The herald., 1896-01-31
IMPORTANT POINT SETTLED
What Constitutes the Return
Day of all Election!
THE QUESTION ANSWERED
In an Able Decision by Justice Temple
of the Supreme Court
1t Is the Day on Which, All the Returns
Being In, the Canvass OF the
Votes Is Commenced
THE QUESTION ANSWERED

handed down an opinion deciding what Is
the return day of an election, matter
never hitherto passed upon by the court OF
last resort The decision was received at
the Office of the clerk in this city yesterday
for filing. 1t is in the case of William IL.
Carlson, appellant, VS.. John 2. Burt, re-
spondent The opinion is written by JUS
tice Temple and is concurred in by JUS
tees Henshaw and Mcfarland.
The case in question is contest for the
office of assessor of San Diego county. and
was decided against the contestant on de-
murrer to the complaint. The court held
that it had no jurisdiction. because the
complaint, or written statement, as 1t is
termed, was not filed wi h tine county clerk
within forty days after the return day of
the election, as required by sec ion Ills
OF the code of civil pro edure. The COM
plant shows that the election was held on
Tuesday. November 6, lS9 t; "that the re-
specive boz ards of election of the several
precincts of said county on or before Mon
DAY succeeding the said Tuesday made
their returns TO the board of supervisors
of said county OF San Diego or
the votes cast at the said general election,
and that upon said Monday said board Of
supervisors met, and finding that all OF the
returns in the several precincts in which
said election was held had been duly and
properly received. they therefore proceed
ed to canvass said returns" 1t Is also
averred that on the 10 h of November,
1894, the board caused to be entered in
the records of said board statement,
which purported to show the various mat
ters required by section 1882 OF the Polit-
ical code, and that thereupon the board
declared John P. Burt elected assessor OF
San Diego county. The complaint IN the
case was filed December %, 1894, which
was the fortieth day after the entry was
made in the records of the board declaring
Burt elected, and the forty-sixth day after
the day on which it is averred that the
board proceeded to canvass the votes. Ii
the re urn day is the day upon which the
result of the canvass is de ,lared, then this
contest was inaugura ed in time. On the
other hand. if the return day is the day up
on witch. the returns being all in. are pro-
duced before the board. which then pro-
ceeds to canvass them, the statement was
flied 20 late, and the court properly refused
TO entertain the cause
\ Continuing, the opinion says: Section
1115. c. G. P, provides that "Wheu an
elector contests the right of any person
declared elected to such office he must,
within forty days after the return day of
such election, file with the county clerk
written statement,n etc. The codes do not
in any other place speak of any return day.
but several sections in the political code
direct the precinct officers to transmit to
the county clerk certain matters pertaining
to the election The papers to be trans
mirted must be in packages, and in section
1868, political code. are p)ken OF as re-
turns. The board is directed to meet on
the first Monday after the election 10 cam
vass the returns. If the returns have not
all been received the canvass must be post
poned from day to day until all the returns
have been received or until six postpone
ments have been had. The canvass shall be
made by opening the returns and estimat-
ing the votes. (Sections 1878. 1880, 1881,
2. CT The clerk of the board is required,
as soon as the result is declared to enter
on the records a statement similar to that
which The complaint shows the board
caused to be entered on the 18th.
(Section 1882, P. Co. In other sections the
election re urns are mentioned, so that
there can be no doubt as to the meaning of
the phrase, election returns" But what
is the return day of an election? The
phrase, "return day." has been long ia
milar phrase in legal practice. Blackstone
says Volume III, 277) that they are called
days in banc, that is. days of appearance
in the court of common bench They we're
stated days in the term on which writs
were returnable. These were original writs
by which suits were commenced. Ii the
defendant did not then appear and submit
TO the jurisdiction, process was issued to
compel him to do so. In analogy the last
is called return day: or, in case of an order
to show cause the day of the hearing.
The statute provides no precise day in
which election returns must be made.
They should be sent to the clerk at once.
But it would seem that any return is timely
which is received before the board COM
rnences the canvass Naturally, then, the
return day would be the first Monday after
the election, with authority in the board TO
adjourn return day six times from day to
day. if all the returns have not been re-
ceived.
Appellant argues that this construction
may deprive an elector of the right to con-
test altogether, as the board may not de-
clare the result until forty days after the
canvass begins. Unquestionabiy the arglI-
Inent is entitled to great weight and if any
reasonable construction can be given to
the law which would not result in nullify.
ing the law as applied to a possible case,
such construction should be given rather
than construc ion which would have that
effect. But This right to contest is not
given to enable a candidate to Wind cate
his rights, but to any elector. Public pol
icy requires that it should be inaugurated
at once. If commenced within forty
day after the commencement of a can
vaes, il will be before the commence
Inent of the term of the person declared
elected. il delayed much longer it will he
after the commencement of the next term
of office. To contest the right to an office
in this mode is not a natural right, but one
given by statute. The phrase ''returu
day. refers 10 the election returns and tc
some day fixed by something done IN re
gard to the returns. If it had been in
tended that the time should run from tht
day on which the person was declared
elected, ii was easy to say so, and the YER,
language required was in the precise sen
tence in which the limitation was made
How natural il would have been to say tna
con est as to the right of a person 'sde
cared elected" shall be commenced with
in forty days after he has been 80 declared
elected, instead of changing The expires
sion max ng it read "from the return da,
of the election" There is nothing in tn,
expression used which naturally refers I,
the day on which the person whose right i
contested vas declared elected. To th
suggestion that the board may take NOR
than forty days to canvass the votes. i
may be said that it may be possible, but /
quite improbable. Ii it should take mucl
more than forty days the vot
would not be canvassed until the tern
for.wnich the officers are elected will begin
Such contingency was not anticipated
and can rarely happen, except throu.
criminal intent. The presumption is tina
in fixing the election at a certain perio,
before the commencement of the terms q
office and in limi1ing the period for tn
commencement OF d contest, the legisla
ture has taken all these things into con
sderation and has concluded that tn
period fixed will always prove sufficien,
and haIieva that in Drartioa 1, ai,ro,,