[Refusal to scrve Penalty.] Any person acting as a member of any election board, or as a clerk upon such board, who cannot read and write the English language, and any person who refuses to act upon such board, or as a clerk thereof, after proper notification of his appointment, who is otherwise eligible, unless good and sufficient cause for such refusal is shown to the election board or to the board of supervisors, shall be guilty of a misdemeanor, and upon conviction shall be subject to a fine of five hundred dollars, and upon failure to pay said fine shall be imprisoned in the county jail of such county, or city and county, for the period of one day for each one dollar of said fine. History: Enacted March 12, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 21; March 20, 1889, Stats. and Amdts. 1889, p. 425; March 28, 1895, Stats. and Amdts. 1895, pp. 302-303; March 9, 1899, Stats. and Amdts. 1899, pp. 85-86; March 13, 1903, Stats. and Amdts. 1903, pp. 133-134. 1. Applied, cited, construed, referred to. 2. Construction of section-Composition of board. 3, 4. Ineligibility of officers, effect of. 5. Requirement as to signing of final certificate. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Meyers vs. Pond, 86 Cal. 64, 65, 66, 67, 68, 69, 24 Pac. Rep. 808 (construed). As to officers of election, see note 83 Am. Dec. 752. 2. CONSTRUCTION OF SECTION-Composition of board.-This section as amended by act of March 20, 1889, did not require board of precinct registration of San Francisco to be composed of four persons, viz. two inspectors and two judges, instead of three persons, to wit, one inspector and two judges, as provided by act of March 18, 1878. The act of March 20, 1889, made no change, and did not purport or attempt to make any change, of persons who had charge of registration of voters. It dealt mainly and almost exclusively with matter of holding elections, and so far as it provided for any change of officers at all, that change related entirely to those who were to take charge of election on day of election, and not to board of precinct registra tion. Meyers vs. Pond, 86 Cal. 64, 67, 24 Pac. Rep. 808. 3. INELIGIBILITY OF OFFICERS, EFFECT OF.-Ineligibility of election officers, who were at least de facto officers, will not invalidate election in absence of any showing of fraud and when it is manifest that no injury resulted therefrom.-McCarthy vs. Wilson, 146 Cal. 323, 328, 82 Pac. Rep. 243. 4. Conceding that certain members of election board were ineligible to act thereon for reason that they had been county or township officers within ninety days next preceding election, yet, where they did act, they were at least de facto officers of election, and, as such, their acts were valid, in absence of fraud, even though they did not possess all qualifications requisite for office. Certainly no principle of law would warrant disfranchisement of voters of precinct on ground of such ineligibility.-McCarthy vs. Wilson, 146 Cal. 323, 328, 82 Pac. Rep. 243. 5. REQUIREMENT AS TO SIGNING OF FINAL CERTIFICATE.-This section allows members of election board to relieve one another in duty of canvassing vote, but requires final certificate to be signed by majority of whole.-People vs. Eagan, 116 Cal. 287, 290, 48 Pac. Rep. 120. § 1143. JUDGES NOT TO BE OF SAME POLITICAL PARTY. The judges appointed must not be members of the same political party. History: Enacted March 12, 1872. $1144. SAME. [APPOINTMENT OF BOARD BY ELECTORS, WHEN.] If the board of supervisors fail to appoint the board of election, or the members appointed do not attend at the opening of the polls on the morning of the election, the electors of the precinct present at that hour may appoint the board, or supply the place of an absent member thereof. History: Enacted March 12, 1872; amended March 30, 1874, Code §1145. INSPECTORS OF ELECTION; POWERS OF. The inspector may: 1. Administer all oaths required in the progress of an election. 1146-1150 (250) OATHS-POSTING PRECINCT REGISTERS. [Pt. III. 2. Appoint judges and clerks if, during the progress of an election, any judge or clerk ceases to act. History: Enacted March 12, 1872; amended March 20, 1889, Stats. and § 1146. JUDGES AND CLERKS MAY ADMINISTER OATHS. Any member of the board, or either clerk thereof, may administer and certify oaths required to be administered during progress of an election. History: Enacted March 12, 1872. § 1147. CLERKS (repealed). History: Enacted March 12, 1872; amended April 16, 1880, Code Amdts. 1880 (Pol. pt.), p. 80; repealed March 20, 1889, Stats. and Amdts. 