Trafton v. Quinn

[470]

McFARLAND, J.

This is an election contest, under sections 1111 et seq. of the Code of Civil Procedure, over the office of mayor of the city of Watsonville. According to the count of the canvassing-board, contestant had four hundred and seven votes, and contestee four hundred and eleven. The latter was declared elected, and a certificate of election was issued to him by the city clerk. Afterwards Trafton instituted this proceeding, and the superior court, after a hearing, and a recounting of the votes, found that Trafton had received four hundred and seven legal votes, and Quinn four hundred and eleven legal votes—four majority for the latter—and rendered judgment decreeing that Quinn had been elected and was entitled to the office. From this judgment the contestant, Trafton, appeals.

On the count in the court below there were only thirteen ballots objected to. These ballots are before us, and we have examined them and considered the objections made thereto by the respective parties, and the rulings of the court thereon. The objections were that the ballots contained distinguishing marks which made them invalid. We are satisfied that the court erred in counting for respondent the ballots marked contestant’s exhibits 9, 10, 11, 12, 13, 14, 6, 15, 16, and 17; they were all invalidated by distinguishing marks. The ballot marked contestant’s exhibit 7 was properly counted for respondent, over appellant’s objection. The court, upon respondent’s objection, properly refused to count for appellant ballot marked contestant’s exhibit 8. The deduction of the foregoing ten votes erroneously counted for respondent leaves a majority of six for appellant, and he should have been declared elected. Respondent makes very little contention that the ten ballots above mentioned did not contain distinguishing marks under the law as it stood when the election involved herein was held, in May, 1903; but before the trial of this case, in July, 1903, the law as to distinguishing marks had been changed by an amendment to section 1211 of the Political Code (Stats. 1903, 150), and respondent contends that the law on the subject as it was at the time of the trial should govern. This contention cannot be maintained. The questioa is whether the ballots were at the time they were voted legal ballots which should have been counted. The provisions of the code in question are parts of the substantive law upon the

[471]