Preston v. Culbertson

The Court : This is a contested election, each of the parties claiming to have been chosen Supervisor in District Ho. 3, Tuolumne County. Within forty days after the votes were canvassed, and defendant declared elected, plaintiff filed with the County Clerk his “ statement.” (Code Civ. Proc. § 1115.) He omitted to allege in it the date of the canvass—the “ return-day.” Defendant’s general demurrer was sustained. Plaintiff, with leave of the Court, filed an amended complaint, wherein the return-day was alleged as of a date more than forty days — 208 — previous to the filing of the amended complaint, but less than forty days prior to the filing of the original complaint. The defendant demurred to the amended complaint on the ground that it appeared therefrom that it was filed more than forty days after the “ return-day.” The amended complaint does not allege a cause of action against any new party; it relates to the commencement of the contest. Besides, § 1115, Code Civ. Proc., which provides for the requisites of the written statement or complaint, does not require that it shall show, by averment, that it has been filed within the forty days. That the complainant has not proceeded within the statutory time is, therefore, a matter of defense, to be made by answer in the nature of a plea to the jurisdiction, or to be taken advantage of by motion to dismiss the proceeding. ■As to alleged errors of the Court below upon the recount: First. It was not error to receive evidence with respect to the question whether Clamp, Mayhew, and Anderson were citizens of the United States. The inquiry was not simply whether they were registered, but whether they were, in other respects, qualified voters. If their names had not been registered they could not have voted; being on the register, the question of citizenship still remained. (Webster v. Byrnes, 34 Cal. 275.) The evidence as to the naturalization of Clamp was somewhat suspicious. He swore that he was naturalized in New York in 1847, but left his “ papers” with a friend in that city when he left for California—in 1846. The fact that he “ declared his intention” to become a citizen in Tuolumne County in 1875 was a circumstance which certainly tended to disprove his testimony that he had been previously naturalized. The Court below, as was its province, passed upon his credibility in view of all the surroundings—including his failure to remember the Court from which he received his final papers in New York. Similar considerations, doubtless, influenced the decision of the Court in the case of Anderson, who, if his testimony is to be believed, “was naturalized thirty years ago” in New Orleans—and when he was less than eighteen years of age. He also had since “ declared his intentions” in California. In the case of Mayhew, however, the certificate introduced — 209 — proved, that he had been naturalized in the Police Court of Mew Bedford; a Court having a clerk and seal, and for aught that appears, a common law jurisdiction. (Rev. Stat. U. S. § 2165.) The Court below erred in rejecting the vote of Mayhew. Second. There was evidence to sustain the finding that Gobin’s residence was in Cloudman, and not in the Santa Maria Precinct, where he voted. Third. There was evidence to sustain the finding with respect to ’Drew. Fourth. The Court was justified in finding that the residence of White—his home and that of his family—was at Chinese Camp, and not at Garrote, where he voted. Fifth. The Court did not err in denying defendant’s motion to reject the vote of Jamestown Precinct. The polls were opened a short distance from and in plain view of the place appointed—the owner of the house selected having objected to the election proceeding at his house—and it does not appear that any voter was misled, or deprived of his vote, by reason of the change. In case of an election contest: “ The investigation proposed is one in which the public at large are deeply concerned. " It necessarily involves a question of broader import than the mere individual claim of a designated person to enjoy the honors and emoluments of the particular office brought directly in contest. The inquiry must be as to whether or not the popular will in the selection of officers to administer the public affairs has been, in a given instance, or is about to be, defeated or thwarted by mistakes happened or fraud concocted. It is, therefore, not an ordinary adversary proceeding, for, as against this high public interest concerned, there can be no recognized adversary.” (Minor v. Kidder, 43 Cal. 237.) The important question in such cases is, Have the qualified electors been deprived of a fair opportunity of expressing their preference ? Mere irregularities which do not affect the final result should be disregarded. (Sprague v. Norway, 31 