Farnham v. Boland , 134 Cal. 151 ( 1901 )

This is an election contest, brought under the provisions of sections 1111-1127 of the Code of Civil Procedure, and involves the office of public administrator in and for the city and county of San Francisco. Contestant, Farnham, appeals from a judgment rendered against him, whereby it was held that Boland received 203 votes more than Farnham received, and was declared elected. Various rulings of the court, arising upon the admission in evidence of certain ballots for Boland, are urged as error upon this appeal.

In addition to other matters, section 1215 of the Political Code declares, "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him"; and the fundamental objection, going to all of the ballots here under consideration, is made, that it appears from an inspection of them that the law above quoted has been violated by the voter, and for that reason it is insisted they should have been rejected, and not counted. The purpose of this provision of the law is to destroy the identity of the ballot, and thereby maintain its secrecy; for secrecy of the ballot is one of the cardinal principles upon which the present ballot law is founded, and that principle thoroughly permeates the entire body of the act.

Some difficulty arises in declaring the rule by which the ballots here under consideration should be tested. The law itself is largely a recent importation from a foreign jurisdiction; and while it is in substance found upon the statute-books of many states, sufficient time has not yet elapsed since its importation, for the courts of all those states, in the judicial construction of its many and complex provisions, to stand upon common ground. At this time the decisions of the various state courts upon the construction of the act are not at all uniform, and therefore those decisions, as guiding lights to the true rule of construction, are not valuable aids, and will not be largely relied upon here. Most of the questions presented upon the inspection of these ballots have been considered, in principle at least, by the former decisions of this court, and the law of those decisions will in a great measure form the test by which these ballots will be tried. The statute says: "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him." This language is broad. It is broad enough to cover any mark made by the voter which may serve as a distinguishing mark; and this distinguishing mark may be made with the legally authorized stamp, equally the same as with an ordinary pen or pencil. And while the law may be too weak to reach alldistinguishing marks which may be made with the authorized stamp, still the court will do the best it can to hold the voter to a strict compliance with this provision. If in the use of the stamp the voter keeps within the law, then the ballot will not be rejected, even though the stamp has been used so that the cross made may be an identifying mark. Ballots should not be rejected for trivial reasons; at the same time, it is only by a compliance with this law that the evils may be met and overthrown which were the cause of its birth. Under express constitutional authority the legislature has the power to enact all reasonable regulations for the protection of the purity of the ballot. Those regulations the voter is bound to know, and bound to abide by; and if he does not abide by them, his exercise of the right of franchise may be denied him, and no one of his constitutional rights invaded. InTebbe v. Smith, 108 Cal. 108,¹ and Lauer v. Estes, 120 Cal. 654, the law governing this question of identifying marks is fully declared, and is strictly in line with the general observations the court has above advanced; and keeping in view the principles declared in those cases, we pass to an inspection of the ballots here under consideration.

Under objection No. 1 we find a class of ballots counted by the trial court, where a cross is placed in a square, there being no candidate's name opposite the square. Such a cross is not in a legal place. The voter had no right, under the law, to place it there, and it is a distinguishing mark, which demands the rejection of that class of ballots. Under objection No. 2 a cross is found upon a class of ballots, directly upon the line dividing the two squares. There is also a cross in each of said squares, after the respective candidates' names. Thus there is found a cross not authorized by the law, which may well serve as a means of identifying the ballot, and ballots so marked should be rejected. Under objection No. 3, the court finds a class of ballots where two crosses are made after the candidate's name — one within the square and one without the square. There is no simpler way of evading the provision of the law than for a voter to mark his ballot in this manner. These crosses, so placed, are clearly identifying marks, and all ballots so appearing should be rejected. Under objection No. 4, the court finds a class of ballots with two crosses in the square. Upon some of these ballots the crosses are entirely separate, and upon others they are interlaced and joined in many different ways. The law says the voter shall stamp a cross after the name of the candidate — not two crosses or three crosses, but "a cross." Two crosses in the square is no less a mark of identification than two crosses, one without and one within the square. An allowance of this practice would furnish a simple expedient by which the law could be violated. Two crosses in the square is not a legal mark upon the ballot. The law only contemplates one cross, and therefore ballots so marked should be rejected.

It is claimed that the trial court should have rejected ballots which had the stub attached to them — a stub that should have remained in the book from which the ballots were taken. We hold that these ballots were properly counted; and likewise those ballots were properly counted which the officers of election placed in the ballot-box without first tearing therefrom the numbers attached. It is quite apparent that these violations of the law arose from the carelessness of the election officers. Such carelessness or malconduct upon the part of those officers may render them liable to severe penalties; but that is all. The law as to identifying marks refers to marks made by the voter, and it is only marks made by him that demand the rejection of the ballot. After citing many cases to the point, this court said, inPeople v. Prewett, 124 Cal. 13: "The principle underlying these decisions is, that the rights of the voters should not be prejudiced by the errors or wrongful acts of the officers of election, unless it shall appear that a fair election and an honest count were thereby prevented."

Appellant asks for judgment in his favor, upon the record before the court, claiming that this being an election contest, and therefore largely a summary proceeding, it should be finally disposed of without further delay. The record brought here upon appeal fails to disclose exceptions taken to the rulings of the court in the admission of ballots cast for appellant. The proper practice would have been for respondents to have inserted those rulings and exceptions in the transcript by way of amendment to the bill of exceptions. If that had been done, possibly it may have appeared that the errors of the trial court relied upon by appellant here were without prejudice. (Webster v. Byrnes,34 Cal. 277.) Yet, even conceding power in this court to order the trial court to enter judgment in favor of appellant — a practice which must be recognized as an exception to the general rule, where findings of fact are set aside as unsupported in the evidence — still the court is not inclined to make the order in this case. In the many recent election contests that have been presented here by appeal, it appears to have been the rule, without exception, to return the cause to the trial court for further hearing, when the judgment has been reversed, and we will not depart from that practice in this case. At the same time, in so doing, the action of the court must not be construed as establishing a precedent which will be followed in every case of this character brought here upon appeal.

For the foregoing reasons the judgment is reversed and the cause remanded.

Harrison, J., and Van Dyke, J., concurred.

Modification of judgment denied.

Beatty, C.J., dissented from the order denying a modification of the judgment, and filed the following opinion on the 14th of October, 1901: —

¹ 49 Am. St. Rep. 68.