Pacheco

The petition of Romualdo Pacheco, praying that a writ of mandamus issue against the respondent, Secretary of State, sets forth that at an election for Representative in Congress from the Fourth Congressional District, held on the 7th day of November. last, the petitioner and P. D. Wigginton were the only candidates for that office, and that the petitioner received nineteen thousand one hundred and four (19,104) votes, and Wigginton nineteen thousand one hundred and three (19,103) votes, and no more, the actual majority of the petitioner in the district being one vote.

He further alleges that in the County of Monterey, which is included in the said Fourth Congressional District, the petitioner received 1,208 votes, and the said Wigginton 986 votes, and no more; and that at the voting precinct of San Lorenzo, which is in said County of Monterey, the petitioner received 51 votes, and the said Wigginton- 27 votes, and no more.

It is also set forth in the petition that on the 15th day of November, 1876, John Markley, at the time being County Clerk of the said County of Monterey, delivered to the respondent Thomas Beck, Secretary of State of the State of California, an abstract…

I concur in the judgment. The reasoning of the Chief Justice, and also that of Mr. Justice Rhodes, lead, by different lines, to the conclusion that the Secretary of State was bound to receive and act upon the abstract copied from the record of the Board of Supervisors as it existed when the abstract was made and certified by the Clerk.

I agree that the demurrer should be overruled, with leave to the respondent to answer, but I dissent from the views expressed by the Chief Justice and by Mr. Justice Rhodes. As at present advised, I am not prepared to admit that the “ abstract ” of the County Clerk is conclusively binding upon the Secretary of State as evidence of the contents of the record of the Board of *21 Supervisors; or (in case of a denial on his part that it is a correct transcript) that the Court would compel him by mandamus — a writ in the nature of a prerogative writ—to proceed on a false or pretended transcript, or on a copy of a simulated record.

I respectfully dissent from the judgment. When this case was submitted on demurrer to the petition, I said: “ As at present advised, I am not prepared to admit that the 1 abstract ’ of the County Clerk is conclusively binding upon the Secretary of State as evidence of the contents of the record of the Board of Supervisors; or (in case of a denial on his part that it is a correct transcript) that the Court would compel him by mandamus —a writ in the nature of a prerogative writ—to proceed on a false or pretended transcript, or on a copy of a simulated record.”

The case has now been submitted on motion for judgment, notwithstanding an answer which denies that the “ abstract ” is correct, and avers that the record has been altered, without authority, in the very particular on which the petition for the writ is based. I cannot assent to the order granting this motion, because such order involves a decision by this Court that the writ of mandate (which should never issue when the Court, in the exercise of a legal discretion, can see that positive injustice may be done) may be resorted to for the purpose of compelling the Secretary of State to proceed on a forged or on a pretended copy…

The statute in defining the jurisdiction and power of Boards of Supervisors, provides that they shall have power “ to establish, abolish, and change election precincts, and to appoint inspectors and judges of elections, -canvass all election returns, declare the result and issue certificates thereof.” (Pol. Code, sec. 4046.) Each of these several duties are incumbent on those Boards as Boards of Supervisors. In canvassing election returns they do not become Boards of Canvassers, limited as to their powers and the period of their existence, but the same Board that establishes an election precinct also canvasses the election returns. It is provided by sec. 4030 that a record of the proceedings of the Board of Supervisors shall be kept; and sec. 4029 provides that the records must be signed by the Chairman and Clerk of the Board. A record kept and authenticated in the manner provided by those two sections is the evidence of the proceedings of the Board, and is the only evidence thereof, in cases where the proceedings are required to be entered of record.

The Board is required by sec. 1281 to canvass the returns “ by opening the returns and estimating the vote of such county or…

It is conceded on all sides that, under the Political Code, the duty of canvassing the election returns of a county, and declaring the result, is confided exclusively to the Board of Supervisors, and that its action in the premises, when duly entered of record, is absolutely conclusive, except in the case of a contested election. The method of procedure in canvassing the returns and declaring the result is prescribed by the statute, and is not only perfectly simple, but is entirely free from ambiguity. The Board must convene at its usual place of meeting on a specified day, and if all the returns from each precinct in the county in which polls were opened have been received, the Board must then and there proceed to canvass the returns; but if all the returns have not been received, the canvass must be postponed from day to day until all of the returns are received, or until six postponements have been had. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof (secs. 1278,1279,1280, and 1281). “ The…