CHAPTER XI. CANVASS OF RETURNS-DECLARATION OF RESULT-COMMISSIONS AND CERTIFICATES OF ELECTION. §1278. Meeting of supervisors to canvass § 1289. How transmitted. $1278. MEETING OF SUPERVISORS TO CANVASS RETURNS. The board of supervisors of each county must meet, at their usual place of meeting, on the first Monday after each election, to canvass the returns. 3. Certificate of election as evidence. 4. Same-Commencing and concluding labors. 5. Return day, what is. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Pacheco vs. Beck, 52 Cal. 3, 9, 21 (referred to); Carlson vs. Burt, 111 Cal. 129, 131, 43 Pac. Rep. 583 (referred to): 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 (applied). As to effect of irregularities in returns of election, see monographic note 90 Am. St. Rep. 90, 91. 2. BOARD OF SUPERVISORS IS PROPER AUTHORITY TO CANVASS VOTES CAST at special election respecting location and establishment of county seat, and to declare result of such election.-Calaveras Co. vs. Brockway, 30 Cal. 325, 327. 3. CERTIFICATE OF ELECTION AS EVIDENCE.-Certificate of election issued by § 1279. SAME (repealed). amended March 15, 1887, Stats. and board of supervisors acting as canvassing 4. Commencing and concluding labors.-Boards of supervisors in canvassing returns must commence and conclude their labors as required by this and next succeeding six sections.-Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727. 5. RETURN DAY, WHAT IS.— Statute fixing no precise day on which election returns must be made, they should be sent to clerk at once. But it would seem that any return is timely which is received before board commences canvass. Naturally, then, return day would be first Monday after election, with authority in board to adjourn return day six times from day to day, if all returns have not been received.-Carlson vs. Burt, 111 Cal. 129, 131, 43 Pac. Rep. 583. History: Enacted March 12, 1872; repealed March 15, 1887, Stats. and § 1280. SAME. [PROCEEDING TO CANVASS; POSTPONEMENTS.] If at the time of meeting, the returns from each precinct in the county in which polls were opened have been received, the board must then and there proceed to canvass the returns; but if all the returns have not been received the canvass must be postponed from day to day until all the returns are received, or until six postponements have been had. History: Enacted March 12, 1872. § 1281 (310) CANVASS OF RETURNS-HOW MADE. 1. Applied, cited, construed, referred to. 3. Same No authority to proceed with can- 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Pacheco vs. Beck, 52 Cal. 3, 9, 21 (referred to); Carlson vs. Burt, 111 Cal. 129, 131, 43 Pac. Rep. 583 (referred to); People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 285, 64 Pac. Rep. 285 (construed). As to effect of failure to make returns, see note 90 Am. St. Rep. 91. As to effect of irregularities in canvass of returns, see monographic note 90 Am. St. Rep. 92. As to return day, see ante § 1278 note. 2. [Pt. III. Under HAVE NOT BEEN RECEIVED. 3. No authority to proceed with canvass where returns are missing.-Board of supervisors has no authority to proceed with canvass of votes, where returns are missing, until missing returns have been received or until after lapse of time prescribed by law. Its duties are merely ministerial.-People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285. § 1281. CANVASS, HOW MADE. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof; and such count must be continued daily, Sundays and holidays excepted, and for not less than six (6) hours each and every day until completed. History: Enacted March 12, 1872; amended March 4, 1899, Stats. and 1. Applied, cited, construed, referred to. 6. Same-No power to proceed until returns are in. 7. Power of court to count ballots where board did not. 8. Power to compel board to reconvene and act. 9. Recanvass, in case no choice, is not authorized-Special election. 10. Special election-Authority to call, depends on what. