Packwood v. Brownell
Before: Beatty
Synopsis
Election Contest—Malconduct of Election Boabd—Insufficient Statement—Dismissal.—A statement of contest of an election, which merely' specifies malconduct of the judges of election in not opening the polls at- sunrise of the day of election, and in not keeping the polls open for the length of time .required by law, and in allowing persons to vote whose names did not appear upon the precinct register, and in not being all present during all of the time that the polls were held open, and that votes were received during the absence of certain members of the board, is insufficient to sustain the contest, and should be dismissed.
Id.—Pbesencb of Election Officers.—The law does not require the presence of all the election officers during all the time that voting is in progress.
Id.—Illegal Votes.—The mere fact that illegal votes were received by the judges of election is no ground for rejecting the whole vote of a precinct, where there is nothing to show that they were received through fraud or conspiracy, or in such manner as to discredit the presumptive integrity of the board, or to show that there is no practicable means of ascertaining the true vote, and purging the poll.
Id.—Opening Polls at Sunrise—Delay Consistent with Honesty—Nonobstbuction of Suffbage.—Some latitude must be allowed for judgment as to the time of sunrise in the opening of polls; and where delay in opening them precisely at sunrise is not alleged to be inconsistent with honest intent, and the violation of the letter of the law is not alleged to have operated to obstruct the full and fair expression of the suffrage of the precinct, the bald fact of such delay is not sufficient to disfranchise the precinct.
Opinion
THE COURT. When this case was in Department the opinion hereto attached was prepared by Mr. Commissioner Britt, and after further consideration we are satisfied with the conclusion therein reached. For the reasons given in that opinion the [479]judgment is reversed, with directions to the court below to dismiss the proceeding:
“The parties here were opposing candidates for the office of supervisor of supervisor district No. 4, in Lassen county, at the election held November 3, 1896. In the total poll Brownell had two votes more than his opponent, and received a certificate of election accordingly. In Pitt river precinct of said district, thirty-two votes were cast for said office, those for Brownell exceeding those for Packwood by six; so that if the return from this precinct were thrown out Packwood would be elected. The latter instituted the present proceeding to contest the election, alleging in his written statement, filed as required by section 1115 of the Code of Civil Procedure, malconduct on the part of the board of judges of election at Pitt river precinct. The contestee moved the court below, under section 1122 of the code, to dismiss the proceeding on the ground of insufficiency of the causes 'of contest set out in said statement, and that it showed no ground for rejecting the returns from said precinct. The motion was denied, and a trial was had with the result that the court rejected the vote of said precinct and adjudged that Packwood had been duly elected.
“The question we find most exigent on appeal is whether the court erred in denying the said motion of the contestee to dismiss. The following are the specifications of malconduct contained in the statement: fl. That the said board of judges of election of Pitt river precinct did not open the polls at sunrise of said day of election nor keep the polls open for the length of time required by law; 2. That said board .... allowed certain persons to vote at said polls on said day of election whose names did not appear on the precinct register of said Pitt river precinct; 3. That all of the members of the board .... were not present during all of the time that the polls were held open, and that votes were received during the absence of certain members of said board of election.’ We shall consider these in their inverse order.
“As to the third specification, it is enough to say that the law does not require that all the members of the board shall be present during all the time that voting is in progress. As to the second, it is wholly insufficient in that it fails to state that
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