- lature could have concluded that a provision that he was executing the trust imposed up-rect Primary Law of June 16, 1913, as amendon him by statute. The federal statute (sec-ed in 1917, is violative of Const. art. 2, § 2%, tion 2387, U. S. Rev. Stats.) provides that authorizing enactment of primary election law, the state Legislature must create machinery the presumption is in favor of validity. for the execution of the trust "as to the disposal of the lots in such town, and the proceeds of the sales thereof," and under the Nevada law Judge Stevens undoubtedly was the trustee for both purposes. There is no support for the finding that the money was paid "with the understanding that said de fendant claimed a lawful right to demand of said lot claimants the sum of $3.45 per lot for the use of plaintiff." And we find nothing in the record to support the finding that the defendant "had full power and authority to receive said collections outside of his duties as trustee and judge as aforesaid." The evidence shows that the trustee refused to recognize plaintiff's right to collect $10 a lot for his fee. The arbitration was not the making of a new contract between the attorney and his alleged clients. It was merely the fixing of an amount which the trustee recognized as a just compensation and which he believed he had the power to assess under the statute. The manner of assessment without segregation of the items corroborates his own testimony in this regard that he fixed the attorney's fee as trustee believing that the statute authorized him so to do. He was mistaken in this and collected too great a sum of money. This makes him an involuntary trustee as to the excess, not for plaintiff, but for the inhabitants of Goldfield and South Goldfield. Civ. Code, § 2224. This conclusion makes it unnecessary for us to pass upon the contention of appellant that the courts of California have no jurisdiction of the controversy. The judgment is reversed. STATUTES-CANDIDATES. The Legislature, under Const. art. 2, § 21⁄2, may prescribe tests and conditions for primary election candidates as well as for electors. 6. ELECTIONS 126(4)-PRIMARY ELECTIONS -CANDIDATE. Candidate for nomination of Governor at primary election who received the highest vote the highest vote for such nomination by Repubby the Democratic party, but failed to receive lican party with which he was affiliated 35 days prior to date of election, could not become Democratic nominee in view of Direct Primary Law of June 16, 1913, § 23, as amended in 1917. 7. ELECTIONS 126(1) - INELIGIBILITY_OF CANDIDATE RECEIVING HIGHEST VOTE-RESULT. ber of votes is ineligible, the candidate receivWhere candidate receiving the highest numing next highest vote is not elected, in absence of statutory provision to the contrary, with the result that there is no election. 8. ELECTIONS 126(1)-PRIMARY ELECTIONS -QUALIFICATIONS OF CANDIDATES. Where primary election candidate receiving highest vote for Democratic nomination for Governor did not become Democratic nominee in view of Direct Primary Law of June 16, 1913, to get highest vote of Republican party with § 23, as amended in 1917, because of failure which he was affiliated 35 days before election, there was no nomination by Democratic party. 9. ELECTIONS 135-PRIMARY ELECTIONS STATUTES-"VACANCY.' The word "vacancy," in Direct Primary Law of June 16, 1913, § 25, as amended in We concur: WILBUR, J.; LORIGAN, J. 1917, prohibiting the filling of any vacancy on (179 Cal. 24) HENEY v. JORDAN, Secretary of State. (S. F. 8875.) (Supreme Court of California. Sept. 24, 1918.) 1. ELECTIONS 21-DIRECT PRIMARY-VALIDITY OF STATUTE. a party ticket by party committee, except where caused by death occurring after primary election, refers to any case where for any cause there is no nominee of the party for an office. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vacancy.] 10. ELECTIONS 135-PRIMARY ELECTIONFILLING OF VACANCY BY CENTRAL COMMITTEE. Direct Primary Law of June 16, 1913, § 23, as amended in 1917, precluding a candidate Where candidate receiving largest vote for who failed to receive the highest number of Democratic nomination for Governor did not votes cast for a nomination by the party with become Democratic nominee in view of Direct which he was affiliated 35 days before election, Primary Law of June 16, 1913, § 23, as amendas evidenced by his affidavit of registration, from ed in 1917, because of failure to get highest being the nominee of another party, is consti- Republican vote, with which party he had aftutional under Const. art. 2, § 22, author-filiated 35 days before election, the Democratic State Central Committee was precluded by section 25 as amended in 1917 from filling the vacancy. 