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polls were opened at such election, shall not have been received by the county clerk at that time, then said board shall adjourn, from time to time, until said returns shall Board may adjourn. be received, but not beyond the second Monday after such election, and the said board shall then proceed, in public, to open the returns and estimate the vote of such county, Election returns. or township, for each person voted for, and for and against each proposition voted upon at such election, and declare the result thereof. The clerk of said board shall, at such meeting, enter on the records of such board a statement of the result of such election, containing the names of the persons voted for and the propositions voted upon; the office to fill which each person was voted for; the number of votes given Duties of clerk. at each precinct to each of such persons, and for and against each of such propositions; the number of votes given in the county to each of such persons, and for and against each of such propositions, and the whole number of votes cast in said county.(") [Amendment approved May 18, 1861, 529.

See 2528.

olection.

2459. SEC. 39. The person having the highest number of votes given for each office Certificate of to be filled by the votes of a single county, or of a township, shall be declared elected; and the county clerk shall immediately make out, and deliver, or send to him, a certificate of election, signed by said clerk, and authenticated with the seal of the county

court.

[SEC. 40 was repealed by act approved May 18, 1861, 529.(")]

district com

2460. SEC. 41. When there are officers other than representatives in congress voted Returns from for, who are to be chosen by the electors of a district, composed of two or more counties, posed of two or it shall be the duty of each of the county clerks of the counties composing such district, inore counties. immediately after making out the statement specified in the thirty-eighth section of this act, to extract therefrom so much as relates to the election of such officers, and certify under his hand, and the seal of the county court, that such extract contains a full statement of all the votes given for district officers as returned to him, and without delay transmit the same to the county clerk of the county which stands first in alphabetical arrangement in the list of counties composing such district. The said clerk shall compare the returns, make up a statement of the vote of the district for such officers, and file the same, together with the returns from the other counties, in like manner as is prescribed in section thirty-eight of this act. He shall also make out and transmit to the secretary of State a copy of such statement of the votes of the district, signed by him officially, and authenticated with the seal of his court.

by votes of more

2461. SEC. 42. The county clerk, to whom the election returns of a district are Certificate to made, shall, on the twentieth day after the day of election, or so soon as the result is person elected ascertained, if within that time all of said statements are received, make out and de- than one county liver, or send to each person chosen to any such office a certificate of election under his hand and the seal of his court.

officers chosen

2462. SEO. 43. When there are officers voted for who are chosen by the qualified elect- Election of ors of the State, other than the governor and lieutenant-governor, it shall be the duty by State vote. of each county clerk, so soon as the statement of the vote of his county is made out, as required in section thirty-eight of this act, to copy therefrom so much as relates to the votes given for such officers, certify to the correctness thereof under his hand and the seal of his court, and transmit the same to the secretary of State, indorsing on the package the words "Election Returns." On the sixtieth day after the day of election, or so soon as the returns shall have been received from all the counties of the State, if received within that time, the secretary of State shall compare and estimate the vote, and make out and file in his office a statement thereof, a copy of which shall be transmitted to the governor. Upon this statement the commission shall issue.

governor.

2463. SEC. 44. When any person chosen to any office filled by the vote of the elect- Commissions by ors of a district, is required by law to be commissioned by the governor, such commision shall issue upon the statement of the votes transmitted to the secretary of State, according to the provisions of the forty-first section of this act.

be withheld for

returns.

2464. SEC. 45. No certificate shall be withheld on account of any defect or inform- Certificate not to ality in the return of any election, if it can with reasonable certainty be ascertained want of form in from such return what office is intended, and who is entitled to such certificate; nor shall any commission be withheld by the governor on account of any such defect or informality of any returns made to the office of the secretary of State.

2465. SEC. 46. Whenever returns are required to be transmitted by one county

(") The original section had been previously amended by act approved April 27, 1855, 160.

() The repealed section provided that the county judge

should examine the returns of elections for county clerk and issue certificate.

Transmission of clerk to another, or by the county clerk to the secretary of State, it shall be the duty

returns.

Election of representatives in congress.

Election of governor and lieutenantgovernor.

Certified copies to be transmitted.

Election returns for governor aud lieutenant

governor to be opened by speaker of assembly.

Two or more persons receiv

ing an equal

of the county clerk to deliver the same to some postmaster of the county, at the postoffice, to be transmitted by mail, taking from such postmaster, if it can be obtained, a certificate, setting forth the time when such returns were deposited in the post-office, which certificate the clerk shall file with the returns.

