Korth v. Souza

Opinion

REGAN, Acting P. J. In this action plaintiff Korth sought a writ of mandate to compel the Election Board of Reclamation District No. 317, Sacramento County, charged with the responsibility of conducting a general election pursuant to the provisions of the Water Code, to issue to plaintiff a certificate of election to the board of trustees of the district. The trial court’s judgment granted a peremptory writ directing defen[33]dants to count the ballots with reformed certificates of acknowledgment to determine which candidates received the highest number of votes to fill two vacancies on the board of trustees.

The candidates at the November 4, 1975, election were plaintiff, James M. Souza and Ebner Schafer. The method of election was as provided in Water Code sections 50700 to 50759, inclusive. Each landowner or legal representative is authorized by statute to vote in person or by proxy and to cast a number of votes fixed by statute, depending upon the value of real estate owned by him or his principal in the district, based on the tax roll. (Wat. Code, §§ 50702, 50704, 50753.) No proxy votes are valid unless authority by a landowner to cast his vote by proxy is given in an instrument in writing “acknowledged and certified in the same manner as grants of real property and filed with the election board.” (Wat. Code, § 50759.) The election board has the statutory duty of canvassing the votes cast and issuing certificates of election to the persons elected. (Wat. Code, § 50752.)

Plaintiff obtained proxies from a number of property owners, sufficient in his opinion to ensure his election. These proxy forms were in proper legal order except that most of them contained a defective certificate of acknowledgment of signature by a notary public, Leland Harris. The forms in question were acknowledged as follows:

“Subscribed and sworn to before me this_day of_ “[Seal] Notary Public ” The correct statutory form of acknowledgment as required by Water Code section 50759 and Civil Code section 1189 is as follows: “ ‘State of ) ) ss. County of ) “ ‘On this day of _, in the year _, before me (here insert name and quality of the officer), personally appeared _, known to me (or proved to me on the oath of _) to be the person whose name is subscribed to the

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