[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 322 This an election contest, the office in question being that of district attorney of Yolo County. It has once been decided by this court in Bank (post, p. 331), but, upon petition of both parties, the decision was vacated and a rehearing granted, for the purpose of reconsidering some of the questions involved. Most of the material facts are stated in the opinions, majority and dissenting, heretofore filed.
By the former decision, it was held that upon the face of the legal ballots the respondent had a majority of twenty-one votes, but that the trial court had erred in its conclusion that twenty electors who had voted at the election, but who had the assistance of election officers in the marking of their ballots, although it did not appear from the register that they could not read or by reason of physical disqualification could not mark their ballots, were legal voters. It was also held that there was a similar error in holding that five electors of Knight's Landing Precinct who had not made an affidavit for registration before a proper registration officer were legal voters. The judgment was therefore reversed and the cause remanded for a new trial, such new trial to be confined to the ascertainment of the fact as to how the twenty-five so-called illegal voters voted on the office of district attorney, and the trial court was directed "upon a basis of twenty-one majority in favor of plaintiff ascertained by us from the legal votes cast, to determine from the evidence of such illegal voters whether this majority is lessened, equaled, or overcome, and render a judgment accordingly."
1. Upon a further consideration of the question as to the legality of the five Knight's Landing voters, we are satisfied that they should be held to be legal voters. Our views upon the law applicable to the facts concerning these voters, as the same are set forth in the opinions in this case heretofore filed, are stated in the dissenting opinion filed on the former decision.
In addition to the authorities therein cited in support of the proposition that where a person was in fact entitled to vote, if registered, and he did in good faith attempt to comply *Page 324 with the law in regard to registration, and his name did in fact appear upon the register furnished by the proper officer to the election officers, and he was allowed to vote, he will not, after the election, be held to have been an illegal voter simply for the reason that there was some irregularity or informality in the method by which he was registered, the following cases are cited, viz.: State v. Sadler, 25 Nev. 131, 174;1 Stinson v. Sweeny,17 Nev. 309; and Lane v. Bailey, (Mont.) 75 P. 192. See, also, note to Patton v. Watkins, 90 Am. St. Rep. 58.
In addition to what was said in such dissenting opinion, it may be said that it is apparent from an examination of the code provisions applicable thereto, that no material change was made in this regard by the amendment of section 1083 of the Political Code in 1899. Much reliance is placed upon the fact that under the section, as it originally stood, persons, otherwise qualified, whose names were "enrolled upon the great register" were declared to be qualified electors, while under the section as amended in 1899 only those who have "conformed to the law governing the registration of voters" are declared to be such qualified electors. Taken in connection with the other provisions of the code, these expressions mean practically the same thing, — viz., that those who have caused themselves to be enrolled by the proper officer upon the authentic list of electors of the county are qualified electors thereof. We are speaking, of course, of those who were in fact otherwise entitled to vote.
Learned counsel for appellant are mistaken in their contention that there is no such thing as a great register other than the affidavits made by the electors. By the act amending section 1083 of the Political Code, and providing for the use of affidavits as a register in the various precincts (Stats. 1899, p. 59), sections relative to the keeping of the great register, the entry of names therein, etc., (Pol. Code, secs. 1094-1097, 1103, 1105,) were also amended. Under these sections, as so amended, it is the duty of the person charged with the registration of voters to keep in his office "a register in which shall be entered thenames of the qualified electors" (sec. 1094), and therein to enter the names of the qualified electors (sec. 1095), the entry to show certain facts (sec. *Page 325 1096), such entry to be made on affidavit showing the facts required to be stated in the entry (sec. 1097), and to leave insuch register a blank for cancellation, which is to be made by"writing in such blank the word `canceled,' and a statement of the reasons therefor, and by writing in red ink across the faceof the affidavit used in procuring such registration the samewords as are used in making the cancellation in the greatregister" (sec. 1105). By the same act the officer is required to "preserve all affidavits made before himself or his deputies forthe purpose of procuring registration" (sec. 1103), within fifteen days after the close of registration, arrange such affidavits for each precinct and bind them into a book (sec. 1113,) which, together with printed indices, shall be delivered by him to the respective boards of election, and this book of affidavits "shall constitute the register to be used at such election" in the precinct (secs. 1115 and 1116).
