McMillan v. Bell

Fish, J. 1. When a petition such as is authorized by section 1546 of the Political Code, for the purpose of instituting a contest relating to an election concerning the sale of liquors, is presented to a judge of [497] the superior court, it becomes his duty to grant the order provided for in that section requiring three justices of the peace to recount the ballots. Such order is indispensable to the further progress of the case made by the petition, and if the judge refuses to grant it the case is at an end, and no further proceedings therein can be lawfully had. This being so, a refusal to grant such an order is not a proper matter for exception pendente lite, but for direct exception within the time prescribed by law for bringing final judgments to this court for review. Argued April 26, 27, Decided June 8, 1898. Crawford & Crawford, D. B. Sanford and J. M. Moore, for -plaintiffs. John T, Allen and Roberts & Pottle, for defendant. :2. While the above seems to be clear, the section mentioned is in other respects involved in so much obscurity and uncertainty that it is difficult, if not impossible, to ascertain its true intent and meaning, , and. .beyond doubt it greatly needs legislative revision. Judgment affirmed. AU the Justices concurring.