Turner v. Wilson (1915) · DecisionDepot

Turner v. Wilson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 21, 1915 No. Sac. No. 2417.Published

Before: Shaw, Angellotti

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Holding. The court held that ballots containing unauthorized marks should not be rejected unless there is evidence that the voter placed the mark on the ballot for the purpose of identifying it. Consequently, the court recalculated the vote totals and affirmed the judgment declaring the contestee the winner.

Issues

Whether ballots containing unauthorized marks must be rejected regardless of voter intent.
Whether the trial court erred in its determination of the total votes cast for each candidate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“No mark upon a ballot which is unauthorized by this act shall be held to invalidate such ballot, unless it shall appear that such mark was placed thereon by the voter for the purpose of identifying such ballot.”

Synopsis

The facts are stated in the opinion of the court.

Opinion — Angellotti

ANGELLOTTI, C. J.

This is an action to determine whether the contestant or contestee was elected constable of Township No. 4, Merced County, at the election on November 3, 1914. At the canvass of the votes by the board of supervisors the return made was that each candidate had received one hundred and sixty-eight (168) votes, and that neither of them was elected. At the hearing in the superior court it was found that contestee (Wilson) had received 165

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votes and the contestant (Turner) 160 votes, and it was there adjudged that the contestee was elected. The contestant appeals from the judgment on a bill of exceptions.

At the election contestant’s name was the only name printed on the ballot for the office of constable, the supporters of contestee being able to express their preference only by writing his name upon the ballot.

1. This cause was originally decided by the district court of appeal of the third district, which, in view of the provisions of our constitution, has appellate jurisdiction in the matter of election contests. Upon petition for a hearing in this court after decision by the district court of appeal, the decision of the latter court was vacated and the cause transferred to this court, the members of this court not being satisfied that the views of the district court of appeal'as to the rejection by the trial court of certain ballots on the ground that the same contained' distinguishing marks were correct.

The ballot marked “Contestee’s Objection No. 1,” containing a vote for Turner, was rejected by the trial court because of the fact that the voter had stamped a cross in the voting square opposite the blank space under the name of “Hiram W. Johnson,” candidate for Governor.

The ballot marked “Contestee’s Objection No. 9,” containing a vote for Turner, was rejected because of a cross stamped by the voter in the voting square opposite the blank space under the name of “Lueien Shaw,” candidate for justice of the supreme court.

The ballot marked “Contestee’s Objection No. 12,” containing a vote for Turner, was rejected because of such a cross in the voting square opposite the blank space under the name of “U. S. Webb,” candidate for attorney-general.

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Concurrence — Shaw

SHAW, J., Concurring.

I concur in the opinion of the chief justice.

I think, however, that something additional should he said in regard to the seeming conflict between subdivisions 4 of section 1211 of the Political Code and the preceding portions of the chapter bearing on the subject of improper marks on the ballot.

With respect to all these inconsistencies the case calls for the application of the rule expressed in section 4484 of the Political Code, that where there are conflicting provisions in different sections of the same chapter or article, “the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.” The rule is founded in reason and it exists independently of the code. It therefore, for like reasons, applies to conflicting provisions of different subdivisions of a section. (1 Sutherland on Statutory Construction, sec. 268.)

There is also the rule that specific provisions relating to a particular branch of a subject must govern that branch, “as against general provisions in other parts of the statute, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate.”

(Harrigan

Home Ins. Co.,

128 Cal. 537, [58 Pac. 180, 61 Pac. 99];

Franzden

San Diego County,

101 Cal. 321, [35 Pac. 897];

Earl

Bowen,

146 Cal. 762, [81 Pac. 133];

Healy

Superior Court,

127 Cal. 659, 662, [60 Pac. 428].)

Since subdivision 4 is later in numerical order than any of the provisions conflicting therewith, it must, under 'the rule

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first stated, prevail over them, and since it specifically provides that the intention of the' voter to identify his ballot must appear, before it could be declared invalid because of an unauthorized mark thereon, and there is no other specific provision on that precise subject, it must govern that subject, under the rule last stated.

Applying these rules we will see that the provision of subdivision 1 of section 1211 declaring that “in canvassing the votes any ballot which is not made as provided in this act shall be void,’’ must yield to the later and specific provision of subdivision 4, which requires that the intention on the part of the voter to identify the ballot must appear. Similar reasons may be given regarding all of the other provisions supposed to conflict with subdivision 4, aforesaid.

It may be further said, with respect to the provision of subdivision 8 of section 1197, as amended in 1911, and of subdivision 10 of the amendments of 1913, [Stats. 1913, p. 1157], and 1915, [Stats. 1915, p. 272], providing that there shall be printed on the ballot certain instructions to voters, one of which is that distinguishing marks and erasures make the ballot void, that this is not an enactment of substantive law at all, but a mere provision that certain cautions shall be given to the voter himself. These instructions to voters have been carried down in the same form from the time when the statute provided that every distinguishing mark should invalidate the ballot, and it apparently has not been perceived that subdivision 4 aforesaid changes the rule in that respect.

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Synopsis

Opinion — Angellotti

ANGELLOTTI, C. J.

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Concurrence — Shaw

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