Estate of Weed, 120 Cal. 634, 639, 53 Pac. IN 9. RESIDENCE DEPENDS UPON TENTION AS WELL AS FACT, and mere inhabitancy for short period against intention of acquiring domicile would not make resident within meaning of law so as to constitute an elector.-People vs. Peralta, 4 Cal. 175, 176. 10. RESIDENCE MEANS "LEGAL RESIDENCE." When residence is spoken of in connection with right of person to vote, "legal residence" is meant. Every person has, in law, residence, and one residence cannot be lost until another is gained.Huston vs. Anderson, 145 Cal. 320, 328, 78 Pac. Rep. 626. § 1240. TERM OF RESIDENCE, HOW COMPUTED. The term of residence must be computed by including the day on which the person's residence commenced, and by excluding the day of the election. History: Enacted March 12, 1872. $1241. RULES MUST BE READ, IF REQUESTED. Before administering an oath to a person touching his place of residence, the inspector must, if requested by any person, read to the person challenged the rules prescribed by sections twelve hundred and thirty-eight and twelve hundred and thirty-nine. History: Enacted March 12, 1872. As to oath concerning place of residence, see ante §§ 1232, 1233. $1242. PROCEEDINGS UPON DETERMINATION OF CHALLENGE. If the challenge is determined against the person offering to vote, the ballot offered must, without examination, be returned to him; if determined in his favor, the ballot must be deposited in the ballot-box. History: Enacted March 12, 1872. § 1243. LIST OF CHALLENGES TO BE KEPT. The board must cause one of the clerks to keep a list, showing: 1. The names of all persons challenged; 2. The grounds of such challenges; 3. The determination of the board upon the challenge. History: Enacted March 12, 1872. §§ 1252, 1253 (300) CANVASS OF VOTES-HOW COMMENCED. [Pt. III. CHAPTER X. CANVASSING AND RETURNING THE VOTE. § 1252. Canvass to be public, and without § 1263. adjournment. Ballots, destruction of number in ex- § 1253. Canvass, how commenced. § 1264. § 1255. § 1256. § 1257. 1258. § 1259. How the votes are to be counted. Tally-sheets, how filled. Tickets to be strung and inclosed in § 1260. Return list. § 1261. Certain papers to be sealed up. § 1262. Inspector to keep certain papers. Returns and ballots to be delivered to a member of the board. Election returns; delivery of to county clerks. In San Francisco to registrar of voters. How sealed and by whom. Packages, what to contain. § 1264a. Election, delivery and custody of roster of voters after. To apply to all elections. § 1252. CANVASS TO BE PUBLIC, AND WITHOUT ADJOURNMENT. As soon as the polls are finally closed the judges must immediately proceed to canvass the votes given at such election. The canvass must be public, in the presence of bystanders, and must be continued without adjournment until completed and the result thereof is declared. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 2. Construction of section. 3. Enforcement of directory provisions. 4. Mandatory matters. 1. Applied, cited, construed, referred to, etc., in: Atkinson Cal. vs. Lorbeer, 111 419, 421, 423, 44 Pac. Rep. 162 (construed). 2. Construction of section.-This section is not one of new features of that part of election laws which is called "Australian system," and which is, in many respects, mandatory. It has always been part of election laws.-Atkinson vs. Lorbeer, 111 Cal. 419, 422, 44 Pac. Rep. 162. Directory provision. This provision, according to current authorities, is merely directory.-Atkinson vs. Lorbeer, 111 Cal. 419, 422, 44 Pac. Rep. 162. 3. Enforcement of directory provisions. -As general rule, regulations prescribed by law for conducting elections are directory merely and will not be literally enforced where their non-observance has occasioned no injury.-Atkinson VS. Lorbeer, 111 Cal. 419, 422, 44 Pac. Rep. 162. 4. Mandatory matters. — - Provisions concerning time and place of holding election, officers holding same, legal qualifications of voters, and other matters of that character are substantial and mandatory.