§ 1261 (304)

PAPERS TO BE SEALED POSTING RESULT.

LPt. III.

of persons voted for and for what office, and the number of votes given for each candidate, the number being written at full length, and such lists must be signed by the members of the board and attested by the clerks, substantially in the form in section eleven hundred and seventy-four given.

History: Enacted March 12, 1872.

Applied, cited, construed, referred to, etc., in: Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727, 728 (referred to).

As to the custody of the ballots, see ante § 1259 and note.

§ 1261. CERTAIN PAPERS TO BE SEALED UP. The board must, before it adjourns, inclose in a cover, and seal up and direct to the county clerk, the copy of the register upon which one of the judges marked the word "voted" as the ballots were received, all certificates of registration received by it, one of the lists of the persons challenged, one copy of the list of voters, and one of the tally-lists and list attached thereto.

[Result to be posted.] The board must also, before it adjourns, post conspicuously, on the outside of the polling-place, a copy of the result of the votes cast at such polling-place; such copy of the result must be signed by the members of the board, and attested by the clerks.

[Result of vote.] The board must also immediately transmit unsealed to the county clerk a copy of the result of the votes cast at such polling-place, which copy must be signed by the members of the board, and which copy shall be open to the inspection of the public. It shall be a misdemeanor for any person to remove or deface such posted copy of the result or to delay or change the copy to be delivered to the county clerk.

History: Enacted March 12, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 29: March 4, 1899, and March 9, 1899, Stats. and Amdts. 1899, pp. 63, 83; February 14, 1901, Stats. and Amdts. 1900-1, pp. 5-6.

1. Applied, cited, construed, referred to. 2. Construction of section-"Returns."

3. Duty of clerk or registrar not performed, when.

4. Election not invalid because of failure to transmit lists.

5. What disregard of directory provision does not justify rejection of entire vote of precinct.

6. Wrongful acts of election officers not to prejudice voters.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285 (referred to); Davis vs. Grunig, 143 Cal. 336, 337, 76 Fac. Rep. 1102 (referred to); Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727, 728 (referred to).

As to custody of ballots, see ante § 1259. 2. CONSTRUCTION OF SECTION. "Returns."-"The returns" referred to in §§ 1278, 1280 post are "the sealed packages containing register, lists, papers and ballots" prescribed by this section, 1261, and § 1263 post, which in § 1268 post are spoken of as "returns."-People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285. 3. DUTY OF CLERK OR REGISTRAR IS NOT PERFORMED, WHEN.-Duty imposed by this and next succeeding section upon clerk or registrar is not performed

according to terms of statute if he parts with custody of ballots, or opens packages, or permits them to be opened, or fails to destroy them at expiration of year without examination, except in single case of contest before competent tribunal, when, and then only, he may, upon proper order of such tribunal, deliver ballots into his custody to be opened and used as evidence. -Ex parte Brown, 97 Cal. 83, 86, 31 Pac. Rep. 840.

4.

OF

ELECTION NOT INVALID BECAUSE FAILURE то TRANSMIT LISTS.Where it appears that an election was held, conducted. and carried on, and records made and kept, and canvass of votes cast throughout was made, certified, authenticated, transmitted, and delivered in manner and in time, and in conformity with and in all respects as required by law, except failure to transmit tally-list, and lists attached thereto, mere official delinquency of officers of election should not render election invalid.-Davis vs. Grunig, 143 Cal. 336, 340, 342, 76 Pac. Rep. 1102.

5. WHAT DISREGARD OF DIRECTORY PROVISIONS DOES NOT JUSTIFY REJECTION OF ENTIRE VOTE OF PRECINCT.An honest or mistaken disregard of directory provisions of statute relating to elections, not resulting in manifest fraud, will not justify rejection of entire vote of pre

cinct.-Davis vs. Grunig, 143 Cal. 336, 339, 76 Pac. Rep. 1102.

6. WRONGFUL ACTS OF ELECTION OFFICERS NOT TO PREJUDICE VOTERS. -Rights of voters at an election should not be prejudiced by errors or wrongful

acts of officers of election, unless it shall appear that a fair election and an honest count were thereby prevented.-Davis vs. Grunig; 143 Cal. 336, 342, 76 Pac. Rep.

1102.

As to custody of ballots, see ante § 1259.

§ 1262. INSPECTOR TO KEEP CERTAIN PAPERS. The inspector must retain, open to the inspection of all electors, for at least six months, the other list of voters, tally-list, and list attached thereto.

History: Enacted March 12, 1872; amended March 30, 1874, Code
Amdts. 1873-4, p. 30.

