Opinion
12-19-1958
Alvin A. IMMEL et al., Contestors and Appellants, v. Ray B. LANGLEY, Contestee and Respondent. * Civ. 6112.
Horton, Knox & Carter, El Centro, for appellants. Dickenson, Sattinger & McKee and Beard & Wien, El Centro, for respondent.
Alvin A. IMMEL et al., Contestors and Appellants,
v.
Ray B. LANGLEY, Contestee and Respondent. *
Dec. 19, 1958.
Rehearing Denied Jan. 15, 1959.
Hearing Granted Feb. 11, 1959.
Horton, Knox & Carter, El Centro, for appellants.
Dickenson, Sattinger & McKee and Beard & Wien, El Centro, for respondent.
MUSSELL, Justice.
This is an election contest involving the office of County Supervisor, Fifth Supervisorial District in the county of Imperial. The proceeding was brought under the provisions of section 8511, subd. (e), of the Elections Code, which provides, as far as is material here, as follows: '8511. Grounds for contest. Any elector of a county, city, or of any political subdivision of either, may contest any election held therein, for any of the following causes: * * * '(e) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.'
The agreed statement on appeal herein shows the following facts: On or about the 3rd day of June, 1958, an elections was held to elect a member of the board of supervisors from the fifth supervisorial district in the county of Imperial, State of the 3rd day of June, 1958, an election was named on the ballot at said election for said office, namely, J. R. Snyder and R. B. Langley. After said election the votes were canvassed and showed that J. R. Snyder received a total of 774 votes, and R. B. Langley received a total of 788 votes. On the 16th day of June, 1958, the duly appointed officers canvassing the returns of said election certified the result of the election and declared that R. B. Langley, contestee herein, was elected to the office of supervisor for the fifth supervisorial district. A certificate of election was issued to contestee on July 2, 1958, by the county clerk. On or about the 9th day of July, 1958, contestors herein filed a 'Statement to Contest Election Proceedings' under Division 10, Chapter 2, of the Elections Code of the State of California (Elec. Code, sec. 8511, subd. (e). The statement to contest alleged in part that 'the precinct boards in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election', as to any person who has been declared elected. Pursuant to said statement to contest, a hearing was scheduled in accordance with law, and on the 21st day of August, 1958, a recount of the ballots cast at all the precincts was had before the above entitled court, with all interested parties being present, and contestors and contestee were represented by counsel. Upon completion of the recount, the court found that J. R. Snyder received a total of 808 legal votes and R. B. Langley received a total of 808 legal votes, a tie vote.
Thereafter, on the 29th day of August, 1958, the court filed its findings of fact and conclusions of law. They state in part that the court found J. R. Snyder received 808 votes and R. B. Langley received 808 votes, and a tie vote. The court concluded that the contestors take nothing by their proceedings and that the same be dismissed. On August 29, 1958, the court signed and filed its judgment based on said findings of fact and conclusions of law, providing therein that the contestors take nothing by their proceedings and that the same be dismissed.
Contestors, who appeal from the judgment, contend that the trial court should have rendered a judgment annulling the declaration and certificate of election and decreeing that neither candidate was elected.
In McClintock v. Abel, 21 Cal.App.2d 11, 68 P.2d 273, plaintiff and defendant were the only candidates for the office of supervisor of Kern County whose names appeared on the ballot in the primary election. After the canvassing of the returns by the board of supervisors it appeared that defendant had received a majority of all votes cast for that office. On September 8, 1936, a certificate of election was issued to him and on October 7, 1936, plaintiff filed his contest of election. On appeal it was held that the effect of section 2 3/4 of article 2 of the Constitution, which provides in part as follows: 'Any candidate for a judicial, school, county, township, or other nonpartisan office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidate seeks nomination, shall be elected to such office.', has been to transmute a primary election, held for the purpose of nominating candidates, into a general election of those nonpartisan candidates receiving in the primary a majority of all votes cast for their respective offices; that section 1111 et seq. of the Code of Civil Procedure (now Elections Code, sections 8511 et seq.) sets up the legal machinery for the contest of an election to a public office; that this chapter of the code concerns itself with the contest of elections and has nothing to do with the contest of a nomination in a primary election.
In Doran v. Biscailuz, 128 Cal.App.2d 55, 274 P.2d 691, 695, in an action instituted to contest the right of the sheriff of Los Angeles County to the office to which he had been elected in the primary election held on June 8, 1954, the court held that 'An elector may contest a general election on the ground that the person who has been declared elected to an office was not at the time of the election eligible to that office (Elections Code, § 8511, subd. (b).) The procedure to be followed in the contest is set out in the Elections Code, §§ 8530 and 8531.' The above cases are cited and commented upon in County of Alameda v. Sweeney, 151 Cal.App.2d 505, 511, 312 P.2d 419.
