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100 Cal. 199

Austin v. Dick

California Supreme Court

Decided October 30, 1893

California Supreme Court · decided 1893-10-30

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion.</p>

Key passage — most relied on by later courts

““The court, however, refused, by its judgment, to declare contestant elected, and this appeal is taken to obtain a modification and correction of the judgment in that respect. But the finding that no one was declared elected is upon a matter of jurisdiction. The proceeding is entirely statutory, and is to obtain a re-canvass of the votes cast at an election in which, some person was declared elected, and the contest is simply over the right of the person ‘declared elected.’ Section 1111, Code Civ. Proc. It is not, and cannot be made, a proceeding to determine the right of claimants to an office where one claims a right not depending upon that election, and the statute has not authorized the recanvass of the votes in the case, where the election has been declared to have resulted in the election of no one. In such case a new election must be called, although it may be that a candidate may question the correctness of the can-, vass in a different proceeding. Dick was elected at the special election called after it was determined that there had been no election at the general election. No fault is found with that election in the complaint. It is, in fact, wholly ignored. Perhaps it may be now claimed that the special election was illegal because there was then no vacancy. But this is a question which cannot be tried in this proceeding. There is hardly a section in the title in regard to this contest which does not show that the inquiry is limited to an examination of the right o”

quoted by 1 later decision, including Henderson v. Carter

Good law ✅— No negative treatment on recordhow we know

Decided 1893-10-30

How this case has been cited

Cited by 11 later decisions — most recently August 1951

11 state decisions

301893190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Temple, C.

¶1This is an appeal taken to obtain a modification of a judgment in an election contest.

¶2*200It appears from the complaint that at the general election, November 8,1892, plaintiff and defendant were candidates, and the only persons voted for, for the office of supervisor of the third supervisorial district in the county of Modoc; and that at such election plaintiff received eighty-seven, and defendant eighty-five, votes; that the votes were canvassed November 14,1892, but the board refused to declare plaintiff elected, and afterwards, on the 8th of December of the same year, declared the defendant elected.

¶3The complaint then proceeds to set out certain alleged irregularities at the election, and, among them, that the board of judges at a certain precinct failed to count for plaintiff one vote which had been cast for him, and that the alleged misconduct and irregularity “procured said Morris Dick to be declared elected to said office of supervisor, when he had not received the highest number of legal votes therefor.”

¶4The answer denies that said defendant Morris Dick was, or has ever been, declared elected at said election, but avers that the board of canvassers declared the result of the canvass of said election as follows: “ It further appearing from the canvass of said returns that no person has received the highest number of votes for the office of supervisor of the third supervisor district, but that it does appear that of the persons receiving the highest number of votes J. T. Austin and Morris Dick each received the same number, and that no person has received a higher number of votes cast for that office, it is ordered that a special election be held in said supervisor district number three on the first day of December, 1892, for the purpose of electing one supervisor for said district, and that an election proclamation be issued and published calling such special election.” The court found this allegation in the answer to be true, and yet proceeded to find that at such election one vote was wrongly counted for Dick, which, if deducted from the votes counted for him, “will reduce the number of his *201legal votes below the number of legal votes given to said contestant, J. T. Austin.”

¶5The court, however, refused by its judgment to declare contestant elected, and this appeal is taken to obtain a modification and correction of the judgment in that respect.

¶6But the finding that no one was declared elected is upon a matter of jurisdiction. The proceeding is entirely statutory, and is to obtain a re-canvass of the votes cast at an election in which some person was declared elected, and the contest is simply over the right of the person “declared elected.” (Code Civ. Proc., sec. 1111.)

¶7It is not, and cannot be made, a proceeding to determine the right of claimants to an office where one claims a right not depending upon that election, and the statute has not authorized the re-canvass of the votes in the case, where the election has been declared to have resulted in the election of no one. In such case a new election must be called, although it may be that a candidate may question the correctness of the canvass in a different proceeding.

¶8Dick was elected at the special election called after it was determined that there had been no election at the general election. Ho fault is found with that election in the complaint. It is in fact wholly ignored. Perhaps it may be now claimed that the special election was illegal because there was then no vacancy. But this is a question which cannot be tried in this proceeding. There is hardly a section in the title in regard to this contest which does not show that the inquiry is limited to an examination of the right of the person declared elected at the election, the canvass of which is questioned.

¶9The finding, therefore, that no one had been declared elected was a finding to the effect that the court had no jurisdiction of the matter. This present appeal does not affect the rights of said Morris Dick, who it seems has also taken an appeal.

¶10The relief demanded should be denied.

¶11*202Belcher, C., and Vanclief, 0., concurred.

¶12For the reasons given in the foregoing opinion, the relief demanded is denied, and the judgment affirmed.

¶13McFarland, J., De Haven, J., Fitzgerald, J.

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