§ 1263. RETURNS AND BALLOTS TO BE DELIVERED TO A MEMBER OF THE BOARD. The sealed packages containing the register, lists, papers, and ballots, must before the board adjourns be delivered to one of its number, to be determined by lot, unless otherwise agreed upon.

History: Enacted March 12, 1872.

1. Applied, cited, construed, referred to. 2. Word "returns" means what.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285 (referred to); Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727, 728 (referred to).

As to custody of ballots, see ante § 1259. 2. WORD "RETURNS" MEANS, WHAT. -"Returns" referred to in §§ 1278 and 1280 post are "the sealed packages containing register, lists, papers, and ballots" prescribed by this section and § 1261 ante.People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285.

§ 1264. ELECTION RETURNS; DELIVERY OF TO COUNTY CLERKS. IN SAN FRANCISCO TO REGISTRAR OF VOTERS. HOW SEALED AND BY WHOM. PACKAGES, WHAT TO CONTAIN. The member to whom such packages are delivered, must, without delay, deliver such packages without their having been opened, to the county clerk, nearest postmaster, or sworn express agent, who shall indorse on such packages the name of the party delivering them, and date of such delivery. If delivered to a postmaster or express agent, such postmaster or express agent shall forward the packages by the first mail or express to the county seat. In the city and county of San Francisco, such packages must be delivered to the registrar of voters within three hours from the time of adjournment of the board, which time of adjournment must be indorsed upon such package, and upon each poll-list, in ink, and signed by a majority of the members of such board. In the city and county of San Francisco the packages must be put up and sealed in the following manner, by an inspector, and at least three other members of the board, and be signed with their respective signatures across (flap) the same written.

One package to contain the voted ballots only; one package to contain one poll- and tally-list only; one package to contain the precinct registers, index to register, list of voters challenged, and list of assisted voters; and one package to contain the unused ballots.

History: Enacted March 12, 1872; amended March 30, 1874, Code
Amdts. 1873-4, p. 30; March 23, 1893, Stats. and Amdts. 1893, pp. 308-309;
March 18, 1905, Stats. and Amdts. 1905, pp. 194-195; in effect immediately.

1. Applied, cited, construed, referred to.
2. Construction of section.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Trafton vs. Quinn, 143 Cal. 469, 471, 77 Pac. Rep. 164 (referred Pol. C.-20

to); Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727, 728 (referred to).

As to custody of ballots, see ante 1259. CONSTRUCTION OF SECTION.-This and next succeeding section provide that

2.

§ 1264a. ELECTION, DELIVERY AND CUSTODY OF ROSTER OF VOTERS AFTER. TO APPLY TO ALL ELECTIONS. The board of election must before it adjourns, inclose in a cover and seal up and direct to the county clerk or to the registrar of voters, in counties or cities and counties in this state having a registrar of voters, the roster of voters and such sealed package containing such roster of voters must be delivered to that one of its members who has been selected to deliver the other sealed packages required by law. This member must, without delay, deliver the package containing the roster of voters without its having been opened in the same manner and to the same persons and officials as he is required by law to deliver the other sealed packages intrusted to him by said board. All rosters of voters must be kept in the office of the county clerk or in the office of the registrar of voters in counties and cities and counties having a registrar of voters, as a public record, for a period of one year and when received by such county clerk or registrar of voters, all packages containing such rosters of voters shall be unsealed and such rosters of voters shall at all times be open to the inspection of any citi zen. The provisions of this section shall apply to all rosters of voters whether used at elections or primary elections.

History: Enacted March 21, 1905, Stats. and Amdts. 1905, p. 633.

§ 1265. CLERK TO KEEP BALLOTS UNOPENED. On receipt of the packages the clerk must file the one containing ballots and must keep it unopened and unaltered for twelve months, after which time, if there is not a contest commenced in some tribunal having jurisdiction about such election, he must burn the package without opening or examining its contents;

[Judge of superior court may order ballots opened.] Provided, however, that after the time limited for a contest, and in the event any contests have been commenced, then after said ballots have been opened and counted by the superior court in said contests, a judge of the superior court of the county wherein said ballots were voted may order said packages to be opened for inspection in any case being tried in his court where he has jurisdiction of the same, whenever he shall deem it necessary to inspect the ballots contained in said packages in order to produce testimony to establish the proof of any material issue of fact arising in the course of the trial of said case. In no event shall the said packages, or any of them, or the ballots contained therein, be taken from the custody of the county clerk. Whenever said packages, or any of them, shall have been inspected and examined, and a record made of the testimony therein contained, the same shall be restored to the exclusive control and custody of the county clerk, who shall reseal the packages with the ballots contained therein, and keep the same until he shall burn them, in accordance with the direction of this section;

