Tebbe

Appeal from the judgment taken within sixty days after its rendition. The evidence is brought up for review by bill of exceptions.

*106 By the official canvass of the supervisors Smith was declared elected over Tebbe to the office of county superintendent of schools of Siskiyou county at the last general election by a plurality of one vote. Tebbe then instituted this contest. The result of the judicial count was to increase contestant's total vote by Ihree, no change being made in the number of votes accredited to contestee, and accordingly the judgment of the court declared contestant to be duly elected.

1. The first point urged is that the court erred in overruling contestee's objection to receiving the ballots in evidence.

The evidence showed that the ballots and returns reached the county clerk through the proper channels. The sealing-wax on some of the packages was broken when they were received from the express office; other seals were broken in handling. The packages were placed on top of a large case in the clerk’s office, and there remained in the condition in which they had arrived until the completion of the canvass by the supervisors, when they were put into three…

I concur in the judgment, and also in the opinion of Mr. Justice Henshaw, except as to the Cecilville precinct. It will be observed that there is no evidence tending to show when “ C. C. Brown, Republican,” was written on the ballots. If there be a distinguishing mark on a ballot when it is voted the ballot should not be counted; but if the mark be placed on the ballot after it had been properly voted, then, at the trial of a contest, it should be counted. Now, upon the trial in court of an election contest, if a marked ballot be found and there is no evidence as to the time of the marking, must the court presume that it was marked before it was voted? Such a rule would afford an evil-disposed person who could get temporary access to the ballots after they had been counted an easy and safe method of changing the result in a close contest by simply marking, and thus invalidating, a few ballots in which the votes were for the prevailing party. Of course, fraud should be carefully guarded against, but it seems to me that the rule contended for would be much like closing a wicket and leaving open a barn door. I do not see that there are any presumptions upon which the problem can be…