Coglan v. Beard

McKinstry, J. This was an action under the provisions of the Code of Civil Procedure to contest the right of defendant to the office of county clerk of Sacramento, to which he was [59]declared elected by the board of supervisors. From a judgment in favor of plaintiff the defendant has appealed.

Any elector may contest the right of a person declared elected to an office, “ for malconduct on the part of the board of judges, or any member thereof.” (Code Civ. Proc. § 1111, subd. 1.) And in his written statement or complaint the contestant is required to set forth specifically “the particular grounds of such contest.” (Code Civ. Proc. § 1115.)

In the case at bar the ground of contest alleged in the plainiff’s statement or complaint is, that in the several election precincts the boards of election “were guilty of malconduct, committed as follows: That said board of election counted and tallied ballots for the said M. it. Beard for the office of county clerk, upon which the said Beard’s name did not appear, and that said board failed, neglected, and refused to count and tally ballots for C. M. Cogían, for the office of county clerk, upon which the name of said Cogían did appear.” The averments of the complaint are specifically denied.

The ballots supposed to have been cast by the voters were recounted in the presence of the court. In nearly every precinct tiie recount resulted in a gain to the contestant and a loss to the defendant.

The results reached by the recount as to two of the precincts were rejected by the court below, the learned judge saying in the findings: “While there is not sufficient evidence to satisfy my mind that the ballots have been tampered with, or fraudulently manipulated in any way, still from the circumstance of the package having been opened, and a very considerable variance being found between the returns and the actual count of the ballots, I think it unsafe to adopt the recount, and therefore in this precinct I take the returns.

The packages of ballots which the court below considered it “ unsafe ” to treat as not having been tampered with or “ fraudulently manipulated,” — although the evidence was not sufficient to satisfy the mind of the judge that there had been such tampering or fraud—had been in the same custody as the packages assumed to have been sent from the other precincts. As to some of these, the names of the election officers were not written across the seals fastening the packages, nor were the