nancy between the acts. (Casey v. Harned, 5 Iowa, 1; Talcott v. Commissioners, 53 Cal. 199.)

The purpose of all rules of construction is to ascertain, if possible, the intention of the legislature. For it is the legislative intent that must control. Respondent's contention amounts to this: Though the special act does not, in so many words, say that no space shall be left on the ballot wherein the elector may write the name of any person who is his choice for the office that may become vacant by the recall of the incumbent, nevertheless, this result must follow from an application of the maxim expressio unius est exclusio alterius. [5] This maxim expresses but one of the canons of interpretation. It should not be used as a guide for the construction of a statute when, if adopted, its application would invalidate the very statute sought to be construed, by making it violative of some constitutional inhibition. Only by holding that the general statute (that is, the provision of the Political Code that requires blank spaces to be on the ballots), occupies with the special statute the field covered by the latter, can we avoid invalidating the special act.

The constitution of this state guarantees to every qualified elector the right to vote at all elections that may be authorized by law. "Every native citizen of the United States, every person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and every naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been resident of the state one year next preceding the election, and of the county in which he or she claims his or her vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law." (Const., sec. 1, art. II.)

It is apparent from a reading of the act for the recall of elective city or town officers, that all ballots to be used at recall elections held thereunder are required to be printed and furnished at the public expense, just as at all other elections; and that the use of any ballot other than such as may be furnished by the state is absolutely prohibited. If, therefore, the ballots that are required to be used at a recall election have no blank space wherein the voter may

write the name of a person whose name is not printed on the ballot, the voter must be compelled to vote for the person or persons whose name or names may be printed on the ballot furnished him, or be deprived of the privilege of voting for any person whatever. [6] If that is the construction that must be placed upon the act for the recall of elective city and county officers, the statute must be held to be unconstitutional and void; for it is not within the power of the legislature to restrict electors in their choice of candidates or prohibit them from voting for persons whose names are not printed on the ballots. (Eaton v. Brown, 96 Cal. 371, [31 Am. St. Rep. 225, 17 L. R. A. 697, 31 Pac. 250]; Britton v. Board of Commrs., 129 Cal. 337, 342, [51 L. R. A. 115, 61 Pac. 1115]; Spier v. Baker, 120 Cal. 370, 375, [41 L. R. A. 196, 52 Pac. 659]; Sanner v. Patton, 155 Ill. 553, [40 N. E. 290]; 15 Cyc. 289; note on pp. 686 et seq., vol. 91, Am. St. Rep.) As was said by Mr. Justice Henshaw in Britton v. Board of Commrs., supra, speaking with reference to statutes restricting the ballots to those furnished by the state: "But where such laws have been upheld, the right of the voters freely to express their preference has always been preserved, as in this state, by blank spaces wherein he may write the names of the candidates of his choice." (129 Cal. 342, [51 L. R. A. 115, 61 Pac. 1117].)

It is no answer to say that the voter, by filing a nominating petition, may have the name of the nominee of his choice placed upon the ballot. He may not be able to induce the requisite number of electors to join with him in so nominating the candidate of his choice. If the narrow construction of this act that respondent contends for be the only permissible construction, the voter is deprived of his constitutional right of suffrage-deprived of the right of exercising his own choice; and where that right is taken away, there is nothing left worthy to be called the right of suffrage-the boasted free ballot becomes a delusion. To justify a struction that would make such consequences possible, the legislative language should be so clear and unequivocal that it cannot with reason be said that room is left for any other permissible construction.

[7] It is a well-recognized canon of interpretation that, where a statute is fairly susceptible of a construction that

makes it harmonize with the constitution and comport with the legitimate powers of the legislature, that is the construction which it should receive. (Chesebrough v. San Francisco, 153 Cal. 559, 567, 568, [96 Pac. 288].) [8] A construction of an election law that will permit the virtual disfranchisement of any qualified voter should never be adopted if the statute be fairly susceptible of any other meaning. (Bowers v. Smith, 111 Mo. 45, [33 Am. St. Rep. 491, 16 L. R. A. 754, 20 S. W. 101]; Park v. Rives, 40 Utah, 47, [119 Pac. 1034]; Eckerson v. Des Moines, 137 Iowa, 452, [115 N. W. 177].)

In the light of the foregoing considerations, we are satisfied that it was the intention of the legislature that the requirement of sections 1196 and 1197 of the Political Code with respect to blank spaces on the ballots, wherein the voter may write the names of the candidates of his choice, should apply to recall elections held under the recall act of January 2, 1912, just as in the case of every other election of public officers.