-Atkinson vs. Lorbeer, 111 Cal. 419, 422, 44 Pac. Rep. 162. § 1253. CANVASS, HOW COMMENCED. The canvass must be commenced by taking out of the box the ballots unopened (except so far as to ascertain whether each ballot is single), and counting the same to ascertain whether the number of ballots corresponds with the number of names on the list of voters kept by the clerks. In the city and county of San Francisco, at the closing of the polls, the inspector must administer to the additional members of the board of canvassers the oath prescribed in section one thousand one hundred and forty-eight, and likewise to two clerks appointed by such additional members. He must then proceed to take out of the box the ballots, unopened, one at a time, numbering them on the backs in numerical order, commencing with number one, and writing with ink the initials of his own name upon the back of each ballot as taken out. He shall pass each ballot, as soon as thus indorsed, to the additional inspector, who must, in like manner, write thereon the initials of his own name, so that each ballot can be subsequently identified by either or both such inspectors. History: Enacted March 12, 1872; amended March 30, 1874, Code 1. Applied, cited, construed, referred to. 3. Same-Will not exclude ballots, when. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Atkinson vs. Lorbeer, 111 Cal. 419, 422, 44 Pac. Rep. 162 (cited). As to duty of clerk to keep list of voters, see ante § 1229. 2. FAILURE то WRITE NAMES ACROSS SEAL-Effect of. While members of election boards should comply with law and write their names across seal of envelope containing ballots, their failure to do so cannot warrant disfranchisement of all voters of precincts wherein omission VS. occurred where it is manifest that no injury resulted therefrom.-McCarthy Wilson, 146 Cal. 323, 328, 82 Pac. Rep. 243. 3. Will not exclude ballots, when.-In an election contest, where record does not show that names of members of board had not, as matter of fact, been written across seal, as required by this section, ballots should not be excluded where there is no pretense that they were not original ballots from certain precincts, delivered by election boards thereof to county clerk, and remained safely in his possession continuously thereafter; or that packages were not in precisely same condition when produced in court as when received by county clerk. McCarthy vs. Wilson, 146 Cal. 323, 328, 82 Pac. Rep. 243. $1254. BALLOTS FOLDED TOGETHER. [REJECTED, WHEN.] If two or more separate ballots are found so folded together as to present the appearance of a single ballot, they must be laid aside until the count of the ballots is completed; then, if upon comparison of the count with the number of names of electors on the lists which have been kept by the clerks, it appears that the two ballots thus folded together were cast by one elector, they must be rejected. History: Enacted March 12, 1872; amended March 30, 1874, Code $1255. BALLOTS, DESTRUCTION OF NUMBER IN EXCESS OF NAMES ON LIST. The ballots must be immediately replaced in the box, and if the ballots in the box exceed in number the names on the lists, one of the judges must publicly, and without looking into the box, draw out therefrom singly, and destroy, unopened, a number of ballots equal to such excess; and the board of election must make a record, upon the poll-list, of the number of ballots so drawn and destroyed. History: Enacted March 12, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 29; March 18, 1905, Stats. and Amdts. 1905, p. 194; in effect immediately. § 1256. SAME. [SIGNING LIST.] The number of ballots agreeing or being thus made to agree with the number of names on the lists, the lists must be signed by the members of the board and attested by the clerks, and the number of names thereon must be set down in words and figures at the foot of each list, and over the signatures of the judges and the attestation of the clerks, substantially in the form prescribed in section eleven hundred and seventy-four. History: Enacted March 12, 1872. § 1257. HOW THE VOTES ARE TO BE COUNTED. [DISPOSAL OF REJECTED BALLOTS.] After the lists are thus signed, the board must proceed to open the ballots, and count and ascertain the number of votes cast for each person voted for. At all elections where a general ticket and a municipal ticket are used, the canvass of the general ticket shall be completed before the canvass of the municipal ticket is commenced. All ballots rejected for illegality must be indorsed upon the ballot the cause of such rejection, and 1258 (302) COUNTING VOTE-TALLY-SHEET, FILING OF. [Pt. III. signed by a majority of the election board, and thereafter strung upon a string. History: Enacted March 12, 1872; amended March 11, 1889, Stats. and 1. Ballots should not be rejected, when. 6. Voting twice at same election, effect of. 8. When ballots should not be excluded on 1. BALLOTS SHOULD NOT BE REJECTED on account of slight deviation from regulation prescribed by code as to matters over which voter has no control, such as size of ballots, kind of paper on which they are printed, or character of type, etc.