2466. SEC. 47. When elections are held for representatives in congress, the county clerk of each county shall make his returns thereof, in the manner prescribed in this act, to the secretary of State. On the sixtieth day after the day of election, or so soon as the returns shall have been received from all the counties of the State, if received within that time, the secretary of State shall compare and estimate the votes given for such representatives, and certify to the governor the person having the highest number of votes in each congressional district as duly elected, and it shall thereupon be the duty of the governor to give to each of such persons a certificate of his election, sealed with the seal of the State, and attested by the secretary of State. The returns of all elections for officers chosen by the qualified electors of the State, which are required by this act to be transmitted to the secretary of State, shall likewise be opened on the sixtieth day after the day of election, or so soon as the returns shall have been received from all the counties of the State, if received within that time.

2467 SEC. 48. When an election has been held to fill the office of governor or lieutenant-governor, the said clerk shall forthwith make out three duly-certified copies from said records of the board of supervisors, of the statement provided for in section one of this act, so far as the same relates to the votes given to each of the several persons voted for governor, or lieutenant-governor, seal the same up and indorse thereon "Election returns for Governor, or Lieutenant-Governor," as the case may be; and he shall forthwith transmit one of said copies, by mail, to the seat of government, directed to the secretary of State, to be filed by him in his office, and shall transmit two of said certified copies to the speaker of the assembly, one by mail, directed to the seat of government, and the other by the representative, or senator, of this county, or district, whose duty it shall be to deliver the same to the speaker, on, or before, the second day after his election. [Amendment, approved May 18, 1861, 529.

2468. SEC. 49. Said returns of election for governor and lieutenant-governor shall, during the first week of the session, be opened and published by the speaker of the assembly in presence of both houses. The persons having the highest number of votes for either office shall be declared chosen; but in case any two or more persons have an equal and highest number of votes for either of said offices, the legislature shall, by joint vote of both houses, choose one of said persons to fill such office.

2469, SEC. 50. If at any election to fill any office, except that of governor or lieutenant-governor, two or more persons receive the highest and an equal number of number of votes. votes, it shall be declared that there is no choice, and a special election to fill such office shall be ordered by the proper officer.

Who may

contest, and on

what grounds.

12 Cal. 852.

18 Cal. 145.

Irregularity or improper conduct of judges.

ARTICLE VI.

OF CONTESTING ELECTIONS, OTHER THAN FOR MEMBERS OF THE LEGISLATURE, GOVERNOR,
AND LIEUTENANT-GOVERNOR.

2470. SEC. 51. Any elector of the proper county may contest the right of any person declared duly elected to an office to be exercised in and for such county; and, also, any elector of a township may contest the right of any person declared duly elected to any office, in and for such township, for any of the following causes:

First. For malconduct on the part of the board of judges, or any member thereof. Second. When the person whose right to the office is contested was not at the time of the election eligible to such office.

Third. When the person whose right is contested shall have been, previous to such election, convicted of an infamous crime by any court of competent jurisdiction, such conviction not having been reversed, nor such person relieved from the legal infamy of such conviction.

Fourth. When the person whose right is contested, has given to any elector or inspector, judge or clerk of the election, any bribe or reward, or shall have offered any such bribe or reward for the purpose of procuring his election.

Fifth. On account of illegal votes.

2471. SEC. 52. No irregularity or improper conduct in the proceedings of the judges or any one of them, shall be construed to amount to such mal conduct as to annul or set aside any election, unless the irregularity or improper conduct shall have been

such as to procure the person whose right to the office may be contested, to be declared duly elected, when he had not received the highest number of legal votes.

2472. SEC. 53. When any election held for an office, exercised in and for a county, When mal-conis contested on account of any malconduct on the part of the board of judges of any not to vitiate duct of judges township election, or any member thereof, the election shall not be annulled and set election. aside upon any proof thereof, unless the rejection of the vote of such township or townships shall change the result as to such office in the remaining vote of the county. 2473. SEC. 54. Nothing in the fifth ground of contest, specified in the first section When illegal of this article, shall be so construed as to authorize an election to be set aside on account of illegal votes, unless it shall appear that an amount 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 other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.

votes not to vitiate election.

2474. SEC. 55. No person shall be competent to contest any election unless he is a Who may qualified elector of the district, county, or township, as the case may be, in which the contest election.

office is to be exercised.

2475. SEC. 56. When any such elector shall choose to contest the right of any per- Proceedings to son declared duly elected to such office, he shall, within forty days after the return contest election. day of such election, file with the county clerk a written statement, setting forth

specifically:

First. The name of the party contesting such election, and that he is a qualified elector of the district, county, or township, as the case may be, in which such election was held:

Second. The name of the person whose right to the office is contested:
Third. The office:

