Wright v. Ashton

ANGELLOTTI, J.

This is an election contest involving the office of justice of the peace of Hot Springs Township, in Napa County. Upon the canvass of the returns by the board of supervisors, it was determined that contestee, Frank Ash-ton, had received one hundred and one votes; contestant, Joseph C. Wright, ninety-five votes; one William T. Simmons, seventy-seven votes; and one I. Wixon, thirty votes,—and Ashton was thereupon declared elected.

This contest was thereupon instituted, the grounds specified in the statement being, that the boards of election in each of the two precincts of the township had been guilty of malconduct, in that they had miscounted the ballots, and that in each of the precincts illegal votes had been given to said Ash-ton.

It was further alleged, that the officers of one of the precincts had failed “to keep a list of the residences of each elector.

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It appears from the record that upon the trial no evidence was offered or received on behalf of either party concerning any illegal votes or any other ground of contest, other than the ballots cast at the election, which were counted by the court, and the cause was submitted to the court for decision solely upon such recount of the ballots by the court.

The court found thereon that there were two hundred and sixty-five legal votes cast for said office at said election, of which Ashton received seventy-nine, Wright seventy-nine, Simmons seventy-seven, and Wixon thirty. Judgment was thereupon entered that Wright take nothing by the action, that the action be dismissed, and that each party pay his own costs. The contestant appeals from this judgment.

It is not claimed that the trial court erred in any of its rulings relating to the count of the ballots, the only questions presented upon this appeal being as to the proper disposition to be made of a proceeding of this kind, when it is found therein that, upon a correct count of the legal ballots, the person declared elected did not, in fact, receive

more

votes than some other candidate for the same office, but did receive

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