This is an election contest for the office of supervisor of San Benito county, under sections 1111 et seq. *Page 284 of the Code of Civil Procedure, and was commenced by Daniel Snibley, now deceased, who was an opposing candidate for the office to defendant, who received the certificate from the canvassers.
The court found that there was a tie vote, "said Palmtag and said Snibley having received an equal and the highest number of votes cast for said office."
The proceeding is statutory, and can be inaugurated in four different cases, stated in section 1111 of the Code of Civil Procedure. The fourth ground is: "On account of illegal votes." That some other person received more votes than the person declared elected, or an equal number with such person, is not made a ground of contest. Section 1114 of the Code of Civil Procedure reads as follows: "Nothing in the fourth ground of contest specified in section 1111 is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear that a number of illegal votes has been given to the person whose right to the office is contested, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person."
Section 1123 of the Code of Civil Procedure reads as follows: "If in any case it appears that another person than the one returned has the highest number of legal votes, the court must declare such person elected."
Under these provisions it is obvious that the judgment annulling the election is unauthorized by the statute, or by the facts found. The judgment should have been that the contestant take nothing by the proceeding and it be dismissed, and the cause is remanded, with direction that the superior court make such modification.
McFarland, J., and Henshaw, J., concurred. *Page 285