This is an election contest, the parties thereto having been rival candidates for the office of district attorney of Yolo County at the last general election. The defendant, upon the offical canvass, was declared elected, and in due time plaintiff inaugurated this contest, based upon various grounds, which, upon the trial and upon this appeal, narrowed down to three points — the admission of the ballots in evidence, and rulings upon alleged illegal ballots, and as to illegal voters.
Upon the face of the returns, defendant had received 1,575 and the plaintiff 1,567 votes, the plurality of defendant being eight votes.
After counting the ballots in this contest, and rejecting the ballots of several illegal voters, the court below found that plaintiff had received 1,468 and defendant 1,457 votes, giving to plaintiff a plurality of eleven votes; hence this appeal.
Disposing now of the questions as they are presented:
1. Appellant insists that the court erred in admitting the ballots in evidence. This applies to the returns of every precinct in the county, the claim being, that these returns were not properly and safely kept by their legal custodian, the county clerk. It is unnecessary to comment at length on the evidence introduced upon this point. While it is true that the county clerk might have kept the ballots in a more secure manner than he did, yet it cannot be said that the evidence shows anything more than that fact, or that it raises any stronger inference than that, by reason of this lesser measure *Page 332 of security the ballots might have been more easily tampered with than if greater precautions for their safety had been taken. It appears from the evidence that the envelopes containing the ballots were in the same condition as received by the clerk, — intact and unopened, — and there is no evidence even raising a suspicion that they were disturbed or tampered with. The lower court found that they were kept in substantial compliance with the law, and admitted them. As said in Tebbe v. Smith, 108 Cal. 107 : "So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the contestee of establishing that, notwithstanding this compliance, the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. But this proof is not made by a naked showing that it was possible for one to have molested them. The law cannot guard against a mere possibility, and no judgment of any of its courts is ever rendered upon one.
"When all this has been said it remains to be added that the question is one of fact, to be determined, in the first instance, by the jury or trial judge; and while the ballots should be admitted only after clear and satisfactory evidence of their integrity, yet, when they have been admitted, this court will not disturb the ruling, unless we in turn are as well satisfied that the evidence does not warrant it. In this case we do not think the ruling was erroneous."
We think, too, that within this rule, the evidence sufficiently warranted the court in admitting the vote of Woodland Precinct No. 1, specially objected to by defendant.
2. As to illegal ballots: Upon the contest the plaintiff objected to 495 ballots and the defendant to 328, and the validity of the rulings of the court upon these objections is next presented for consideration. The original ballots (excepting some few instances where counsel apparently abandoned their objections and omitted them) by stipulation were transmitted to this court for examination under the objections. The number so transmitted exceeds seven hundred, and the objections urged embrace on one side or the other every conceivable objection which could be raised. We have examined the ballots thoroughly and considered the objections carefully, and, stating the result of such consideration generally, we find that *Page 333 the court erred in sustaining objections made by plaintiff to nineteen ballots voted for defendant Anderson, and in overruling thirty-one objections of plaintiff to ballots likewise voted for defendant; and it erred likewise in sustaining objections of defendant to twenty-eight ballots cast for plaintiff Huston, and in overruling thirty objections of defendant to ballots likewise voted for plaintiff. As a result of these errors in sustaining or overruling objections, the plaintiff loses thirty votes and gains twenty-eight; the defendant loses thirty-one votes and gains nineteen votes, giving the plaintiff a gain upon this appeal of ten votes, which, with the eleven majority found in his favor by the lower court, makes his present majority twenty-one.
It can be of no benefit to the legal profession to set forth the particular objections urged to the ballots on either side. They involve no novel questions, and under the amendment to the Election Law by the last legislature may never arise again. It may be mentioned, however, that the court sustained objections upon both sides against counting ballots where the voter had stamped a cross on the parallelogram containing the candidate's name after the name, but not in the square, and had stamped a cross either under or on the words "Yes" or "No" in voting on constitutional amendments, and not in the square. As the law stood (Pol. Code, sec. 1205) when this election took place, the law did not require the cross to be stamped in the square, but only after the name of the candidate (Tebbe v. Smith, 108 Cal. 109), and as to constitutional amendments, against the answer he desired to give. So in neither case was the stamps a distinguishing mark. The ballots were therefore valid, and should have been counted.
While we do not consider that any practical purpose can be subserved by calling further particular attention to any of the objections urged, yet for the benefit of counsel in the case we will mention those objections by number which the court should have sustained or overruled on account of the sufficiency or insufficiency of the objections.
