Russell v. McDowell

<p>Election Contest — Illegal Votes — Apportionment — Malconduct op Election Boards — Review on Appeal. — When upon an election contest a recount of the ballots shows that a lalge number o£ illegal votes were cast, but the record on appeal does not disclose for whom they were cast, or that any of them were cast for respondent, no prejudicial error appears in a pro rata apportionment of the illegal votes by the superior court between the respective candidates; and the reception of such votes, though it may amount to malconduct on the part of the election boards, cannot be considered on that ground, if it does not appear in what precincts they were cast.</p> <p>Id.—Deduction of Illegal Votes — Burden of Proof.—In order to justify the deduction of illegal votes from the total vote of the contestee, it devolves upon the contestant to show not only that they were illegally east, but that they were cast for the contestee.</p> <p>Id. — Spurious Printed Ballots — Amendment of Election Law not Retrospective. —Under the election law as it stood in 1888, before the amendment of 1889 (Stats. 1889, p. 209), while party ballots fraudulently pasted with the names of candidates of the opposite party must be counted for the candidate of the party whose ballot was cast, that law did not apply to fraudulently printed ballots of similar character; and ballots east at the election in 1888 for a Democratic candidate for sheriff) whose name was fraudulently printed on the Republican ticket, must be counted for the Democratic candidate. The amendment of 1889 was not retrospective in its operation.</p> <p>Id.—Election Law — Mandatory and Directory Provisions — Rejecting Vote of Precinct.—It is only those provisions of the election laws relating to the time and place of holding elections, the qualifications of voters, and such others as are made essential prerequisites to the validity of an election, that are mandatory. All others are directory merely, and an honest or mistaken disregard of them, not resulting in manifest fraud, will not justify the rejection of the entire vote of a precinct; but a neglect of directory provisions designed to prevent fraudulent voting, followed by actual fraud of that character sufficient to throw a doubt on the result of the election, is ground for rejecting the entire vote of a precinct, where there is no means of purging the poll.</p> <p>Id.—Malconduct of Election Board—Construction of Code — Fraudulent Disregard of Directory Provisions —Announcing Residence of Voters. —Misconduct of an election hoard will warrant exclusion of the entire vote of the precinct as illegal, under section 1112 of the Code of Civil Procedure, without requiring proof of particular illegal votes cast, if the hoard has disregarded mandatory provisions of the statute, or such directory provisions as were designed to prevent fraudulent voting, followed by such actual fraud as throws suspicion on the result, without any means of purging the poll. Disregard of the provisions of sections 1225 and 1226 of the Political Code, requiring the residence of voters in incorporated towns to be announced and recorded on the poll-list, followed by proof that many more persons voted than there were qualified voters actually resident on each lot in the precinct on the day of election and for thirty days previous, establishes a prima facie case of fraudulent voting, which justifies rejection of the entire vote of the precinct, in the absence of rebutting evidence.</p> <p>Evidence — Proof of Negative — Rebuttal.—Slight proofs make out a prima facie case when a negative is to be proved. In all such cases rebuttal is comparatively easy, and is of imperative obligation.</p> <p>Findings — Review on Appeal — Reversal of Judgment.—When the findings are insufficient to support the judgment, or are contrary to the evidence, the appellate court cannot supply findings, but will reverse the judgment, and remand the cause for a new trial.</p>