
    (No. 19040.
    The People ex rel. Harry I. Weisbrod, Petitioner, vs. Len Small, Governor, et al. Respondents.
    
      Opinion filed February 20, 1929.
    
    Farmer and Dunn, JJ., dissenting.
    David K. Tone, and Henry M. Ashton, (Harry I. Weisbrod, and Martin Weisbrod, of counsel,) for petitioner.
    Oscar E. Carlstrom, Attorney General, and Bayard L. Catron, (Albert D. Rodenberg, of counsel,) for respondents.
   Mr. Justice Heard

delivered the opinion of the court:

This is an original petition for mandamus filed by leave of court on behalf of Harry I. Weisbrod, relator, against Len Small, Governor, Louis L. Emmerson, Secretary of State, and Garrett DeF. Kinney, Treasurer of the State, constituting the State primary canvassing board of the State of Illinois. A demurrer has been filed to the petition.

By this proceeding the relator seeks to compel the State primary canvassing board to certify his name, as one of the republican nominees, to be placed upon the official ballot as a candidate for representative in the General Assembly for the nineteenth senatorial district at the election to be held on the 6th day of November, 1928.

The facts alleged in the petition and admitted by the demurrer may be stated as follows: On the 16th day of February, 1928, petitioner caused to be filed with the Secretary of State a petition, duly signed by the requisite number of qualified electors, by which petitioner was named as a candidate for the republican nomination for representative in the General Assembly of the State of Illinois for the nineteenth senatorial district at the election to be held on the 6th day of November, 1928. On the 5th day of March, 1928, a meeting of the republican senatorial committee of the nineteenth senatorial district was held, at which a resolution was adopted that the republican party should nominate but one candidate for representative in the General Assembly for the nineteenth senatorial district at the primary election to be held on the 10th day of April, 1928. A copy of the resolution was duly filed with the Secretary of State and also with the county clerk of Cook county. More than three republican nominees were placed upon the official ballot as candidates for representatives in the General Assembly for the nineteenth senatorial district at the primary election held on the 10th day of April, 1928, and the three republican nominees highest in vote, with the votes cast for them, were as follows: Charles E. Mariner 67,828, Harry I. Weisbrod (relator) 47,619, and Edmund J. Cross 15,610. On the 9th day of May, 1928, the State primary canvassing board issued a written proclamation declaring that Charles E. Mariner was the only republican candidate for representative in the General Assembly for the nineteenth senatorial district nominated at said primary election, and the respondents filed their certificate in writing with the Secretary of State certifying that Mariner was the only nominee for representative in the General Assembly for the nineteenth senatorial district placed in nomination

by the republican party at the primary election held on the 10th day of April, 1928.

The questions involved in this case are the same as those involved in People v. Emmerson, 333 Ill. 6o6, and for the reasons therein assigned the writ of mandamus is denied.

In each of these cases it is contended by respondents that this court cannot by mandamus compel the State canvassing board to issue a certificate of election for the reason that the Governor is a member of such board. We have not deemed it necessary to consider or pass upon this question in either of these cases.

Writ denied.

FARMER and DUNN, JJ., dissenting.  