11. ELECTIONS 22 - PRIMARY ELECTION FILLING OF VACANCIES-VALIDITY OF STAT UTE. Direct Primary Law of June 16, 1913, § 25, as amended in 1917, prohibiting the filling by party committee of any vacancy on a party ticket except where caused by death occurring after primary election, is not unconstitutional. In Bank. Application by Francis J. Heney for writ of mandate directed to Frank C. Jordan, as Secretary of State of the State of California. Order to show cause discharged, and the proceeding dismissed. Joseph H. Call and Daniel Simms, both of Los Angeles, and Bert Schlesinger and John O'Gara, both of San Francisco, for petitioner. U. S. Webb, Atty. Gen. (Wm. H. Jordan, of San Francisco, of counsel), for respondent. Isidore B. Dockweiler, of Los Angeles, and Garret W. McEnerney, of San Francisco, for Democratic State Central Committee. ANGELLOTTI, C. J. This is a proceeding in mandate which has been submitted for decision upon the petition and a demurrer interposed thereto. of nomination and that he certify his name as that of the nominee of the Democratic party for the office of Governor at the coming general election, and respondent has refused to do so. Hence this application for a writ of mandate. In view of the proximity of the day fixed by law for the holding of the general elec tion, and the fact that to nominate any independent candidate or candidates for the office of Governor under the provisions of section 1188, Political Code, it is essential that the nomination papers therefor be presented to county clerks and registrars not later than September 26th, 1918, we deem it imperative, in the exercise of common fairness to all concerned, to announce at once the conclusion of the court upon the various questions presented by this application. It will be impossible in the short time afforded for the preparation of an opinion to do more than to state very briefly the reasons for those conclusions. 1. Section 23 of our Direct Primary Law of June 16, 1913 (Stats. 1913, p. 1404), as amended in 1917 (Stats. 1917, p. 1356), declares that except as to judicial, school, county, township, or municipal officers, "the perThe material facts as stated by the peti- son receiving the highest number of votes, tion are as follows: At the recent primary at a primary election as the candidate for the election, petitioner and Thomas Lee Wool- nomination of a political party for an office wine, who were each affiliated with the Dem- shall be the candidate of that party for such ocratic party for 35 days and more before office, and his name as such candidate shall the date of the primary election as shown by be placed on the official ballot voted at the their affidavits of registration, were candiensuing election"; provided he has paid a dates for the Democratic nomination for filing fee, and, "provided, further, that no Governor of the state of California, as was candidate for a nomination for other than a also James Rolph, who was so affiliated with judicial, school, county, township or municithe Republican party, as shown by his affi- pal office who fails to receive the highest davit of registration. Said James Rolph, number of votes for the nomination of the together with certain others, including Gov-political party with which he was affiliated ernor Wm. D. Stephens, were candidates for the Republican nomination for Governor. Mayor Rolph failed to receive the highest number of votes for the nomination of the Republican party, Governor Stephens winning that nomination. He did, however, receive the highest number of votes for the nomination of the Democratic party, the petitioner receiving the next highest number of votes for such nomination. Petitioner claims that, under our primary law, Mayor Rolph, by reason of his failure to win the Republican nomination, cannot be the nominee of the Democratic party, and that he (petitioner), by virtue of having the next highest vote, is the Democratic nominee. He further claims 35 days before the date of the primary elec- plain and unambiguous in its terms, and the al election. that, in the event that a vacancy has been caused by the disqualification or ineligibility of Mayor Rolph, he is the nominee of the [1-4] We are entirely satisfied that there Democratic party by reason of having been is no good ground upon which the courts selected by the Democratic State Central Committee to fill the vacancy. His petition may declare this provision to be violative of. alleges, and it is conceded by the demurrer our Constitution. The Constitution itself dethereto, that such committee has assumed to designate him to fill such vacancy, if, in fact, a vacancy existed. He has demanded of respondent that he issue to him a certificate clares as follows: enact laws relative to the election of delegates "The Legislature shall have the power to to conventions of political parties; and the Legislature shall enact laws providing for the direct nomination of candidates for public office, by electors, political parties, or organizations of electors without conventions, at elections to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties, or organizations of electors may participate in any such primary election. It shall also be lawful for the Legislature to prescribe that any such primary election shall be mandatory and obligatory." Section 22, art. 2. only one affiliated with a party could be a candidate for nomination by it, and that the reasonable method of determining whether one was so affiliated was the one prescribed, the manner in which he voted at the last preceding election as stated in his own affidavit. The matter was very fully considered by the court and the provision was sustained. In this respect the decision was expressly ap It is in pursuance of this provision that proved in the later case of Hart v. Jordan, the Legislature has enacted our direct pri- 168 Cal. 321, 143 Pac. 537; the court saying: mary law. There can be no doubt that the "Under