Rutledge v. Crawford

De Haven, J. The parties to this action wrere oppósing candidates for the office of judge of the superior court of Sonoma County, at the general election of 1890. The respondent, Crawford, received a certificate of election, and this is an action contesting his right thereto.

As a result of the trial and recount in the superior court, it appearing that the defendant received one vote more than the plaintiff, the court, on motion of defendant, granted a nonsuit, and dismissed the proceedings.

The plaintiff appeals from this judgment, and claims that the court erred in counting certain ballots for the [530]respondent, and in refusing to count others for himself.

1. Two ballots, regular on their face, and with the appellant’s name printed thereon for judge of the superior court, were not counted by the court, for the reason that there was on the back of each a faint type impression of a portion of the face of a similar ticket. The impression is known among printers as an “offset,” and is produced when there is too much ink upon the type used in printing, by placing one ticket face downward upon the back of another which has preceded it from the press. In our opinion, the court erred in its refusal to count these ballots for appellant.

Section 1206 of the Political Code provides: “When a ballot found in any ballot-box bears upon the outside thereof any impression, device, color, or thing, or is folded in a manner designed to distinguish such ballot from other legal ballots deposited therein, it must, with all its contents, be rejected.”

Prior to the adoption of the code, it was the usual practice to have the tickets of the different political parties of a different color or weight or size, so that an observer at the polls could see at a glance and detect the party ticket that was deposited by the voter. It was to prevent this, and secure to the citizen absolute secrecy for his ballot, that the section above quoted and others of the same code were enacted, prescribing for ballots uniformity of paper, color, and size, and in order to justify the rejection of a ballot under this section, it must appear that such “impression, device, color, or thing” on the outside thereof was intended to distinguish it from other legal ballots (Wyman v. Lemon, 51 Cal. 273); and the court is not authorized to find such design when it is just as reasonable to attribute the appearance of the ticket to accident as design. It is not doubted, as was argued here, that tickets may be marked in this way for the purpose of distinguishing them from other ballots, and to be furnished only to a certain class of voters. But in the absence of any proof tending to show this, the