The herald., 1896-03-07
AN IMPORTANT SUIT
TIE Supreme Court Rules Upon the EIasti
city of the Election Law

TIE Supreme Court Rules Upon the EIasti.
city of the Election Law
The supreme court has handed down a
decision in the case of Thomas B. Atkn-
son VS.. John W. Lorbeer, marshal of the
city of Pomona. which is of unusual inn
portance. The decision is written by JUS
tics Mcfarland, and concurred in by JUS
tees Henshaw and Temple.
The attempt was made to oust Marshal
Lorbeer from office on the ground that cer-
tain provisions OF the election law had been
violated, but without success. The supreme
court in affirming the decision of the trial
court reviews the case as follows:
This was an election contest brought
under sections 1111-l127, Code of Civil
Procedure and presents the right of the
office OF marshal of the city of Pomona.
Judgment was in favor of defendant Lor-
beer. who had been declared elected by
the board of trustees. Plaintiff Atkinson
appeals from the judgment upon the judy
ment roll which includes findings. There
is no statement of bill of exceptions. The
question presented is whether or not the
entire vote of the second ward of said city
at the election involved here should be re-
jected At that ward respondent received
a majority of 81 votes: and if the entire
vote at that ward be rejected the appellant
would have majority in the city. The
court below refused to reject the vote of
said ward
1t is contended by appellant that the en-
tire vote of the Second ward should be
rejected on account of 'smalconduct on
the part of the board of judges" of the
election under subdivision l of section
1l1l and the main facts relied on to
support this contention are. briefly, these:
Immediately upon the closing of the
poles the board of election removed all
hVStandprS tyVn
which constituted the polling place, and
for one and oEe-half hours kept the door
of said room locked and kept the public,
except said two bystanders, out of said
room, and during said half hour one of
the judges of said election was absent.
During that half hour some of the mem
bers of the board took the ballots from the
ballot box and counted them, and finding
that there was one more ballot in the box
than there were voters, as shown by tho
poll lists, destroyed one of said ballots.
The board a'1o, while the room was in that
condition, sealed up in envelopes all the
unused ballots, and did other things neces.
sary to preparation for tallying, but did
not proceed to the tallying of the votes At
the expiration of the half hour the door
was opened and other bystanders went in,
the absent judge returned. and the tslly-
ing commenced. At the trial three of the
members of the board, who were in the
room during said half hour, were ex-
anined as witnesses, and testified as to
what was done during that time, and the
court found that everything was done in
good faith ami that no fraud was commit
ted.
Election contests arising out of irregu-
larities of election officers frequently pre-
mt TO courts the alternative of either set
tiug aside in tho case in hand the honest
aid clear expression of the will of the
ma ior.ty of the voters, or of SO constituting
tne election laws as to open the door to
further frauds which it is the purpose of
those laws to prevent. OF course, neither