the party to show cause why he should not be absolutely restrained, etc., must be omitted, and a return day inserted. En. March 11, 1872. Compare sec. 1087. § 1105. Certain provisions of the preceding chapter applicable. The provisions of the preceding chapter, except of the first four sections thereof, apply to this proceeding. En. March 11, 1872. Cal.Rep.Cit. 88, 267. WRITS OF REVIEW, CHAPTER IV. MANDATE, AND PROHIBITION MAY § 1108. Writs of review, mandate, and prohibition may issue and be heard at chambers. § 1108. Writs of review, mandate, and prohibition may issue and be heard at chambers. Writs of review, mandate, and prohibition issued by the supreme court, or by a superior court, may, in the discretion of the court issuing the writ, be made returnable and a hearing thereon be had at any time. En. March 11, 1872. Am'd. 1873-4, 346; 1880, 74. Cal.Rep.Cit. 45, 243. Powers of judges at chambers: Ante, secs. 165, 166. 1109. § 1110. CHAPTER V. RULES OF PRACTICE AND APPEALS Certain provisions of part two applicable. Ex § 1109. Certain provisions of part two applicable. cept as otherwise provided in this title, the provisions of part two of this code, are applicable to, and constitute the rules of practice in the proceedings mentioned in this title. En. March 11, 1872. Cal.Rep.Cit. 117, 6. See ante, secs. 307 et seq. § 1110. Same. The provisions of part two, of this code. relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title. En. March 11, 1872. See ante, secs. 656 et seq.; and ante, secs. 936 et seq. 1111. § 1112. § 1113. § 1114. § 1115. § 1116. § 1117. § 1118. 1119. 1120. 1121. § 1122. 1123. § 1124. § 1125. § 1126. § 1127. TITLE II. OF CONTESTING CERTAIN ELECTIONS.\ Who may contest, and grounds of contest. Irregularity and improper conduct of judges, when to annul elections. When not to. Illegal votes, when not to vitiate election. Proceedings on contest. Statement of cause of contest in illegal voting. Statement of cause of contest; want of form not to vitiate. Appeal. (Repealed.) When election void and office vacant. Gen. Cit. to Title-Cal.Rep. Cit. 125, 528. § 1111. Who may contest, and grounds of contest. Any elector of a county, city and county, city, or of any political subdivision of either, may contest the right of any person declared elected to an office to be exercised therein, for any of the following causes: 1. For malconduct on the part of the board of judges, or any member thereof. 2. When the person whose right to the office is contested was not, at the time of the election, eligible to such office. 3. 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 has offered any such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise, defined in title four, part one, of the Penal Code. 4. On account of illegal votes. En. March 11, 1872. Am'd. 1875-6, 100. Cal.Rep. Cit. 46, 401; 46, 403; 64, 95; 83, 71; 83, 74; 87, 124; 87, 125; 100, 201; 114, 96; 118, 400; 129, 327; Subd. 165, 59; 83, 73; Subd. 4-104, 661; 127, 31; 134, 152; 136, 266; 138, 152. 111, 420. 128, 284. Subd. 2-118, 395. Malconduct of judges: Post, secs. 1112, 1113. Legislature, contesting election of members of: Code, sec. 273; of governor, etc., Id.: Sec. 288. Pol. Office, usurpation of, etc.: Ante, secs. 802 et seq. Offense against elective franchise: Pen. Code, secs. 41 et seq. § 1112. Irregularity and improper conduct of judges, when to annul elections. No irregularity or improper conduct in the proceedings of the judges, or any of them, is such malconduct as avoids an election, unless the irregu larity or improper conduct is such as to procure the person whose right to the office is contested to be declared elected, when he had not received the highest number of legal votes. En. March 11, 1872. Cal.Rep. Cit. 83, 78; 108, 111; 124, 13; 136, 402. § 1113. When not to. When any election held for an office exercised in and for a county is contested on account of any malconduct on the part of the board of judges of any township election, or any member thereof, the election cannot be annulled and set aside upon any proof thereof, unless the rejection of the vote of such township or townships would change the result as to such office in the remaining vote of the county. En. March 11, 1872. § 1114. Illegal votes, when not to vitiate election. Nothing in the fourth ground of contest specified in section eleven hundred and eleven, 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 other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person. En. March 11, 1872. Cal.Rep.Cit. 65, 286; 83, 73; 128, 284. $1115. Proceedings on contest. When an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of the elec tion, file with the county clerk a written statement, setting forth specifically: 1. The name of the party contesting such election, and that he is an elector of the district, county, or township, as the case may be, in which such election was held; 2. The name of the person whose right to the office is contested; 3. The office; 4. The particular grounds of such contest; -Which statement must be verified by the affidavit of the contesting party, that the matters and things therein contained are true. En. March 11, 1872. Cal.Rep.Cit. 46, 403; 58, 207; 58, 208; 65, 59; 111, 130; 121, 479. Statement of contestant: Post, secs. 1116, 1117. § 1116. Statement of cause of contest in illegal voting. When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the person whose election is contested, which, if taken 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 can be received of any illegal votes, unless the party contesting such election 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 can be received of any illegal votes except such as are specified in such list. En. March 11, 1872. Am'd. 1880, 74. Cal.Rep.Cit. 51, 516; 58, 211; 105, 182; 121, 534; 136, 136, 277. 4: § 1117. Statement of cause of contest; want of form not to vitiate. No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested. En. March 11, 1872. $ 1118. Superior judge to hold special session for trial of contest. Upon the statement being filed, the county clerk must inform the superior court of the county thereof, which shall thereupon order a special session of such court to be held at the court room, on some day to be named by it, not less than ten nor more than twenty days from the date of such order, to hear and determine such contested election. En. March 11, 1872. Am'd. 1880, 75. Cal.Rep.Cit. 119, 614; 119, 616. § 1119. Clerk to issue citation to respondent. The clerk shall thereupon issue a citation for the person, whose right to the office is contested, to appear at the time and place specified in the order, which citation must be delivered to the sheriff, and served either upon the party in person, or, if he cannot be found, by leaving a copy thereof at the house where he last resided, at least five days before the time so specified. En. March 11, 1872. Am'd. 1880, 75. § 1120. Witnesses; attendance of, how enforced. The clerk must issue subpoenas for witnesses at the request of either party, which must be served as other subpoenas; and the superior court shall have full power to issue attachments to compel the attendance of witnesses who have been subpoenaed to attend. En. March 11, 1872. Am'd. 1880, 75. Subpoenas, issuance, service, etc.: Post, secs. 1985-1987; also see post, secs. 1988-1990; disobedience, penalty, etc.: Post, secs. 1991-1992. Compelling attendance of witnesses: Post, secs. 1993 et seq. § 1121. Power of court. Adjournment of court. The court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended, and may also continue the trial, before its commencement, for any time not exceeding twenty days, for good cause shown by either party upon affidavit, at the costs of the party applying for such continuance. En. March 11, 1872. Cal.Rep.Cit. 119, 614; 119, 617. § 1122. Rules to govern court in trial of contest. The court must be governed, in the trial and determination of such contested election, by the rules of law and evidence |
