Singletary v. Kelley

[612]

DRAPER, P. J.

This is a contest (Elec. Code, §§ 20050, 20089) of an election held upon a proposal for incorporation of the City of Scotts Valley. The official canvas declared 344 votes in favor of incorporation and 323 against. The trial court found that

27

ballots were cast by persons not living within the boundaries of the proposed city. Of these, 13 favored incorporation, and there was no evidence as to how the remaining 14 voted. The trial court deducted the 13 ballots from the total favoring incorporation, and deemed the remaining 14 to have been cast for and against the measure in the same proportion as were the total votes, i.e.,

7

for and

7

against. The net result was determined to be 324 for incorporation and 316 against. Judgment was for defendants, confirming adoption of the incorporation proposal. Contestants appeal.

This appeal turns upon disposition of the 14 illegal votes which cannot be identified as either for or against incorporation. Contestants assert that their only burden is to show that “enough illegal votes were cast to affect the result of the election.” Obviously, if all 14 unidentified votes opposed incorporation, the net valid vote would be against the measure. Hence, it is argued, contestants have met their burden, and a new election should be ordered.

But our statute bars the presumption that all illegal votes favored the winning side. “An election shall not be set aside on account of illegal votes, unless ... a number of illegal votes has been given to [the winner] which, if taken from him, would reduce ... his legal votes below the number of votes given to [another], after deducting therefrom the illegal votes . . . given to that other person” (Elec. Code, § 20024; see also § 20052).

Under a like statute in effect in

1890

(Code Civ. Proc., § 1114), the contention here made by contestants was rejected