The record-union., 1892-10-24
ELECTION CONUNDRUMS.
Deputy Attorney-General Layson An
swers Two of Them.
An Election Precinct With Only Eight
Electors, and They Constitute
the Election Officers.

w. Fl. Layson, First Deputy Attorney
General, rendered two opinions Saturday
afternoon on questions which had been
submitted to him regarding rights of
electors.
The first conundrum was propounded
by Ambrose A. Fox of San Luis Obispo
County. Mr.. Layson in solving it says:
"4 on state that there are in your cleo
ton precinct only eight persons (electors)
who can speak and write the English lam
guage, and that those eight constitute
your Election Board, but that two of
them are county officers and ineligible to
act, and that it is claimed that your cleo
ton must go by default for want of quail
ned officers to conduct the same. Section
lI4Z, Political Code, among other things,
provides: The Board Of Supervisors, or
other board having charge and control of
elections, shall appoint for each pre-
clnct, from the electors thereof whose
names appear upon the last assessment
roll, two inspectors, two judges and two
clerks, the inspectors and Judges and
| clerks to be selected respectively from
the TWO opposing parties which cast the
greatest number of votes at the next pre-
cedlng election. No person shall be eIigi-
bic TO act as an officer of election at any
precinct who has been employed in any
official capacity in the county, or city and
county, in the State. within ninety days
next preceding any election. No person
shall be eligible to act as member of any
Election Board, or as clerk upon such
board, who cannot read and write the
English language Then follows PEN
atty for acting as election officer where
the officer cannot read and white English.
This penalty attaches to no other want of
qualification. 1t is not provided that an
election shall be void where officers act
without such qualifications.
1T is well established that title to office
can not be inquired into in collateral ac-
ton. 1t IS not necessary here to discuss
whether or not some of the aforemen-
toned qualifications are not merely
directory. The violation of directory
provisions does not invalidate an cleo
ton. Russell VS.. Mcdowell, So Cal. 70.)
AS far as the public are concerned their
rights are not destroyed by official ac t
in the absence of fraud. Your board as
constituted is de tacto board. "a person
lndisputably ineligible may be an officer
de tacto by color of election Baird VS..
Bank of Washington, IL S. ~ r. ALL
When the appointing power has made an
appointment and person is appointed
who has not the qualifications required
by law, the appointment is not therefore
void. The person is de facto an officer,
his acts in the discharge of his duties are
valid and binding. A statute prescribing
qualifications to an office is merely di-
rectory, and although an appointee does
not possess the requisite qualifications
his appointment is not therefore void un-
less it is expressly so enacted. (St. Louis
! County Court VS.. Sparks, 10 Mo. III, l2l;
McCreary on Elections, Sd Ed, Section
2l6, p. ia, 145; Wells VS.. Taylor, 2 w. G.
Rep, 252; Whipley VS.. McKune, II Cal.
352.) Election laws should, if possible,
be construed so as to preserve the right of
the electoral franchise and not so as to dis
franchise an entire community. Pro-
ceed with the election and leave the re-
suit to the courts. should any one feel
it his duty to to have the legal points
judicially determined"
Richard Phillips submitted question
to the deputy as to whether or not he is
entitled to vote at the coming election.
He moved from Glenn County into Butte
County on August 3lst Of the present
year.
Mr.. Layson informs Mr.. Phillips that
he is in bad box" and will not have
the pleasure of voting. He says: "As
you have not been in Butte County, and
will not have been, prior to election.
ninety days, you cannot vote in Butte
County. You cannot vote in Glenn
County because you shall not have re-
sided in the precinct where registered
thirty days preceding the election.
political Code, Section 1881 Subdivision
5 of Section 1879, Political Code, which
provides that one does not lose a residence
till he has gained one, was repealed by
the adoption of the new Constitution
Constitution, Article II. Section j., and
so decided by the Supreme Court in
Russell VS.. Mcdowell, 50 Cal. so. One
thirty, days prior to election cannot vote
anVWhere.D