125 Cal. 16 | Cal. | 1899
This action is for usurpation of the office of mayor of Salinas City. The city was reincorporated by special act of the legislature passed in 1876. In section 5 of that act it is provided as to municipal elections,' among other things, that “all provisions of law regulating elections for state and county officers shall apply, as far as practicable, to elections under this charter. The polls for all elections shall be opened at such hour as may be designated by the mayor and common council in giving notice of said election; provided, that the hour for opening the polls shall in no case be later than the hour of 2 o’clock P. M., and the polls shall not be closed until sundown of the same day.”
A municipal election was held on the 14th of March, 1898, at which Francee, at whose instance this suit was brought, and Hill, defendant, were candidates. The proclamation calling the election directed that the polls should be opened at sunrise and closed at sundown. The general election law for state and county officers directed that the polls shall be closed at 5 P. M. There are three wards in the city. In two they followed the state law and closed the polls at 5 o’clock P. M., which was found to be one hour and six minutes before sundown. Counting the votes from all the wards Hill would have a majority of twenty-four, and he was declared elected by the council.
It is contended by the appellant that the language of the section providing that so far as practicable the general election law shall apply, indicates the intent that the general law should govern all city elections. If this were so, it is difficult to see why anything was said in the charter about the time for opening and closing the polls, and in regard to many other things mentioned in section 5. It is suggested that it was intended to provide that the polls need not be opened until 2 o’clock P. M., but to make no change as to the hour of closing, for then the general law directed that the polls be closed at sundown, which time was afterward changed to 5 o’clock P. M., and, we may add, might be changed to 2 o’clock P. M. But it seems perfectly manifest that the permission given to the council by its proclamation to fix a later hour for the opening of the polls than that fixed in the general law, and the requirement that the polls must not be closed before sundown, are parts of the same provision. The absolute requirement is because of the power given the board to delay opening the polls. Where but few votes would be cast it is not necessary that the polls should be kept open all day, but it is a wise provision which directs that, even then, voters may know that at all events the-polls will be kept open for a certain designated portion of the day.
Even if this were not so, there is no more ground for holding that the provision that the council may designate a different time for opening the polls than that fixed by the general law shall stand as an exception, than that the imperative requirement of the charter that the polls shall not close before sundown shall exist as an exception, notwithstanding the general law. As already stated, both are coupled with the provision making the general law applicable, and are purposeless if notwithstanding the general law is to control in such matters; for the general election law must always provide for opening and closing the polls.
The charter being a law for a special case is not in conflict with a general law which provides otherwise. Even a general law subsequently passed does not repeal laws expressly made
It is said that under the ruling a majority of the voters are disfranchised, and that under such circumstances no one should be declared elected. Ho authority is cited for this proposition, and clearly it is for the legislature to determine the effect of such a failure. Whichever way the rule is made unscrupulous managers can take advantage of it to defeat -the popular will— if they are permitted so to do. It is not like the ease where a majority of votes are cast for one who is ineligible. There the votes are legally cast and counted, but a person has been elected who is not qualified to serve, and it is also true that the opposing candidate did' not receive a majority of the legal votes. There the votes may be canvassed and full return made of the result, which will be received and counted, but in this case the election in the offending precincts is declared void and no election was held therein. There are, therefore, no returns to canvass.
The judgment is affirmed.
McFarland, J., and Henshaw, J., concurred.