Fourth. The particular cause or causes of such contest, which statement shall be verified by the affidavit of the contesting party, that the matters and things therein contained are true, as he verily believes. [Amendment, passed April 26, 1851, 180. 2476. SEO. 57. When the reception of illegal votes is alleged as a cause of contest, Where reception of illegal votes it shall be sufficient to state generally, that illegal votes were given to the person is cause of whose election is contested in the specified township or townships, which if taken contest. from him will reduce the number of his legal votes below the number of legal votes given to some other person for the same office; but no testimony shall be received of any illegal votes, unless the party contesting such election shall deliver to the opposite party, at least three days before such trial, a written list of the number of illegal votes, and by whom given, which he intends to prove on such trial; and no testimony shall be received of any illegal votes except such as are specified in such list.

not to vitiate

2477. SEC. 58. No statement of the cause of contest shall be rejected, nor the pro- Want of form ceedings thereon dismissed by any court before which such contest may be brought proceedings of for trial for want of form, if the particular cause or causes of contest shall be alleged contest. with such certainty as will sufficiently advise the defendant of the particular proceeding or cause for which election is contested.

contested

2478. SEC. 59. Upon such statement being filed, it shall be the duty of the county Hearing of clerk to inform the judge of the county court, who shall give notice and order a special election. term of said court to be held at the court-house of the proper county, on some day to 16 Cal. 186 be named by him, not less than ten nor more than twenty days from the date of such notice, to hear and determine such contested election. [Amendment, approved April 27, 1855, 160.

2479. SEC. 60. Said clerk shall, also, at the same time, issue a citation for the person Citation. whose right to the office is contested, to appear at the time and place specified in said notice, which citation shall be delivered to the sheriff and be served upon the party in person, or if he cannot be found, by leaving a copy thereof at the house where he last resided.

Power of Court,

2480. SEC. 61. The said clerk shall issue subpoenas for witnesses in such contested Subpoenas, etc. election, at the request of either party, which shall be served by the sheriff as other subpoenas, and the county court shall have full power to issue attachments to compel the attendance of witnesses, who shall have been duly subpoenaed to attend, if they fail to do so. [Amendment, approved April 27, 1851, 160.

2481. SEC. 62. Said court shall meet at the time and place designated, to determine Power of court, such contested election, and shall have all the powers necessary to the determination adjournment,etc. thereof. It may adjourn from day to day until such trial is ended, and may also continue said trial, before its commencement, to any time not exceeding twenty days, for

Court to be governed by rules of law and evidence, and to pronounce judgment.

Court may

good cause shown by either party upon affidavit at the costs of the party applying for such continuance.

2482. SEC. 63. Such court shall be governed in the trial and determination of such contested election, by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable; and may dismiss the proceedings if the statement of the cause or causes of contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of the parties the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.

2483. SEC. 64. If in any such case it shall appear that another person than the one declare who duly returned has the highest number of legal votes, said court shall declare such person duly elected.

elected.

Fees to officers and witnesses.

Costs to party contesting election.

Costs to party

where election contested.

Each party liable

for costs of

officers and witnesses.

Appeal.

Annulled election.

Commission void.

Contested election of county judge.

Who may contest election.

Statement of cause of contest to be filed.

Commission to

of witnesses.

2484. SEC. 65. The clerk, sheriff, and witnesses shall receive respectively the same fees from the party against whom judgment is given, as are allowed for similar services in the district court.

2485. SEC. 66. If the proceedings are dismissed for insufficiency, want of prosecution, or the election is by the court confirmed, judgment shall be rendered against the party contesting such election, for costs, in favor of the party whose election was contested.

2486. SEC. 67. If such election is annulled and set aside, judgment for costs shall be rendered against the party whose election was contested in favor of the party contesting the same.

2487. SEC. 68. Each party shall be liable for the costs created by himself, to the officers and witnesses entitled thereto, which may be collected in the same manner in which similar costs are collected in the district court.

2488. SEC. 69. Either party feeling himself aggrieved by the judgment of said court may appeal therefrom to the supreme court, as in other cases of appeal thereto from the county court. [Amendment, approved April 27, 1855, 160.

[SECS. 70, 71, and 72 were repealed by act approved April 27, 1855, 160.]()

2489. SEC. 73. Whenever an election shall be annulled and set aside by the judgment of the county court, when no appeal has been taken thereupon within ten days, such certificate or commission, if any has been issued, shall be thereby rendered void, and the office become vacant. [Amendment, approved April 27, 1855, 160.

2490. SEC. 74. In case of any contest in regard to any election to fill the office of county judge, such contest shall be tried in like manner, by the board of supervisors of said county. [Amendment, approved April 27, 1855, 160.

ARTICLE VII.

OF CONTESTING ELECTIONS FOR MEMBERS OF THE LEGISLATURE.

2491. SEC. 75. The right of any person declared duly elected to a seat in the senate or assembly, may be contested by any qualified voter of the county or district to be represented by such senator or member of assembly.

2492. SEC. 76. The person contesting such election shall, within twenty days after the issue of the certificate of election, file with the clerk of the district court of the county in which the alleged cause or causes of contest originated, a concise statement of the grounds on which he intends to rely, verified by affidavit. [Amendment, passed April 26, 1851, 180.

