Lester v. Fairbairn

BARNARD, P. J.

This is an appeal from a judgment in an action for a recount of the votes east in an election held in Orange Township, in Orange County. David Fairbairn was declared by the board of supervisors, acting as a canvassing board, to have been elected to the office of justice of the peace of that township by a majority of eight votes. Cal D. Lester brought this action for a recount, as a result of which he was declared to have been elected by a majority of one vote. From the judgment entered Fairbairn has appealed.

While more than 5,000 votes were cast for this office at this election, only a few are here questioned and in these instances the original ballots have been transmitted to this court and are before us.

The first ballot which is questioned is contestant’s “exhibit 19’’, which was counted for Lester. It is very clear that the crosses on this ballot were not made with the stamp provided by the officers, as required by section 1205 of the Political Code. The nature of the stamp provided is apparent from the many other ballots in evidence which, with the exception of the absentee ballots, disclose the form of stamp used. While the crosses on this ballot were made with some form of ink they are not uniform, each is a distinct and individual mark, and it is perfectly clear that each cross was not stamped but was drawn with an edge of the stamp or with some other instrument. The cross marked for Lester having been drawn and not stamped with the stamp provided by the officers, this ballot was improperly counted for him.

[414]

(Morrison

v.

White,

10 Cal. App. (2d) 266 [52 Pac. (2d) 263].)

It is next contended that the court erred in rejecting contestee’s exhibits “P” and “X” and that the court should have counted both of these ballots for Fairbairn. In each of these instances a heavy cross is stamped opposite the name of Fairbairn and a lighter cross opposite the name of Lester. It is perfectly clear that neither of these crosses is an offset or blot from another mark, and in each instance a stamped cross clearly appears opposite each name. It cannot be told for whom these voters intended to vote and both ballots were properly rejected.