The court should have sustained plaintiff's objections Nos. 3, 59, 64, 74, 75, 77, 104, 117, 120, 121, 123, 124, 157, 158, 167, 176, 184, 185, 194, 215, 225, 237, 241, 251, 252, 258, 275, 278, 281, 290.
It should have also sustained those of defendant numbered *Page 334 33, 63, 125, 142, 144, 153, 160, 172, 207, 214, 216, 235, 247, 259, 271, 282, 287, 293, 298, 312, 345, 360, 372, 409, 415, 434, 453, 468, 471, 475.
The following objections of plaintiff should have been overruled: Nos. 21, 92, 115, 119, 160, 161, 179, 198, 203, 207, 208, 214, 234, 248, 249, 268, 269, 272, 289. Likewise those of defendant numbered 10, 19, 20, 29, 50, 80, 89, 92, 159, 163, 165, 174, 185, 186, 213, 266, 290, 291, 303, 316, 317, 321, 368, 381, 435, 447, 467, 485.
The ballot numbered "Deft. 6," which is sent up here to point defendant's objection of the same number, is obviously not the ballot to which he objected, or which should have been marked as his exhibit. It contains a vote in his own favor, and has nothing upon it rendering it in the slightest degree open to the objection he made to it, or to any other objection. It is so apparent that the wrong exhibit was marked and sent up that we pay no attention to the objection.
Defendant's objection No. 399, made in the lower court, was against a ballot containing a vote in his own favor. It was overruled below, and he has urged on this appeal that the ruling was erroneous. The original objection was doubtless through an oversight of counsel, but as he has not abandoned this assignment of error, and presents it on this appeal, and as it is apparent that the ballot is open to the objection he urged against it — a double cross — we are compelled to pass on it, and find that his objection should have been sustained and the ballot rejected — though the effect is to lose him a vote.
Although upon this appeal the majority of the plaintiff has been increased, it cannot avail him for the purpose of an affirmance of the judgment, because, in our opinion, the court committed errors which if not committed might have had the effect of overcoming this majority in favor of defendant, and for these errors a new trial will have to be ordered.
These errors are as follows, and were committed by the court in ruling as to illegal voters:
3. In that regard it is insisted by appellant that the court erred in refusing to permit him to show, by an inquiry of them, how twenty certain persons who had voted at the election cast their votes for the office of district attorney. All these persons had on election day been, at their request, assisted in marking their ballots by members of the election *Page 335 board at various precincts, and none of them had made oath on registering that he was unable to read or was under any physical disability. On the contrary, in addition to the absence of any statement of the existence of physical disability, it appeared from their affidavits of registration that they could all read and mark their ballots, except a voter, Pulze, who in his affidavit swore that he could not read the constitution in the English language, but could mark his ballot.
The law provides (Pol. Code, sec. 1208) the conditions under which voters who are unable to read, or are suffering from physical disability, may have assistance in marking their ballots. It declares that "When it appears from the register that any elector has declared under oath, when he registered, that he cannot read, or that by reason of physical disability he is unable to mark his ballot, he shall, upon request, receive the assistance of two of the officers of election of different political parties, in the marking thereof, to be chosen as follows:" etc.
It will be observed from the reading of this section that it is only when it appears "from the register that the elector declared under oath when he registered that he could not read, or was physically disabled from marking his ballot," that he shall receive assistance.
The existence of those matters which shall entitle a voter to assistance are required to appear in his affidavit of registration (Pol. Code, sec. 1096), and these affidavits constitute the precinct register to be used by the election board upon election day.
It will be found that the test provided for in section 1208 is the only one contained in the election law for determining whether a voter shall be given assistance or not, and it provides the only condition upon which assistance can be extended. No other test is provided for, and no other test is permissible. When the law has designated a condition under which a right may be exercised, it is necessary to a valid exercise of that right that such condition should exist. This conclusion is strengthened when we take into consideration previous legislation upon this subject.
When section 1208 of the Political Code was first adopted it provided that "any elector who declares under oath to the presiding election officer that he cannot read, and that by *Page 336 reason thereof, or by reason of physical disability, he is unable to mark his ballot, shall, upon request, receive the assistance of any one of the election officers he may choose in the marking thereof," etc. (Stats. 1891, p. 175.)
This section was amended in 1893 (Stats. 1893, p. 307), but was not disturbed as to the oral oath.
