Carlson v. Burt

Temple, J. J. This is a contest for the office of assessor of the county of San Diego. The case was decided against the contestant on demurrer to the complaint. The court held that it had no jurisdiction, because the complaint—or written statement, as it is termed—was not filed with the county clerk within forty days after the return day of the election, as required by section 1115 of the Code of Civil Procedure.

The complaint shows that the election was held on Tuesday, November 6,1894; “ that the respective boards of election of the several precincts of said county, on or before Monday succeeding the said Tuesday, made their returns to the board of supervisors of said county of San Diego, of the votes cast at the said general election, and that upon said Monday said board of supervisors met, and finding that all of the returns in the several precincts in which said election was held had been duly and properly received, they thereupon proceeded to canvass said returns.”

It is also averred that on the nineteenth day of November, 1894, the board caused to be entered in the record of said board a statement, which purported to show the various matters required by section 1282 of the Political Code, and that thereupon the board declared John P. Burt elected county assessor of San Diego county.

The complaint in this case was filed December 29, 1894. This was the fortieth day after the entry was made in the records of the board declaring Burt elected, and the forty-sixth day after the day on which it is averred that the board proceeded to canvass the votes. If the return day is the day upon which the result of the canvass is declared, then this contest was inaugurated in time. On the other hand, if the return day is the day upon which the returns being all in are produced before the board, which then proceeds to canvass them, the statement was filed too late and the court properly refused to entertain the case.

Section 1115 of the Code of Civil Procedure provides [131]that “ when an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of such election, file with the county clerk a written statement,” etc. The codes do not in any other place speak of any return day, but several sections in the Political Code direct the precinct officers to transmit to the county clerk certain matters pertaining to the election. The papers to be transmitted must be in packages, and in section 1268 of the Political Code are spoken of as returns.