Benson v. Superior Court In and For Napa County

• Decision Date: 28 March 1963
• Citation: 29 Cal.Rptr. 760,214 Cal.App.2d 551
• Parties: C. T. (Carl) BENSON, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF NAPA, Respondent; Julius CAIOCCA, Jr., Real Party in Interest. Civ. 21127.
• Court: California Court of Appeals Court of Appeals

Page 760

29 Cal.Rptr. 760

214 Cal.App.2d 551

C. T. (Carl) BENSON, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF NAPA, Respondent Julius CAIOCCA, Jr., Real Party in Interest.

Civ. 21127.

District Court of Appeal, First District, Division 1, California.

March 28, 1963.

Hearing Denied May 22, 1963.

Timothy J. Crowley, Santa Rosa, for petitioner.

Coombs, Dunlap & Dunlap, Napa, for real party in interest.

MOLINARI, Justice.

This is a petition for a writ of mandate to compel the Superior Court of Napa County to admit relevant testimony on the issue of 189 claimed illegal votes in an election contest action.

Question Presented

Did the trial court properly sustain an objection to the admission of testimony of the claimed illegal votes on the ground that the written list of the number of illegal votes was not delivered to the defendant as provided in section 20052 of the Elections Code? ¹

The Record

The petitioner, C. T. (Carl) Benson, hereinafter called the contestant, and the real party in interest, Julius Caiocca, Jr., hereinafter called the defendant, were opposing candidates for the office of Supervisor of the Third Supervisorial District, County of Napa, State of California, the election for said office taking place on November 6, 1962. The official canvass declaring the results of said election was made on November 20, 1962. It disclosed that the defendant received 11 more votes than the contestant. On December 18, 1962, the contestant filed a statement with the county clerk pursuant to section 20050 contesting the election and demanding a recount of the votes cast. The particular grounds therein stated consisted of allegations that numerous illegal votes were cast for the defendant. On the same day on which the statement was filed, the defendant consulted an attorney, Frank L. Dunlap, concerning the latter's representation of the defendant in the election contest. An order setting the hearing of the statement for January 15, 1963, was made by the presiding judge of the superior court. A citation was thereupon issued by the clerk directing the defendant to appeal at the time and place specified in the order. The citation and a copy of the said statement and order were personally served on the defendant on January 8, 1963. On the next day, January 9th, at about 2 p. m., the defendant went to attorney Dunlap's office where he signed a list of 18 claimed illegal votes cast for the contestant. Thereafter, and on the same day, the defendant left the County of Napa and went to Fort Bragg in Mendocino County.

The defendant stayed at the Driftwood Motel in Fort Bragg on the night of January 9th, moving the next day to the Bay Cities Motel in the same city. On January 11 the defendant departed Fort Bragg and went to Ignacio in Marin County where he spent the night at Rickey's Motel. The 12th of January was spent with friends in Sonoma County. The defendant returned to his residence in the City of Napa in the early morning hours of Sunday, January 13th.

The contestant had, in the meantime, prepared a list of 189 claimed illegal votes and delivered the same to the constable for service upon the defendant. The constable was unable to locate the defendant either at his office or his residence, and was told by someone at the defendant's office that the defendant was out of town and would not return until Monday, January 14th. On Friday, January 11th, the constable attached a copy of the said list on the door of the defendant's residence and on the same day filed with the county clerk his return of service, reciting the foregoing data with reference to service and the defendant's absence, with the original of said list. On the same day (January 11th) attorney Dunlap called at the county clerk's office and obtained a photostatic copy of the contestant's said list of claimed illegal votes. It also appears that on January 11th, a copy of the subject list was mailed to the defendant at his residence by registered mail.

On Saturday, January 12, the contestant was personally served with the defendant's list of claimed illegal votes. (No attorney's name appeared or was designated on said list.) The defendant testified at the hearing that when he arrived at his residence on January 13th there was no such list attached to his door or at his residence, but that on the afternoon of that day his attorney, Dunlap, called at his residence and showed him the photostatic list Dunlap had obtained from the county clerk. On Monday, January 14th, the list which had been forwarded by registered mail was tendered to the defendant, but he refused to accept it because there was a claim of 42 cents postage due thereon.