There is another consideration which impels us to this construction of the act in question. It is this: If the requirement of the code sections relative to blank spaces on the ballots should be held not to be applicable to municipal recall elections, then it would be possible for the act for the recall of elective city and town officers to defeat its own purpose. The purpose of the recall statute is to enable a majority of the voters, voting at any recall election, to remove an unfaithful or undesirable incumbent of any elective office of the city or town. But if, as in the instant case, no nominating petition has been filed nominating a candidate for the office, and if, therefore, no name of such nominee be printed on the ballot, then even though a majority of the voters vote 'Yes' on the question of the incumbent's recall, their purpose must be frustrated if they are not to be permitted to write in the name of any person as their choice for the office. The language of the act is that if a majority of the voters shall vote "Yes" on the question of recall, then "said incumbent shall thereupon be deemed removed from such office upon the qualification of his successor." But if, as in the present case, no candidate's name is printed on the ballot, and if no voter can write in the name of any person as his choice for the office,

then there is no "successor" who can qualify, and, consequently, no vacancy in the office, to be filled by appointment or otherwise. For the act says, in effect, that the incumbent, though a majority vote for his recall, is not for that reason alone deemed to be removed. He is not deemed removed until the "qualification of his successor. This reasoning is in nowise vitiated by the last sentence of the section, which reads: "In case the person who received the highest number of votes shall fail to qualify within ten days after receiving the certificate of election, the office shall be deemed vacant and shall be filled according to law." (Stats. (Ex. Sess.) 1911, p. 130.) This language refers only to a vacancy created by a failure to qualify on the part of a person whose name was printed or written on the ballot, and who received the highest number of votes cast at the election.

For the foregoing reasons we think the demurrer should be overruled and a peremptory writ issued as prayed. It is so ordered.

Sloane, J., and Thomas, J., concurred.

[Civ. No. 2078. Third Appellate District.-January 23, 1920.] LUCY M. TITUS, Respondent, v. RICHARD S. WOODS et al., Defendants; GUARANTEE MORTGAGE COMPANY OF SAN DIEGO (a Corporation), Appellant.

[1] MORTGAGES - GUARANTY OF PAYMENT BY ASSIGNOR ·

- ACTION TO

FORECLOSE - PARTIES JUDGMENT.-Where a mortgagee assigns a note and mortgage and, for a valuable consideration, guarantees the payment of the note, in a subsequent action by the assignee to foreclose the mortgage such mortgagee may properly be joined with the makers of the note as a party defendant and a deficiency judgment be docketed against it therein.

APPEAL from a judgment of the Superior Court of Orange County. W. A. Sloane, Judge. Affirmed.

The facts are stated in the opinion of the court.

Sweet, Stearns & Forward for Appellant.

Wirt Francis and Ralph E. Jenney for Respondent.

BURNETT, J.-The action was brought to foreclose a mortgage made by the defendants, Richard S. Woods and Mary C. Woods, to appellant Guarantee Mortgage Company of San Diego, to secure the payment of a promissory note of $1,250 and interest, dated March 29, 1912. The complaint alleges that the note and mortgage were assigned by appellant to the plaintiff by an instrument in writing on the seventeenth day of July, 1912, and "that at the time of the assignment of said note and mortgage as aforesaid, the said defendant, Guarantee Mortgage Company of San Diego, for a valuable consideration guaranteed the payment of said promissory note." To the complaint the appellant demurred on the grounds: "That it did not state a cause of action against the appellant; that there is a misjoinder of parties defendant in that the appellant was improperly made a party thereto and improperly united as a defendant with the makers of the mortgage as well as with the other defendants; that there is a misjoinder of causes of action in the complaint in that a cause of action against appellant as a guarantor is improperly united with one for the foreclosure of the mortgage; that a cause of action against the appellant on a contract of guarantee was improperly united with a cause of action against the makers of the promissory note,' and that the complaint was uncertain and ambiguous for certain reasons therein enumerated. The demurrer was overruled and appellant declined to answer. Judgment of foreclosure was rendered August 29, 1917, in which the clerk of the court was ordered to docket a judgment for any deficiency that might remain unpaid of the indebtedness secured by the mortgage after the sale of the mortgaged land. The mortgaged property was sold, a deficiency reported by the commissioner, and deficiency judgment was docketed against appellant on October 10, 1917. From these judgments the appeal has been taken.

[1] We understand that the only ground of demurrer upon which appellant really relies as possessing merit is that, as a guarantor of the payment of said note, it was improperly joined with the makers thereof in the suit to forc