[Congressional election contest.] Provided further, that if in any congressional district within this state there has been or shall be filed a contest of the election of any person declared to have been elected a member of congress, and the county clerk or registrar of voters in any county or city and county be

notified by the contestant, that such congressional election contest is pending, then and in that case such county clerk or registrar of voters shall not destroy the ballots in that county or city and county, or in the part or portion thereof within such congressional district in which such contest is pending, until the final determination of such contest before the house of representatives of the congress of the United States;

[Clerk to produce ballots.] And such county clerk or registrar of voters shall hold such ballots in his custody subject to the inspection of any committee of the house of representatives or sub-committee thereof, having in charge the investigation of such contest, and shall produce such ballots for examination. before any such committee of the house of representatives or sub-committee or before any commissioner designated by such congressional committee or subcommittee or before any officer designated by act of congress and duly selected to take depositions and proof in any such contest of the election of any person to congress.

History: Enacted March 12, 1872; amended March 23, 1893, Stats. and
Amdts. 1893, p. 309; February 26, 1903, Stats. and Amdts. 1903, pp. 42-43.

1. Applied, cited, construed, referred to.

2. Construction of section-Custodian of re-
turns.

3. Same-Duty of county clerk.
4. Same Scope of word "election."
5. Duty of precinct election officers.

1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Gibson vs. Board of Supervisors, 80 Cal. 359, 361, 22 Pac. Rep. 225 (construed); Ex parte Brown, 97 Cal. 83, 86, 31 Pac. Rep. 840 (construed); Davis vs. Grunig, 143 Cal. 336, 341, 76 Pac. Rep. 1102 (construed); Trafton vs. Quinn, 143 Cal. 469, 471, 77 Pac. Rep. 164 (referred to). As to custody of ballots, see ante § 1259. As to effect of failure to properly preserve ballots, see note 90 Am. St. Rep. 91.

Contesting of certain elections. — See KERR'S CYC. CODE CIV. PROC. §§ 11111127 and notes.

2. CONSTRUCTION OF SECTION-Custodian of returns. This and next preceding section require that election returns shall be delivered or sent by mail to county clerk who, among other prescribed duties touching election, shall be custodian of them, but city clerk, and not county clerk, is proper custodian of ballots cast at city election. Trafton vs. Quinn, 143 Cal. 469, 471, 77 Pac. Rep. 164.

3. Duty of county clerk.-This section requires that on receipt of package containing ballots, county clerk must file same, keeping it unopened and unaltered for twelve months, after which time, if

there is not a contest commenced by some tribunal having jurisdiction of such election, he must burn package without opening or examining its contents. Judge of superior court of county wherein said ballots were voted may order said packages to be opened for inspection in any case being tried in his court where he has jurisdiction of same, whenever he shall deem it necessary to inspect ballots contained in such package, in order to produce testimony to establish proof of any material issue of facts arising in course of trial of said case. -Davis vs. Grunig, 143 Cal. 336, 341, 76 Pac. Rep. 1102.

4. Scope of word "election." This and next succeeding section require county clerk to keep packages of ballots unopened for twelve months and then to destroy them, unless there is contest in court about an election; but word "election" is probably broad enough to include any election which may be contested in court whether for offices or upon question as to issuance of county bonds, etc.; however, that question arises only by refusal of clerk to bring ballots into court.-Gibson vs. Board of Supervisors, 80 Cal. 359, 362, 22 Pac. Rep. 225.

5. DUTY OF PRECINCT ELECTION OFFICERS is 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 postmaster or a sworn express agent.-Ex parte Brown, 97 Cal. 83, 86, 31 Pac. Rep. 840.

$1266. WHEN PACKAGE CONTAINING BALLOTS MAY BE DESTROYED; WHEN OPENED. If within twelve months there is such a contest commenced, he must keep the package unopened and unaltered until it is finally determined, when he must, as provided in the preceding section, destroy it, unless such package is, by virtue of an order of the tribunal in which the contest is pending, brought and opened before it, to the end that evidence may

RETURN-DELIVERY TO SUPERVISORS.

be had of its contents, in which event the package and contents are in the custody of such tribunal.

History: Enacted March 12, 1872.

§ 1267. RETURNS TO BE DELIVERED BY CLERK TO SUPERVISORS. The other package the clerk must produce before the board of supervisors, when it is in session for the purpose of canvassing returns.

History: Enacted March 12, 1872.

COPY OF REGISTER TO BE FILED IN COUNTY CLERK'S OFFICE. As soon as the returns are canvassed the clerk must take the copy of the register returned and file it in his office.

History: Enacted March 12, 1872.