1889, p. 425. § 1148. BOARD AND CLERKS TO BE SWORN. Before opening the polls, each member of the board and each clerk must take and subscribe an oath to faithfully perform the duties imposed upon them by law. Any elector of the township may administer and certify such oath. History: Enacted March 12, 1872. As to city elections, see post § 4369 and note. Failure to take oath, effect of. Mere failure of officers of election to take oath prescribed does not invalidate election.Whipley vs. McKune, 12 Cal. 352, 361. § 1149. POSTING OF PRECINCT REGISTERS. Before opening the polls, the board must post, in some separate, convenient places, easy of access, not less than four printed copies of the precinct registers, as last printed. History: Enacted March 12, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 22; March 18, 1905, Stats. and Amdts. 1905, p. 195; in effect immediately. § 1150. COPIES NOT TO BE TORN OR DEFACED. The copies so posted must be maintained during the whole time of voting, and must not in any manner be torn or defaced. History: Enacted March 12, 1872. § 1160. TIME OF OPENING AND CLOSING THE POLLS. The polls must be opened at six o'clock of the morning of the day of election, and must be kept open until five o'clock in the afternoon of the same day, when the polls shall be closed. History: Enacted March 12, 1872; amended March 30, 1874, Code 1. Applied, cited, construed, referred to. 3. Hour of closing-Elections in city. 7,8. Opening polls, slight delay in, effect of. 9. Polls to be kept open as prescribed by law. 10. Rule as to directory provisions. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People vs. Seale, 52 Cal. 71, 73, 620, 621 (applied); Tebbe vs. Smith, 108 Cal. 101, 111, 49 Am. St. Rep. 68, 41 Pac. Rep. 454, 29 L. R. A. 673 (referred to); Packwood VS. Brownell, 121 Cal. 478, 480, 53 Pac. Rep. 1079 (applied); Hammond vs. San Leandro, 135 Cal. 450, 454, 67 Pac. Rep. 692 (construed with other sections). As to closing polls too soon, see note 90 Am. St. Rep. 79. 90 As to effect of irregularities concerning polling-places, see monographic note Am. St. Rep. 75-78. As to failure to close polls on time, see note 90 Am. St. Rep. 79. As to failure to open polls in certain precincts, see note 90 Am. St. Rep. 77. As to time of election and of opening and closing polls, see note 83 Am. Dec. 751. 2. ELECTION MUST BE HELD IN SUBSTANTIAL CONFORMITY WITH LAW.Neither notice of election nor any other proceedings must contravene provisions of general election law. The giving of prescribed notice is material, and time at which election will be held is required to be stated in notice, and election must be held in all respects as nearly as practicable in conformity with general election laws specifying time and place of holding election. If election does not conform with general election law as to time, election is illegal.-People vs. Seale, 52 Cal. 71, 72, 620, this code § 1160 required polls to be kept open until sunset, but by this section as amended in 1889 requirement was that polls must be kept open until 5 o'clock on afternoon of day of election; but as it was not purpose of act of 1883 to incorporate this code § 1160 into that act, when hour of closing general elections was changed to 5 o'clock p. m., it necessarily changed hour of closing municipal elections; and it was proper, after act of 1889, to close polls at 5 o'clock p. m. at an election held in city for bond issue. - Hammond VS. San Leandro, 135 Cal. 450, 454, 67 Pac. Rep. 692. 4. MALCONDUCT ON PART OF ELECTION OFFICERS.-Conduct of persons acting as officers of election in opening polls and holding election at distance of three miles from place appointed by proper authority is without any just excuse and unauthorized, and in that respect is malconduct on their part within meaning of statute.-Knowles vs. Yeates, 31 Cal. 82, 92. 5. Where polls of election precinct were open until about 10 o'clock, and board took adjournment for dinner, taking ballot-box with them, and leaving materials, ballots, and other things in poll-room, and there were bystanders about polls at time officers went away to dinner to house about one hundred yards from polling-place, provisions of law are substantially violated, and votes cast thereat must be rejected, although no person was deprived of voting because polls were not opened earlier.Tebbe vs. Smith, 108 Cal. 101, 111, 113, 49 Am. St. Rep. 68, 41 Pac. Rep. 454, 29 L. R. A. 673. 6. MANDATORY PROVISIONS то BE LIBERALLY CONSTRUED.-Admitting that provision of this section that polls were to be opened at sunrise on morning of day of election is mandatory, yet even mandatory provisions of election law are to be liberally construed. How is time of sunrise, within meaning of statute, to be determined? If by observation of appearance of sun's disk above horizon of polling-place, then occurrence of clouds or fog must make legal time to open poll matter of guess. If polling-place is in valley among moun § 1161-1164 (252) EXHIBITING BOXES-CLOSING POLLS. tains it may be sunrise upon neighboring summits while it is yet shadow within valley. If time is to be fixed by reference to almanac, then, since in month of November sun rises later or earlier, according as we reckon north or south of any point, accuracy can be attained only by consulting tables calculated for exact latitude of precinct. These considerations illustrate difficulty, perhaps impossibility, which may be encountered in attempt to determine lawful time for opening polls at given precinct. Therefore it must be, from nature and necessity of case, that legislature intended that some margin, even though narrow, should be allowed for honest effort to comply with statute, and did not intend that vote of any precinct should be invalidated because polls were not opened at very instant of sunrise. -Packwood VS. Brownell, 121 Cal. 478, 480, 53 Pac. Rep. 10.9. 