In 1895 the section was amended into the present form, which abolished the right theretofore accorded to the voter of making, when he presented himself to vote, an oral oath of his inability to read, or of physical disability which prevented his marking his ballot, and requiring these facts warranting his assistance to appear in his affidavit of registration which would be in the precinct register in the hands of the election board, and an examination of which by them would conclusively determine his right under the law to assistance when he applied for it.
If an examination of the voter's affidavit in the precinct register is not the exclusive method of ascertaining his right to assistance, then the only other way he would be entitled to it would be by a simple request for it, or upon an oral oath establishing his necessity for it, made when he appeared to vote. Now, it cannot be claimed that either of these methods are provided for in the Election Law. No one would seriously contend that he would be entitled to it on a simple request, and if his oral oath was to be accepted (which was not even administered to any of these persons whose votes are here in question), why did the legislature adopt the idle ceremony of repealing the only provision of law which ever accorded it to him, and substituting his affidavit of registration as sole evidence of it?
We are satisfied from the language of the section, and in view of the previous legislation, that the legislature intended that the test of a voter's right to assistance should appear on, and be determined by, an examination of the register by the election officers (the affidavits of registration which constitute the precinct register), and that by amending the law which previously extended the right to make oral oath so as to require the necessary facts to appear in the affidavit of registration, that this latter method was intended by the legislature to be exclusive, and that the provision is mandatory.
We are mindful that cases may arise where the voter between *Page 337 the day of final registration and the day of election may become so physically incapacitated as to be unable to mark his ballot, and as such fact could not appear on the register, under the view we hold of the section, he could not be permitted to vote. What the rights of a voter under such circumstances would be, — whether (the law having failed to make provision for such a contingency, and only contemplating that the disabilities existing at the time of registration should appear in the affidavit of registration) the voter would be entitled to assistance upon taking an oath before the board of election, — is a matter not here involved, because it appears from the evidence that all the persons whose votes the appellant challenges as illegal suffered from the disabilities which they claimed on the day of election entitled them to assistance when they made their affidavits of registration.
We think these votes were illegal, and that the court erred in refusing to allow appellant to inquire how the parties depositing them voted.
Upon the general proposition of the illegality of these votes attention is directed to the cases of Tebbe v. Smith, 108 Cal. 113; Patterson v. Hanley, 136 Cal. 275, and Summerson v.Schilling, 94 Md. 591.
Evidence was taken upon the trial over appellant's objection which showed that these persons whose votes were challenged as illegal were in fact on the date of their registration either unable to read or by reason of physical disability unable to mark their ballots.
As the law, however, does not leave the question of the right of the voter to assistance to be determined by the court when the legality of such vote is challenged upon a contest, but requires the voter's right to assistance to appear from his affidavit as set forth in the precinct register, the court erred in refusing to permit appellant to question these parties as to how they voted.
In order to avoid any question upon a new trial as to the identity of these illegal voters, we give their names as appearing from the record (omitting their initials). They are Austin, Nickell, Alexander, Jones, Wilger, Pulze, Washabaugh, Hill, Gibson, Brannigan, Olsen, Harrington, Valine, Rose, Peters, Sacramento, La Montagne, Angelo, Thomas, Adams, and Hiller. *Page 338
As to additional illegal voters the court also erred in refusing to permit the defendant to show how they had voted for district attorney. The evidence concerning these voters was, that the county clerk had appointed one F.B. Edson, who was engaged in a mercantile business with his brother, T.W. Edson, at Knight's Landing, as a deputy clerk to attend to the registration of voters in the election precinct of Knight's Landing.
During the absence of F.B. Edson, the deputy registration clerk, in the mountains, certain electors came to the store to be registered for the purpose of a party primary. Their registrations were made out by T.W. Edson, who signed the name of his brother thereto as deputy clerk, writing under that signature, as evidence of his action, "per T.W.E." T.W. Edson was not a deputy clerk, and no other registration of these persons was had. These parties were never legally registered, and their votes were illegal. It is contended by plaintiff that their registrations were taken before a de facto officer, and were valid. Conceding that if so taken before a de facto officer, they would be valid, still T.W. Edson was not a de facto officer. A defacto officer is one who, though not authorized by law to act in the official capacity he assumes, yet claims to be so authorized, and in fact does act as an officer. T.W. Edson claimed no right to act as deputy clerk; nor did he pretend to be such; neither was he reputed to be a deputy clerk. In fact he did not in these registrations assume to act as a deputy, but simply as a substitute for his brother, whose name he signed as the deputy, "per T.W.E." as his representative.
