The herald., 1896-03-07

control over election officers; and to set
aside the vote of a precinct when there was
clearly no fraud, or any mistake affecting
the result, for mere Irregularities occa-
stoned by the ignorance or carelessness OF
election boards, would in many cases be a
patent injustice. Moreover, construction
requiring an exceedingly strict compliance
with all statutory provisions might tempt
to irregularities contrived for the very pur-
pose of vitiating the vote at a certain poll
ing place, and, as was said in Whipley VS..
McKune, II Cal. 361. ''might lead to more
fraud than it would prevent" On the
other hand, statutory provisions which are
clearly mandatory must be substantially
complied with; and even directory provis-
ions cannot be SO grossly departed from as
to make it impossible, or extremely difh-
cult, to determine whether fraud had been
committed or anything done which would
affect the result.
The provisions of the statute which APP
pelant contends was violated by the acts
of the board as above stated is in 1852 of
the Political Code. and is as follows: "As
soon as the polls are finally closed the
judges must Immediately proceed to can
vass the votes given at such election. The
canvass must be public, in the presence of
bystanders." This provision, according
to the current authorities, is merely di-
rectory. Provisions concerning time and
place of holding the election and officers
holding the same; the legal qualifications
of voters, and other matters of that char
acter, are of substance and mandatory.
"As a general rule, however, the regula-
tions prescribed by law for conducting an
election are directory merely. and will not
be literally enforced where their nom
observance has occasioned no injury"
Notes to 1858, Deemig's Political Code,
and cases were cited; Dillon's Nun.
Corp, 1917, and notes; Brightly, election
cases, p. 44s ct sec.; Whipley vs.. Nc
Kune, ~ CAL. 352: Sprague VS.. Nor
way, 81 CAL, 174; Keller VS.. Chapman,
"a, CAL 64O.) Section 1852 is not one of
the new features of that part of the present
election laws which is called the "Austral-
ian SYSTEM" and which is in many re-
spects mandatory. 1t has always been a
part of the election laws, and so also has
the provision of IL of the Code of Civil
Procedure, which is as follows: "No irreg-
ularty or improper condition in the pro-
ceedings of the judges. or any OF them, is
such malconduct as avoids an election. I'M
less the irregulGrity or improper conduct
is such as 10 procure the person whose
righ 10 the office is contested to be de-
clared elected when he had not received
the nighe ST numoer of legal votes" (See
Whipley VS.. McKune, supra.)
But provisions which come under the
category of 'directory" may be 30 grossly
violated as to give rise to a suspicion of
may be such that court will not enter
upon the task of inqulring whether or not
this suspicion can be removed, because in
the nature of things no evidence upon the
point could be satisfactory. (Tebbe VS..
Smith, Cal. Decs. vol. xi, p 34.) When,
however, it may be easily shown that the
departure from a strict compliance with
the directory provisions was not accom-
panied with fraud or any act affecting the
result, and such showing is made, then the
vote will not be rejected. Russell VS..
Mcdowell, SO Cal. 7U.) In the latter case
the subject is somewhat fully discussed by
Chief Justice Beatty. Tnen the alleged
misconduct was the failure of the
election officers to comply with sec.
tions 1925 and 1926, Political Code,
which provide that the name and registry
number of the voter, and in cities also the
number of the street where he lives, etc,
must be called out in an audible tone of
voice by the officer receiving the vote, and
the residence must be recorded by the poll
clerk. The court having stated the gen.
eral rule as to directory provisions says,
also, that the neglect of such provisions
designed to prevent fraud 'is ground for
rejecting the entire vote of precinct if
there is no means of purging the poll. -
And the court, in speaking of the omission
of the officers in that case further says: sit
casts suspicion upon their integrity and is
case of fraud. No doubt such omission is
susceptible of explanation, and we are
willing to believe that the officers OF these
precincts erred through ignorance of the
law, and were not actually guilty of fraud
ulent intent. But as the case is presented
we cannot indulge that presumption. The
officers we're not called as witnesses, as
they should have been, to prove that they
acted as they did through ignorance, and
not through frauduien intent; and in the
absence of any rebutting proof on this
point we feel constrained to hold that the
contestant m .de out case OF IN ilconduct
on the part of the election board" The
RUE TO ne deduced from these views is that
when the failure of an election board to COM
ply with such directory provision is of
such a character that it can be readily
shown by competent proof that no
fraud was committed and no harm
done by such failure, and such proof is
made, then the vote will not be
rejected. And 8 ich was the character
of the alleged misconduct in the case at
bar. The provision of 1852 was not en-
tirely ignored, for there were some by
ISLANDERS present during the short time
when others were excluded. The election
officers no doubt thought, innocently,
though enormously, that it was proper to
clear the room of all except two bystand-
ers while they were making preparations
for tallying. But the fact that no fraud
was committed and no wrong done during
the half hour was susceptible of easy proof,
and such proof was made to the satisfac.
ton of the trial court. The off GERS of the
election were called as witnesses, las they
should have been" Russell Va. Mcdowell,
supra), and upon their testimony, uncon-
tradicted, the court made its finding. We
think, therefore, that the refusal to reject
the vote of the Second ward was correct.
There is nothing in this conclusion incon-
sistent with Tebbe VS.. Smith, supra. The
part of the opinion in that case invoked
here related to the conduct of the election
officers of Lake precinct. In the first
place, taking the ballot box away from the
polling place during the day, leaving
the ballots and all other materials at
the polling room was such gross
violation of the statute, and presented
such opportunities for fraud, that court
might we'll decline to enquire whether
actual fraud had been committed. But. in
the second place, the decision was not
based solely upon the removal of the ballot
box, nor was it expressly said that such
misconduct would itself warrant the re.
lection of the vote. This fact was men,
toned in connection with the other and ex-
ceedingly important fact that the polls
were not opened until 10 o'clock; and the
cases cited in the opinion-knowles vs..
Yeates, 81 Cal. 50, and People vs. Scale,
52 Cal. 72-were cases where the polls
were not opened at the proper time, or at
the proper place. When the polls are not
opened until several hours after tine time
fixed by law, it is practically impossible to
show satisfactorily that no voter was pre-
vented from casting his vote. Moreover,
provisions as to time and place of holding
the election are mandatory.