The San Francisco call., 1896-03-07
MARSHALSH|P, /,
A Fight for the Position Evolves
Some New Legal
Points.
Some Irregularity Is Permitted, Pro-
vided There Is Not Enough to
Amount to Fraud.

The Supreme Court has affirmed the de-
cision of the Superior Court in the case OF
Thomas B. Atkinson against John w.
Loobeer, q contest for the position of Mar
shall in the city of Pomona. The decision
is interesting from the way in which it
treats of the application of the election
laws.
The plaintiff wanted the entire vote of
the Second Ward thrown out. This gave
Loobeer majority of 951, but without it
Atkinson would have been elected. At
kinson wanted the vote thrown out on the
ground OF Irregularities. He showed that
when the polls were closedl the election
officers cleared the room of all but two
bystanders and kept the rooms locked for
over half an hour while one of the judges
of election was absent. During that time
they counted the ballots in the ballot box,
and finding there was one more ballot in
the box than there were voters on the poll
list, they destroyed one. They also sealed
up the unused ballots and made all prepa-
rations for the canvass, but did not pro-
ceed to tally the votes. At the, return ol
the absent judge of election the doors were
opened and in the presence of the crowd
the tallying was commenced.
In commenting on the demand to de-
clare void the vote of the whole ward fol
the reasons given the Supreme Court says
Election contests arising out of irreguleri
ties of election officers frequently present to
courts the alternative of either setting aside as
in the case in hand the honest and clear expires
sion of the will of the majority Of the voters OF
of 40 constituting the election laws as to open
the door TO future frauds which it is the pur-
pose OF those laws TO prevent. OF course,
neither the voters no. those voted for have any
control over election officers, and to set aside
the vote of O precinct where there was clearly
no fraud nor any mistake affecting the results
for mere Irregularities occasioned by the ig-
norance or carelessnees of election boards
would in many cases be q patent injustice
Moreover, 8 construction requiring an exceed
ingIy strict compliance with all statutory pro-
visions might tempt TO Irregularities contrived
for the very purpose Of vitiating the vote at a
certain polling place, and 1t might lead to
more fraud than 1t would prevent.
On the other hand, statutory provisions
which are clearly mandatory must be substan-
TALLY complied with, and even directory pro-
visions cannot be SO grossly departed f->m as
TO make it i'm possible or extremely dific..it to
determine whether fraud had been committed
or anything done which would affect the
result
The provision which the contestant
claims had been violated was that re-
Quiring an immediate canvass in the pres
ence OF the bystanders. 1t reads:
AS soon as the polls are finally closed the
judges must Immediately proceed to canvass
the votes given at such election. The canvass
must be public in the presence OF bystanders.
This statute, the court says, Is merely di-
rectory. and was not so grossly violated in
the case at bar as to amount to fraud.
The decision of the lower court is there
fore affirmed.