83 P. 161 | Cal. Ct. App. | 1905
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *102
We have this day affirmed the judgment in this action as to defendant Hersom. (See, ante, p. 96,
At the close of plaintiff's case a motion for a nonsuit was made, and thereupon the complaint was amended by inserting the language above italicized. Appellants objected to such amendment, at that stage of the case, as tending to make a material difference in the status of and issues in the case. The amendment did not change the cause of action, and the objection interposed was properly overruled. (Lee v. Murphy,
It is next claimed that the evidence is insufficient to sustain the findings. We think the evidence sufficient to support the finding that at the time the election was held the township contained a population of less than six thousand persons. The census taken some months afterward could have no bearing on this issue, and the other enumerations sustain the finding. This finding being ample to sustain the judgment in this regard, it is immaterial whether the other finding as to the specific number of inhabitants stands or falls. (Hayden v. Collins,
The determination of a canvassing board, though ordinarily accepted as prima facie evidence of facts recited, fails to be evidence of any fact, when the presumption *106
attaching to official records is destroyed by showing that illegality, uncertainty and inconsistency, incapable of explanation, permeate and taint every proceeding as shown by such record. The right of any public official claiming to hold by election in such a proceeding as this rests primarily on evidence contained in public records we have mentioned; and, when it is shown that such claim has no foundation in these records, it follows as a necessary corollary that the claim falls with the foundation on which it must rest, and that,prima facie, the absence of any right to occupy the office is established. In other words. when this record, provided by law for such purpose, failed to show the election of either of the appellants, the contrary presumption arose, and in the absence of other evidence sustaining their claim, this alone would justify the findings, conclusion, and judgment here assailed. It is said that the course pursued in Russell v. McDowell,
It is said that the court erred in admitting the evidence of the election officers. The ballots having been destroyed, such evidence was the best in degree, and we can find no rule of law, nor can we think of any rule of public policy, forbidding such testimony. Be that as it may, however, in the absence of such testimony, the adverse presumption arising from the records, and testimony showing the general manner of conducting the election, and large number of votes counted as compared with the number of ballots cast, would defeat appellants' claims, and hence such testimony was harmless, even if it was all erroneously admitted. (Russell v. McDowell,
The election proclamation issued by the board of supervisors cannot be considered as conclusive or any evidence that the population of the township was more than six thousand. The action was not barred by the statute of limitations. (Code Civ. Proc., secs. 343-345.)
The other rulings complained of were either correct, or, if erroneous, were harmless.
The judgment and order are affirmed.
Chipman, P. J., and Buckles, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on November 25, 1905, and the following opinion was then rendered: *108
Addendum
A careful examination of the record, in the light of the petition for rehearing and recent decisions therein cited, has not shaken our confidence in the conclusion voiced in the decisions filed herein. The cases of People ex rel. Russell v.Town of Loyalton,
It is said that there is no evidence showing that this was the case in four precincts. We inadvertently stated in the former opinion that officers of each precinct gave testimony to that effect. This was a mistake as to the four precincts referred to. But we think the general course pursued and the general theory upon which the election proceeded is sufficient to indicate that the conduct of the election was substantially the same in all precincts. Counsel say we should have indulged the presumption that the election was *109
legally conducted in these four precincts, and hence have found for Davidson. But an examination of this question has demonstrated the dangerous uncertainty which would attend guesswork under such circumstances. If the votes cast in these four precincts were counted as tallied in the statement of the vote, a minority candidate, Peters, would have a majority of the votes. We think it sufficiently appears that neither of the claimants has a right to the office. Such rights depend on the records provided by law, and when it is shown that such records do not sustain a claim to public office, and are utterly unreliable, the claim falls. Gibson v. Twaddle,
The rehearing is denied.
Chipman, P. J., and Buckles, J., concurred.
A petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on December 26, 1905.