Cal. 173.) Sixth. The Court below held that Twist voted illegally in Algerine Precinct. The question was, where ran the boundary line between Algerine and Chinese Precinct, and in which — 210 — of these precincts did Twist reside ? As the case is presented in the transcript before us we can not reverse the decision of the Court below upon this question. The record does not clearly show the relative positions of the natural objects referred to in the testimony, so that we can intelligently determine where the line runs with reference to the house of Twist, or with reference to his lands, or to his inclosure, as the same existed when the line was established. The Judge below, with the consent of parties, visited the locality, and certainly had better opportunities for determining satisfactorily the question in dispute than have we. Seventh. The remarks under the last subdivision apply to the case of Simms. First. There was evidence to sustain the finding as to Kent. Second. The Court should not have counted the vote of Schmedes for plaintiff. The evidence shows his residence to have been at Ward's Ferry. He and his family were there living upon a pre-emption claim. That he intended at some indefinite time in the future to remove to Poverty Hill, in Jamestown precinct, did not make the latter place his residence. Third. Apparently the vote of Le Fevre should have been rejected. He had not been registered. Fourth. There was a substantial conflict in the evidence with respect to the residences of Francis, Woodruff, and Smith. The finding as to them can not be disturbed by this Court. Fifth. The Court should have rejected the vote (for plaintiff) of Wooters. He had rented his house, had removed to Garrote, had lived and been employed there more than twenty months, and did not return to reside at Jamestown until a day less than thirty days prior to the election. Sixth. We can not set aside the finding that Summon was entitled to vote at Jamestown. The facts that ho had taken up a homestead claim elsewhere, and left his real residence, once a week or so, to visit his homestead “ in order to comply with the homestead laws,” or to pretend compliance with them, tended to show an intended fraud upon the United States. But they did not estop him from claiming his real residence for the purpose of voting. Seventh. There was evidence to sustain the finding that — 211 — Sharrock and Nation were legally entitled to vote at Jamestown. The result of the canvass by the Board of Supervisors was: For A B. Preston (plaintiff), two hundred and fifty-two votes. For G. F. Culbertson (defendant), two hundred and fifty-four votes. If we deduct from the aggregate number, allowed by the Supervisors to defendant, the votes of Clamp, Anderson, Go-bin, Drew, White, Twist, and Simms—=even—there remains to be counted for defendant, the number two hundred and forty-seven. And it we subtract from the aggregate counted by the Supervisors for plaintiff the votes of Schmedes, Le Fevre, and Wootcrs—three—there remain to be credited to plaintiff two hundred and forty-nine votes. This result renders it unnecessary to inquire whether the vote for “ Cubster” was improperly counted in the Court below for Culbertson, the defendant. It also renders it unnecessary to decide whether other objections taken by plaintiff to the action of the Court were well founded. It is insisted by appellant that the Court below erred in permitting plaintiff to examine, as illegal voters, Elias Newton Twist, Christian Herr, Thomas Pender Pool, Patrick White, William John Hunt, Colwell Owens Drew, and Louis Dewart Gobin, on the ground that their names were not served on defendant in advance of the trial. The names served were E. N. Twist, Christian Herr, Thomas P. Pool, Pat. White, W. J. Hunt, C. 0. Drew, and L. D. Gobin. It would be difficult to distinguish between Christian Herr and Christian Herr, or, in view of the general familiarity with the abbreviation, to believe that it could have been understood that “ Pat.” (with a capital “ P”) stood for any other word than Patrick. But § 1116 of the Code of Civil Procedure only requires that the contestant shall serve a notice containing “ the number of illegal votes, and by whom, given.” It does not, by fair construction, require that the names of the alleged illegal voters shall be written out in full on the list, although such would be the safer practice. The notice serves the object of the law if by it “ three days before the trial” the — 212 — defendant is informed whose votes the plaintiff intends to attack. The Court below found, in effect, that defendant was not surprised by the production of th.e witnesses, but that he was fully informed in respect of the persons who were charged to have voted illegally. We can not see how he was injured. Judgment affirmed.