Gibson v. Twaddle

McLAUGHLIN, J.

The appellant and one Crowley were candidates for assessor of Tulare County at the general election held in 1902. The respondents are members of the board of supervisors of Tulare County, and as such, on November 10, 1902, met for the purpose of canvassing the election returns, pursuant to section 1278 et seq. of the Political Code. At that time the

returns from all the precincts in the county had been received,

and the board proceeded to canvass the same. When Liberty Precinct was reached, it was found that the tally-sheet had not been signed or attested by any of the members of the election board, as required by section 1260 of

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the Political Code. The hoard of supervisors refused to canvass the returns or count the votes of that precinct, but canvassed the returns from all other precincts in the county. Finding, upon the completion of such canvass, that Crowley-had received a majority of all the votes cast, they declared him elected, and directed that a certificate of election issue to him. Had the votes of Liberty Precinct been counted, appellant would have had three majority on the face of the returns. On November 11th, while the board of supervisors was still canvassing said returns, the election officers of Liberty Precinct appeared before them and asked permission to sign and attest the tally-sheet. This was after the returns from said precinct had been opened and passed. The board of canvassers refused to allow the election officers to sign or attest the tally-sheet, and proceeded with the canvass. On December 3, 1902,

after the canvass of said returns had been fully completed,

and after the result had been declared and the certificate of election had issued to Crowley, this action was brought. The appellant, in his petition, recited the above and other pertinent facts, and prayed that a writ of mandate might issue to the respondents, as a board of supervisors, commanding them to permit the election officers of Liberty Precinct “to sign said tally-list, and thereupon to canvass and count the returns of said election from said Liberty Precinct.” To this petition respondents demurred, upon the grounds that no cause of action was stated and that petitioner had a plain, speedy, and adequate remedy in the ordinary course of the law. The demurrer was sustained, and from the judgment thereupon entered denying the writ this appeal was taken.