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Pacheco vs. Beck, 52 Cal. 3, 4, 21 (applied), 9 (referred to in dis. op.); Carlson vs. Burt, 111 Cal. 129, 131, 43 Pac. Rep. 583 (referred to); Sweeny vs. Adams, 141 Cal. 558, 561, 75 Pac. Rep. 182 (referred to). As to day on which election returns may be made, see ante § 1278 note. 2. DUTIES OF BOARD AS CANVASSERS. -Board of supervisors in canvassing a vote have ministerial powers only. Their duties as canvassers are simply "to add and ascertain by calculation the number of votes given for any office." They are not authorized to decide in any other mode than by an examination of returns made to them according to law. They are not required to hear witnesses or evidence. They have no power to send for persons or papers. They have no power to canvass as election returns any papers not duly authenticated in mode prescribed by law. An attempted canvass in which result declared was based on papers not thus authenticated may be treated as nullity.-People ex rel. Hicks vs. Stewart, 132 Cal. 283, 285, 64 Pac. Rep. 285; Gibson vs. Twaddle (Cal. June 3, 1905), 81 Pac. Rep. 727, 728. 3. Duplicate tally-list cannot be used in place of missing returns.-Board of supervisors in canvassing returns have no power, where returns are missing, to send for and use duplicate tally-list in place of missing. returns. They are forbidden to act, if returns are not all in, until lapse of six days, and they must then canvass only returns made to them. People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 285, 64 Pac. Rep. 285. 4. Ministerial act, not judicial.-Function of calculating and ascertaining whole number of votes cast at any election and certifying same to be true canvass is not judicial act, but ministerial one.-Calaveras Co. vs. Brockway, 30 Cal. 325, 338. 5. Must declare result from face of returns. It is from face of returns, and from no other data, that canvassing board declares who is elected.-Sweeny vs. Adams, 141 Cal. 558, 561, 75 Pac. Rep. 182. 6. No power to proceed until returns are in. Board of supervisors in performing its functions as canvassing board, where returns are missing, has no authority to proceed with canvass until missing returns have been received or until lapse of time prescribed by law.-People ex rel. Hicks vs. Stewart, 132 Cal. 283, 284, 64 Pac. Rep. 285. 7. POWER OF COURT TO COUNT BALLOTS WHERE BOARD DID NOT.- - Fact that board of supervisors acting as can vassing board did not count ballots, in absence of tally-list and lists attached thereto, does not render court powerless to count ballots in election contest.-Davis vs. Grunig, 143 Cal. 346, 349, 76 Pac. Rep. 1102. 8. POWER TO COMPEL BOARD TO RECONVENE AND ACT.-After board of supervisors acting as canvassing board has completed its labors and adjourned sine die, writ of mandate will not lie to compel it to reconvene to permit election officers to sign and attest tally-sheet which they had omitted to sign and attest as required by law. Gibson vs. Twaddle (Cal. Ct. App. June 3, 1905), 81 Pac. Rep. 727. 9. RECANVASS IN CASE OF NO CHOICE IS NOT AUTHORIZED-Special election. §1282. STATEMENT OF RESULT TO BE ENTERED OF RECORD. The clerk of the board must, as soon as the result is declared, enter on the records of such board a statement of such result, which statement must show: 1. The whole number of votes cast in the county; 2. The names of the persons voted for, and the propositions voted upon; 3. The office to fill which each person was voted for; 4. The number of votes given at each precinct to each of such persons, and for and against each of such propositions; 5. The number of votes given in the county to each of such persons, and for and against each of such propositions voted upon. History: Enacted March 12, 1872. 1. Applied, cited, construed, referred to. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Hicks vs. Stewart, 132 Cal. 283, 285, 64 Pac. Rep. 285 (referred to). Effect of ineligibility of candidate receiving highest number of votes on electionSee monographic notes 52 Am. Dec. 151, 153; 83 Am. Dec. 753; 12 Am. Rep. 341, 342. 2. DUTY OF CLERK UNDER THIS SECTION is purely ministerial and consists in entering upon records of board statement of result of election as declared by board. No one pretends that he has any greater or that he has authority to enter upon record any statement of result different from that declared by board (Crockett, J., dis. op.).-Pacheco vs. Beck, 52 Cal. 3, 21. power RESULT OF ELECTION IS REQUIRED.Prior to passage of act of May 18, 1861, statute required county clerk to estimate vote of county or township and to prepare and sign estimate, but no provision was in force requiring statement to be made matter of record; but under this section clerk is required to enter upon record of board statement of result of election. One of obvious purposes of this was to require result of canvass to be made matter of record in proceedings of board, which is required by law to keep record of its proceedings, in order that such result shall constitute evidence of result of canvass of such election, and its evidence shall have same force and effect, and benefit of all intendments in its support, that record of any other proceeding of board would have. It is intended by such change that such record should constitute basis of all future action in respect to election.