Kirk v. Rhoads

By the Court, Niles, J.: At a municipal election in the City of Sacramento, the appellant Rhoads was declared by the canvassing officers to have been duly elected a member of the Board of Fire Commissioners. Kirk, who received the next highest number of votes for the same office, instituted proceedings in the County Court to contest the right of this appellant to the office, charging malconduct upon the part of the Board of Judges of Election in counting votes for Rhoads which should not have been so counted, and in omitting to count other votes for the contestant which should have been counted for him. Rhoads moved to dismiss the proceedings upon the ground that the County Court had no jurisdiction in such cases. The provisions of Title II, Part III, of the Code of Civil Procedure, which treats of the contest of elections, are the same in all material respects as those of Article VI of the Act of March 23d, 1850, entitled an “ Act to regulate elections.” By section eleven hundred and eleven of the Code (corresponding with section fifty-one of the Act of 1850), it is provided that “ any elector of the county may contest the right of any person declared elected to an office to be exercised in and for such county; and, also, any elector of a township may contest the right of any person declared — 402 — elected to any office in and for such township, for any of the following causes,” etc. It is contended by the appellant that since these provisions do not include city officers, the legality of an election to such office cannot be investigated by the County Court under the Act. On the other hand it is claimed by the contestant that however the contest of municipal elections in other cities may be affected by the terms of either statute, the elections in the City of Sacramento are within the purview of one or the other, by virtue of the thirty-first section of the “Act to incorporate the City of Sacramento,” passed April 25th, 1863, which provides that “ all the provisions of law in force regulating elections, so far as the same are applicable and not inconsistent with the provisions of this Act, shall apply to the election of city officers by the voters of this city.” (Stats. 1863, p. 428.) As we construe this section, it was intended to apply to each municipal election of the City of Sacramento, so far as practicable, the provisions of the general election laws of the State, as existing at the time the election is held, and not merely those existing at the time the incorporating Act was passed. This is not inconsistent with the doctrine of Spring Valley Waterworks v. San Francisco, 22 Cal. 438. The Act of 1858, “for the incorporation of water companies,” provided that the mode of proceeding by such companies to appropriate lands “ shall be the same as prescribed” in certain sections of the Act of eighteen hundred and fifty-three for incorporating railroad companies. It was held that this was a substantial incorporation of those sections into the Act of eighteen hundred and fifty-eight, and that notwithstanding any change or repeal of the railroad Act, they remained in force so far as the law relating to water companies was concerned. But there is an obvious distinction between the adoption into one Act of a provision as prescribed in another specified Act, and the adoption in a — 403 — special Act of a general system in force by virtue of general laws. We think it is in accordance with the evident intent of the Legislature, to hold that the general election law of the State should apply, so far as applicable, and with its successive modifications and changes, to the municipal elections of Sacramento. Section one thousand one hundred and eleven and the following sections of the Code of Civil Procedure providing for the contest of elections, are a part of the general system for the regulation of elections, although separated from other cognate provisions by the arrangement of the Code. It follows from these views that the County Court had jurisdiction of the proceedings. 2. It was objected at the trial, that the order for the special term to hear and determine the contest was void, ‘ ‘ because no statement verified by the affidavit of the contesting party that the matters and things therein contained are true, had been filed with the County Clerk at or prior to the making of said order.” Section one thousand one hundred and fifteen of the Code of Civil Procedure provides that the written statement of the grounds of contest ‘‘must be verified by the affidavit of the contesting party that the matters and things therein contained are true.” The affidavit in this case was in the ordinary form of a verification of a pleading, and averred that the statement was true, except as to matters therein set forth on information and belief, and as to those matters affiant believed it to be true. This was a substantial compliance with the statute. To hold that the contestant must make oath to the absolute verity of every averment of the statement, would prevent the contest of an election in almost any conceivable case, and would work a practical abrogation of a beneficial law. From the very nature of the case, many and frequently most of the essential facts must come to the knowledge of the contestant through the statements of others; for he cannot be present at the various polling places to observe the conduct of the — 404 — officers of election. We think the object of the provision was merely to require a verification of the statement, but not to prescribe its form or terms. The object of the law is gained when the affidavit is in the ordinary form of a verification of a pleading. 