People Ex Rel. Hicks v. Stewart

SMITH,C.

—Appeal from a judgment for the defendant on demurrer to the complaint. The suit was brought to determine the right of the defendant to the office of sheriff of Santa Barbara County, which it is alleged he had usurped, and to establish the right of the relator to the same office. (Code Civ. Proc., sec. 805.) Briefly stated, the case as alleged is as

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follows: The relator and the defendant were candidates for the office in question at the election held therefor on November 8, 1898. The canvass of the returns was made by the board of supervisors, November 14, 1898 (the first Monday following the election). When the board met on that day, the returns from one precinct of the county (the Cold Springs precinct) had not been received. But

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the duplicate list of voters, tally-list, and list attached thereto, kept and retained by [the] inspector of said board of said precinct, as required by section 1262 of the Political Code, were sent for,” and the tally-list, after being identified by the inspector, was used in the canvass, in place of the missing return. The votes shown by this list (fifteen for the defendant, and fourteen for the relator) were counted for the candidates respectively, and a tie was thus produced. On the face of the returns, exclusive of this list, as was found by the board, there was a majority of one for the relator. As the result of the canvass, the board declared there was no choice of candidate, and on the next day (November 15th), under the provisions of section 1067 of the Political Code, ordered a special election. At this election the defendant was elected, and qualified; which is the usurpation complained of. The relator was at this time the incumbent under an appointment by the supervisors, of date January 7, 1895, to fill a vacancy. The case—so far as the defendant’s right is concerned—turns on the validity of the order of the board, and of the election held thereunder, and this, in turn, on the validity of the canvass.

On this state of facts, the order calling a special election, and the election held under the order, were, I think, void.

(People

v.