I concur in the judgment of reversal. The requirements as to time and place of holding elections are certainly mandatory. • But time in this connection means the proper day for holding the election, and does not mean that the polls must necessarily be opened at the hour of sunrise on that day. A slight delay in opening the polls, explained and excused by the absence of one of the officers, and by the necessity of setting up the booth, railings, etc., ought not to disfranchise the voters of a precinct, in the absence of any showing of actual injury. Delay in opening the polls in a precinct, where ample time is still left for receiving all the votes, is a much less serious irregularity than a premature closing of the polls, and yet I suppose it would scarcely be contended that an entire precinct should he thrown out because the polls were closed at 4 o’clock, or even earlier, if at the same time it ap*482pfeared tliat'every registered voter had deposited his ballot be-1 fore/the closing.' i
In this case it was found by the court, although it had not befen alleged, that- at least one voter was prevented from casting his ballot by the delay in opening the polls, hut it did not ap-; peár how he would have voted, and even allowing that he would have -voted for the contestant, the result of the election would not have been changed. - j
It, also-appears that one man not registered in the precinci; Vas', allowed fo Vote. Counting his vote and the vote- that wag lost by. the delay in opening the polls, for the contestant* the. result'- would have been a tie. But as to the illegal vote, I 'think' the court erred in rejecting the offer off the cóntestee to prove that it was cast for the contestant.'. The voter. was “assisted” in marking his ballot by an off!' cer of - the election who was called as a witness to prove that the- vote was cast for contestant. The offered evidence was excluded Upon the ground that the election law (Pol. Code, sec. 1208) prohibits any disclosure by the assisting officer of the, contents of the ballot. But this law applies in terms only to the ballots- of 'éüetors.' "Wheré a ballot is unlawfully deposited -by one who is not an elector the law ought not, and in my opinion does not,' enjoin secrecy as to his ballot where the interest of third parties and of the public is concerned.