On Tuesday, January 15th, the trial of the election contest commenced at 10 a. m. in the superior court, at which time attorney Dunlap appeared of record for the first time. The contestant called the county clerk as his first witness. Under direct examination the said clerk identified certain official documents consisting of the Supervisorial District Map, 3 precinct maps, a group of registration books, a group of rosters of voters and 29 original affidavits of 29 individual voters. The maps and affidavits were admitted into evidence without objection. The attorney for the contestant thereupon asked leave of court to interrupt the testimony of the county clerk in order to call 'some of these witnesses out of order.' Counsel for the defendant stated that he had no objection 'to that,' but that he wanted to ask the county clerk 'a few questions, however, before they are examined.' Defendant's counsel thereupon cross-examined the clerk concerning one of the precinct maps which had been admitted into evidence. He was interrogated concerning the setting up and creation of the precincts, the accuracy of the maps, certain changes in precinct boundaries, and the effect of voters moving from one precinct to another. The county clerk was also questioned on redirect examination concerning some of these matters, during which a map of all the supervisorial districts of Napa County was identified and admitted into evidence on behalf of the contestant without objection. Counsel for the contestant then called an Edward J. Kewell to the stand. ² An objection was thereupon interposed by the defendant to the taking of the testimony of said witness on the ground that section 20052 had not been complied with in that a list of the claimed illegal votes had not been delivered to the defendant at least three days before the trial. The objection was sustained. Leave was granted to the contestant, however, to establish such delivery. The contestant thereupon called the defendant as a witness. The matters hereinabove narrated concerning the occurrences prior to the trial (other than those appertaining to procedural matters and those contained in the constable's return, and such as were stipulated to) were developed during the examination of the defendant.

Upon the conclusion of the testimony of the defendant and arguments by respective counsel, the trial court stated that section 20052 had not been complied with and accordingly sustained the defendant's objection to the reception of testimony concerning any illegal votes. In announcing its ruling on the objection the court below expressed the opinion that because section 20052 contains no provision for substituted service the delivery contemplated by the section was that accomplished by personal service. The trial court was also of the opinion that an alternate mode of service was provided for by section 54, but that the contestant had failed to avail himself of its provisions. ³

Elections Code Section 20052

The first inquiry in the present case is directed to the meaning of the language 'unless the contestant delivers to the defendant, at least three days before the trial, a written list of the number of illegal votes * * *.' The interpretation of this phraseology of section 20052 has not heretofore been before the appellate courts of this state. We are therefore called upon to ascertain the intent of the Legislature pursuant to the fundamental rule of statutory construction that the court should ascertain such intent so as to effectuate the purpose of the law. (Select Base Materials v. Board of Equal., 51 Cal.2d 640, 645, 335 P.2d 672). In arriving at such intent we will consider the purpose sought to be achieved and the evils to be eliminated. (Lesem v. Board of Retirement, 183 Cal.App.2d 289, 298, 6 Cal.Rptr. 608; Hidden Valley Municipal Water Dist. v. Calleguas Municipal Water Dist., 197 Cal.App.2d 411, 419, 17 Cal.Rptr. 416.) It is also a primary rule of construction that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. (Chavez v. Sargent, 52 Cal.2d 162, 203, 339 P.2d 801.)

The precise question before us is the meaning of the word 'deliver.' Its dictionary definition, in the sense used in the subject statute, is 'give, transfer: yield possession or control of: make or hand over: make delivery of.' (Webster's Third New Internat. Dict.) In its philological definition the word 'deliver' denotes the physical act of transferring possession and implies a change of custody. It is apparent, therefore, that the word 'deliver' is not restricted in its definition to manual tradition to the transferee, but that it may include any physical act by which the transferor effects a change of possession from himself to the transferee. Accordingly, it has within its connotation a transfer of possession accomplished by leaving the thing with a third person or at the transferee's residence or place of business. We are thus confronted with the inquiry as to whether the Legislature intended to use the word 'deliver' in its broad philological meaning, or whether it intended manual tradition in the sense of the common law rule of personal delivery, or whether it intended 'personal service,'...