A careful examination of the record, in the light of the petition for rehearing and recent decisions therein cited, has not shaken our confidence in the conclusion voiced in the decisions filed herein. The cases of People ex rel. Russell v.Town of Loyalton, 147 Cal. 774, [82 P. 620], and People exrel. Martin v. Worswick, 142 Cal. 76, [75 P. 663], as far as applicable to the case at bar, simply lay down the rule that the burden is on the plaintiff to show that the illegal ballots were sufficient in number to make a difference in the result if deducted. We have never doubted either the existence or wisdom of this rule, nor do we question any of the rules laid down in cases of like character cited and examined. But the facts of the case at bar are very different from the facts in any case we have been able to find. In other cases the number of legal and illegal votes was ascertained, and there was some definite or certain basis for presumption or calculation. But in the case at bar there is nothing upon which the doctrine of probability, which always underlies a presumption, can rest. The certificates of election, standing alone, destroy each other, while the statement upon which such certificates must rest is impeached by proof that the canvassing board counted 447 more votes than there were ballots cast. This is more votes than any one candidate received altogether, and it needs only this statement to show that the illegal votes were sufficient in number to make a very great difference if deducted. It is conceded that the election officers proceeded upon the theory that two candidates were to be elected, and most of the ballots cast contained two names. There is nothing to show that any candidate received a single legal vote, and the evidence clearly shows that legal ballots were exceptions and illegal ballots were the rule.
It is said that there is no evidence showing that this was the case in four precincts. We inadvertently stated in the former opinion that officers of each precinct gave testimony to that effect. This was a mistake as to the four precincts referred to. But we think the general course pursued and the general theory upon which the election proceeded is sufficient to indicate that the conduct of the election was substantially the same in all precincts. Counsel say we should have indulged the presumption that the election was *Page 109 legally conducted in these four precincts, and hence have found for Davidson. But an examination of this question has demonstrated the dangerous uncertainty which would attend guesswork under such circumstances. If the votes cast in these four precincts were counted as tallied in the statement of the vote, a minority candidate, Peters, would have a majority of the votes. We think it sufficiently appears that neither of the claimants has a right to the office. Such rights depend on the records provided by law, and when it is shown that such records do not sustain a claim to public office, and are utterly unreliable, the claim falls. Gibson v. Twaddle, 1 Cal.App. 126, [81 P. 727], has no application to cases of this character.
The rehearing is denied.
Chipman, P. J., and Buckles, J., concurred.
A petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on December 26, 1905.