Opinion
Appeal from the County Court of Solano County.
This was one of eight cases, similar in general character, which were submitted and considered together, and known as the " Solano County Election Cases." The contestant was the same in all. The defendants in the others were as follows:
No. 3,164--E. D. Perkins, declared elected County Treasurer.
No. 3,165--George C. McKinley, declared elected County Recorder.
No. 3,166--Joseph Hoyt, declared elected County Assessor.
No. 3,167--Hazen Hoyt, declared elected Public Administrator.
No. 3,168--W. H. Fry, declared elected__ .
No. 3,169--J. F. Wendell, declared elected District Attorney.
No. 3,170--Joseph Jacobs, declared elected__ .
The election took place on September 6th, 1871. There were substantially the same judicial proceedings in all the cases; and those last named were all decided in the same way as, and upon the authority of the decision of, this case.
COUNSEL
G. A. Lamont and Creed Haymond, for Contestants, contended that the statement of the cause of contest was sufficient in form and substance, citing Hitt. Gen. Laws, 2470 to 2490, and that, therefore, the action of the Court below in dismissing the proceedings was error.
L. B. Mizner, for Defendant.
The statement was insufficient in form and substance. (Hitt. Gen. Laws, 2475, 2476, 2477, and 2478.) It did not appear that contestant was an elector of the county at the time of the malconduct alleged; nor was the particular cause or causes of contest alleged with such certainty as would sufficiently advise the defendant of the particular proceedings for which his election was contested.
Again, it appears that the election of defendant was certified to by the Board of Election, canvassed by the Board of Supervisors, and a certificate of election issued to him, without any protest or opposition; nor was there ever any list of alleged illegal votes served upon him, as required by law. (Hitt. Gen. Laws, 2476.)
JUDGES: Wallace, C. J. Mr. Justice Rhodes did not participate in the foregoing decision.
OPINION
WALLACE, Judge
This is an appeal taken from an order of the County Judge of the County of Solano, made at a special term of the Court appointed and held by him to determine a contest made against the right of the respondent Kidder to the office of County Clerk of that county. The order entered was one dismissing the proceedings.
The contest was made under the provisions of section two thousand four hundred and seventy, et seq. (Hitt. Gen. Laws), by Minor, who alleges in his written statement filed that he is a qualified elector of the County of Solano.
I. The respondent insists that the statement is insufficient in that, though stating that the contestant is a qualified elector of the county, it fails to state that he was such elector when the election contested was held. It is a sufficient answer, however, to this position, to say that the statute applicable to this case nowhere requires the contestant to allege anything further upon that point than that he is --at the time he files the written statement of contest--a qualified elector of the county. Had it required him to state at what point of time, with reference to the time at which the election was held, he became such elector, it would have then, of course, been incumbent upon him to have done so. But he has strictly complied with the requirement of the statute in his statement on that point.
II. It is next objected that the statement of contest was properly dismissed " for the reason that the particular cause or causes of contest were not alleged with such certainty as would sufficiently advise" the respondent Kidder, " of the particular proceedings" upon which his election was contested.
It is provided by the statute (Sec. 2477) that " no statement of the cause of contest shall be rejected, nor the proceedings thereon dismissed by any Court before which such contest may be brought for trial for want of form, if the particular cause or causes of contest shall be alleged with such certainty as will sufficiently advise the defendant of the particular proceeding or cause for which (his) election is contested." Does the written statement here sufficiently advise the defendant of the particular cause for which his election is contested?
It is clear that the certainty of allegation required by the statute is not the highest degree of certainty known in pleading--not that certainty to a certain intent in particular exacted by the rule in averring matter not favored in law--such as an estoppel, alien enemy, etc. Such a degree of technical precision in averment if required would generally defeat the very investigation which it was the main purpose of the statute to invite, and would besides illy comport with the provision already cited expressly dispensing with mere form in pleading in such case as this one. Certainty is required, it is true, but to no greater degree than will suffice to inform the defendant of the particular proceeding or cause upon which the contest is founded. The words used in the statement of contest are to be understood in their ordinary meaning--the purpose being merely to inform the understanding of the opposite party of the substance of the alleged fact or facts relied upon to defeat his claim. We proceed to inquire, therefore, whether, under this rule, the statement presented be substantially sufficient or insufficient upon that point.
