Singletary v. Kelley
| Decision Date | 02 June 1966 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Bertha M. SINGLETARY, Edward L. Lawn, Joel L. Eck, Fanny Martin and William G. Allen, Contestants and Appellants, v. Tom M. KELLEY, Santa Cruz County Clerk, County of Santa Cruz, City of Scotts Valley, Board of Supervisors of the County of Santa Cruz, Defendants and Respondents. Civ. 22761. |
Lucas, Wyckoff, Miller, Stanley & Scott, Santa Cruz, for appellants.
William H. Card, County Counsel, Santa Cruz County, Dennis J. Kehoe, Henry J. Faitz, Asst. County Counsel, Santa Cruz, for respondents.
Faber L. Johnston, Faber L. Johnston, Jr., San Jose, for respondent City of Scotts Valley, a de-facto municipality, and as amicus curiae.
This is a contest (Elec. Code, §§ 20050, 20089) of an election held upon a proposal for incorporation of the City of Scotts Valley. The official canvas declared 344 votes in favor of incorporation and 323 against. The trial court found that 27 ballots were cast by persons not living within the boundaries of the proposed city. Of these, 13 favored incorporation, and there was no evidence as to how the remaining 14 voted. The trial court deducted the 13 ballots from the total favoring incorporation, and deemed the remaining 14 to have been cast for and against the measure in the same proportion as were the total votes, i.e., 7 for and 7 against. The net result was determined to be 324 for incorporation and 316 against. Judgment was for defendants, confirming adoption of the incorporation proposal. Contestants appeal.
This appeal turns upon disposition of the 14 illegal votes which cannot be identified as either for or against incorporation. Contestants assert that their only burden is to show that 'enough illegal votes were cast to affect the result of the election.' Obviously, if all 14 unidentified votes opposed incorporation, the net valid vote would be against the measure. Hence, it is argued, contestants have met their burden, and a new election should be ordered.
But our statute bars the presumption that all illegal votes favored the winning side. 'An election shall not be set aside on account of illegal votes, unless * * * a number of illegal votes has been given to (the winner) which, if taken from him, would reduce * * * his legal votes below the number of votes given to (another), after deducting therefrom the illegal votes * * * given to that other person' (Elec. Code, § 20024; see also § 20052).
Under a like statute in effect in 1890 (Code Civ.Proc., § 1114), the contention here made by contestants was rejected (Russell v. McDowell, 83 Cal. 70, 72--74, 23 P. 183). The court, for the purpose of determining the contest, deemed the illegal votes apportioned among the candidates in the same proportion as the total votes were cast--the procedure adopted by the trial court here.
Contestants place unwarranted emphasis upon a stray judicial sentence in one case. (People ex rel. Russell v. Town of Loyalton, 147 Cal. 774, 82 P. 620.) There, an election had favored incorporation by a vote of 79 to 30. Five votes were shown to have been illegal. The appellate court said (p. 780, 82 P. p. 623) 'It may be assumed, for the purpose of this decision, that every illegal vote was cast for incorporation.' But this is by no means a holding that this assumption must be made. Rather, its completely hypothetical nature is emphasized by the last sentence of the same paragraph, pointing out that the result would not be affected 'even though all...
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McCavitt v. Registrars of Voters of Brockton
...v. Atwood, 93 N.M. 657, 661, 604 P.2d 123 (1979); Olipint v. Christy, 157 Tex. 1, 8-9, 299 S.W.2d 933 (1957); Singletary v. Kelley, 242 Cal.App.2d 611, 613, 51 Cal.Rptr. 682 (1966). See also 8 J. Wigmore, Evidence § 2214 (McNaughton rev. 1961). These courts reason that ballot secrecy is "in......
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Gooch v. Hendrix
... ... II, § 7) does not apply to illegally cast votes. "[T]he rule is that one who votes illegally forfeits the privilege of secrecy." (Singletary v. Kelley (1966) 242 Cal.App.2d 611, 613, 51 Cal.Rptr. 682; see also Patterson v. Hanley (1902) 136 Cal. 265, 276, 68 P. 821; 28 Cal.Jur.3d (rev.), ... ...
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Canales v. City of Alviso, S.F. 22724
...the illegal votes equally under the rule of Russell v. McDowell, 83 Cal. 70, 72--74, 23 P. 183, as applied in Singletary v. Kelley, 242 Cal.App.2d 611, 612, 51 Cal.Rptr. 682. Those cases clearly call for a division of illegal votes in proportion to legal votes When there is no evidence of h......
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Walters v. Weed
...of this type of formula has been approved in prior decisions (see, e.g., Singletary v. Kelley (1966) 242 Cal.App.2d [752 P.2d 445] 611, 51 Cal.Rptr. 682) and is not at issue here. By a computation similarly not at issue, the trial court determined that under the nine-to-one formula, one hun......