155 P. 639 | Cal. | 1916
The parties to this proceeding, an election contest, were rival candidates for the office of supervisor of the fifth supervisor district in Marin County at the election held November 3, 1914. Upon the canvass of the votes for said office by the board of supervisors it was declared that Mr. Pacheco had received three hundred and fifty-one votes and Mr. Sweetser three hundred and fifty. Thereupon this proceeding was instituted by Sweetser in the superior court of Marin County. Upon a recount of the ballots in court, it was determined by the court that Pacheco had received three hundred and thirty-three votes and Sweetser three hundred and thirty, and by the judgment the former was declared elected. This is an appeal by Sweetser from the judgment, the appeal having been ordered transferred to this court after decision by the district court of appeal of the first district.
The only questions presented by the appeal are as to rulings of the trial court in the counting of ballots. The bill of exceptions shows the proceedings in the trial court as to the ballots to which objection was made by either party, and the ruling of the court thereon, said ballots numbering thirty-eight. By stipulation these ballots were made a part of the bill of exceptions, and have been brought to this court for inspection and consideration.
The trial court counted seven ballots, on each of which the voter had stamped a cross in the voting square at the right of a blank space left on the ballot for the insertion by the voter of some name not printed on the ballot, without writing any name in said space. Its action in that regard was correct, as recently held by this court in Turner v. Wilson,
We have examined all the other ballots counted by the trial court to which objection was made, and find no error. InTurner v. Wilson,
The trial court did not err in refusing to count as a vote for Sweetser either ballot "Novato 1-15" or ballot "Novato 2-8." On the former all the crosses, including the only cross opposite Sweetser's name, were stamped in the rectangular space at the right of the name, but none of the *141
stamps was either wholly or partly within the voting square. Under the law as it now is and has been ever since the year 1903, the only way in which a voter can indicate his intent to vote for a particular candidate is by stamping a cross in, or at least partly in (see Pol. Code, sec. 1211), the voting square, the provisions of section 1205 of the Political Code being mandatory in this regard. Any other method is legally ineffectual to express an intent to vote for a particular candidate, by reason of the express language of this section providing how, and how only, the intent shall be indicated. This is made manifest by what is said by this court as to the mandatory character of section 1205 of the Political Code, in regard to the method of indicating a vote, in Tebbe v. Smith,
The trial court rejected ballot "Nicasio 1," a Sweetser vote, because the voter had stamped the cross as to various propositions on the word "Yes" or "No," instead of in the voting square; also ballot "Novato 2-19," a Sweetser vote, because the voter had stamped the cross on the word "Yes" as to several propositions, and then had stamped a cross in the square; also ballot "Black 8," a Pacheco vote, because the voter had attempted to vote on the various propositions by writing the word "Yes" or "No" in the voting squares instead of stamping a cross, and had also marked a cross with pen and ink in the voting square on one of the propositions; *142
and also ballot "Novato 1-3," a Pacheco ballot, because the voter had stamped his cross on the word "Yes" or "No" as to various propositions, instead of in the voting square. The vote for supervisor was properly indicated on each of these ballots. It was error to reject any of these votes in so far as the contest for supervisor was concerned. There was nothing on any of these ballots to indicate any intent to identify the ballot, and however defective any of them was to indicate a vote on any other candidate or proposition, it showed a good vote for a candidate for supervisor. (See Turner v. Wilson,
The trial court erred in rejecting ballot "San Antonio 6," a Pacheco vote. The only objection thereto was that the voter had written with a pencil the word "Matt" in the blank space for chief justice of the supreme court, drawn a pencil line through the word, and had then written the name "Matt Sullivan" in the blank space for chief justice supreme court, short term. Obviously, there was nothing thereon to indicate any intent to identify the ballot.
The trial court rejected fourteen ballots, nine Sweetser votes and five Pacheco votes, because of attempted erasures by the voter, with more or less success, of all signs of the cross first placed by him thereon, as to some candidate or proposition, generally some proposition or propositions. On only one of these was the attempted erasure as to a candidate for supervisor, ballot "Novato 1-2," where the voter had first stamped his cross in the voting square opposite Pacheco's name, and then had almost entirely removed all indications of such cross and stamped his cross in the voting square opposite Sweetser's name. The vote as cast, was clearly one for Sweetser, and the question in regard to this ballot is the same as that presented by the other thirteen ballots on which erasures appeared. We are satisfied that in view of the provisions of subdivision 4 of section 1211 of the Political Code, and the opinion in Turner v. Wilson,
The trial court rejected ballot "Novato 2-13," a Sweetser vote, on the objection that a cross near the upper right-hand corner of the ballot, on the margin to the right of the directions to voters, constituted a distinguishing mark invalidating the ballot. The cross is very light, and does not have the appearance of being the result of a deliberate impression of the voting stamp. There is absolutely nothing to indicate that it was not inadvertently made. We are satisfied that it cannot fairly be held that it appears from the ballot that this cross "was placed thereon by the voter for the purpose of identifying such ballot," and the statute says that such a mark cannot be held to invalidate the ballot, unless this appears. As already suggested, the only evidence on the subject is the ballot itself. We must hold that the learned trial judge erred in his conclusion that it appeared that this cross was placed on the ballot by the voter for the purpose of identifying the ballot, and in refusing to count the same as a vote for Sweetser.
What we have said disposes of all the ballots to which objection appears to have been made on either side. The erroneous rulings were in the rejection of twenty ballots, eight of which were Pacheco votes and twelve Sweetser votes. The ballots as to which no objection appears to have been made must be assumed to have been correctly counted. The result is that Pacheco received three hundred and forty-one votes instead of three hundred and thirty-three, and that Sweetser received three hundred and forty-two votes instead of three hundred and thirty. The trial court found the vote of each by precincts, and also in the aggregate. The findings as to precincts should have been as follows:
Novato 1......Sweetser 98 Pacheco 84 Novato 2...... " 126 " 97 Nicasio....... " 63 " 50 San Antonio... " 21 " 73 Black......... " 34 " 37
The only grounds of contest alleged in the statement filed by the plaintiff were malconduct of the election officers in the various precincts, in that they miscounted the ballots cast, and illegal votes. The latter ground apparently was *146
not urged on the trial, and the bill of exceptions shows that the proceedings on the trial consisted solely of a recount of the ballots cast, for the purpose of determining whether they were properly counted. The findings of the trial court show simply the conclusions based entirely on such recount. As already stated, the bill of exceptions shows all objections made by either party to ballots, respondent as well as appellant, as is proper in a proceeding of this character. (SeePeople v. Campbell,
The judgment is reversed and the cause remanded, with directions to the trial court to count the twenty rejected ballots declared by the opinion herein to have been improperly rejected, for the parties for whom they were cast, viz., twelve for plaintiff Sweetser and eight for defendant Pacheco; to add to the total vote heretofore declared by the findings as having been received by each party the votes thus gained; to make its findings of fact accordingly; and thereupon to enter judgment annuling the election of defendant Pacheco and declaring plaintiff Sweetser elected.
Shaw, J., Sloss, J., Henshaw, J., Melvin, J., and Lawlor, J., concurred. *147