People Ex Rel. Leavitt v. Bass

Election Contest—Tie Vote—Special Election—Certificate to Appellant—Reversal of Judgment-Final Judgment for Relator—Estoppel not Pleaded—Quo Warranto.—Where the first judgment in an election contest resulted in a tie vote, and the supervisors immediately ordered a special election, which resulted in the election of the appellant herein, and the relator herein appealed from the judgment, which was reversed, and on a second trial final judgment was rendered in favor of the relator, and on such second trial no estoppel was pleaded by reason of the relator having taken part in such election, and the appellant, having received a certificate of election, refused to yield possession of the office, whereupon the people, upon relation of the prevailing party, brought an action of quo warranto to oust the appellant, he will not be permitted in such action collaterally to impeach the final judgment by asserting such estoppel against the state.

Id.—People not Bound by Acts and Conduct of Relator in Consenting' to Special Election.—The people are not bound by the acts or conduct of the relator in another proceeding between different parties. The action of quo warranto is in no legal sense under the control of the relator, and the people could not be estopped therein by the action of the relator in consenting to a special election under a former judgment erroneously establishing a tie vote, or from inquiring into the validity of the certificate of special election given thereunder.

Id.—Pendency of Contest—Bight to Office Pending Appeal from Final Judgment.—Where the superior court, in an election contest, has finally declared a person entitled to the highest number of votes, the person declared elected is entitled under section 1123 of the Code of Civil Procedure to receive a certificate of election; and under section 1126 of the same code, “during the pendency of proceedings on appeal and until the final determination of such proceedings, the person so declared elected shall be entitled to the office in like manner as if no appeal had been taken.”

Id.—Supervisors Pending Contest Without Power to Call Election. Section 1124 of the Code of Civil Procedure provides for a contest when the body canvassing the returns declared that no person has received the highest number of votes for the office contested; and during the pendency of the final determination of such contest, the board of supervisors were without authority to call a special election under an erroneous judgment sustaining a tie vote, which was subject to reversal upon appeal and was so reversed.