this section (21⁄2 of art. 2, Const.), the object and effect of the laws enacted by the Legislature may prescribe tests and condiLegislature was to make primary elections tions for candidates as well as for electors." mandatory and obligatory in so far as politi- We regard this matter as definitely settled by cal parties are concerned, and to preclude our decisions. In so far as is material to a nomination by a political party made in any the question of power and reasonableness, other way than that allowed by the act. In there is no real difference between the proconsidering whether any particular provision vision involved in Socialist Party v. Uhl, of that act is violative of our Constitution, supra, and the provision here assailed. A it must be borne in mind that the question person affiliated with one party is precluded as to what provisions are essential to attain from nomination by any other party at the the objects contemplated by section 22, art. primary only when he fails to receive nomi2, of the Constitution, is one peculiarly with- nation at the hands of his own party, and in the domain of the legislative department, the matter of his party affiliation is to be dewhich is practically given plenary power in termined in a different way. As to the conthe matter; that the presumption is in favor dition rendering him ineligible in the event of the validity of any provision made; and of his failure to obtain his own party nomithat, if there is any theory upon which the nation, the Legislature may well have conprovision might reasonably have been con- cluded that it would not be conducive to the cluded by the Legislature to be essential, the integrity of parties that one who has failed courts may not interfere. As was said in to obtain nomination for a certain office by Re Spencer, 149 Cal. 400, 86 Pac. 897, 117 his party should be allowed to avail himself Am. St. Rep. 137, 9 Ann. Cas. 1105, quoting of the nomination of an opposing party for approvingly from a prior decision: that office in opposition to the successful nominee of his own party; or that such opposing * "The delicate act of declaring an act of the Legislature unconstitutional and void should never be exercised unless there is a clear repug-party should be allowed to have him as the nancy between the statute and the organic law. nominee under such circumstances. We cerIn a doubtful case the benefit of the tainly cannot say that this was an unreasondoubt is to be given to the Legislature." able conclusion, or that in providing against [5] We regard the opinion in the case of such a situation the Legislature was exceedSocialist Party v. Uhl, 155 Cal. 776, 103 Pac. ing its power. Nor can we say that the test 181, as practically disposing of what we con- prescribed by the Legislature for determining ceive to be the principal claim of those at- the party affiliation in such a case is unreatacking the provision which here disqualifies sonable. Doubtless other tests might have Mayor Rolph. The essential thing there de- been adopted, some of which might appear to cided, in so far as any question here involved us, if we were sitting as legislators, more is concerned, was that it was competent for reasonable than the one prescribed. But the the Legislature, under section 22, art. 2, of Legislature adopted the one stated in the the Constitution, to prescribe any test not provision. The theory apparently was that it only for electors voting at the primary, but was reasonable to accept the sworn avowal also for candidates for a party nomination, of allegiance of a person to a party, standing which had any reasonable relation to the of record 35 days before the primary, as conmaintenance of the integrity of political par-stituting the best and only evidence of such ties, which was held to be one of the obvious and authorized purposes of the primary law. The precise question there under discussion was as to the validity of a provision of the primary law which precluded any one from We have considered the many other minor being a candidate for a party nomination at objections made by learned counsel to this a primary and practically precluded the provision, and are of the opinion that none party from nominating him, unless he filed of them is sufficient to warrant us in declarwith his nomination papers an affidavit show-ing the provision violative of the Constituing that he affiliated with the party at the tion. last preceding election and that he had either not voted at all, or had voted for a majority of the candidates of that party. Substantially the Legislature had thus said that real and permanent affiliation with a party for all the purposes of the ensuing primary, as would make desirable such a provision as the one here involved. [6] The claim of petitioner that Mayor Rolph, who received the highest vote at the primary for the nomination of the Democratic party for the office of Governor, cannot be the candidate of that party in view of garding their votes as mere nullities. The this provision of the primary act, a claim not result necessarily is that as to the office of disputed by respondent, must be held good. Governor there was no nomination made by [7] 2. We are satisfied that, under the cir- the Democratic party at the primary election. cumstances we have stated, petitioner cannot [9-11] 3. As to the