74 P. 1026 | Cal. | 1903
Lead Opinion
This was an election contest instituted under sections 1111 et seq. of the Code of Civil Procedure. The court rejected the ballots in the senatorial and assembly squares of the Republican ticket containing a cross after the words "No nomination." The result of the recount was, that the contestant received the greater number of legal ballots, and was declared elected. The contestee appeals.
Upon his appeal he urges that the proceeding provided for by the sections of the code above cited is unconstitutional. In substance his argument is, that, as a public office is a public trust, and as the public is interested in the legality of elections, and in determining who shall occupy an office, and as an individual is but a member of the public, he can have no resort to a private action such as this to redress his real or fancied wrongs. Hence it is contended that such an action must be prosecuted by, and on behalf of, and in the name of, the people of the state of California. We are not referred to any authority in support of this contention which seeks to overthrow a procedure which has been upon our books since 1853, and which has been recognized by this court upon numberless occasions. It is undoubtedly true that the public is interested in the legality of elections, *414 and in seeing that offices are filled by eligible citizens properly chosen. At the same time, however, it is perfectly competent for the legislature to do as it has done in this instance, and authorize any elector to take the proper steps for the determination of these questions. The fact that the contesting elector may have, and frequently has, some especial personal interest by reason of the fact that he claims the right of office for himself does not and cannot militate against the validity of the law.
To the further objection that these sections are unconstitutional because they do not provide for the right of trial by jury, and that the court erred in refusing the contestee a trial by jury in violation of the constitution, it is sufficient to say, that if it be conceded — though it is not hereby decided (see Kennard v. Louisiana,
There was thus presented, the marking of the ballots being admitted, the legal question as to whether or not the ballots so stamped carried upon their face a distinguishing mark. That such a mark is prohibited and renders the ballot illegal and void, has been repeatedly decided. (Farnham v. Boland,
In this case, however, the contestee asked the trial court to admit evidence, and to say that, because of the number of ballots so marked, this admittedly illegal mark did not and could not identify the ballots, and so ceased to be a distinguishing mark. But to do this would result in the absolute destruction of the rule, and leave each case involving this question to be decided, not as a matter of law, but as a discretionary matter resting with the trial judge. Either the rule must be adhered to, that a legal mark illegally placed upon the ballot by a voter, or an illegal mark made by the voter which may serve as a distinguishing mark, invalidates the ballot, as the code declares, or there is no rule whatever touching the matter, and the mandatory provisions of the ballot law are at once annulled.
It is finally urged by the contestee that the court erred in refusing to allow him to allege as part of his defense a violation of the Purity of Election Law upon the part of the contestant. In this the court did not err. An election contest such as this is a special statutory proceeding designed to contest the right of a person "declared elected" to enter into and hold office. (Austin v. Dick,
For the foregoing reasons the judgment appealed from is affirmed.
Van Dyke, J., Angellotti, J., and McFarland, J., concurred.
Concurrence Opinion
I concur in the judgment. With respect to the ballots upon which crosses appear in the square or space after the words "No nomination," I concur, because I regard the proposition that such crosses constitute a distinguishing mark as the settled law of this state, under the decisions cited in the main opinion. As the legislature of 1903 changed the form of the ballot so that those words will not appear on the ballots in future elections, the matter ceases to be of sufficient prospective importance to justify further consideration, even if the principle of the cases were considered as unsound.
This proposition being established, there can be no modification of it on the ground that there happens to be so many similarly marked ballots in a single precinct that it is not possible to identify any one of them as the ballot of a particular voter. The principle underlying the decisions referred to must be that the statute is to be considered as declaring each of such marked ballots void, because, as the mark is purposely made, there is an intent presumed by law on the part of each voter, at the time he casts it, to mark it for identification. This presumed intent is not affected, nor can *417 it be disproved, by showing other facts, necessarily unknown to the voter at the time, which tend to, or actually do, for that purpose make futile the act from which the intent is presumed. Hence, it is not material to show by a display of the ballots after the polls are closed, that so many other voters used the same mark that it failed to afford the means of identification which the law conclusively presumes the voter intended. It is the conclusive presumption of the law as to the intent of the voter by an illegal mark purposely made, and as to the effect of such illegal mark, which renders the ballot invalid, and not the actual intent, or absence of intent, of the voter, nor the actual effect of the mark to give the means of identification.
I do not mean to say, however, that where marks are found on a ballot which, if purposely made, might serve to identify it and make it void, but where the mark itself, or other appearances on the face of the ballot, shows that such mark was made accidentally, or unconsciously, and not with intent to mark or identify the ballot, the voter is to be thereby disfranchised and the ballot so marked declared invalid.
