Thomas

This is an election contest involving the right to the office of supervisor in district Ho. 3, county of Tulare. Defendant was declared elected by the board of canvassers. At the trial the court found that each received the same number of legal votes, and, as a conclusion of law, that plaintiff take nothing by the action.

1. The first point made upon the appeal is, that a certain ballot which had been counted for the defendant is illegal because it was marked so that it could be identified. There clearly was such a mark upon the ballot, and if it was upon the ballot when voted it should be rejected. The court found that the mark was not upon the ticket when taken from the box, but was made subsequently. There was some evidence to sustain this finding, although apparently the preponderance was the other way. After the preliminary showing as to the custody of the ballots since the election, there was also a strong presumption that the ballots were in the same condition in which they were first taken from the box—that is, that the marks were made by the voter. Still, we cannot say that there was not a substantial conflict in the evidence. Two witnesses testified that they…