-Kirk vs. Rhoads, 46 Cal. 398, 399, 406. Compare: Reynolds vs. Snow, 67 Cal. 497, 498, 8 Pac. Rep. 27. 2. VOTE SHOULD BE COUNTED, WHEN. Where intention of voter, as it appears on face of ballot, was to vote for certain man for state senator, and not for judge of superior court, it should be so counted.-Rutledge vs. Crawford, 91 Cal. 526, 532, 25 Am. St. Rep. 212, 27 Pac. Rep. 779, 13 L. R. A. 761. 3. VOTE SHOULD BE REJECTED IF ILLEGAL.-Under registry act of 1865-6 a vote was illegal if voter's name was not on the poll-list of election precinct, where vote was cast, on election day.-Webster vs. Byrnes, 34 Cal. 273, 275. 4. VOTING FOR INELIGIBLE CANDIDATE, EFFECT OF.-Though if majority of those voting, by mistake of law or fact, happened to cast their votes for an ineligible candidate, it does not follow that one next to him on poll received the office. If this were so, candidate might be elected who received only small portion of votes, and never could have been elected at all but for that mistake. Votes are not less legal because given to person in whose behalf they cannot be counted, and person who is next to him on list of candidates does not receive plurality of votes because his competitor was ineligible. Votes cast for latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for former, who possibly could never have received them.Crawford vs. Dunbar, 52 Cal. 36, 41. 5. VOTING FOR PERSON то FILL OFFICE FOR WHICH HE IS NOT CANDIDATE may be result of mistake, or it may be frivolous exercise of right of suffrage; but no matter whether such action be attributed to folly or mistake, ballot is only expression of voter's will and it must be counted according to its legal effect.Rutledge vs. Crawford, 91 Cal. 526, 532, 25 Am. St. Rep. 212, 27 Pac. Rep. 779, 13 L. R. A. 761. 6. VOTING TWICE AT SAME ELECTION, EFFECT OF. Where one votes twice at same election, first vote is legal but second is not, and should be excluded. -People ex rel. Budd vs. Holden, 28 Cal. 123, 134. 7. WHEN BALLOTS SHOULD NOT BE COUNTED AS HAVING DISTINGUISHING MARKS.-Ballots should not be counted as having distinguishing marks where they are stamped after words "no nomination,” or are stamped after a written name, are stamped with two crosses after same name, or where they contain pencil markз in an improper place.-McCarthy vs. Wilson, 146 Cal. 323, 326, 327, 82 Pac. Rep. 243. or 8. WHEN BALLOTS SHOULD NOT BE EXCLUDED ON GROUND OF HAVING DISTINGUISHING MARKS.-A ballot should not be excluded on the ground that it contains a distinguishing mark where mark is of such character that it should not be held to invalidate ballot.-McCarthy vs. Wilson, 146 Cal. 323, 327, 82 Pac. Rep. 243. § 1258. TALLY-SHEETS, HOW FILLED. Each clerk must write down each office to be filled, and the name of each person marked in each ballot as voted for to fill such office, and keep the number of votes by tallies, as they are read aloud. Such tallies must be made with pen and ink, and immediately upon the completion of the tallies the clerks who respectively complete the same must draw two heavy lines in ink from the last tally-mark to the end of the line in which such tallies terminate, and also write the initials of the person making the last tally in such line. History: Enacted March 12, 1872; amended March 11, 1889, Stats. and 1. Applied, cited, construed, referred to. 2. What will not invalidate election-Acts of election board. 3. Same-Failure of clerk to draw lines required. 4. Same Matters not prejudicial. 5. Same-Voters occupying same booth. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Hayes vs. Kirkwood, 136 Cal. 396, 400, 69 Pac. Rep. 30 (referred to). 