Russell

—I eon-cur in the judgment, and in all that is said in the opinion, except that Avhich relates to the constitutionality of section 1239'- of the Political Code. The section is-not-clearly opposed to any provision of the constitution, and in such case, the deference due to the legislature requires that the section beheld constitutional. The constitution should not be so construed as to cut off the right to vote of any citizen ay ho has resided in the state one year preceding the election, in the county ninety days, including a residence in the precinct on the thirtieth day preceding the election. The opportunity of committing fraud under such circumstances, is reduced to a minimum, for many citizens must know of the residence of such a person who has resided in the, county ninety days, ai\d a *83 portion of the thirty days’ limit in that precinct of the county where he offers to vote. It must be observed that the person offering to vote must have resided in the county ninety days and a portion of the thirty days to give him a right to vote, and his removal is only from one precinct to another of the same comity.

This is an election contest. At the general election held November 6, 1888, Russell, the contestant, was the Republican, and McDowell, the contestee, was the Democratic, candidate for sheriff of San Diego County.

According to the official canvass of the returns of the election made by the supervisors, the whole number of votes cast in the county was 8,203, of which McDowell received 4,010 votes, Russell received 3,844 votes, W. J. Gould (Prohibition) received 277 votes, and two votes were counted as scattering. McDowell having received a certificate of election, Russell, in due time, filed Ins petition, in pursuance of sections 1111 et seq. of the Code of Civil Procedure, contesting his right to the office.

The grounds of contest were the first and fourth enumerated in said section, viz.: 1. Malconduct of the election boards; and 2. Illegal votes.

*72 At the trial, the sealed packages of ballots were opened and recounted; the result being, according to the findings of the superior court, that the whole number of votes cast in the county was 8,262, distributed as follows:—

But it was found that 210 votes had been cast by persons whose names were not on the great register, and…