The weekly Butte record. [volume] (Oroville [Calif.]) 1866-1887, 1867-01-12

The following decisions of the Supreme Court
will be found of local interest to the people of
this county:
Day VS.. Jo1es.-Tbe parties were rival candidates
for the Office Of Sheriff of the county OF Butte at
the general election in 1855. At the meeting OF
the Board of canyassers, in September, Day was
found TO have received the largest number OF the
votes cast in the county. and was declared duly
elected and certificate of election was according
ly issued to him. The Board again met on the 9Th
Of November, and again canvassed the votes, nc.u-
ding forty-one votes cast without the county by
persons in the military service OF the United states
eight of which were cast within and thlrty-,hree
without this State-and tlierenpon declared Jones
duly elected to the Office of Sheriff The petition
was filed December s, lS65- The County Court
gave judgment for Day.
The counsel for the applicant. Jones, makes
the point that if the position of the respond
ent's counsel is correct, that the law anfhorl-
zing the soldiers TO vote is unconstitutional, then
the canvass Of votes made in November is void
and the petition Of the contestant having been filed
more than forty days after the return day as pres
cribed by Section 56 OF the Election Act Of $50,
must be dismissed. The respondents counsel
moves to dismiss the appeal on two grounds, the
second of which is that an appeal is not the proper
remedy. This ground, like the appellants point,
is based on the position taken by his adversary
Both are hypothetical, and neither correct. \
party is not deprived OF remedy to contest an
election because the Board of Canvassers assumed
to meet more taan forty days after the return Of the
return of the legal votes; and, acting on returns
then made, declared person elected to an office
who was not elected by the legal votes first return
ed For the purpose of the contest, the time would
be held to run from the day On which the returns
were made, on which the Board made the canvass
which was the subject of controversy On the other
hand the losing party Is not deprived oil ms appeal
because the successful party commenced the pro
ceedngs in the Court below at later day than the
law authorized.
The ninth section of the Act Of April 4, 1864.
(Stats 1861 p. 43i) amongst other things provides
that "he several persons whose duty 1t Is to can
vass the votes given for county or district officers
are hereby directed to wait before completing said
canvass until sixty days from the time when such
general judicial county or special election may be
held; but they are hereby required to canvass such
votes on the said sixtieth day., ETC. part OF an
Act may be Unconstitutional without affecting or
inyalidatng other portions of the Act; and 1t may
he an important question whether the provision
cited from the ninth section OF the Act Is not IN
force. The question has not been discussed and we
express no opinion upon it; but we have no doubt
that when such canvass has been made. the time
for contesting the election will begin to run from
the time the returns were made which We're then
canrassed.
The respondents first grouGd-that this Court
has appellate jurisdiction OF the case was fully
considered in the opinion of the Chief Justice in
Knowles vs.. Yeates, October term, 1861 and the
decision was adverse to the respondent
The principal question in the case involves the
constitutonality of the Act of 1854, authorizing
persons in the military service of the United States
to vote elsewhere than in the county or district IN
which they respectively reside and have their votes
returned to and counted in such county or district
as if they had been east at an election held therein
The general features of the Acts involved in this
case are the same as those of the Act of 1868
which was construed by the Court in Bou rland IS.
Hildrcth {26 Cal, 1917
Upon the authority of that case we shall hold
that the County Court did not err in rejecting the
votes that were cast without the county OF Butte.
Judgment affirmed. RHODES, }.
We concur: SAWYER, j.
SuAFTER, J.
CURREY c. J.