-Pacheco vs. Beck, 52 Cal. 3, 5. § 1283. DECLARATION OF RESULT. The board must declare elected the person having the highest number of votes given for each office to be filled by the votes of a single county or subdivision thereof. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., In: People ex rel. Finigan vs. Perkins, 85 Cal. 509, 512, 26 Pac. Rep. 245 (referred to). Defects in form of returns, when to be disregarded-See post § 1297. §§ 1284-1287 (312) CERTIFICATE OF ELECTION-DELIVERY. [Pt. III. § 1284. CERTIFICATES ISSUED BY CLERK. The county clerk must immediately make out and deliver to such person (except to the person elected superior judge) a certificate of election signed by him, and authenticated with the seal of the superior court. History: Enacted March 12, 1872; amended April 3 and April 16, 1880, 1. Applied, cited, construed, referred to. 2. Certificate of election. 3. Same As notice. 4. Same-Not necessary, for what. 5. Fact of election, not certificate, gives title to office. 6. Want of necessary qualifications by person elected. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: People ex rel. Barker vs. Shaver, 127 Cal. 347, 350, 59 Pac. Rep. 784 (referred to). As to when writ of mandate will not issue to compel board to reconvene and permit election officers to sign and attest tallysheet which they had omitted to sign and attest, see ante § 1278 and note. That certificate of election issued by board of supervisors is prima facie evidence of holder's right to office, see ante §1278 note. 2. Certificate of election.-In case of certificates of election of county officers, county clerk must, as soon as result of election is declared by board of supervisors, make out, under seal of superior court, certificates of election and deliver one to each person declared elected by board of supervisors. These are the only notices provided for.People ex rel. Finigan vs. Perkins, 85 Cal. 509, 512, 26 Pac. Rep. 245. 3. As notice. It is intended that each officer elected shall receive notice of his election or appointment, and actual knowlRequireedge will not supply place of it. ment that county clerk shall issue certif icate and thus bring notice home to successful candidate is something more than provision designed for private advantage, and this will not therefore be waived by him at pleasure. It is mode prescribed by law for orderly announcement of the result of an election, and is as much part of machinery of election as are provisions for canvassing returns and registration of result. All are parts of same scheme and are based upon considerations of public policy. -People ex rel. Barker vs. Shaver, 127 Cal. 347, 350, 59 Pac. Rep. 784. 4. Not necessary, for what.-Certificate of election is merely prima facie evidence of title to office and is not necessary to enable party claiming to have been elected to office to bring writ of quo warranto.Magee vs. Board of Supervisors, 10 Cal. 376, 377. 5. FACT OF ELECTION, NOT CERTIFICATE, GIVES TITLE TO OFFICE.-It is fact of election which gives title to office, and this fact may be established, not only without, but against, evidence of certificate of election.-Magee vs. Board of Supervisors, 10 Cal. 376, 377; People ex rel. Wicks vs. Jones, 20 Cal. 51, 53. 6. WANT OF NECESSARY QUALIFICATIONS BY PERSON ELECTED.-Person receiving majority of votes cast at valid election may not possess necessary qualifications to entitle him to take or hold office to which he is elected, but that is question to be adjudicated by proper tribunals.Satterlee vs. San Francisco, 23 Cal. 314, 320. § 1285. DISTRICT RETURNS, HOW MADE UP. When there are officers, other than representatives in congress, members of the state board of equalization, and railroad commissioners, voted for, who are chosen by the electors of a district composed of two or more counties, each of the county clerks of the counties composing such district, immediately after making out the statement specified in section twelve hundred and eighty-two, must make a certified abstract of so much thereof as relates to the election of such officers. History: Enacted March 12, 1872; amended April 16, 1880, Code Amdts. 