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pears from the record, that two ballots or pieces of paper, with the name of the relator, and the names of the other candidates of his party, printed thereon three times, were found in the ballot-box, and rejected by the officers of the election; at the trial, the court counted each of these ballots as one vote for the relator. It is claimed, that these pieces of paper were each three tickets folded together, within the meaning of the 34th section of the act relating to elections (Wood's Dig. 378), which provides, that where two tickets are found folded together, they shall both be rejected. In our judgment, this point is not well taken.
The 24th section defines a ballot to be, "a paper ticket, containing the names of the persons for whom the elector intends to vote, and designating the office to which each person so named is intended by him to be chosen." Thus, a ballot or a ticket, is a single piece of paper, containing the names of the candidates and the offices for which they are running; if the elector were to write the names of the candidates upon his ticket, twice or three or more times, he does not make it more than one ticket; so long as there is but a single piece of paper, there can be but one ticket, and if it can be discovered therefrom, who are voted for, and the offices for which each was intended to be chosen, it must be counted as one ballot, notwithstanding the voter may have, through inadvertence or otherwise, repeated the names and offices; being but one piece of paper, it can be but one ticket, and can only be counted as one vote. Cushing, in his work on the Law and Practice of Legislative Assemblies, p. 40, § 106, observes, “if a ballot happens to have the same name written or printed on it more than once, it is not therefore to be rejected, because, as it is but one piece of paper, it cannot be counted as more than one vote, and though the name is written on it several times, it is yet but one name; thus, where ballots are prepared for distribution, in the usual way practised in some of the states, that is, by the name of the candidate being written or printed several times on the
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same slip of paper, for the purpose of being cut into separate ballots, and being nearly cut apart, but so as to adhere at one end, and an elector inadvertently put two votes, not entirely separated, into the box, they will be counted as one ballot, unless there are circumstances present, which afford a presumption of fraudulent intent, in which case, they must either be rejected or the whole ballot set aside."*
Nor did the court err, in allowing to the relator the votes of Melindy, Whipple and McGrew; the objection taken by the defendant to their votes, is not well founded. They were not disqualified by reason of section 4 of article II. of the constitution; that section does not add to nor take from the conditions upon which the fact of residence is made to depend; it merely declares, that "no person shall be deemed to have gained or lost a residence, by reason of his presence or absence while employed in the service of the United States," which means simply that, in determining the fact of residence, presence or absence in the service of the United States shall not be taken into account, or, in other words, neither presence nor absence in the service of the United States is a condition upon which the fact of residence can be affirmed or denied. Hence, the mere fact that Melindy came to Mendocino county in the capacity of physician, McGrew in the capacity of supervisor, and Whipple in the capacity of laborer to the Indian reservation, did not deprive the first of his former residence in Siskiyow, nor the second of his former resi dence in Sutter, nor the last of his former residence in Contra Costa; nor did it preclude them from acquiring a residence in Mendocino, if disposed to do so. That it was their intention to acquire a residence in Mendocino county, sufficiently appears from the evidence; such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law), which stands in the way of their doing so.
* See Cambridge Election, Cush. Elect. Cas. 3; Case of Hopkinton, Ibid. 26.
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The claim that the court allowed to the relator two votes folded together, and found in the ballot-box at Round Valley precinct, is not sustained. Whether the
two ballots in question were folded together or not, was a question of fact for the court below to find, and the court found that the evidence failed to prove it. The affidavit of Eberlee (who was inspector at that place), on the mo tion for a new trial, fully explains the alleged irregularity, and shows that, in fact, the two ballots were not folded together; upon comparing the number of ballots with the poll-list, it appears, that there were no more ballots cast, than there were persons who voted, thereby showing that, in all probability, the two ballots in question were not cast by the same person.
