of the judges and the attestation of the clerks, substantially in the form scribed in section eleven hundred and seventy-four.

1257. Counting the votes.

pre

SEC. 1257. After the lists are thus signed, the board must proceed to count and ascertain the number of votes cast for each person voted for. The ballots must be taken out and opened by one of the members of the board, and the ticket must be distinctly read.

1258. Tallies.

SEC. 1258. Each clerk must write down each office to be filled and the name of each person voted for to fill such office, and keep the number of votes by tallies as they are read aloud.

1259. Tickets to be strung and inclosed in sealed envelopes.

SEC. 1259. The tickets as soon as read, or rejected for illegality, must be strung upon a string by one of the judges, and must not thereafter be examined by any person, but must, as soon as all are counted, be carefully sealed in a strong envelope, each member of the Sealing ballots.-The accidental breaking of a package of ballots while the same are in the custody of the court and its officers during a contest concerning an election does not raise any presumption of bad faith, and does not prevent them from being counted: Coffey v. Edmonds, 58 Cal. 521. The code is merely directory in regard to stringing the ballots, and its non-observance will not vitiate the election, there appearing no wrongful intent,

1260. Return list.

board writing his name across the seal. and no injury to the contestant: Hodge v. Linn, 100 Ill. 397. As to the weight of evidence to be attached to the ballots, see People v. Holden, 28 Cal. 123, 133, pronouncing them better evidence of the number of votes cast, and for whom, than the tally-lists; and People v. Burden, 45 Id. 241, where ballots not properly sealed, and bearing marks of being altered, were thrown out.

SEC. 1260. As soon as all the votes are counted and the tickets sealed up, lists must be attached to the tally-lists containing the names of persons voted for and for what office, and the number of votes given for each candidate, the number being written at full length, and such lists must be signed by the members of the board and attested by the clerk, substantially in the form in section eleven hundred and seventy-four given.

1261. Certain papers to be sealed up.

SEC. 1261. The board must, before it adjourns, inclose in a cover and seal up and direct to the county clerk, the copy of the register upon which one of the judges marked the word "voted" as the ballots were received, all certificates of registration received by it, one of the lists of the persons challenged, one copy of the list of voters, and one of the tally-lists and list attached thereto [Amendment, approved March 30, 1874; Amendments 1873-4, 29; took effect July 6, 1874.]

1262. Inspector to keep certain papers.

SEC. 1262. The inspector must retain, open to the inspection of all electors, for at least six months, the other list of voters, tally-list, and list attached thereto. [Amendment, approved March 30, 1874; Amendments 1873–4, 30; took effect July 6, 1874.]

1263. Custody of returns and ballots.

SEC. 1263. The sealed packages containing the register, lists, papers, and ballots must before the board adjourns be delivered to one of its number, to be determined by lot, unless otherwise agreed upon.

1264. Delivery to county clerk-Packages, how sealed up in San Francisco. SEC. 1264. The member to whom such packages are delivered must without delay deliver such packages, without their having been opened, to the county clerk, nearest postmaster, or sworn express agent, who shall indorse on such packages the name of the party delivering them, and date of such delivery. If delivered to a postmaster or express agent, such postmaster or express agent shall forward the packages by the first mail or express to the county seat. In the city and county of San Francisco, such packages must be delivered to the county clerk within eighteen hours from the time of adjournment of the board, which time of adjournment must be indorsed upon such package, and upon each poll-list, in ink, and signed by a majority of the members of such board. In the city and county of San Francisco the packages must be put up and sealed in the following manner, by an inspector, and at least three others of the board, and be signed with their respective signatures, across the same, written: One package to contain the ballots only; one package to contain one tally-list and list attached, only; one package to contain the ward register and certificates of registration issued by the county clerk after making up the ward register, and received at the polls. [Amendment, approved March 30, 1874; Amendments 1873–4, 30; took effect July 6, 1874.]

1265. Clerk to keep ballots unopened.

SEC. 1265. Upon the receipt of the packages the clerk must file the one containing ballots, and must keep it unopened and unaltered for twelve months, after which time, if there is not a contest commenced in some tribunal having jurisdiction about such election, he must burn the package, without opening or examining its contents.

Contest: See Code Civ. Proc., secs. 1111-1127.

Sealing and stringing ballots: See sec. 1259, ante, and note.

