Independence League v. Taylor

BEATTY, C. J.

The opinion of the court overruling a general demurrer to the petition of the Independence League in this cause will be found reported in 154 Cal. 179, [97 Pac. 303]. It was there held, upon the facts confessed by the demurrer, that it was the plain statutory duty of the mayor to appoint two members of the Independence League as its representatives on the board of election commissioners of the city and county of San Francisco, and further, that the party as a corporate body could invoke any proper legal remedy for the enforcement of its statutory rights. There remained, to be tried, however, after the demurrer was disposed of, certain issues of fact raised by the answer of the mayor, wherein it was alleged in effect that at the general election of 1906 the Democratic party polled a larger vote in said city and county for its candidate, Theodore A. Bell, than the Independence League polled for its candidate, William H. Lang-

[296]

don. Other minor issues relating principally to questions of procedure were also presented, but they were practically eliminated at or prior to the hearing by agreement of the parties, and since there had been no question at any time as to the number of votes (10,413) received by Mr. Langdon in the city and county, the evidence at the hearing was limited to the question as to the number of Democratic votes cast for Mr. Bell. The evidence offered by the petitioner and admitted subject to any objection to its competency, was the testimony of the registrar of voters of San Francisco and another witness to the effect that the duplicate returns made to the registrar in pursuance of the requirements of section 1261 of the Political Code, show that of the votes cast for Bell at said election in said city and county 6,634 were from Democratic voters, and 4,979 were cast by voters of the Union Labor ticket. The fact that Mr. Bell had been regularly nominated for governor by both the Democratic party and the Union Labor party was admitted, and if we are to accept this evidence we are satisfied that the figures given show with substantial accuracy the number of Union Labor votes to be deducted from his total vote in order to determine whether the Democratic vote for Mr. Bell was equal to the vote for Langdon, the candidate of the Independence League. But the competency of this evidence is denied by the mayor who insists that the best and only competent evidence of the number of Democratic votes cast for Mr. Bell in San Francisco is that contained in an official "statement of the vote of California at the general election held November 6th, 1906,” which was compiled and issued by the secretary of state. This report embraces a detailed statement of the vote cast in every county of the state for each of the candidates for state offices, for representatives in Congress, for members of the legislature, and for and against proposed amendments to the constitution—it is, in short, a transcript of the record of the official canvass, and with respect to the office of governor it merely shows that in the city and county of San Francisco Theodore A. Bell (Democrat) received in the aggregate 11,650 votes and William H. Langdon (Independence League) 10,523 votes. It was by this report that the mayor was guided in making his appointments to the board of election commissioners, and the question to be decided here is reduced to