Pacheco v. Beck

By the Court, Rhodes, J.:

The statute in defining the jurisdiction and power of Boards of Supervisors, provides that they shall have power “ to establish, abolish, and change election precincts, and to appoint inspectors and judges of elections, -canvass all election returns, declare the result and issue certificates thereof.” (Pol. Code, sec. 4046.) Each of these several duties are incumbent on those Boards as Boards of Supervisors. In canvassing election returns they do not become Boards of Canvassers, limited as to their powers and the period of their existence, but the same Board that establishes an election precinct also canvasses the election returns. It is provided by sec. 4030 that a record of the proceedings of the Board of Supervisors shall be kept; and sec. 4029 provides that the records must be signed by the Chairman and Clerk of the Board. A record kept and authenticated in the manner provided by those two sections is the evidence of the proceedings of the Board, and is the only evidence thereof, in cases where the proceedings are required to be entered of record.

The Board is required by sec. 1281 to canvass the returns “ by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof.” Prior to the passage of the Act of May 18th, 1861, (Stats. 1861, p. 529) the statute required the county clerk “ to estimate the vote of the county or township,” and to prepare and sign a statement thereof; but no provision was in force requiring the statement to be made a matter of record. The Amendatory Act of 1861 above mentioned required the Board of Supervisors to canvass the election returns, estimate the vote of the county for each person voted for, and for and against each proposition voted upon, and declare the result thereof; and the Clerk was required to enter upon the records of the Board a statement of the result of the election. One of the obvious purposes of the act was to require the result of the canvass to be made a matter of record among the proceedings of a Board which was required by law to keep a record of its proceedings, in order that such record should constitute evidence of the result of the canvass of such election, and as evidence should have the same force and effect, and the benefit of all the intendments in its support that the record of any other proceeding of the Board would have. It was intended that such record should constitute the basis of all future action in respect to the election; and, accordingly, the Clerk was required to transmit to the Secretary of State certified copies of such statement in respect to all officers voted for at such election, unless the election was held for the election of township officers only—in other words, that the Clerk should transmit a copy of a record, instead of a copy of a mere fugitive paper in his possession. The Political Code contains substantially the same provision as the Act of 1861 j its purpose was the same, and it was intended that the record therein provided for should have the same force and effect as the record provided for in the Act of 1861.

The Clerk is required by sec. 1288 of the Political Code, “ so soon as the statement of the vote of his county is made out and entered upon the records of the Board of Supervisors,” to make a certified abstract of so much thereof as relates to votes for persons voted for by the electors of the State at large, etc. It is contended on the part of the respondent that the Clerk is required to make an abstract, not of the record as authenticated by the signature of the Chairman of the Board and the Clerk, but of the statement of the result of the election as entered upon the records of the Board by the Clerk, without regard to the authentication of the record. And it is further contended, that the statement to be entered by the Clerk is the statement of the result as declared by the Board at the time of making the canvass, without any regard to errors that may have been discovered and corrected before the record was authenticated. If this proposition can be maintained—that is, if the Clerk is required to give a certified abstract either of the tabulated result of the election as shown by the papers on his table, or of the result as orally announced by the Board, or of the Clerk’s entry in the records, before the record is authenticated, then the provision requiring the result to be made a matter of record is not only useless, but is absurd. It would be a misnomer to call that a record which could be contradicted by such means. It is, in my opinion, beyond all question, that the statement of the result contemplated by the Code is not such statement until it is made a matter of record, and that it is not a matter of record, within the sense of the Code, until it is authenticated by the signatures of the Chairman of the Board and the Clerk. And it is, in my opinion, equally unquestionable that, in this proceeding, the only evidence of the result of the canvass, or of the result as declared by the Board, or of the statement of such result, is the record of the Board. We are not called upon in this case to determine what would be the value or effect of an entry of a statement in the records of the Board without the record being authenticated as provided in the Code; but, in my opinion, such statement, when entered by the Clerk and authenticated in the mode provided by the Code, cannot be contradicted, in a'collateral proceeding, by evidence of facts or matters existing or transpiring before the authentication of the record.

The word “ abstract,” in the provision of sec. 1288, that the Clerk “ must make a certified abstract of so much thereof,” etc., means a certified copy; and this is conceded by the respondent, and the certified copy which the Clerk is required to make and forward to the Secretary of State, is, in my opinion, a certified copy of the proper portion of the records of the Board of Supervisors.

The petition in this case contains one certified abstract of the record of the statement of the result of the election, dated on the 17th day of November, 1876, and marked “ Exhibit A,” which conforms to the law in that regard, and there is no other document in the case which purports to be or can be regarded as a certified abstract provided for by sec. 1288. The document dated December 8th, 1876, marked “ Exhibit B,” does not purport to be a copy from the record, but purports to be a copy in part, and in part a recital of matters transpiring before the record was made up, and contains figures which the Clerk certifies are not in the record.

If' it be conceded that the Secretary of State is vested with certain discretionary powers, and if the exercise of those powers may be involved in the determination of the question as to which one of the two documents is the certified abstract provided for by the Code, to be determined by the inspection of the documents, to ascertain which one bears the proper official signature and seal, and is in due form—of all of which matters he must take notice—there is here no room for the exercise of such discretionary power, for he has before him only one document which purports to be such certified abstract.

The law does not vest him with authority to inquire whether the Board of Supervisors correctly canvassed the returns from the several precincts, or whether the record correctly states the result of the canvass, as made or declared,' or whether the record was properly made up; nor to investigate any question relating to the proceedings which were had prior to the making of the certified abstract. That document, being in the form prescribed by law, is the only one upon which he is required or authorized to act in his official capacity in estimating the vote of the district; and neither his power nor duty in that regard is enlarged or changed by reason of the fact that there are in his office other papers or certificates, for which no provision is made by the election laws.

It is his duty, in comparing and estimating the votes as provided for by sec. 1846 of the Political Code, to compare and estimate the votes contained in the certified abstract dated the 17th day of November, 1876, marked “ Exhibit A.”

Demurrer to the petition overruled.