1266. When package containing ballots may be destroyed; when opened.

SEC. 1266. If within twelve months there is such a contest commenced, he must keep the package unopened and unaltered until it is finally determined, when he must, as provided in the preceding section, destroy it, unless such package is, by virtue of an order of the tribunal in which the contest is pending, brought and opened before it, to the end that evidence may be had of its contents, in which event the package and contents are in custody of such tribunal. "Under the system existing in this state prior to the adoption of this code, the ballots might be recounted by the supervisors. This opens the door to fraud, and ought not to be the rule. The ballots are in the first place counted by the election board in public; and under the provisions of this title it is scarcely probable that anything wrong would occur in the counting; at all events, the wrong could be

observed, detected, and corrected. But if a wrong is done, or even suspected, the evidence is preserved and protected by all the safeguards that can conveniently be thrown around it. It is manifest that any further examination should take place in a tribunal authorized to try contested election cases, subject to the rules of pleadings and practice therein." Commissioners' note.

1267. Returns to be delivered by clerk to supervisors.

SEC. 1267. The other package the clerk must produce before the board of supervisors, when it is in session for the purpose of canvassing returns.

Returns. "The following decisions rendered should arise under this section: Calaveras Co. v. Brockway, 30 Cal. 325; Keller v. Chapman,

under the former election law may be of ser

vice in settling some of the questions, if any 34 Id. 635:" Commissioners' note.

1268. Copy of register to be filed in county clerk's office.

SEC. 1268. As soon as the returns are canvassed, the clerk must take the copy of the register returned and file it in his office.

Designed to accomplish the speedy letection of one who has voted twice under the same

name: Commissioners' note.

CHAPTER XI.

CANVASS OF RETURNS-DECLARATION OF RESULT-COMMISSIONS AND CERTIFICATES OF ELECTION.

1278. Meeting of supervisors to canvass returns.

SEC. 1278. The board of supervisors of each county, except Humboldt, San Diego, and Trinity, must meet at their usual place of meeting on the first Monday after each election, to canvass the returns.

Pacheco v. Beck, 52 Cal. 3, 9, examines the various sections on canvassing the returns. 1279. Same.

SEC. 1279. The board of supervisors of the counties excepted must each meet at its usual place of meeting on the second Monday after each election to canvass the returns.

"These exceptions were made because, for many reasons, communications between the county seat and the election precincts was often interrupted or delayed. Time will obviate 1280. Canvass, when to be postponed.

the reason for the exception:" Commissioners' note.

Canvassing returns is a ministerial act: Calaveras Co. v. Brockway, 30 Cal. 325.

SEC. 1280. If at the time of meeting the returns from each precinct in the county in which polls were opened have been received, the board must then and there proceed to canvass the returns; but if all the returns have not been received, the canvass must be postponed from day to day until all of the returns are received, or until six postponements have been had.

1281. Canvass, how made.

SEC. 1281. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declare the result thereof.

1282. Statement of result to be entered of record.

SEC. 1282.

The clerk of the board must, as soon as the result is declared, enter on the records of such board a statement of such result, which statement must show:

1. The whole number of votes cast in the county;

2. The names of the persons voted for, and the propositions voted upon;

3. The office to fill which each person was voted for;

4. The number of votes given at each precinct to each of such persons, and for and against each of such propositions;

5. The number of votes given in the county to each of such persons, and for and against each of such propositions.

1283. Declaration of result.

SEC. 1283. The board must declare elected the person having the highest number of votes given for each office to be filled by the votes of a single county or subdivision thereof.

Irregularities at election: See note to sec.

1252.

If a majority of those voting, by mistake of law or fact, happen to cast their votes upon an

1284. Certificates issued by clerk.

ineligible candidate, it by no means follows that the next to him on the poll should receive the office. He cannot so receive it: Saunders v. Haines, 13 Cal. 145; Crawford v. Dunbar, 52 Id. 36.

SEC. 1284. The county clerk must immediately make out and deliver to such person (except to the person elected superior judge) a certificate of election,

signed by him, and authenticated with the seal of the superior court. [Amendment, approved April 3, 1880; Amendments 1880, 20 (Ban. ed. 109); took effect immediately; also approved April 16, 1880; Amendments 1880, 81 (Ban. ed. 371); took effect from passage.]

"Superior" substituted for "county." Mandamus will not lie to compel the issuance of a certificate by the clerk to one whom the board declared not to be elected: Magee v. Supervisors, 10 Cal. 376. Certificate 1285. District returns, how made up.

not necessary for an ex officio office unless expressly required by statute: People v. Kelsey, 34 Id. 470. Certificate as evidence of election: People v. Clingan, 5 Id. 389; Magee v. Supervisors, supra; People v. Jones, 20 Cal. 50.

