Wright

This is an election contest involving the office of justice of the peace of Hot Springs Township, in Napa County. Upon the canvass of the returns by the board of supervisors, it was determined that contestee, Frank Ash-ton, had received one hundred and one votes; contestant, Joseph C. Wright, ninety-five votes; one William T. Simmons, seventy-seven votes; and one I. Wixon, thirty votes,—and Ashton was thereupon declared elected.

This contest was thereupon instituted, the grounds specified in the statement being, 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 said Ash-ton.

It was further alleged, that the officers of one of the precincts had failed “to keep a list of the residences of each elector. ’ ’

It appears from the record that upon the trial no evidence was offered or received on behalf of either party concerning any illegal votes or any other ground of contest, other than the ballots cast at the election, which were counted by the court, and the cause was submitted to the court for decision solely upon such…

I concur solely because of the previous de. cisions. Were it an open question, I would.be of a different opinion.

I dissent. A person to be elected to an office must receive a plurality, or the highest number of votes, cast for such office; and where two or more persons receive an equal and the highest number of votes there is no choice, and a special election to fill such office must be ordered by the proper board or officer. (Const., art. XX, sec. 13; Pol. Code, secs. 1066, 1067; Code Civ. Proe., sec. 1112.) In declaring the contestee elected when he did not receive the highest number of legal votes was such improper conduct on .the part of the judges of election as to avoid the election; and whenever this fact appears, either before the canvassing board or the court upon a contest, it should be so declared. From the facts found by the court in this case, it should have been adjudged that there was no election. This is a special proceeding in which the public is interested as well as the nominal parties, and no judgment therein should be rendered whereby a person found to be not elected is still retained in office. Snibley v. Palmtag, 128 Cal. 283 , seems to be the only case which is directly in line with the judgment of the lower court herein. That was a Department opinion, and does not…