Lay v. Parsons

Van Fleet, J. This is a contest under section 1111 of the Code of Civil Procedure, involving the right of the parties thereto to the office of supervisor in district No. 1 in Santa Cruz county. The contest involved simply a question as to which of the parties had received the highest number of legal votes for that office at the general election in November, 1892, and the trial, as is usual in such instances, consisted substantially in a recount of the ballots from the precincts comprised within the supervisor district. The court found that the respondent had received three hundred and seventeen votes, and the appellant but three hundred and sixteen, and by its judgment declared respondent elected. Defendant appeals from the judgment upon a bill of exceptions, in which the only questions presented are as [662]to tbe correctness of rulings made by tbe lower court in counting certain ballots for respondent which were objected to, and rejecting other ballots which appellant claims he was entitled to have counted for him.

The record is not such as enables us to review any of the alleged errors satisfactorily, while most of them are not open to review at all by reason of appellant’s failure to reserve exceptions to the rulings complained of. Among the ballots produced at the trial was one described in the bill of exceptions as being a ballot “upon which there appeared in the blank margin opposite the name of the defendant an irregular blot, without the semblance of a cross, apparently made with the same ink with which all the other ballots were marked,” and “that on said ballot in the blank margin opposite the names of all candidates for supervisor, other than defendant, no mark or stamp appears.” The respondent objected to the counting of this ballot for appellant upon the ground that his name was not marked with a cross as required by law, and it was rejected, and the action of the court is now assigned as error. We cannot say that there was any error in this ruling. It is manifest from the description of the ballot above given that a perfect apprehension and understanding of the alleged defect could be best had only by a visual inspection; this the court below had an opportunity to make with the ballot before it, but this court has not, as neither the original ballot nor a copy is either incorporated into or accompanies the record. We have nothing by which to test the correctness of the conclusions of the court below but the word picture of the ballot as it appeared to the judge who tried the case. The law requires the voter to mark his ballot by means of a stamp, by putting a cross opposite the name of each candidate thereon for whom he intends to vote. This provision of the law is, we think, mandatory, and no other method will satisfy it. The court below found that this ballot was not so marked, and we cannot on the record as presented disturb its finding in that regard. In instances involving