Covina Union High School District v. McClellan

CRAIG, J.

Petitioner seeks a writ of mandate requiring the respondent as chairman of the board of supervisors of Los Angeles County to execute certain school bonds authorized by the board pursuant to an election held October 11, 1928, in Covina Union High School District, for the purpose of determining whether or not an indebtedness of two hundred

[641]

thousand dollars should be créated and such bonds issued therefor.

The only question presented is whether or not eleven defective ballots, admittedly not entitled to be counted for or against the bonds, and which were rejected, should be included in the total number of votes cast. Fourteen hundred and ninety-three persons deposited in the boxes ballots furnished them at the election; each ballot was properly printed and bore the words “Yes” and “No,” with a small square space opposite each word in which electors should “mark a cross with pencil, ink or rubber stamp after the answer they desire to give,” as required by section 1745 of the Political Code. One of the rejected ballots bore a cross in each space and the other ten contained no crosses, but the word “Yes” or “No” was written in the space provided for the cross. Nine hundred and ninety-one ballots properly prepared with the cross were cast in favor of the bonded indebtedness and 491 in the negative, amounting to the total number of 1,482 ballots, after excluding the eleven votes which the respondent concedes should not be counted on either side.

Petitioner’s contention is that, inasmuch as the eleven ballots in controversy could not be included among the majority, or the minority, they were ineffectual for any purpose. The respondent refused to execute the bonds upon the ground that although eleven ballots were illegal and did not express a choice either way, yet they were

cast,

and should be added to the 1,482 votes legally cast. Hence it is computed that 1,493 persons voted at the election and that 998 affirmative votes were required to constitute the necessary two-thirds of the qualified electors voting at such election, as provided by section 18, article XI, of the constitution.

Section 1745 of the Political Code provides that an election for the creation of a bonded indebtedness in a high school district shall be conducted in conformity with sections 1596 to 1601, inclusive, of that code, and that “Electors voting at such elections shall mark a cross with pencil, ink or rubber stamp, after the answer they desire to give.” Section 1599 (as amended by Stats. 1917, p. 15) requires that “in casting his vote the elector must stamp or write a cross in the square space immediately following the name of the candi