Webster v. Byrnes, 34 Cal. 273

Webster v. Byrnes

34 Cal. 273 | Cal. | 1867

Lead Opinion

By the Court, Sanderson, J.:

It is unnecessary to consider the ruling of the Court below in respect to the votes of Diller and Dikeman. The facts in relation to each are substantially the same, and the ruling of the Court was the same. If we were to hold that the Court erred in not counting Biller’s vote for the contestant, we should also be compelled to hold that it erred in not counting Bikeman’s vote for the respondent. So whether their votes be counted or not will make no difference in the result.

Whitford’s vote should have been rejected. His name was not on the roll at Poverty Hill, where he voted, and his vote was therefore illegal, (Statutes 1865-6, p. 297, Sec. 29,) and must be deducted from the respondent’s tally.

*276Smith’s vote, however, was properly allowed to respondent. He was on the Great Begister and also on the poll list. He was also an elector according to the testimony. Whether the Board of Begistration required full or competent evidence of his naturalization cannot be inquired into in this case. The question here is: Is he a qualified elector of the precinct at which he voted, and was his name at the time upon the Great Begister and poll list ?

Deducting Whitford’s vote from the respondent’s tally leaves him three hundred and ninety-eight instead of three hundred and ninety-nine, as found by the Court below.

The Court below erred in counting for contestant the supposed votes of Gonsalves, Larkin and Haas, under the pretense that they would have voted for him had they been allowed to vote. In all contests of this character, the question is, which candidate received the highest number of legal votes ? The idea that the supposed votes of persons who did not vote, but who could have voted had they taken the necessary legal steps to entitle them to do so, should be counted for the candidate for whom they would have voted, is simply preposterous.

Deducting these three votes from the contestant’s tally, leaves biun three hundred and ninety-four instead of three hundred and ninety-seven, as found by the Court below. If we add to this number the votes of Jarnegan, Pittorff and Meyer, the respondent would still have a majority of one, so it is unnecessary to consider the ruling of the Court below in regard to their votes.

Judgment affirmed.

Rehearing

By the Court, Sanderson, J., on petition for rehearing:

It does not follow that points have been overlooked because they are not specially mentioned. What we said as to Whitford’s vote is also applicable to Fattar’s. ¡Neither was on the poll list. ¡Neither, therefore, was entitled to vote. It is so expressly provided in the twenty-ninth section of the *277Registry Act. Having said this as to Whitford’s vote, there would seem to have heen no special occasion for repeating it as to Fattar’s. The fact that Fattar’s name was first entered on the poll list and then afterwards erased hy the Board of Registration, can make no difference. The result is the same. His name was not on the poll list on the day of the election, and therefore he was not entitled to vote. Hnder the twenty-fourth section, the Board of Registration, at their final meeting, commenced on the third day next preceding the election, are expressly required to revise the poll list and to erase the names of all persons not then actually residing in the district, or who are not qualified electors, or are not for any reason entitled to remain enrolled. This the Board did in Fattar’s case, and the result was the same as if he had never been enrolled.

The Court did not err in allowing the respondent’s amendments to the appellant’s statement on appeal. The respondent has a right to show that the errors complained of by the appellant were without prejudice. To do that, if necessary, he may show that votes in his own favor were erroneously rejected by the Court below. Any other rule in this class of cases would render them interminable, whereas these actions are intended to he summary and to be brought to a final conclusion as soon" as possible. To that end the whole case should be brought here on appeal, so that it may be finally settled without further litigation, if it can he done. Hot only the interests of the parties, hut those of the people, who are also concerned in this class of cases, demand this practice.

Rehearing denied.

Mr. Justice Rhodes expressed no opinion on rehearing.