Farnham v. Boland

This is an election contest, brought under the provisions of sections 1111-1127 of the Code of Civil Procedure, and involves the office of public administrator in and for the city and county of San Francisco. Contestant, Farnham, appeals from a judgment rendered against him, whereby it was held that Boland received 203 votes more than Farnham received, and was declared elected. Various rulings of the court, arising upon the admission in evidence of certain ballots for Boland, are urged as error upon this appeal.

In addition to other matters, section 1215 of the Political Code declares, "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him"; and the fundamental objection, going to all of the ballots here under consideration, is made, that it appears from an inspection of them that the law above quoted has been violated by the voter, and for that reason it is insisted they should have been rejected, and not counted. The purpose of this provision of the law is to destroy the identity of the ballot, and thereby maintain its secrecy; for secrecy of the ballot is one of the cardinal principles upon which the present ballot law is founded, and that principle thoroughly permeates the entire body of the act.

Some difficulty arises in declaring the rule by which the ballots here under consideration should be tested. The law itself is largely a recent importation from a foreign jurisdiction; and while it is in substance found upon the statute-books of many states, sufficient time has not yet elapsed since its importation, for the courts of all those states, in the judicial construction of its many and complex provisions, to stand upon common ground. At this time the decisions of the various state courts upon the construction of the act are not at all uniform, and therefore those decisions, as guiding lights to the true rule of construction, are not valuable aids, and will not be largely relied upon here. Most *Page 153 of the questions presented upon the inspection of these ballots have been considered, in principle at least, by the former decisions of this court, and the law of those decisions will in a great measure form the test by which these ballots will be tried. The statute says: "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him." This language is broad. It is broad enough to cover any mark made by the voter which may serve as a distinguishing mark; and this distinguishing mark may be made with the legally authorized stamp, equally the same as with an ordinary pen or pencil. And while the law may be too weak to reach alldistinguishing marks which may be made with the authorized stamp, still the court will do the best it can to hold the voter to a strict compliance with this provision. If in the use of the stamp the voter keeps within the law, then the ballot will not be rejected, even though the stamp has been used so that the cross made may be an identifying mark. Ballots should not be rejected for trivial reasons; at the same time, it is only by a compliance with this law that the evils may be met and overthrown which were the cause of its birth. Under express constitutional authority the legislature has the power to enact all reasonable regulations for the protection of the purity of the ballot. Those regulations the voter is bound to know, and bound to abide by; and if he does not abide by them, his exercise of the right of franchise may be denied him, and no one of his constitutional rights invaded. InTebbe v. Smith, 108 Cal. 108,1 and Lauer v. Estes, 120 Cal. 654, the law governing this question of identifying marks is fully declared, and is strictly in line with the general observations the court has above advanced; and keeping in view the principles declared in those cases, we pass to an inspection of the ballots here under consideration.