CHAPTER XLII.

OF ELECTIONS AND CONTESTING ELECTIONS.

The provisions of the Code of Civil Procedure (sections IIII-1127) respecting the contesting of elections in certain cases are full and explicit, and I will in this work, refer only to decisions of the Supreme Court of California construing such provisions, and to the provisions of the statutory law of that state relating to elections.

The provisions of section 4 of article II of the state constitution do not preclude either soldiers, students or the inhabitants of a soldier's home, or of any infirmary, from gaining a residence for the purpose of voting.1

The provisions of section 1104 of the Political Code contemplates only the publication of one general list in a county of all nominations, upon which the people of the county will be called to exercise their choice.2

If the requisite number of inspectors, judges, and clerks of election be not appointed, the presumption is, in the absence of a showing to the contrary, that the deficiency was supplied by the the electors present at the time of opening the polls.3

Directory statutory provisions in respect to elections should be substantially complied with.4

Ballots are the best evidence of the manner in which the electors have voted, only when it is shown satisfactorily that they have been preserved substantially as provided by statute.5 The official canvass of votes is presumed to be correct, and in order to overcome that presumption by a resort to the ballots,

it must be shown to the court that such ballots are intact and genuine, and proof must be made of a substantial compliance with the requirements of the statute as to the keeping and preservation of such ballots.6

The X stamp to indicate the person for whom the voter intended to cast his ballot should be placed to the right of the name of such person, but such stamp is not required to be in the blank left in the ballot for the placing of such stamp.

Any mark on a ballot, other than such stamp, and which might be used to distinguish the ballots, renders the ballot on which such mark was placed, void.

When the failure of an election board of a precinct to comply with the directory statutory provisions, is of such a character that it can be readily shown by competent proof, and it is so shown, that no fraud was committed, nor injury done, by such failure, this does not make invalid the votes cast in such precinct.8

The provisions of the election law requiring the voter to mark his ballot by means of a stamp by putting a cross opposite the name of each candidate for whom he intends to vote is mandatory.9

A ballot marked with a lead pencil and not with an official stamp is invalid.10

The right to contest an election is purely statutory.1

The notice of an election in a school district must clearly state the particular place at which such election is to be held; and if this is not done, the election will be invalid.12

An election for the issuance of bonds of an irrigation district is void if the statutory notice of the times of the opening and closing the polls be not given, and the polls are not opened or closed substantially at the times as prescribed by statute.13 The fact that the candidate receiving the highest number

6. Tibbe v. Smith, 108 Cal. 101.
7. Tibbe v. Smith, 108 Cal. 101.
8. Atkinson v. Lorbeer, 111 Cal. 419.

9. Lay v. Parsons, 104 Cal. 661.

10. Beasley v. Sausalito, 106 Cal. 500.

11. Carlson v. Burt, 111 Cal. 129.

12. People v. Caruthers School District, 102 Cal. 184.
13. Fallbrook Irrigation District v. Abila, 106 Cal. 365.

of votes for an office is ineligible, does not give the office to the next highest on the list.14

The statutes of California relating to the contesting of elections relate to a contest when a person has been declared elected, and if no one was declared elected, then no contest can arise under the provisions of such statute.15

Under the provisions of 1123 of the Code of Civil Procedure, the court in which the contest was had, when it appears that another person has received the highest number of votes, must declare such other person elected.

The Superior Court of a county has jurisdiction of a contest to determine the right of a person to an office to be exercised in such county.16

The statement of the grounds of a contest should be a statement of facts and not one of a mere conclusion of law.1

17

Judgment cannot be rendered in a contested election case for a failure to answer the statement of the contestant.18

The contestant must show that illegal votes were cast, and were cast for the contestee, and that such illegal votes so cast for the contestee, if deducted from the votes canvassed as having been cast for him, would show that the contestee had not the highest number of legal votes for the office, to which he had been declared elected at such election, before the court can annul the election of the person declared by the board of canvassers to have been elected.19

Election returns should not be rejected on account of an irregularity in the appointment of the officers of election, when it does not appear that any injurious results were caused thereby 20

The court which tries an election contest cannot grant a new trial,21 but the aggrieved party is entitled to an appeal to the Supreme Court.22.

14. Saunders v. Haynes, 13 Cal. 146.

15. Austin v. Dick, 100 Cal. 199.

16. McGivney v. Pierce, 87 Cal. 124.

17. People v. County of Glenn, 100 Cal. 419.

18. Searcy v. Grow, 15 Cal. 118.

19. Russell v. McDowell, 83 Cal. 70.

20. Keller v. Chapman, 34 Cal. 637.
21. Cosgrove v. Howland, 24 Cal. 457.
22. Webster v. Byrnes, 34 Cal. 273.

The Supreme Court can grant a new trial.23

There must be a special session of the Superior Court for the trial of an election contest,24 and an unauthorized continuance of a trial of the contest operates as a discontinuance of the proceedings.25

23. 83 Cal. 70.

24. Code of Civil Procedure, Sec. 1118.

25. Keller v. Chapman, 34 Cal. 635.

CHAPTER XLIII.

OF THE CONFESSION OF A JUDGMENT; AND OF THE DISCHARGE OF A PERSON IMPRISONED ON CIVIL PROCESS; AND OF THE SUBMISSION OF A CAUSE OF ACTION UPON AN

AGREED CASE.

The Code of Civil Procedure, sections 1132-1135, provides for the confession of judgment without action, and sections 1138, 1140 provide for submitting a difference which might be the subject of a civil action, upon an agreed case, and sections 1143, 1153 provide for the discharge of a person imprisoned on civil

process.

The authority given by statute, for the entry of a judg ment by confession, must be strictly pursued and the confession must not be fraudulently made.1

Unless a judgment by confession be void on its face, it can only be called in question by the creditors of the defendant who confessed judgment in a direct proceeding for that purpose."

The allegations of the complaint attacking a judgment by confession as fraudulent, must state facts showing that such judgment was fraudulent.3

A person who is imprisoned on an execution issued on a judgment in a civil action must be discharged therefrom upon the conditions specified in section 1144 of the Code of Civil Procedure, and in the provisions of that code thereafter following. A written notice of the hearing of the application must be given to the plaintiff or to his attorney, at least one day before the hearing.

4

1. Chapin v. Thompson, 20 Cal. 681; Pond v. Davenport, 44 Cal. 481; Wilcoxson v. Burton, 27 Cal. 228; Cordier v. Schloss, 18 Cal. 576; Reynolds v. Lincoln, 71 Cal. 183; Scales v. Scott, 13 Cal. 77: Crane v. Hirshfelder, 17 Cal. 582.