SEC. 1285. When there are officers other than representatives in congress, members of the state board of equalization, and railroad commissioners, voted for, who are chosen by the electors of a district composed of two or more counties, each of the county clerks of the counties composing such district, immediately after making out the statement specified in section twelve hundred and eighty-two, must make a certified abstract of so much thereof as relates to the election of such officers. [Amendment, approved April 16, 1880; Amendments 1880, 82 (Ban. ed. 371); took effect from passage.]

The clause "members of the state board of equalization and railroad commissioners" is new; so also in section 1288.

1286. How transmitted.

SEC. 1286. The clerk must seal up such abstract, indorse it "election returns," and without delay transmit the same by mail to the county clerk of the county which stands first in alphabetical arrangement in the list of counties composing such district.

1287. Duty of clerk receiving district returns.

SEC. 1287. The clerk to whom the election returns of a district are made must, on the twentieth day after such election, or sooner if returns from all the counties in the district have been received, open in public such returns, and from them and the statement of the vote for such officers in his own county:

1. Make a statement of the vote of the district for such officers, and file the same, together with the returns, in his office;

2. Transmit a certified copy of such statement to the secretary of state; 3. Make out and deliver, or transmit by mail, to the persons elected, a certificate of election (unless it is by law otherwise provided).

1288. State returns, how made.

SEC. 1288. When there has been a general or special election for officers chosen by the electors of the state at large, or for judicial officers (except justices of the peace), or for members of the state board of equalization, or for railroad commissioners, each county clerk, so soon as the statement of the vote of his county is made out and entered upon the records of the board of supervisors, must make a certified abstract of so much thereof as relates to the votes given for persons for said offices to be filled at such election. [Amendment, approved April 16, 1880; Amendments 1880, 82 (Ban. ed. 372); took effect from passage.]

See note to sec. 1285; Const. Cal., art. 13,

sec. 9; art. 12, sec. 22.

"Abstract" means "certified copy," and must

1289. How transmitted.

be a certified copy of the proper portion of the records of the board of supervisors: Pacheco v. Beck, 52 Cal. 3, 6.

SEC. 1289. The clerk must seal up such abstract, indorse it "election returns," and without delay transmit it by mail to the secretary of state.

1290. Duty of secretary of state relative to.

SEC. 1290. On the fortieth day after the day of election, or so soon as the returns have been received from all the counties of the state, if received within that time, the secretary of state must compare and estimate the vote, and make out and file in his office a statement thereof, and transmit a copy of such statement to the governor. [Amendment, approved April 16, 1880; Amendments 1880, 82 (Ban. ed. 372); took effect from passage.]

Original section had "sixtieth" instead of "fortieth."

1291. Commissions issued by governor.

SEC. 1291. Upon receipt of such copy the governor must issue commissions to the persons who from it appear to have received the highest number of votes for offices, except that of governor or lieutenant-governor, to be filled at such election.

1292. Returns of election for governor and lieutenant-governor, how made.

SEO. 1292. When an election has been held to fill the office of governor or lieutenant-governor, the clerk of each county, in addition to the abstract made for transmission to the secretary of state, must, as soon as the statement of the vote of his county is made out and entered upon the records of the board of supervisors, make two certified abstracts of so much thereof as relates to the vote given for such officers.

Const. Cal., art. 5, secs. 2, 15.

1293. How transmitted.

SEC. 1293. The clerk must seal up each abstract separately, and indorse thereon "election returns for governor and lieutenant-governor."

Const. Cal., art. 5, sec. 4.

1294. Same.

SEC. 1294. He must at once direct one copy to "the speaker of the assembly next to meet," address it to Sacramento, California, and deposit it, post-paid, in the post-office.

Const. Cal., art. 4, sec. 4.

1295. Same.

SEC. 1295. The other copy he must direct and address in the same manner, and at once deliver it to a member elect of the legislature or to a senator who holds over; and the person to whom it is so delivered must deliver it to the speaker on or before the second day next after his election.

1296. Canvass of returns of election for governor and lieutenant-governor.

SEC. 1296. The returns of election for governor and lieutenant-governor must during the first week of the session be opened, canvassed, and the result declared by the speaker of the assembly in presence of both houses.

Const. Cal., art. 5, sec. 4.

1297. Defects in form of returns, when to be disregarded.

SEC. 1297. No declaration of the result, commission, or certificate must be withheld on account of any defect or informality in the return of any election, if it can with reasonable certainty be ascertained from such return what office is intended, and who is elected thereto.

Immaterial irregularities: See sec. 1252.