It alleges that a general election for State and county officers was held in the County of Solano on the 6th day of September, 1871; that on the first Monday after the election the Board of Supervisors of the county met and canvassed the returns; that at that canvass the returns from each precinct of the county where polls had been opened were before, and were canvassed by, the Board; that A. H. Hawley and the respondent, Kidder, were the only persons voted for at said election as candidates for the office of County Clerk; that the returns canvassed by the Board showed that the respondent, Kidder, had received two thousand three hundred and forty-six votes, and Hawley one thousand six hundred and ninety-three votes, for that office; that the returns from the First, Second, and Third Precincts of Vallejo Township showed that Kidder had received one thousand four hundred and eighty-two votes, and Hawley five hundred and seventy-nine votes, and that the count was so made by the Board; that in point of fact, however, there were cast for Kidder in these three precincts only one hundred and thirty-two votes-- i. e., sixty-two votes at the First Precinct, fifty at the Second, and twenty at the Third, while there were cast at those three precincts five hundred and seventy-nine legal votes for Hawley-- i. e., in the First Precinct, two hundred and forty-nine votes; in the Second, two hundred and seventy-seven; and in the Third, fifty-three votes.
The statement further sets forth that in the entire county Kidder received only nine hundred and ninety-six votes against one thousand six hundred and ninety-three cast for Hawley for the office of County Clerk, and that Hawley was thereby duly elected, but the Board, upon canvassing the votes, declared Kidder to have been elected to the office.
The statement further sets forth that the Board of Judges of the First Precinct of Vallejo Township counted and included in the returns to the Board of Supervisors " six hundred and fifty more votes than there were ballots voted or received, or votes cast or given at said election in said precinct; " that there was the like excess of six hundred and fifty votes in the return from the Second Precinct, and an excess of fifty votes from the Third, and that in the canvass by the Board of Supervisors these thirteen hundred and fifty votes --which, it is alleged, were never in fact thrown, and for which no ballots were in fact voted or received at the polls--were returned by the Boards of Judges, and were canvassed and counted by the Board of Supervisors as that many votes in favor of Kidder.
It is easily to be seen from these averments that the majority which the canvass by the Board of Supervisors awarded to Kidder over Hawley was six hundred and thirty-three votes; whereas had that canvass excluded the one thousand three hundred and fifty votes improperly returned and counted for him from the First, Second, and Third Precincts of Vallejo Township, Hawley must have been declared elected by a majority of six hundred and ninety-seven votes. The particular cause of contest then is that Kidder's asserted majority of six hundred and thirty-three votes is produced by counting for him one thousand three hundred and fifty votes, not one of which were cast in point of fact, and that these fictitious votes purported to have been thrown entirely in Vallejo Township--six hundred and fifty of them at the First Precinct, the like number at the Second, and the number of fifty at the Third. It can hardly be supposed that the respondent, Kidder, was not sufficiently advised, by these alleged facts and figures, of the particular cause for which his election was contested. But it is argued that the statement of contest should have detailed the particular means or measures resorted to for the purpose of accomplishing this miscount. Had it undertaken to do so, another and much more serious objection would doubtless have been started-- i. e., that it assumed to state the evidence by which the ultimate fact was to be established instead of alleging that fact.
