Pombo

William J. Smith and Ernest J. Pombo were the only candidates at an election held on Tuesday, February 2, 1965, for director of division 2 of the West Side Irrigation District in San Joaquin County, a rural area in the vicinity of Tracy. Only 59 votes were cast and 11 of the total were absentee ballots; on February 9, 1965, the final returns were canvassed and the board of directors determined that Pombo had received 32 votes as against Smith’s 27 votes and certified that Pombo was elected. On February 19, 1965, *713 Smith filed a statement of contest (Elec. Code, § 20021, subd. (d)) alleging that certain illegal votes were cast, and that if these votes were not allowed, Pombo’s total vote would be reduced below the number of legal votes for contestant Smith.

Smith served a list of alleged illegal votes on counsel for Pombo, as required by section 20052 of the Elections Code; this list contained nine absentee ballots and three regular ballots; Pombo thereupon served a similar list on Smith challenging three absentee ballots and one regular ballot. The trial judge decided from the testimony that contestant Smith was correct in his challenge of eight of the absentee ballots, which…