Section 8556 of the Elections Code provides that after hearing the proofs and allegations of the parties the court shall pronounce judgment in the premises either confirming or annulling and setting aside the election. If it appears that a person other than the defendant has the highest number of votes, the court must declare that person elected (Elec. Code, sec. 8557.) Section 8570 provides that the person declared elected by the superior court is entitled to a certificate of election to be issued by the county clerk, and section 8571 provides that if the clerk has issued an election certificate to any person other than the one declared elected by the court, such certificate is annulled by the judgment of the court.
In 17 Cal.Jur.2d, section 212, page 477, it is said that under the above provisions a contestant cannot have himself declared elected unless he proves that he received the highest number of votes, citing Keller v. Chapman, 34 Cal. 635, and Shinn v. Heusner, 91 Cal.App.2d 248, 204 P.2d 886. In the latter case respondent Heusner, who was the incumbent supervisor of the third supervisorial district in El Dorado County, was opposed for reelection by appellant Shinn at an election held June 1, 1948. The final count gave Heusner 431 votes, including 32 by absentee ballots, and gave Shinn 425 votes, including 4 by absentee ballots. The contestant contended that certain of the absentee ballots should not have been counted, and that if the same were eliminated he would be the winner by 22 votes. Judgment for the contestee was affirmed and the court said on page 251 of 91 Cal.App.2d, on page 888 of 204 P.2d: 'While the prayer of plaintiff's complaint is that the court annul the absentee ballots submitted by Heusner, that the latter be debarred from holding public office, and that plaintiff be declared elected, if the real purpose of the action is to secure the position for plaintiff, the debarring of respondent would not have the effect of entitling plaintiff to such office unless enough absentee ballots were annulled that it could be said that contestant received the majority of the votes cast. See Bush v. Head, 154 Cal. 277, 284, 97 P. 512; People [ex rel. Drew] v. Rodgers, 118 Cal. 393, 396, 46 P. 740, 50 P. 668; Campbell v. Free, 7 Cal.App. 151, 153, 93 P. 1060; Budway v. Hollibaugh, 68 Cal.App.2d 473, 476, 157 P.2d 30.'
It is further stated in said section 212 that where a contest results in a tie vote, the election is not annulled or the contestant elected, since he has not obtained the highest number of votes, but the judgment is that the proceeding be dismissed and the contestant take nothing.
Section 8512 of the Elections Code provides as follows: 'Irregular and improper conduct of judges. No irregularity or improper conduct in the proceedings of the judges, or any of them, is such malconduct as avoids an election, unless the irregularity or improper conduct is such as to procure the defendant to be declared either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes, when he had not received that number of legal votes.'
Section 8514 of the same code provides the following: 'Illegal vote. An election shall not be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.'
Snibley v. Palmtag, 128 Cal. 283, 60 P. 860, was an election contest for the office of supervisor of San Benito County under section 1111 et seq. of the Code of Civil Procedure (now 8511 et seq. of the Elections Code). The trial court found that there was a tie vote. The ground of contest was 'on account of illegal votes'. The court said: 'The proceeding is statutory, and can be inaugurated in four different cases, stated in section 1111, Code Civ.Proc. The fourth ground is, 'On account of illegal votes.' That some other person received more votes than the person declared elected, or an equal number with such person, is not made a ground of contest. Section 1114, [of the Code of Civil Procedure] reads as follows: 'Nothing in the fourth ground of contest specified in section eleven hundred and eleven, is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.' 'Section 1123 of the Code of Civil Procedure reads as follows: 'If in any case it appears that another person than the one returned has the highest number of legal votes, the court must declare such person elected.' Under these provisions it is obvious that the judgment annulling the election is unauthorized by the statute, or by the facts found. The judgment should have been that the contestant take nothing by the proceeding, and it be dismissed, and the cause is remanded, with direction that the superior court make such modification.'
In this connection the Code Commission notes on section 8511 (West's Annotated Codes, Elections Code) are in part as follows: 'Why subdivision (b) should not apply in contesting elections resulting in a tie, does not appear, but under C.C.P. 1124 (now Elec.Code, secs. 8511, 8514) it clearly does not. As the law now stands, subdivision (e) also does not apply in the case of tie votes. This may have been the result of an oversight. When C.C.P. 1124 was enacted, C.C.P. 1111 contained only four grounds of contest. When C.C.P. 1111 was amended in 1935 (Stats.1935, c. 406, p. 1458) it may be that C.C.P. 1124 would have been amended had it been called to the attention of the Legislature.'