1880 (Pol. pt.), p. 82. § 1286. HOW TRANSMITTED. The clerk must seal up such abstract, indorse it "Election Returns," and without delay transmit the same by mail to the county clerk of the county which stands first in alphabetical arrangement in the list of counties composing such district. History: Enacted March 12, 1872. The § 1287. DUTY OF CLERK RECEIVING DISTRICT RETURNS. clerk to whom the election returns of a district are made must, on the twen tieth day after such election, or sooner, if returns from all the counties in the district have been received, open in public such returns, and from them and the statement of the vote for such officers in his own county: 1. Make a statement of the vote of the district for such officers, and file the same, together with the returns, in his office; 2. Transmit a certified copy of such statement to the secretary of state; 3. Make out and deliver or transmit by mail to the persons elected a certificate of election (unless it is by law otherwise provided). History: Enacted March 12, 1872. § 1288. STATE RETURNS, HOW MADE. When there has been a general or special election for officers chosen by the electors of the state at large, or for judicial officers (except justices of the peace), or for members of the state board of equalization, or for railroad commissioners, or for senators and members of the assembly, each county clerk, so soon as the statement of the vote of his county is made out and entered upon the records of the board of supervisors, must make out a certified abstract of so much thereof as relates to the votes given or cast for persons for said offices to be filled at such election. Whenever there is a general or special election held within this state, and any proposed constitutional amendment or proposition to be voted for by the electors of the state at large, each county clerk, so soon as the statement of the vote is made out and entered upon the record of the board of supervisors, must make out a certified abstract of such vote. History: Enacted March 12, 1872; amended April 16, 1880, Code Amdts. 1880 (Pol. pt.), p. 82; March 14, 1901, Stats. and Amdts. 1900-1, p. 289. 1. Applied, cited, construed, referred to. 2. Authority of secretary of state. 3. "Certified abstract" means "certified copy." 4. Same Cannot be affected by extraneous matters. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Pacheco vs. Beck, 52 Cal. 3, 5, 6, 7 (referred to), 22, 25 (referred to in dis. op.). 2. AUTHORITY OF SECRETARY OF STATE.-Law does not vest secretary of state with authority to inquire whether board of supervisors correctly canvassed returns from several precincts, or whether record correctly states result of canvass as made or declared, or whether record was properly made up, nor to investigate any question relating to proceedings which were had prior to making of certified abstract. That document, being in form prescribed by law, is only one upon which he is required or authorized to act in his official capacity in estimating vote of district, and neither his power nor duty in that regard is enlarged or changed by reason of fact that there are in his office other papers or certificates for which no provision is made by election law.-Pacheco vs. Beck, 52 Cal. 3, 7. 3. "CERTIFIED ABSTRACT" MEANS "CERTIFIED COPY."-Word "abstract" in provision of this section that clerk "must make certified abstract," etc., means certified copy; certified copy which clerk is required to make and forward to secretary of state is certified copy of proper portion of records of board of supervisors.-Pacheco vs. Beck, 52 Cal. 3, 6. 4. Cannot be affected by extraneous matters.-Certified abstract which this section requires county clerk to make out as soon as statement of votes of his county is ascertained and entered upon record of board of supervisors cannot be affected by any statements he may make in addition thereto or explanatory thereof and which are not properly part of record, and they cannot be considered by secretary of state. -Pacheco vs. Beck, 52 Cal. 3, 7, 10, 13. §1289. HOW TRANSMITTED. The clerk must seal up such abstract, indorse it "Election returns," and without delay transmit it by mail to the secretary of state. History: Enacted March 12, 1872. Applied, cited, construed, referred to, etc., in: Pacheco vs. Beck, 52 Cal. 3, 22 (referred to in dis. op.). |