The plain object of this legislation as to the use of the affidavits at the precincts, instead of a printed copy of the great register, which was formerly used by the election officers, was simply to dispense with the necessity of printing copies of the great register. Under it, what purport to be the affidavits used "for the purpose of procuring registration" simply take the place of the printed copy of the great register which was formerly used. They no more constitute the register itself than did such printed copy, and when the law says that a book of precinct affidavits "shall constitute the register to be used at such election," it simply means that such book shall constitute the list of voters authenticated by the proper officer as qualified electors of the precinct, which is to be used by the election board. It is an official list of the electors who have in fact been enrolled by the registration officer upon the great register as electors of the precinct. In the official list in use at Knight's Landing Precinct appeared the names and purported affidavits of these five electors. It thus appeared that they had in fact been enrolled by the registration officer in the great register of the county. Having been so enrolled by the registration officer, and being in fact electors of the precinct entitled to vote if registered, they were qualified electors thereof.
2. In regard to the twenty assisted voters, we adhere to the general views expressed in the opinion heretofore filed. *Page 326 There is no question presented by the record in this case as to the effect of the failure of the registration officer to obtain the necessary information from the elector for the entry to be made on the affidavit and register, or, such information having been obtained, to properly record the same. If it appeared that it was the fault of the registration officer that the register failed to show that the electors, who were in fact unable to mark their ballots, had declared, under oath, when registered, that they could not read, or that by reason of physical disability they were unable to mark their ballots, a different question would be presented, which question it is unnecessary for us to consider on this appeal.
It appeared generally from the affidavits that each of these voters had sworn to a statement that he could read the constitution in the English language, write his name, and mark his ballot. Apart from the undisputed fact that they were not able to mark their ballots, and the fact that some of the affidavits were signed by mark and some by another person at the request of the deponent, there is nothing to indicate that the registration officer did not fully question them as to these matters at the time of registration, or that he did not correctly enter their statements in regard thereto. These facts are not sufficient to support a conclusion that the registration officer did not fully perform his duty in this matter. To so hold would be to practically abolish the statute as to assisted voters.
By the petition for rehearing presented by respondent, it was specially urged that as to the assisted voters, Hiller, Washabaugh, Hill, Gibson, Alexander, Brannigan, and Pulze, the register sufficiently showed them entitled to assistance. The affidavit of Hiller stated that he could read, write, and mark his ballot. The additional statement contained therein, to the effect that he was an invalid, did not show him to be entitled to assistance.
The affidavits of Alexander, Washabaugh, Hill, Gibson, and Brannigan stated that they were not able to write their names, but that they could read the constitution in the English language and mark their ballots. The fact that the registration officer did ascertain and enter the statement that these electors could not write supports the theory that he questioned *Page 327 them as to all the matters required by subdivision 11 of section 1096 of the Political Code to be shown in the entry in the great register, and correctly set forth their answers thereon. The fact that the register showed that these electors had declared on oath that they could not write their names did not entitle them to assistance. Section 1208 of the Political Code alone prescribes the conditions upon which such assistance may be given, viz.: "When it appears from the register that any elector has declared under oath, when he registered, that he cannot read, or that byreason of physical disability he is unable to mark his ballot." These facts are to be ascertained, as contended by plaintiff, from the entry made on the great register under section 1096 of the Political Code, which provides that such entry must show, — "11. The fact whether or not the elector desiring to be registered is able to read the constitution in the English language and to write his name, and whether or not the elector has any physical disability by reason of which he cannot mark his ballot; and if he cannot mark his ballot by reason of physical disability, then the nature of such disability must be entered." Under section 1097 of the Political Code the affidavit for registration of the voter must show all the facts required to be stated in the entry on the register, except the date of entry. But there is nothing in these provisions to detract from the force of the provisions of section 1208 of the Political Code, even though they were enacted subsequent to the enactment of said section 1208, which is not the case. The provisions referred to above constituted portions of sections 1096 and 1097 at the time of the enactment of section 1208 in its present form, and the subsequent amendments of sections 1096 and 1097 made no change in such provisions.
Upon further consideration of the case of the voter Pulze, we are satisfied that the register showed a case in which, under the provisions of section 1208 of the Political Code, the voter was entitled to assistance. The blank form of affidavit used in the case of this voter was so filled in as to show that he declared under oath at the time of registration that he could not read the constitution in the English language. This presented a case where, under the express provision of the statute, the voter was entitled, on demand, to assistance, regardless of whether or not he had also stated that he could *Page 328 mark his ballot. It further appeared that he was in fact not able to read or write.
There was evidence sufficient to justify the court in finding that the election officers assisting him did take the oath prescribed by law, to the effect that they would not give any information regarding the manner in which his ballot was marked, and the mere fact that such oath was not taken until immediately after they assisted him should not be held to invalidate his vote.
It follows that Pulze must be taken from the list of illegally assisted voters.