3. Upon the main point presented by the record, we cannot express our own opinion better than by adopting the language of the learned Judge of the Court below, both in his statement of facts and conclusions of law : “ During the progress of counting the ballots in this Court, objections were made to counting a number of ballots, because they did not comply with the requirements of the Code. Section eleven hundred and ninety-one of the Political Code provides, that no ticket shall be used at any election, or circulated on the day of election, unless : “First—It is written or printed on paper furnished by the Secretary of State, or upon paper in every respect like such paper. ‘‘Second—It is four inches in width and twelve inches in length, or within one eighth of an inch of such size. “Third—If printed, the names of the persons voted for, and the office designated, are printed in black ink and in long primer capitals—the name of the office in small capitals, and of the person in large capitals, and both without spaces, except between the different words or initials in each line. “Fourth—If printed, the same margin is left above the printed matter as below it, and the side margins are equal in size. “Fifth—If printed, the lines are straight, and the matter single leaded. “ Sixth—If written, the matter is so written that no sign thereof appears when the paper is folded; and, “Seventh—It is free from every mark, character, or device — 405 — or thing that would enable any person to distinguish it by the back, or, when folded, from any other legal ticket or ballot. “Section twelve hundred and seven is as follows : ‘When a ballot found in any ballot box bears upon it any impression, device, color, or thing, or is folded in a manner intended to designate or impart knowledge of the person who voted such ballot, it must, with all its contents, be rejected.’ “Section twelve hundred and eight reads as follows: ‘When a ballot found in any ballot box does not conform to the requirements of section eleven hundred and ninety-one, it must, with all its contents, be rejected.’ “The object of these provisions is to secure the freedom and purity of elections, and to place the elector above and beyond the reach of improper influences or restraint in casting his ballot. When all the ballots cast are similar in appearance, and without any distinguishing mark or charateristic, the most dependent elector in the county may vote with perfect freedom, as his employer or other person upon whom he is dependent has no means of ascertaining for whom he voted. “It will be observed that there are two classes of things required by section eleven hundred and ninety-one. Over one class the elector can have no control, over the other he has perfect control. “For instance, whether the paper on which his ballot was printed was furnished by the Secretary of State or not, or upon paper in every respect precisely like such paper, or whether it is four inches in width and twelve inches in length, or falls short of this measurement by an eighth, or a sixth, or a fourth of an inch, or whether it is printed in long primer capitals or not, or whether it is single or double leaded; these are matters over which the great majority of electors have no control, and about some of which they are — 406 — entirely ignorant. The ballots are always furnished on the day of election by committees appointed for the purpose by the respective political parties, or by independent candidates or their friends. The elector, in but few instances, ever sees these tickets until he approaches the polls to cast his ballot, and it would be absurd in the extreme to require him to have a rule by which he could measure and ascertain whether his ticket exceeded or fell short of twelve inches in length by a sixth of an inch, or only by an eighth of an inch, or whether the color of his ticket was of the exact shade of the paper furnished by the Secretary of State. “Again, not one elector in five hundred knows the difference between long primer capitals or any other capitals, or whether his ticket is single or double leaded. It is impossible that he should know, or be able to determine these facts. This very case presents a striking instance of the absurdity of requiring the elector to judge of these facts. The respondent, Rhoads, by his counsel, objected to counting twenty-two ballots for Kirk, upon the grounds that they were not printed in long primer capitals, and that the lines were double leaded. “A foreman in a printing office was called in as an expert, and examined under oath as to whether the tickets objected to were printed in long primer capitals, and as to whether they were single or double leaded. He compared these tickets with the others to which no objection had been made, and he testified that all the tickets were printed with the same character of type, i. e., type known by the same name, but with a different face upon it. After measuring the tickets carefully, witness testified that the printing on the tickets to which objection was made, occupied a space about one eighth of an inch longer on the paper than was occupied by the printing on the other ballots. He also testified that these twenty-two tickets were either double leaded, or that a heavier lead than that known — 407 — as a single lead had been used. He further testified that all the ballots examined by him were double leaded in places; none of them, in fact, strictly complying with the requirements of the Code. ‘‘From this testimony it is perfectly clear that none but an expert, with his dividers in his hand, could possibly tell whether a given ticket complied with the requirements of the law or not; and to reject such tickets, cast in good faith by a qualified elector, would be to destroy instead of to protect the freedom and purity of elections. The difference in space occupied by two lines—the one double leaded, and the other single leaded—is only the one sixty-fourth part of an inch—a difference too minute to be determined except by measurement with the dividers. “ To defeat the will of the people in any election it would only be necessary to furnish the electors or a portion of them with tickets in which the printed lines were one sixty-fourth part of an inch further apart than required by the Code—a difference which cannot be detected except by an expert. ‘‘There are, however, other requirements of the Code within the power of the elector to control, and these, if willfully disregarded, should cause his ballot to be rejected. He can see, for instance, that his ballot is 'free from every mark, character, device, or thing that would enable any one to distinguish it by the back,’ and if, in willful disregard of law he places a name, number, or other mark on it, he cannot complain if his ballot is rejected and he loses his vote.” We agree with the County Judge in his conclusion that the twenty-two ballots spoken of were properly counted for Kirk, and that the motion to strike them from the count was properly denied. Judgment affirmed.