People v. Town of Sausalito

McFarland, J. This is a proceeding brought in the name of the people to have it decreed that the town of Sausalito is not a duly organized municipal corporation, etc. Judgment went for the defendants, and plaintiff appeals.

It is contended by appellant that the board of supervisors of Marin county did not “ canvass the votes” given at the election called to determine whether or not the town should be incorporated, because said board did not have before it the ballots deposited at said election, and did not count the same, but merely canvassed the “ returns.” (Stats. 1883, p. 93.) This position is not tenable. To canvass the votes does not necessarily mean to count the ballots; and to give it the latter meaning would be to defeat the entire purpose of the statute, for it provides that the election shall be con[502]ducted “ in accordance with the general election laws of the state,” and as the ballots were returned to the county clerk the board could not get possession of them, and, therefore, could not have counted them. To “ canvass the returns” and to “canvass the votes” are frequently used in statutes and judicial opinions synonymously; and in the case at bar the words used should be held to have been intended in the sense that would give effect to the statute.

Appellant introduced certain “ records” (so called) of the board of supervisors, from which it appears that, after the canvass, the board entered an order on its minutes as required by section 3 of the act under which the election was held (Stats. 1883, sec. 3, p. 94), which showed that votes were cast as follows: “For incorporation received one hundred and twenty-eight votes; against incorporation received one hundred and five votes”; and then, after a showing of certain votes for officers, there was this statement in the order: “ Total votes polled, two hundred and sixty-six.” Appellant contends that these minutes, or “ records,” bind respondents to the proposition that there was not a majority of of votes cast for incorporation, because of said statement “ total votes polled, two hundred and sixty-six”—one hundred and twenty-eight not being a majority of two hundred and sixty-six; but we do not think so. The board was not required to enter on their records the number of votes polled. Moreover, it does not appear what was meant by “polled”; the board may have meant merely that there were certain blank official ballots deposited in the ballot-box. Under any view, as the board found and ordered that a majority of the votes cast were for incorporation, the respondents, when the validity of the incorporation was attacked by this action, had the right to explain any uncertainty that might arise from the statement about the two hundred and sixty-six votes polled, by showing the real facts upon a judicial count of the ballots in court.