Day

This appeal presents an election contest for the office of auditor and recorder of Yuba county. The consideration of a single question disposes of the merits of the litigation.

The trial court rejected thirteen ballots which had been voted for this appellant, upon the ground that they contained a mark which identified them. The face of these ballots disclosed that the voter had marked more names for a certain office than there were persons to be elected to that office, and this act of the voter was held to be a mark of identification. For illustration: in the city and county of San Francisco, eighteen supervisors are elected. If an elector voted for nineteen, the entire ballot should be rejected as containing an identifying mark. This contention of respondent, which was sustained by the trial court, cannot he approved, and a citation of the statutes of this state demonstrates its unsoundness.

Section 1215 of the Political Code, among other matters, declares: “JSTo voter shall place any mark upon his ballot by which it may afterward be identified as the one voted by him.” Section 1211 of the same code also declares: “If a voter marks more names than there are persons to be…