claim that petitioner is be held to have been nominated at the pri- entitled to be the nominee of the Democratic mary election, or to be the candidate of the party by virtue of his selection by the Demoparty by virtue of such primary election. cratic State Central Committee: Prior to There is nothing in the primary law to au- the amendments made to the primary act of thorize such a construction of the act as 1917, a party committee was empowered to would lead to such a conclusion. Indeed, fill vacancies on the ticket of the party octhe provision is explicit, that, as to party curring after the holding of the primary elecnominations, "the person receiving the high- tion in all but two specific cases. In 1917 est number of votes at a primary election as section 25 of the act was so amended as to the candidate for the nomination of a politi- prohibit the filling of any vacancy on a party cal party for an office shall be the candidate ticket, resulting from any cause whatever, of that party for such office," etc. The peti- except in the single case of a vacancy by reationer did not receive the highest number of son of the death of the candidate occurring votes cast for such nomination, but only the after the holding of the primary election. In next highest, It is a rule approved by the such a case only is the party committee auoverwhelming weight of authority in this thorized to select a candidate of the party country, and expressly affirmed several times for the general election. The language of in this state, that, where the one receiving the section, which is one devoted wholly to the highest vote at an election is for any the matter of "vacancies," is such as not reason ineligible, the candidate receiving the to fairly admit of any other construction. It next highest vote is not elected, in the ab- is expressly provided that "the vacancy cresence of statutory provision to the contrary, ated," among other things, "by reason of the with the result that there is no election. See failure of a party to nominate any candidate Saunders v. Haynes, 13 Cal. 145; Crawford for the office at the primary election, or for v. Dunbar, 52 Cal. 36; People v. Rodgers, any other cause except the death of the can118 Cal. 396, 46 Pac. 740, 50 Pac. 668; Camp-didate occurring after the primary election, bell v. Free, 7 Cal. App. 151, 93 Pac. 1060; note to State v. Bell, 124 Am. St. Rep. 211; note to Sanders v. Rice, L. R. A. 1918C, 1157. [8] We can see no good reason why this rule is not applicable to primary elections. There is support in some authorities for an exception to this rule to the effect that in a case where votes are cast by voters for an ineligible candidate with full knowledge on their part of his ineligibility, or for one who is dead with full knowledge of his death (see State v. Frear, 144 Wis. 79, 128 N. W. 1068, 14 Am. St. Rep. 992), they may be disregarded altogether, and treated as nullities, with the result that the person receiving the next highest vote may be held to have received the highest number of lawful votes. But this exception is necessarily and avowedly based on a theory that the votes are knowingly cast under such circumstances that they may fairly be held to be mere nullities-cast with full knowledge that they cannot be effective for any purpose. We have no such situation in this case. Those of the Democratic party who voted for Mayor Rolph voted for one We can see no warrant for disregarding whose name was lawfully on the primary the plain terms of the primary law that are ballot and who was conditionally eligible to involved in this proceeding. To any comreceive the Democratic nomination. In view plaint that is made concerning their 'practiof the law, of course they must be presumed cal effect we can only say that they are a to have known, as is alleged in the petition, part of the law of the land, authorized by that he could receive the Democratic nomina- the Constitution itself, which embodies the tion only in the event that he was also nominated by the Republican party; but they nevertheless chose to vote for him as the law contemplated they might lawfully do. To our shall not be filled." It is clear that the term "vacancy," as used in this section, refers to any case where, from any cause, there is no nominee of the party for an office. It seems plain to us that, if this provision is a valid enactment, it must be held that the party committee was without authority to make petitioner the nominee of the party. It is claimed by learned counsel that it is violative of our Constitution. We are of the opinion that it cannot fairly be so held. The plain object of the provision was to prevent any departure from or evasion of one of the main purposes of the primary law, that of requiring all party nominations to be made directly by the members of the party at a primary election. Authorization to the party committee to fill a vacancy was therefore confined to the single instance of the death of the candidate after the primary election. Certainly we cannot hold that the Legislature was not warranted in concluding that the provision was a reasonable and necessary provision to make in this behalf. will of the people of the state expressed directly by the popular vote on the proposition. From what we have said, it follows that the respondent properly refused to comply |