7. OPENING POLLS, SLIGHT DELAY IN, EFFECT OF.-Slight delay in opening polls of precinct is not such irregularity as will justify throwing out of vote, if officers of election acted without fraudulent intent, and only one voter appears to have failed to vote by reason of such delay. - Kenworthy vs. Mast, 141 Cal. 268, 271, 74 Pac. Rep. 841. 8. Slight delay in opening polls, explained and excused by absence of one of officers and by necessity of setting up the booth, railing, etc., ought not to disenfranchise voters of precinct, in absence of any § 1161. RECESS (repealed). [Pt. III. showing of actual injury. Delay in opening polls in precinct where ample time is still left for receiving all votes is much less serious irregularity than premature closing of polls, and yet it would scarcely be contended that an entire precinct should be thrown out because poll was closed at 4 o'clock, or even earlier, if at same time it appeared that every registered voter bad deposited his ballot before closing.Packwood vs. Brownell, 121 Cal. 478, 481, 53 Pac. Rep. 1079. 9. POLLS TO BE KEPT OPEN AS PRESCRIBED BY LAW.-Election held to impose school tax in school district is illegal unless held in strict conformity with law, in that polls must be kept open as prescribed by law.-People vs. Seale, 52 Cal. 71, 72, 620, 621. 10. RULE AS TO DIRECTORY PROVISIONS. Rule as to directory provisions applies only to minor and unsubstantial departures therefrom. There may be such radical omissions or failures to comply with essential terms of directory provisions as will lead to conclusive presumption that injury must have followed. Substantial compliance with terms of directory provisions is, after all, required. And such substantial compliance is not had by strictly following some provisions while essentially failing to observe others. There must be reasonable observance of all prescribed conditions.-Tebbe vs. Smith, 108 Cal. 101, 111, 49 Am. St. Rep. 68, 41 Pac. Rep. 454, 29 L. R. A. 673. History: Enacted March 12, 1872; repealed March 30, 1874, Code $1162. BALLOT-BOX TO BE EXHIBITED. Before receiving any ballots. the board must, in the presence of any persons assembled at the polling-place, open and exhibit and close the ballot-box; and thereafter it must not be removed from the polling-place or presence of the bystanders until all the ballots are counted, nor must it be opened until after the polls are finally closed. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., in: Tebbe vs. Smith, 108 Cal. 101, 111, 49 Am. St. Rep. 68, 41 Pac. Rep. 454, 29 L. R. A. 673 (referred to). As to removal of ballot-box from pollingplace or presence of bystanders, see ante § 1160 note. $1163. PROCLAMATION AT OPENING THE POLLS. Before the board. receive any ballots, they must cause it to be proclaimed aloud at the place of election that the polls are open. History: Enacted March 12, 1872. § 1164. PROCLAMATION AT CLOSING THE POLLS. When the polls are closed, that fact must be proclaimed aloud at the place of election; and after such proclamation, no ballots must be received; provided, that all electors, who are within the election booth, and who have not cast their ballot, shall be entitled to receive, mark, and deposit their ballot. History: Enacted March 12, 1872; amended March 20, 1899, Stats. and CHAPTER VII. POLL LISTS. $1174. Form of poll and tally lists. § 1175. Want of form not to vitiate. $1174. FORM OF POLL AND TALLY LISTS. The following is the form. of poll lists and tally lists to be kept by boards and clerks of election. Poll lists of the election held in the precinct of, in the county of on the day of ——, in the year A. D. one thousand eight [nine] hundred and. A B, C D, and E F, judges, and G H and J K, clerks of said election, were respectively sworn (or affirmed), as the law directs, previous to their entering on the duties of their respective offices. NUMBER AND NAME OF ELECTORS VOTING. We hereby certify that the numbers of electors voting at this election Tally lists. Names of persons voted for, and for what office, containing the number of votes given for each candidate: History: Enacted March 12, 1872; amended March 30, 1874, Code § 1175. WANT OF FORM NOT TO VITIATE. No list, tally, paper, or certificate returned from any election, must be set aside or rejected for want |