Davidson

A careful examination of the record, in the light of the petition for rehearing and recent decisions therein cited, has not shaken our confidence in the conclusion voiced in the decisions filed herein. The cases of People ex rel. Russell v. Town of Loyalton, 147 Cal. 774 , [ 82 P. 620 ], and People ex rel. Martin v. Worswick, 142 Cal. 76 , [ 75 P. 663 ], as far as applicable to the case at bar, simply lay down the rule that the burden is on the plaintiff to show that the illegal ballots were sufficient in number to make a difference in the result if deducted. We have never doubted either the existence or wisdom of this rule, nor do we question any of the rules laid down in cases of like character cited and examined. But the facts of the case at bar are very different from the facts in any case we have been able to find. In other cases the number of legal and illegal votes was ascertained, and there was some definite or certain basis for presumption or calculation. But in the case at bar there is nothing upon which the doctrine of probability, which always underlies a presumption, can rest. The certificates of election, standing alone, destroy each other, while the statement upon…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 102 We have this day affirmed the judgment in this action as to defendant Hersom. (See, ante, p. 96, 83 P. 159 .) The present appeal is by the other defendants, on grounds not presented or considered on Hersom's appeal. Here, as there, it is conceded that under section 56 of the County Government Act, as amended in 1901 (Stats. 1901, p. 685, c. 234), but one constable could legally be elected at the general election held November 4, 1902, if the evidence shows that the population was less than six thousand at that time. The complaint, in addition to facts considered on the former appeal, contained the following averments, vital to this decision: "That at said election so held on said day defendant H. L. Davidson received the highest number of votes cast for constable of said O'Neal township, in the county of San Joaquin, state of California, and defendant Frank Peters received the next highest number of votes cast for constable of said township, but on information and belief plaintiff alleges that upon nearly all the ballots so cast in said…