Election Contest — Validity op Ballots — Distinguishing Marks— Law at Date op Election—Change before Trial.—Upon an election contest, the law, as it stood in relation to distinguishing marks upon ballots at the date of the election, must govern as to the validity of the ballots cast, and not the law as changed before the triaE of the contest. The law on that subject is not a rule of evidence or remedy, but substantive law relative to elections.

Id.—City Election—Custody and Care op Ballots—Discretion op Trial Court.—The city clerk, and not the county clerk, is the proper custodian of ballots cast at a city election. The question as to whether the ballots have been so guarded by the city clerk as to preclude the suspicion that they were not in their original condition is largely within the judgment and discretion of the trial court.

Id.—Construction op City Charter—Times op Taking Effect—Validity op Preliminary Election.—Where a newly adopted city charter expressly provided for a preliminary election under it on a date prior to the date at which the charter is to take effect, the charter is to be construed as consistent with itself, and the general provision as to its taking effect merely means that the machinery of the new government shall not start until the later date, and does not conflict with the provision for a preliminary election, without which the charter could not take general effect at the date prescribed therefor.

Id.—Issue not Baised by Pleadings.—Where the validity of the election under the charter was not an issue raised by the pleadings, and it was admitted and averred by the contestee that there was such an election, at which the contestee received the highest number of votes, and claimed judgment confirming his election as mayor of the city, he cannot object on appeal by the contestant that the election was not valid.