Hayes v. Kirkwood

McFARLAND, J.

This is a contest for the office of sheriff of the county of Mono. Kirkwood was declared elected by

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the board of supervisors, and Hayes instituted this action to have it adjudged that he, and not Kirkwood, was legally elected to said office. The superior court recounted all the votes, and found that Kirkwood had a majority, and rendered judgment accordingly. Hayes appeals from the judgment.

There is no question raised as to the marking of the ballots, or as to the legality of any ballot, provided the election at Antelope Precinct was legally held; but appellant contends that, for reasons hereinafter mentioned, all the votes at said precinct should be rejected, no matter for whom given or counted, and that the case should be decided as if no election had been held at that precinct. If that contention can be maintained, appellant should be declared elected; for he had a majority of all the other votes polled in the county.

The main contention of appellant is, that the election in Antelope Precinct was not held at the proper place. The order of the board of supervisors was, that the election in that precinct should be held at “Todkill’s Store.” It appears from the evidence, and was found by the court, that a man named Todkill kept a store in said precinct at the place where the election was held; that on the lot on which he carried on his business he had two buildings, one of which was the main store, and the other a building- which he used as part of his trading premises. The latter building was used mainly as a storehouse, but goods were also sometimes sold and delivered there. In the latter building the election was.held. It was the same building in which the election had been held at the last two previous elections, and was the place which the election officers, and all the electors, understood to be the designated place. No one objected to it, and it is clear that no one was deceived or expected to vote elsewhere. Under these circumstances there was not a failure to hold the election at the proper place. In a populous and closely built-up city or large town, no doubt, the designation of a particular building or room in which an election is to be held would have to be quite strictly complied with; but in the country the designation of a well-known “store” not near any other houses—as was shown in the case at bar—would certainly include, as part of the “place,” a building on the trading premises used in connection with the business. No one who went to the