People ex rel. Ellsworth v. Laine

33 Cal. 55 | Cal. | 1867

By the Court, Sawyer, J. :

We have carefully examined the Registry Act with reference to the questions presented by the record, and we are of opinion that it was intended to cover the whole subject of the elective franchise, and to apply to municipal and local, as well as to general State and county elections. Section thirteen empowers the Board of Supervisors of each county, and makes it the duty of ■ such Board immediately after the passage of the Act, to proceed to establish a convenient number of Election Districts in the county and define their boundaries, etc., “ as the convenience of voters may require,” (Laws 1855-6, p. 292,) “ provided that every Election District throughout the State shall be so constructed as not in any case to embrace more that one township, and in such manner that its exterior limits shall not cross the exterior boundaries of any township, incorporated town or city, or any ward, district, or other territorial - subdivision in and for which local officers are to be elected.”

There can be no difficulty in laying off Election Districts in Petaluma under this provision. The district cannot embrace more than one township, but it may embrace less. That part of the City of Petaluma embraced in Petaluma Township may be formed into one or more districts, and that part embraced in Vallejo Township into others, as the circumstances may seem to require, care being taken to limit each Election District to the “ ward, district or other territorial subdivision in and for which local officers are to be elected.” In every Election Precinct there is to be appointed by the Board of Supervisors, or elected in the mode prescribed, a Clerk and two Judges of Election. (Secs. 14, 15 and 16.) The Clerk and Judges of Elections so appointed or elected, “ shall constitute the Board of Registration for the enrolment in their respective districts of all the legal voters thereof.” (Sec. 17.) The Board of Registration is to make out the list, “ designated and known in law as the poll list.” (See. 18 et seq.)'

Prior to July 1st, 1867, the Board of Registration were authorized to enroll duly qualified voters on the poll list, although they were not registered in the Great Register. (Sec. 27.) But after July 1st, 1867, with certain specified exceptions, the Board of Registration is not authorized to enter names upon the poll lists which are not on the Great Register and uncancelled. (Sec. 28.) The Board of Registration, however, make up the poll lists to be used at the polls on the day of election, referred to in section thirty-one. By the provision of section twenty-nine, “ ETo person shall be allowed to vote * * * unless his name is enrolled on the poll list where he offers to vote in such district,” etc. This law was in force at the time of the holding of the municipal election at Petaluma, in April last, and it had heen in force long enough to give the Board of Supervisors ample time to lay off Election Districts and appoint Boards of Registration, and for the Boards to make up the necessary poll lists. There was nothing in the way to prevent the holding of the election in all respects in pursuance -of the provision of the law, but the neglect of the Board of Supervisors to perform the duties enjoined upon them by the statute. This duty was neglected, and consequently nobody was in a condition to authorize him to vote at the municipal election in April, and no vote was lawfully cast for the respondent. To sustain this election in the face of the prohibitory provisions of the statute would be to hold that a Board of Supervisors, by neglect or wilful and contumacious refusal to discharge the duties imposed by law on that body, may wholly nullify an Act of the Legislature. We think the election was void, and conferred no rights upon the parties who claim to have been elected Trustees. This state of affairs is, undoubtedly, to be regretted, but the City of Petaluma is not without a government ; for section three of the Act of incorporation provided that the Trustees elected “ shall hold their office for the term of one year and until their successors are chosen and qualified.” (Laws 1858, p. 140, Sec. 8.)

Judgment reversed and District Court directed to enter judgment against defendant and respondent and in favor of the relator, in pursuance of the prayer of the complaint.

Mr. Justice Sanderson did not express an opinion.