Lord v. Dunster
Before: Paterson
Synopsis
Election Contest—Appellate Jurisdiction— Constitutional Construction—Maxim — Contemporaneous Exposition.-—The supreme court has appellate jurisdiction over cases of contested election, under the constitution of 1879. The decisions of this court, regardless of the reasons on which they were originally based, have, by long acquiescence, fixed the construction of the constitution, upon the principle embodied in the maxim, Contemporánea expositb est fortissima in lege; and there being nothing in the constitution of 1879 to restrict or limit the right of appeal in contested election cases fixed by the construction of the former constitution, that right remains under the constitution of 1879.
Id. — Continuance — Abuse of Discretion — Affidavits of Election Board. — It is error and an abuse of discretion for the court in a contested election case to deny a motion for a continuance made after the trial has ended and the court has met for decision, but before its decision is announced, if the next day is a legal holiday, and the postponement is asked until the day succeeding such holiday, upon affidavits of an election board showing that they and the voters of their election precinct were greatly surprised by the result of the recount of the votes in that precinct (which recount had turned the scale of the election in favor of the contestant), and that they had since the last adjournment of the court procured the certificates of a sufficient number of voters of that precinct who would testify that they had voted for respondent to insure his election.
Id. —Public Nature oe Election Contest—Discovert oe Fraud. — The public at large are deeply concerned in the investigation proposed by an election contest. The public interests imperatively require that the ultimate determination of the contest should in every instance, if possible, reach the very right of the case. When it is made clear to the court that a gross fraud has been committed, either by felonious conduct of the officers of election, in the counting of votes, or by a felonious tampering with the ballots returned to the county clerk, opportunity should be given to discover and disclose the truth before decision of the contest.
Id. — Evidence—Change oe Ballots—Malconduct — Relevanct oe Prooe. — Evidence of a change of ballots after the officers had counted them is admissible in favor of the defendant in an election contest to disprove an allegation by plaintiff, which the answer denies, that tho officers had been guilty of malconduct in counting them.
Id.—Dismissal — Retraxit.—A dismissal of an election contest before citation is served upon the defendant, and before any appearance has been made in the action, does not operate as a retraxit, and is no bar to the institution of another contest.
Paterson, J. —Plaintiff and defendant were candidates for the office of sheriff of Nevada County at the general election held in November, 1888. The returns as canvassed by the board of supervisors showed that Dunster had received a majority of eighty, votes and a certificate of election was issued to him. This proceeding was commenced by plaintiff to contest the election and cancel the certificate of defendant, on the ground that the judges of election in several precincts had through negligence and malconduct made incorrect returns, and had counted and tallied votes for Dunster which had been cast for Lord. A special session of the court was ordered for December .27,1888, a citation was [483]issued and served, and defendant answered, denying specifically the allegations of plaintiff’s statement of contest, and pleading a former judgment in a proceeding commenced by plaintiff for the same relief and on the same grounds. The trial commenced on December 27th, was continued to Friday, December 28th, concluded on Saturday, December 29th, and taken under advisement until Monday, December 31st. Upon the convening of court on Monday morning, a motion for continuance was made, which we shall consider further along.
At the threshold of our consideration of the appeál, respondent makes an objection, challenging the jurisdiction of this court, and claiming that there is no warrant in the constitution for an appeal from the superior court in this or any other contested election case; that it is a “special proceeding,” not included in the “cases at law” of which this court is given appellate jurisdiction by the constitution, and that the act of the legislature providing for an appeal in cases of this kind (Code Civ. Proc., sec. 1126) is void. He concedes that “the mere classing of a civil action under the head of special proceedings in the code is not absolutely determinative of jurisdiction, .... and that unless it can be shown that an election contest is a special case in its essential nature, as distinguished from any case at common law or remedy known to its framework objection to the jurisdiction of this court cannot be sustained.” In support of his contention that it is a special statutory proceeding as distinguished from a “case at law,” and particularly as distinguished from the common-law writ of quo warranto, he cites, among others, the following cases: Dickinson v. Van Horn, 9 Gal. 207; Saunders v. Haynes, 13 Cal. 152; Dorsey v. Barry, 24 Cal. 449; Casgrave v. Howland, 24 Cal. 457; Norwood v. Kenfield, 34 Cal. 332; Keller v. Chapman, 34 Cal. 635; Houghton’s Appeal, 42 Cal. 56; Bixbee’s Appeal, 59 Cal. 554.
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