Carlson v. Burt

Temple, J. J. This is a contest for the office of assessor of the county of San Diego. The case was decided against the contestant on demurrer to the complaint. The court held that it had no jurisdiction, because the complaint—or written statement, as it is termed—was not filed with the county clerk within forty days after the return day of the election, as required by section 1115 of the Code of Civil Procedure. The complaint shows that the election was held on Tuesday, November 6,1894; “ that the respective boards of election of the several precincts of said county, on or before Monday succeeding the said Tuesday, made their returns to the board of supervisors of said county of San Diego, of the votes cast at the said general election, and that upon said Monday said board of supervisors met, and finding that all of the returns in the several precincts in which said election was held had been duly and properly received, they thereupon proceeded to canvass said returns.” It is also averred that on the nineteenth day of November, 1894, the board caused to be entered in the record of said board a statement, which purported to show the various matters required by section 1282 of the Political Code, and that thereupon the board declared John P. Burt elected county assessor of San Diego county. The complaint in this case was filed December 29, 1894. This was the fortieth day after the entry was made in the records of the board declaring Burt elected, and the forty-sixth day after the day on which it is averred that the board proceeded to canvass the votes. If the return day is the day upon which the result of the canvass is declared, then this contest was inaugurated in time. On the other hand, if the return day is the day upon which the returns being all in are produced before the board, which then proceeds to canvass them, the statement was filed too late and the court properly refused to entertain the case. Section 1115 of the Code of Civil Procedure provides [131] that “ when an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of such election, file with the county clerk a written statement,” etc. The codes do not in any other place speak of any return day, but several sections in the Political Code direct the precinct officers to transmit to the county clerk certain matters pertaining to the election. The papers to be transmitted must be in packages, and in section 1268 of the Political Code are spoken of as returns. The board is directed to meet on the first Monday after the election to canvass the returns. If the returns have not all been received the canvass must be postponed from day to day until all the returns have been received, or.until six postponements have been had. The canvass shall be made by opening the returns and estimating the votes. (Pol. Code, secs. 1278,1280, 1281.) The clerk of the board is required as soon as the result is declared to enter on the records a statement similar to that which the complaint shows the board caused to be entered on the 19th. (Pol. Code, sec. 1282.) In other sections the election returns are mentioned, so that there can be no doubt as to the meaning of the phrase “ election returns.” But what is the return day of an election? The phrase “return day” has been long a familiar phrase in legal practice. Blacks tone says (3 Blaclcstone’s Commentaries, 277) that they are called days in bank, that is, days of appearance in the court of common bench. They were stated days in the term on which writs were returnable. These were original writs by which suits were commenced. If the defendant did not then appear and submit to the jurisdiction, process was issued to compel him to do so. In analogy the last day on which any process can be returned is called return day; or, in case of an order to show cause, the day of the hearing. The statute fixes no precise day in which election re [132] turns must be made. They should be sent to the clerk at once. But it would seem that any return is timely which is received before the board commences the canvass. Natural^, then, the return day would be the first Monday after the election, with authority in the board to adjourn return day six times from day to day, if all returns have not been received. Appellant argues that this construction may deprive an elector of the right to contest altogether, as the board may not declare the result until forty days after the canvass begins. Unquestionably the argument is entitled to great weight, and if any reasonable construction can be given to the law which would not result in nullifying the law as applied to a possible case, such construction should be given rather than a construction which would have that effect. But this right to contest is not given to enable a candidate to vindicate his rights, but to any elector. Public policy requires that it should be inaugurated at once. If commenced within forty days after the commencement of a canvass it will be before the commencement of the term of .the person declared elected. If delayed much longer it will be after the commencement of the next term of office. To contest the right to an office in this mode is not a natural right, but one given by statute. The phrase “return day” refers to the election returns, and to some day fixed by reference to something done in regard to the returns. If it had been intended that the time should run from the day on which the person was declared elected, it was easy to say so, and the very language required was in the precise sentence in which the limitation was made. How natural it would have been to say that a contest as to the right of a person “declared elected” shall be commenced within forty days after he has been so declared elected, instead of changing the expression making it read “ from the return day of the election.” There is nothing in the expression used which naturally refers to the day on which the person whose right is contested was declared elected. [133] To the suggestion that the hoard may take more than forty days to canvass the votes, it may be said that it may be possible, but it is quite improbable. If it should take much more thin forty days the vote would not be canvassed until the term for which officers are to be elected will begin. Such a contingency was not anticipated, and can rarely happen, except through a criminal intent. The presumption is that in fixing the election at a certain period before the commencement of the terms of office, and in limiting the period for the commencement of a contest, the legislature has taken all these things into consideration, and has concluded that the period fixed will always prove sufficient, and I believe that in practice it always has. It must be held that the return day is the day on which the board actually commences the canvass; or, rather, the day on which under the law they ought to do so. It follows that the contest was commenced too late, and the judgment is affirmed. Henshaw, J., and McFarland, J., concurred. Hearing in Bank denied.