Any individual in possession of blank affidavits for registration could have prepared them in the same manner, and the same claim could as well be insisted on to sustain their validity.
As section 1083 of the Political Code stood prior to its amendment in 1899, the law required, in order to entitle an elector to vote, only that his "name shall be enrolled upon the great register of the county." The law then, as now, required an affidavit of registration to be made by the voter, but, prior to the amendment, facts contained in the affidavit were enrolled upon the great register, and the entry of the elector's name in the great register was the evidence of his right to *Page 339 vote. The affidavit was no part of the register. The amendment of this section in 1899 changed this. It is no longer provided that the test of the right of an elector to vote shall be determined by his enrollment on the great register, but an entirely different test is provided, which now is, that he "shall have conformed to the law governing the registration of voters." And, as the law now requires that the affidavits of registration themselves shall constitute the precinct register upon which an elector is entitled to vote, it is essential, in order to so entitle him, that there should be a strict compliance with the law to the extent, at least, that his affidavit for registration should be made before either a de jure or de facto officer. These illegal voters were Reddington, Faulk, Roberts, Jenkins, and William Adams.
It is insisted by defendant that certain other persons were illegal voters by reason of non-residence in the precincts in which they voted, and that the court erred in not sustaining his inquiry as to how they voted.
Residence is a question of fact in which the intention of the party enters as an important element, and when the court has found upon the matter such finding will not be disturbed unless it appears that there is an absence of evidence to support it. We find no such condition in the record. There was evidence including the declared intention of all the parties upon the subject, from which the court was warranted in finding that they all resided in the precincts where they voted, and this finding concludes us from reviewing the matter. This applies to the finding by the court upon all claims of residence or non-residence in precincts which are urged by either party upon this appeal.
There is nothing in defendant's contention that certain electors were illegally registered. This claim is based on the fact that after certain voters had registered, it was ascertained that the affidavits of registration contained incorrect designations of their voting precincts, and, at their request, or at the suggestion of the outside deputy registration clerks, who had registered them, but were in doubt at the time as to the lines of the various precincts, and in some instances from his own knowledge, that the names of the precincts inserted were not correct, the county clerk corrected them by inserting the proper precinct names. All these voters in fact actually *Page 340 resided, when they registered, in the precincts represented by the correction. That the wrong precincts were originally designated was clearly a mistake on the part of the deputy registration officers, or of the voters themselves, and the correction was simply to conform to the fact, and made long before the time for registration expired. Under these circumstances the corrections were properly made, and did not affect the validity of the registration.
Nor is there any merit in defendant's claim that one Marston was an illegal voter. His formal affidavit for registration signed by him was in the precinct register, but there was no jurat of the county clerk thereto showing that he had in fact been sworn. The evidence shows that Marston went to the county clerk's office to be registered, that the county clerk himself prepared his affidavit, and while Marston does not remember whether he took an oath before making it or not, he understood that he was making an affidavit. The clerk did not remember whether the oath was administered or not, but testified that it was usual for himself and deputies to swear the voters when they registered them. As it is made the duty of the clerk and deputies to administer the oath to parties applying for registration, and as the affidavit was inserted by the clerk in the precinct register as that of a person entitled to vote, the court was justified in presuming that the clerk discharged his duty and administered the necessary oath, but neglected certifying the fact. An elector is not required to see that the county clerk certifies his registration affidavit, and when he has done all that the law requires of him to effect registration, he cannot be deprived of his vote by the failure of the clerk to perform his duty.
We have now disposed of all the points raised on this appeal by either party, and from what we have said, the judgment of the lower court must be reversed and a new trial granted.
It only remains to determine to what extent the lower court should proceed upon such new trial.
As all the exceptions of both parties to the action of the lower court in the reception or rejection of ballots are presented in the record, and this court has passed upon them and determined upon review that, from the legal ballots cast, the plaintiff has a majority of twenty-one votes, this determination *Page 341 is final, and upon a new trial the lower court and the parties shall be confined to ascertaining how the persons who we have determined were illegal voters voted for the office of district attorney, and upon a basis of twenty-one majority in favor of plaintiff ascertained by us from the legal votes cast, determine from the evidence of such illegal voters whether this majority is lessened, equaled, or overcome, and render a judgment accordingly.
The judgment is reversed and a new trial ordered, limited to the extent that we have above indicated.
McFarland, J., Henshaw, J., and Beatty, C.J., concurred.