Atkinson v. Lorbeer

McFarland, J. This is an election contest brought under sections 1111-1127 of the Code of Civil Procedure, and presents the right to the office of marshal of the city of Pomona. Judgment was in favor of defendant, Lorbeer, who had been declared elected by the board of trustees. Plaintiff, Atkinson, appeals from the judgment upon the judgment-roll which includes findings. There is no statement or bill of exceptions. The question presented is whether or not the entire vote of the second ward of said city at the election involved here should be rejected. At that ward respondent received a majority of fifty-one votes; and if the entire vote at that ward be rejected the appellant would have a majority in the city. The court below refused to reject the vote of said ward.

It is contended by appellant that the entire vote of the second ward should be rejected on acco unt of “ malconduct on the part of the board of judges ” of the election, under subdivision 1 of section 1111; and the main facts relied on to support this contention are, briefly, these: Immediately upon the closing of the polls the board of election removed all the bystanders except two from the room which constituted the polling place, and for one-half hour kept the door of said room locked, and kept the public, except said two bystanders, out of said room, and during said half-hour one of the judges of said election was absent. During that half-hour some of the members of the board took the ballots from the ballot-box and counted them, and, finding that there was one more ballot in the box than there were voters as shown by the poll lists, destroyed one of said ballots. The board also, while the room was in that condition, sealed up in envelopes all the unused ballots, and did other things necessary to a preparation for tallying, but [421]did not proceed to the tallying of the votes. At the expiration of the half-hour the door was opened and other bystanders went in, the absent judge returned, and the tallying commenced. At the trial three of the members of the board who were in the room during said half-hour were examined as witnesses and testified as to what was done during that time; and the court found that everything was done in good faith and that no fraud was committed.

Election contests arising out of irregularities of election officers frequently present to courts the alternative of either setting aside in the case in hand the honest and clear expression of the will of the majority of the voters, or of so construing the election laws' as to open the door to future frauds which it is the purpose of those laws to prevent. Of course, neither the voters nor those voted for have any control over election officers; and to set aside the vote of -a precinct, when there was clearly no fraud or any mistake affecting the result, for mere irregularities occasioned by the ignorance or carelessness of election boards would in many cases be a patent injustice. Moreover, a construction requiring an exceedingly strict compliance with all statutory provisions might tempt to irregularities contrived for the very purpose of vitiating the vote at a certain polling place, and, as was said in Whipley v. McKune, 12 Cal. 361, “ might lead to more fraud than it would prevent.” On the other hand, statutory provisions which are clearly mandatory must be substantially complied with; and even directory provisions cannot be so grossly departed from as to make it impossible or extremely difficult to determine whether fraud had been' committed or anything done which would affect the result.