2493. SEC. 77. Immediately on the filing of such statement in the clerk's office, the take testimony said clerk shall issue a commission, directed to two justices of the peace of his county, to meet at such time and place as shall be specified in such commission, not less than twenty nor more than thirty days from the time of issuing the same, for the purpose of taking the depositions of such witnesses as the parties to such contest may wish to examine.

Notice to person whose election contested.

2494. SEC. 78. Written notice of such contest, specifying the time and place of taking depositions, and before whom to be taken, and a copy of the statement, certified by the clerk of said court, shall be delivered to the person whose election is contested, or if he cannot be found, shall be left at the house where he last resided, by the sheriff of the county in which such person claims his residence, within ten days after such statement shall have been filed in the clerk's office.

(") The repealed sections related to proceedings on appeals to the district courts.

notice.

2495. SEC. 79. The sheriff into whose hands such notice and certified copy may Sheriff to serve come, shall make due service thereof, and shall return to the proper clerk a certified copy of such notice, with the manner and time of service indorsed thereon, for which he shall be entitled to receive from the party contesting such election, the same fees for service and mileage as are allowed in the district courts for service in original writs.

witnesses.

2496. SEC. 80. Either of said justices of the peace shall have power at any time to Compelling issue subpoenas for witnesses at the request of either party, to be served by the sheriff attendance of as other subpoenas; and such justices, when met at the time and place appointed to take such depositions, shall have the same power to issue attachments and assess fines against witnesses as is given to justices of the peace in the trials of suits instituted before them.

taken.

2497. SEC. 81. Said justices of the peace shall meet at the time and place appointed, Testimony, how to take the depositions of witnesses produced by the parties, which shall be reduced to writing by said justices, and sworn to and subscribed by said witnesses respectively, and duly certified by said justices as depositions are in other cases, noting in the caption of each deposition by which party the witness was called.

delivered to

2498. SEO. 82. Said justices may continue said examination from day to day, if the Testimony to be business shall require it; and when the same is closed, they shall deliver the depo- clerk of district sitions taken before them, together with their said commission, to the clerk of the court. district court, by whom the same was issued.

2499. SEC. 83. If at any time either of the said justices shall become unable to Justices unable to proceed in proceed in such examination, said clerk may supply the vacancy by designating any taking other justice of the peace of the county in the place of such justice. testimony. 2500. SEC. 84. The sheriff, for the service of such subpoenas, and the justices for Fees of sheriff and justices. issuing the same and taking the depositions, shall receive from the party at whose instance such services are performed, the same fees as are allowed them for similar services in other cases. 2501. SEC. 85. It shall be the duty of said clerk to seal up such depositions, to- Testimony to be gether with the original statements of the grounds of such contest, and the cory of the notice served upon the party whose right is contested, and the commission issued State. to the justices of the peace, and transmit the same by mail to the secretary of State, indorsing thereon the names of the contesting parties, and the branch of the legislature before which such contest is to be tried.

transmitted to secretary of

State to deliver same to

of house in which

2502. SEC. 86. It shall be the duty of the secretary of State to deliver the same Secretary of unopened to the presiding officer of the house in which such contest is to be tried, on or before the second day of the session of the legislature next after taking such depo- presiding officer sitions, and such presiding officer shall immediately give notice to said house that said contest to be papers are in his possession. 2503. SEC. 87. Each house of the legislature is the judge of the qualifications and Each house to elections of its members, and shall try all contested elections of its members in such elections. manner as it may direct.

tried.

try contested

2504. SEO. 88. At any time after notice of any contest shall be given, and before Either party to the trial of such contested election before the proper branch of the legislature, it may depositions. contest may take be lawful for either party to such contest to take depositions to be read on the trial thereof, in like manner and under the same rules as are allowed and required in the cases of depositions to be read on any trial pending in the district court; and such depositions, when thus taken, shall be sealed up by the officer taking the same and directed to the secretary of State, who shall keep the same unopened and deliver them to the presiding officer of the house in which such contest is to be tried, to be disposed of by such officer as the depositions specified in the preceding sections of this article. 2505. SEC. 89. Nothing contained in this article shall be so construed as to abridge Right of the right of either branch of the legislature, trying any contested election, from grant- take testimony legislature to ing commissions to take testimony, or from sending for and examining before such not abridged. branch any witnesses it may desire to hear on such trial.

ARTICLE VIII.

OF CONTESTING THE ELECTION OF GOVERNOR AND LIEUTENANT-GOVERNOR.

2506. SEC. 90. Any qualified elector of the State may contest the election of any Who may person, declared duly elected governor or lieutenant-governor of the State of Cali- contest. fornia.

2507. SEC. 91. When such elector chooses to contest such election, he shall, within

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