2. WHAT WILL NOT INVALIDATE ELECTION- Acts of election board. Where board of election fastens each end of envelope by dropping in a crude way small amount of sealing wax over edge of each flap or tongue, which was first put in slit, thus closing and fastening it, and oneof board then tied three envelopes tightly together with piece of rope, and the package was then given into custody of one of board, who took it to his home-it being past midnight, and post-office being closed, and he retained possession of envelopes until next morning, when he took them to post-office, when it was discovered that wax on envelopes had been cracked and broken-probably because they had been too tightly tied with the rope, but flaps were still in slits, and postmaster fastened flaps with mucilage and the envelopes were properly directed to county clerk, and forwarded to him by mail, and afterwards remained in custody of said clerk, such facts are no grounds for throwing out precinct where it appears that envelopes were not opened and contents were not in any way tampered with.-Hayes vs. Kirkwood, 136 Cal. 396, 401, 69 Pac. Rep. 30. 3. Failure of clerk to draw lines required.-Fact that clerks of elections, upon completion of tallies, do not draw lines in ink or otherwise from last tally marked to end of line in which tallies terminated, and name of person making last tally is not written in line required by this section, does not vitiate election.-Hayes vs. Kirkwood, 136 Cal. 396, 400, 69 Pac. Rep. 30. 4. as Matters not prejudicial.-Where, in an election contest, it sufficiently appears that nothing prejudicial to rights of any one resulted from irregularities and omissions complained of, there is nothing to warrant court in defeating will of innocent voters. Neither voters nor those voted for have any control over officers of election; and to upset the election because such officers have failed to strictly comply with law where it appears that no harm was done thereby would be to encourage irregularities for very purpose of invalidating election. Hayes vs. Kirkwood, 136 Cal. 396, 402, 69 Pac. Rep. 30. 5. Voters occupying same booth.-Where it appears that, at one time, two voters were discovered occupying same booth, but they were at once informed that this could not be permitted, and they immediately occupied separate booths, this circumstance will not invalidate election.-Hayes VS. Kirkwood, 136 Cal. 396, 399, 69 Pac. Rep. 30. § 1259. TICKETS TO BE STRUNG AND INCLOSED IN SEALED ENVELOPES. The ballot, as soon as the names marked on it as voted for are read and verified, must be strung on a string by one of the judges, and must not thereafter be examined by any person, but must, as soon as all are counted, be carefully sealed in a strong envelope, each member of the board writing his name across the seal. History: Enacted March 12, 1872; amended March 11, 1889, Stats. and 1. Applied, cited, construed, referred to. 3. Sealing and delivery of ballots. 1. Applied, cited, construed, referred to, etc., in: Coglan vs. Beard, 67 Cal. 303, 306, 7 Pac. Rep. 738 (applied); Ex parte Brown, 97 Cal. 83, 86, 31 Pac. Rep. 840 (applied); McCarthy vs. Wilson, 146 Cal. 323, 328, 82 Pac. Rep. 243 (applied). 2. Duty of precinct election officers as to custody and preservation of ballots.— Statutory provisions in regard to custody and preservation of ballots are contained in $1259-1266 of this code. It is therein made duty of precinct election offi. cers to securely seal up ballots as soon as they have been counted and deliver them to county clerk (or registrar in San Francisco) by hands of one of their own members or by nearest post-office or sworn express agent.-Ex parte Brown, 97 Cal. 83, 86, 31 Pac. Rep. 840. 3. Sealing and delivery of ballots.-As soon as all ballots are counted after an election they must, under this and seven next succeeding sections, be carefully sealed in a strong envelope by officers of election, and must then be delivered to county clerk, who is required to keep packages unopened and unaltered for twelve months, unless within that time contest in regard to election is commenced and brought to trial.-Coglan vs. Beard, 67 Cal. 303, 306, 7 Pac. Rep. 738. § 1260. RETURN LIST. As soon as all the votes are counted and the tickets sealed up, lists must be attached to the tally-lists containing the names |