Fitzsimmons v. Wilks

LENNON, P. J.

At a special election held in Pacific Drove township, Monterey County, the plaintiff and defendant were candidates for the office of justice of the peace in the event that the then incumbent of the office should be recalled. The election resulted in the recall of the then incumbent, and upon a canvass of the returns, the defendant was declared elected to the office for the unexpired term. Subsequently plaintiff instituted proceedings in the superior court of Monterey County, under the provisions of part III, title II of the Code of Civil Procedure, contesting the right of the defendant 'to the office. The lower court rendered and entered judgment in favor of the plaintiff, declaring him to have been elected to the office, and directing that a certificate to that effect be issued to him by the county clerk. The defendant has appealed from the judgment.

A recount in open court of the admitted legal ballots cast at the election in question disclosed beyond dispute that one hundred and seventy-six votes were cast for A. M. Fitzsimmons, the plaintiff; two hundred and seventeen for Joseph Wilks, the defendant; and three votes for one R. M. Fitzsimmons. In addition, however, to the undisputed ballots, the recount showed that there were forty-nine ballots cast at the election, bearing merely the surname “Fitzsimmons,” which, over the objection of the defendant that it was impossible to ascertain for whom they were intended, were admitted in evidence and counted for the plaintiff, thereby increasing his' total vote to two hundred and twenty-five, and giving him a majority over the defendant of eight votes. The correctness of the court’s ruling in counting these particular ballots is the only point presented for review.

[58]

We are of the opinion that under all of the particular and peculiar facts and circumstances surrounding the election in controversy, the lower court did not err in the ruling complained of.

Those facts and circumstances, as revealed by the bill' of exceptions accompanying the judgment-roll, may, in so far as they are pertinent to the point under discussion, be briefly stated as follows: The plaintiff became a candidate for the office in question by simply making an announcement of his candidacy and personally soliciting the support of voters throughout the township in which the election was held. His candidacy was announced daily for a period of about thirty days preceding the election, in two daily newspapers printed and published in Monterey County, and which had in the aggregate a regular daily circulation of four hundred and ninety-five copies in the township in which the election was held. Prior to and at the time of the election, there were but four persons bearing the surname Fitzsimmons residing in the township, all of whom were duly registered electors and eligible to the office of justice of the peace. They were the plaintiff, A. M. Fitzsimmons, his wife, Mary J. Fitzsimmons, and his two sons, B. M. Fitzsimmons and E. W. Fitzsimmons. The plaintiff, however, was the only one person of the name of Fitzsimmons who sought the office in question and announced his candidacy therefor; and all the aforesaid members of his family sought and endeavored to bring about Ms election. The surname Fitzsimmons was written upon each of the forty-nine ballots in question by the voter casting the same. It does not appear in the bill of exceptions or elsewhere in the record how or in what manner the defendant became a candidate for the office in question; that is to say, the record before us does not show whether the defendant was nominated for that office by petition or otherwise, or whether he, as did the plaintiff, merely announced his candidacy and trusted to the voters to write his name upon the ballots. Incidentally it appears that B. M. Fitzsimmons, who, notwithstanding that he was not a candidate for the office, received three votes, had for four years held the office of city treasurer of Pacific Grove, and had been defeated for that office at an election held in June, 1912.