12 Cal. 352 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J., and Field, J., concurring.
This proceeding is taken under the statute of this State, (Wood’s Dig., pp. 375 to 382) art. 2155, secs. 51 and 52, and the object of
The first specification is, that the returns are irregular, null, and void, in this : That, in the First District of the City of Sacramento, where three hundred and nine votes were returned for McKune, neither the Judge, Inspector, nor Clerk, conducting the election, were sworn, as the law required.
It will be seen that no charge of the fraud is made in this allegation, nor of collusion between McKune and these officers, nor of willful neglect of duty on the part of the officers, nor that the vote for McKune, so returned from these polls, was larger than the vote returned for Botts, nor that McKune received any benefit, or Botts any injury, by the counting in of the votes so returned. The naked question presented by this specification is whether the failure of the officers, conducting an election in a given district, to be sworn, of itself invalidates the entire election, without reference to its influence or the result. This proposition cannot for a moment be maintained. If it could, no State, or even County election, ever would stand; for, probably, no election has ever occurred in the State, at which some informality, of equal grade and importance to this, did not occur.
The rule is well settled that the mere receiving and counting of votes, improperly given, does not invalidate an election. This has been held in New York, in Massachusetts, Pennsylvania, and many other States; indeed, everywhere, we believe, where the question has been raised. The universal rule is, that an act, however erroneous, which does no injury to a party, cannot be the subject of legal complaint on
The next is “ of the votes as given for the said McKune, in the said district, two hundred thereof were not ascertained to have been written on, or printed on any ballot, as the law directs; but were guessed at, or inferred thereon. That the Judges, Inspectors or Clerks, failed to keep any legal tally paper in said district, and failed to return any tally paper to the Clerk of the County of Sacramento.” It is not easy to see what the precise charge is, which the pleader meant to convey by this statement; nor do the counsel for the appellant agree in their explanations at the bar. Whatever it was it seems liable to the same objections already made ; for it is not shown that there was a miscount of legal votes in favor of McKune. The only just complaint which could be made in this connection is, that votes were counted for McKune, which he did not receive; and, whether the votes were guessed at or not, if the guess was not erroneous, no injury could possibly result to Botts on that account. The specification as to the keeping of the tally will be noticed hereafter. It is to be observed that it is not alleged that a tally paper was not kept, but that no legal paper; this is a conclusion, not a fact. •
The complaint then states, that of the votes so returned, as given for McKune, twenty-eight were given and intended for Botts, and should have been so counted. This is a good statement, as showing an error of twenty-eight votes against McKune.
The next specification has been already answered. 'It merely charges that, in the Second District, neither the Inspector, nor Judges, nor Clerk, were sworn. That three hundred and sixteen votes were returned as given for McKune in this district; and, of the votes, eighty were never ascertained to have been written or printed upon any ballot; but were guessed at or inferred to be thereon. In another
The next specification is like the above, except that it refers to the Fourth District, in Sacramento; twenty-two votes for Botts, counted for McKune.
The next is also similar, applying to the Third District; ten votes for Botts, counted for McKune.
The next specifications are as follow: “ And the said Daniel H. Whipley is informed and believes, and so charges the truth to be, that at the precinct of Folsom, in the township of Granite, in the district aforesaid, one hundred and twenty-five votes were returned as having been given for the said McKune, as aforesaid, and that thirteen were given and intended for the said Botts, and should have been so counted, and that the Judge, Inspectors, and Clerks of the said precinct were guilty of misconduct in this : that they permitted the ballot-box to be removed from the room in which the election was held, before the ballots were counted; and the said ballot-box, when removed as aforesaid, was left in charge of a person who was neither a Judge, Inspector nor Clerk of said election.”
And the said Daniel H. Whipley further states, that he is informed and believes, and so charges the truth to be, that from the precinct in the township of Sutter, known as the “ Cottage,” one hundred and sixty-eight votes were returned as having been given for McKune, as aforesaid; that of the said votes one hundred and twenty-six were never ascertained to have been written or printed upon any ballot deposited in the manner prescribed by law, but the same -were inferred or guessed at, and so illegally returned for said McKune, as aforesaid; that neither the Judges, Inspectors nor Clerks were sworn at said precinct ; and that the ballot-box was removed from the room in which the election was held, and committed to the custody of persons who were neither Judges, Inspectors nor Clerks of said election, before the ballots were counted; that, in running out or counting up the tallies at said precinct, nine votes which were cast for Charles T. Botts were omitted—his vote being run out eight, when it should have been seventeen at that precinct.
And the said Daniel H. Whipley further states, that the precinct known as “ Michigan Bar,” in said District, where one hundred and two votes were returned as having been given for said McKune, as aforesaid, sixty of which were never ascertained to have been written or printed on any ballot, deposited in the manner prescribed by law; but the same were inferred or guessed at, and so illegally and improperly counted for the said McKune.
And the said Daniel H. Whipley further states, that he is informed and believes, and so charges the truth to be, that at the precinct known as “ The Magnolia,” in the township of Brighton, in the county aforesaid, from which fifty-eight votes were returned as having been given for the said McKune, as aforesaid, neither the Judges, Inspectors nor Clerks of the election were sworn; and that the ballot-box at said precinct was removed from the room in which said election was held, and was intrusted to the keeping of a person who was neither a Judge, Inspector nor Clerk of said election, before the ballots deposited therein were counted.
The only questions which it is necessary to consider are these: 1. Does the mere failure of the officers of elections, to qualify according to law, vitiate the election ? 2. Does the fact that the ballot-box was out of the possession of the officers of the election—no fraud, or collusion, nor circumstances of suspicion being shown—have that effect ?
Unquestionably public policy requires that every safeguard should be thrown around the elective franchise, and every protection which can shield the ballot-box from corrupt or improper influences given to it. But a strictness of requirement which, from the mere fact of the existence of informalities not shown to be injurious in their results, would suppress the declared will of the people constitutionally
The following provision of the statute plainly indicates for what grounds the contest may be maintained : 1. For malconduct on the part of the Board of Judges, or any member thereof. 2. When the person whose right to the office is contested, was not, at the time of
These provisions very clearly indicate that the Legislature did not mean that the returns of a candidate should be set aside when an election was held, at the proper time and place, and for the proper offices, unless it affirmatively appeared that there was such irregularity as affected the result of the election; and when these irregularities of mere mode occur, it rests with the contestant to show that they changed the result. Indeed, as the returns are prima fade evidence of the facts they import, and as the returned candidate—especially after being commissioned—is prima fade entitled to the office, the contestant must show that the election was not only conducted irregularly, but that in consequence of irregularities, the declared result was different from what it would otherwise have been.
The complaint, taking such portions of it as is sufficiently stated for true, does not show enough to entitle the contestant to his prayer; for the votes improperly counted for McKune, transferred to the list of Botts, are not enough to change the result.
The judgment is affirmed.