It is clear that the misconduct here charged referred to the returns from these three precincts, which were transmitted to the Board of Canvassers. It is alleged that these returns did not accord with the facts, and that the difference was so great as to alter the general result of the election for this office. Those returns consisted of the duplicate poll lists and tallies, and the certificate of the Board of Judges annexed thereto, and transmitted to the Board of Supervisors, stating the number of votes each of these persons had received, and also the file of ballots--which ballots, however, it should be observed, are not required to be counted by the Board of Canvassers, unless upon the opening of the returns some person appear and demand a recount of the vote--in which case the canvass is to include the recount of the ballots also. (Sec. 2455.) There does not appear to have been any such demand for a recount in this instance, and the canvass by the Board of Supervisors was, of course, confined to an inspection of the duplicate poll list, tally, and certificate of the Board of Judges, for these practically constituted the entire return in the absence of a demand for a recount of the ballots. The statement of the contestant, then, when considered by the light of the statute, is that such a return was made--that is, that such a poll list, tally list, and certificate were sent in by the Board of Judges to the Board of Canvassers; that it was made to appear thereby that one thousand three hundred and fifty votes had been received by Kidder more than had in fact been thrown for him, and that number more than there were ballots actually cast or given at those three precincts. It is for this excess, then, in the number of votes counted for him by the Board of Judges in those precincts over the number of votes actually thrown for him there that his election is contested; for, if the excess be shown to have occurred in those precincts, it is clear, upon the other allegations contained in the statement as to the general vote for this office in the county at large, that Kidder was not really elected. We are unable to discover in the statement of the grounds of contest a lack of that degree of certainty required by the statute in a proceeding of this nature. It seems to us that to have gone further (as it is claimed the contestant should have done), and to have stated in detail by what particular agencies or means this incorrect result was brought about, would have been to have violated the established rule of pleading by entering into the field of the mere evidence to be adduced in the case. It would have been immaterial, and might have been seriously objectionable, to have alleged, for instance, that a mistake was made by the Board of Judges of the first Precinct in adding up the number of votes cast there; or that the tally list returned to the Board of Canvassers had been fraudulently altered by the addition of names of persons as voting, but who had not, in fact, voted there; or that in preparing the certificate annexed to, and made part of, the returns to the Board of Supervisors a particular mistake or designated fraud had intervened. It is obvious that if the contestant is held to this degree of detail of the grounds upon which he intends to rely, he may be compelled upon the same rule to go further, and allege even the particular times, places, and persons involved in the several transactions which he intends to show forth in evidence, and the motives, considerations, and purposes actuating the persons so engaged.
" The office of a complaint is to aver the material issuable facts which constitute the cause of action, and not the evidence to prove those facts." (Racouillat v. Reni, 32 Cal. 456, and cases there cited.)
We are of the opinion, therefore, that the statement of grounds of contest filed was sufficient in substance, and that it should not have been dismissed upon the objection of the respondent.
It is the wholesome purpose of the statute to invite inquiry into the conduct of popular elections. Its aim is to secure that fair expression of the popular will in the selection of public officers, without which we can scarcely hope to maintain the integrity of the political system under which we live. With this view it has provided the means of contesting the claims of persons asserting themselves to have been chosen to office by the people. It has not authorized every citizen or member of the body politic at large to institute proceedings for that purpose, but has limited the authority in that respect to those who are themselves electors, and it has required the statement of the grounds of contest in every instance to be verified by the oath of the contestant. When such a statement is presented by an elector to the tribunal whose duty it is to investigate its merits, it should not be received in a spirit of captiousness, nor put aside upon mere technical objections designed to defeat the very search after truth which the statute intended to invite.
The investigation proposed is one in which the public at large are deeply concerned. It necessarily involves a question of broader import than the mere individual claim of a designated person to enjoy the honors and emoluments of the particular office brought directly in contest. The inquiry must be as to whether or not the popular will in the selection of officers to administer the public affairs has been, in a given instance, or is about to be, defeated or thwarted by mistake happened or fraud concocted. It is, therefore, not an ordinary adversary proceeding, for, as against this high public interest concerned, there can be no recognized adversary.
Even, therefore, if the statement of contest, as filed in the first instance, lack the clearness and distinctness of allegation always desirable in judicial proceedings, it should not for that reason be peremptorily dismissed; but an opportunity to amend it should be afforded, and by this means the controverted points may be developed for determination, and the contest disposed of on its merits, if it have any. It is hardly necessary to add that in such cases, too, it may become the duty of the Court, in the progress of the investigation, to protect the respondent from suffering a surprise; and should the line of proof adduced against him turn out to be one which he might not reasonably have anticipated or foreseen, and for which he is, therefore, unprepared, a reasonable opportunity should be always afforded him to meet the case on the merits. The public interests imperatively require that the ultimate determination of the contest should in every instance, if possible, reach the very right of the case.
Judgment reversed, and cause remanded for further proceedings.