Jennings v. Brown

Temple, J. This is a contest for the office of supervisor in the county of San Mateo. The judgment ap-‘ [308]pealed from confirms the election of defendant. The appeal is from the judgment with a bill of exceptions.

In precinct No. 1 the record shows that one hundred and eighteen votes were counted without objection for contestant, gmd eleven votes -were objected to and reserved by counsel for respondent. One hundred and thirty-four votes were counted without objection for respondent, and nineteen votes were objected to by contestant. It subsequently appears-that all ballots were counted, and as counted the tally stood for Brown one hundred and fifty-four votes, for Jennings one hundred and twenty-eight. It is not expressly stated that the ballots objected to by respondent’s attorney were ballots for contestant, or that those objected to by contestant were cast for respondent-, but it would naturally be supposed that such was the case, and, if so, then the tally clerks must have made a wrong addition. .It should have been on that hypothesis one hundred and fifty-three for Brown and one hundred and twenty-nine for Jennings. This would have changed the result as finally declared.

The court was requested by the contestant to recount the votes, but declined to do so. There were also four ballots which had not been counted by the precinct, officers.

The bill of exceptions fails to show error in this respect. It surely does not show all that occurred at the trial, for, while it appears that some thirty ballots were objected to, it is impossible to find from the record how the court ruled upon one-half that many. There were two tally clerks, and the court reporter also kept tally. All agreed, and the court was satisfied that no mistake had been made.

We have carefully examined the ballots which were brought here for our inspection under a previous order. We find nothing upon any of these worthy of notice, unless it is the ballot upon which the voter has written under the head “State Printer” the name “W. D. Craig, Independent Democrat.” It is objected that the voter was only authorized to write the name of the person [309]voted for, and that the addition “Independent Democrat” is unauthorized, and may constitute a distinguishing mark. Section 1197 of the Political Code provides that after a candidate’s name shall be printed his party designation, and they were so printed on the ballot. It would be quite natural, then, that one writing in the name of a candidate not in the list should add such designation. Perhaps the statute should be construed as requiring or permitting the name to be written in the same manner as the others are printed. The designation would then be a descriptio personas, and a part of the designation of the person voted for and authorized by the statute.