So far as the vote of John Ward, at Calpella precinct, is concerned, the counsel for defendant is mistaken in supposing it was counted by the court for the relator. The court, in effect, found as a fact, that Ward did not vote for the relator, but for the defendant; and we think, the finding is sustained by the evidence. If Ward was a minor, and he voted for the defendant, another vote ought to have been taken from him; the court, however, so far as we are able to discover, allowed Ward's vote to stand; of this action, at least, the defendant ought not to complain.
In regard to the points made by counsel for the defendant, upon the stipulations of the 23d June and 7th July, it is sufficient to say, that in the progress of the case thereafter, until the actual taking of the evidence to which they respectively relate, both parties seem to have virtually disregarded them. Thus, on the 8th July, the next day after the last stipulation was made, the defendant served notice of a motion to file an amended answer, to be heard on the 18th of the same month; the motion was allowed, and the amended answer filed on that day; on the next day, the 19th, the plaintiff filed an amended complaint, and on the same day, the court made an order,
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on motion of the defendant, directing that the amended answer be considered as the answer to the amended complaint; on the 9th July, the next day after the notice of the defendant to the effect that he desired to amend his answer, the plaintiff obtained an order from the judge of the court, allowing further time to take testimony, which was served on the opposite party. What effect the amendments to the pleadings may have had upon the issues, as they stood at the time these stipulations were made, we are unable to determine, for the original pleadings are not in the record. It may be, that the relator could have gone safely to trial, upon the issues as they then stood, upon the evidence already taken, at the time the stipulation was made, but could not, if those issues were to be changed.
Moreover, it is very doubtful, whether these stipulations were ever binding upon the people, who were the real plaintiffs in the case; they were not made by the attorney-general, by whom the suit was instituted, but only by the private counsel of the relator. Theoretically, the people alone are interested in the determination of the controversy involved in this case, and no court would be justified in enforcing, as against them, a stipulation made by the relator or his counsel, to their prejudice. The action is, in no legal sense, under the control of the relator; it was brought in the name of the people, and to enforce their will as expressed through the ballot-box, and not merely to redress the wrongs or enforce the rights of the relator. Searcy v. Grow, 15 Cal. 117.
It is very evident, that the case could not have been fairly tried or its merits reached upon the evidence taken prior to the 7th July, for the evidence then in only disclosed about one-third of the official vote of the county, and it would have been impossible to determine, upon the real merits of the case, whether the defendant or the relator had been elected. Under all the circumstances, we think the court might in its discretion, allow the additional evidence to come in. Then the only question re
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maining would be, whether the defendant was surprised; if so, he would have been entitled to a postponement of the trial, in order to procure further evidence on his side, if there was any within his reach. But although he knew that the evidence had been taken by the referee, and would be reported to the court, and might be received, yet, when it was received, he did not claim that he was thereby surprised, and therefore, not ready to proceed with the trial; on the contrary, he was silent, and with full knowledge of all the facts, took the chances of a finding in his favor. It will not do to say, as he now does, that he did not ask for an adjournment, because he was precluded from so doing by the stipulation in question; the stipulation having been disregarded by the other side and by the court, was no longer obligatory upon him; this must have been known both to him and his counsel.
The record in this case contains nearly 300 printed pages; it is manifest, that the whole case could have been fully and fairly presented in a record containing, at the outside, not more than fifty pages; for this, we are satisfied, that the respondent was, in a great measure, responsible; he must, therefore, be taxed with half the costs of making up and printing the transcript.
SHAFTER, J., dissented.
In purging the polls of illegal votes, the rule is, that unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, not from the majority candidate. Sheppard v. Gibbons, 2 Brewst. 128; McDaniels' Case, 3 Penn. L. J. 310; Cush. Elect. Cas. 583. (But see ante 211.) Votes received from electors, whose names do not appear on the assessment list, without the preliminary proof required by law, were formerly held to be primâ facie illegal, and to be rejected from the count, unless adequate proof were made on the trial, of the legality of each such vote. Mann v. Cassidy, 1 Brewst. 2; Weaver v. Given, Ibid. 141. But the modern and better