In Wright v. Ashton, 143 Cal. 544, 77 P. 477, in an election contest involving the office of a justice of the peace, the contest was instituted on the ground that the boards of election in each of the two precincts of the township had been guilty of malconduct, in that they had miscounted the ballots, and that in each of the precincts illegal votes had been given to the contestee, Frank Ashton. The case was submitted to the court for decision solely on the recount of the ballots. The court found thereon that there were 265 legal votes cast for said office at said election, of which Ashton received 79, Wright 79, Simmons 77, and Wixon 30. Judgment was thereupon entered that Wright take nothing by the action, and that the action be dismissed. This judgment was affirmed on appeal.
Section 1112 of the Code of Civil Procedure (now section 8512 of the Elections Code) then read as follows: 'No irregularity or improper conduct in the proceedings of the judges, or any of them, is such malconduct as avoids an election, unless the irregularity or improper conduct is such as to procure the person whose right to the office is contested to be declared elected, when he had not received the highest number of legal votes.'
It was appellant's claim that based on this section the election of the contestee should have been annulled. In construing the then applicable code sections the court said [143 Cal. 544, 77 P. 478]: 'The statute provides that the right of any person declared elected may be contested, first, on account of the malconduct of election officers, and, fourth, on account of illegal votes. Code Civ.Proc., § 1111, subds. 1, 4. Section 1114, Code Civ.Proc., provides that 'nothing in the fourth ground of contest specified in section 1111 is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.' There is apparent no sound reason why the election should be annulled where one of two persons receiving an equal and the highest vote has been procured to be declared elected because of the irregularity or improper conduct in the proceedings of the judges of election, and not be annulled when such result was procured by illegal votes. Yet such would be the result if appellant's construction of section 1112, Code Civ.Proc., in this regard, be correct, for there can be no question as to the proper construction of section 1114, Code Civ.Proc. If the concluding provision of section 1112, Code Civ.Proc., viz., 'when he had not received the highest number of legal votes,' be read as meaning 'when he had not received as many votes as were given to some other person'--a construction supported by section 1067, Pol.Code--the section is brought into harmony with section 1114, Code Civ.Proc., the language of which latter section strongly indicates the intention of the Legislature that an election shall not be set aside for either malconduct on the part of the judges, or illegal votes, where the true result can be, and is with certainty ascertained by the trial court, unless it appears that another person than the one declared elected has in fact received a higher number of legal votes. 'This much has been said in support of the construction already given to these sections by this court, for it is undoubtedly settled by the decisions that where the question on an election contest is as to whether the person declared elected did in fact receive the highest number of legal votes, the election will not, under our statutory provisions, be annulled unless it appears that another person received a higher vote.'
When Wright v. Ashton, supra, was decided subdivision (e) of section 8511 of the Elections Code was not a ground for contest of an election and the court was there concerned with a contest based upon malconduct of the boards of election in that they had miscounted the ballots. Then, as now, section 1114 of the Code of Civil Procedure (now section 8514 of the Elections Code) provided that an election should not be set aside on account of illegal votes unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. In the instant case, as in the Wright case, supra, 143 Cal. at page 547, 77 P. at page 479, 'There is apparent no sound reason why the election should be annulled where one of two persons receiving an equal and the highest vote has been procured to be declared elected because of the irregularity or improper conduct in the proceedings of the judges of election, and not be annulled when such result was procured by illegal votes.'
Section 8556 of the Elections Code provides that the court pronounce judgment either confirming or annulling and setting aside the election and no provision is made therein to apply when the election results in a tie vote. Since J. R. Snyder, the candidate opposing Langley failed to prove that he received the highest number of votes cast at said election he could not have himself declared elected. 17 Cal.Jur.2d, sec. 212, p. 477, supra. While it appears that an election may be contested on the ground stated in subdivision (e) of said section 8511 of the Elections Code, no provision is made for annulling the election in the event of a tie vote. Contestors argue that if the trial court had given its judgment annulling the certificate of election and declaring a tie vote, the names of both candidates would have been placed on the ballots as candidates for the supervisorial office at the ensuing election, all in accordance with sections 2743 to 2745, inclusive, of the Elections Code. However, these sections relate to nominations at a primary election. Section 8701 of the Elections Code, applying to elections other than primary elections, provides that in any election, except that for Governor or Lieutenant Governor, the election board shall determine a tie vote for candidates voted for wholly within one county. This proceeding does not involve the annulment of the election. Since the trial court found that neither candidate received a majority of the votes cast at said election, neither candidate could be declared elected by the court and the judgment dismissing the proceedings was proper.
Judgment affirmed.
GRIFFIN, P. J., and SHEPARD, J., concur. --------------- * Opinion vacated 338 P.2d 385.