3. It was contended on rehearing by the appellant, and the point was made in his petition for a rehearing, that the voter Walter Grim was an illegal voter, for the reason that he was not on the day of the election a resident of the precinct wherein he voted. He was held by the trial court to have been a legal voter, and the appellant was therefore not allowed to show how he voted. We cannot disturb the finding of the lower court as to this voter. The evidence was sufficient to sustain a conclusion that he had no intention of making the precinct into which he moved his residence. He said that he went there to undertake temporary employment only, intended to return to Woodland when he completed such employment, and did not intend to give up Woodland as his home when he left.
When residence is spoken of in connection with the right of a person to vote, "legal residence" is meant. Every person has in law a residence, and a residence cannot be lost until another is gained. (Pol. Code, sec. 52, subd. 3.) By subdivision 4 of section 1239 of the Political Code it is declared that a person must not be considered to have gained a residence in any precinct into which he comes for temporary purposes merely, without the intention of making such precinct his home, and by subdivision 9 of the same section it is provided that "The mere intention to acquire a new residence, without the fact of removal, avails nothing; neither does the fact of removal, without theintention." If the voter had no intention of making the precinct into which he moved his home, but went there for temporary purposes only, he did not gain a residence there, and consequently did not lose his legal residence in the precinct from which he moved, notwithstanding *Page 329 that he may not have had any certain house, room, or place therein that he could call his home. That precinct continued to be his legal residence until he gained a legal residence elsewhere. The evidence was such that it might have sustained a contrary finding, but not such as to warrant us in disturbing the finding of the court below. (See, in this connection, Smith v.Thomas, 121 Cal. 533; Stewart v. Kyser, 105 Cal. 459.)
4. Upon a further examination of defendant's ballot No. 189, a vote for respondent counted over appellant's objection, we are satisfied that the objection made thereto by appellant was good, and that the vote should not have been counted. There was a plain and distinct impression of a cross in the blank space under the column of socialist candidates. This, under the authorities, must be held to have invalidated the ballot. This error, however, is more than offset by a mistake in the former opinion, in regard to defendant's ballot, or objection, 153. In such opinion it was stated that the court erred in overruling thirty objections of defendant to ballots voted for plaintiff, including No. 153. This ballot was therefore by this court deducted from plaintiff.
It appears from the record of the case that the trial court did in fact sustain defendant's objection to this ballot, and it therefore was not counted for plaintiff in the lower court. It further appears that the only objection to the ballot was one that, as will appear hereinafter, we do not consider to have been a valid objection, — viz., that the voter, in expressing his choice as to constitutional amendments, had placed the cross on the words "Yes" or "No" instead of in the voting square to the right thereof. The objection should not therefore have been sustained by the trial court. Plaintiff should have been credited by us with another vote, instead of being deprived of a vote.
5. As to the other points made by the parties on rehearing, we adhere to the views announced in the original opinion. We have carefully considered appellant's contention relative to "defendant's ballot No. 1." There was, it is true, a tear extending from the top down through a portion of the ballot, but there was no "piece torn out of the top of the ballot," as urged by the objection. The tear was not the kind of mark that a voter would ordinarily place upon a ballot to serve as a *Page 330 distinguishing mark, and there is nothing in the appearance of this tear to indicate that it was not made accidentally or unconsciously, and, conceding for the purposes of the case that it was among the ballots that had been rejected by the election board, we cannot say that the evidence was such as to compel the conclusion that the tear had been made by the voter. As to another objection made to the ballot, — viz., that the name "R.L. Ogden" had been written on the back thereof, — it appears that the name "R.L. Ogden" was not written thereon, but that the initials "W.H." and "R.L.O." in different handwriting had been written on the back in the upper left-hand corner. There was no pretense in the trial court that these were not, as they appeared to be, initials of some of the election officers, placed on the ballot by them at some time during the canvass by the board of election. The trial court was fully justified in concluding that they were not placed thereon by the voter or prior to the deposit of the ballot in the ballot-box.
We have also fully considered appellant's contention as to the ballots where the cross stamped by the elector to indicate his vote as to constitutional amendments was placed upon the word "Yes" or "No," instead of in the voting square immediately to the right thereof. This question affects five ballots cast for respondent and one cast for appellant. Upon this point we adhere to the views expressed in the original opinion, and in the case of Tout v. Hawkins, 143 Cal. 104, and Hannah v. Green, 143 Cal. 19.
The rejection of ballot 189 and the rectifying of the error in regard to ballot 153 leave respondent with twenty-two majority.
According to the views of this court, there were only nineteen voters who may be held to have been illegal voters, and if it be conceded that each of those voted for respondent, he would still have three majority, which is sufficient to support the judgment in his favor.
It follows that the judgment of the superior court must be affirmed, and it is so ordered.
Shaw, J., and Van Dyke, J., concurred.
1 83 Am. St. Rep. 573.