ELECTION (Continued).

Where the court failed to reset and try the cause on the ground that jurisdiction to try the same had been lost, prior demand and refusal of the court to reset the contest for trial is not a condition precedent to a writ of mandamus to compel the court to reset the contest. (Id.)

3. MANDAMUS-EXCEPTION TO RULE AS TO DEMAND AND REFUSAL.While it is the general rule that an officer will not be compelled by the writ of mandamus to do any thing which he has not been first asked to do, and has neglected or refused; yet where the attitude of the officer toward the matter has been officially declared to be such that an application to him would be idle and fruitless, the reason for the rule ceases, and the writ of mandamus will issue. (Id.)

4. ELECTION CONTEST-PROPER RULINGS ON BALLOTS-PROPER JUDGMENT. It is held that the court, in an election contest, properly excluded a ballot on which the cross was not in the voting square, but at a distance therefrom, and within the rectangular space containing the name of the candidate; and properly refused to exclude ballots properly stamped for one candidate, but containing an indistinct mark opposite the name of the other candidate produced by a blot occasioned in folding the ballot, and properly counted ballots not containing any distinguishing mark, and correctly determined all of the questions presented, and reached a proper judgment. (Vredenburgh v. Reher, 335.)

5. MANDAMUS-ORIGINAL PROCEEDINGS IN APPELLATE COURT-DUTY OF BOARD OF SUPERVISORS AS ELECTION CANVASSERS.-The appellate court has jurisdiction in an original proceeding in mandamus, upon a proper showing, to direct the board of supervisors of a county, acting as a board of canvassers of the returns of an election for the office of presidential electors, to perform the duty imposed upon it by law as to the mode and manner of canvassing such returns; and where it appears that such duty is not being performed or is performed in a manner otherwise than provided by law, mandamus is a proper remedy. (People v. Butler, 379.)

6. SUFFICIENCY OF APPLICATION FOR WRIT.-It is held that, upon an examination of the application for the writ of mandate and its amendments, the allegations therein contained are sufficiently specific and certain to present the matters and things sought to be interposed as a ground for the issuance of the writ, and that a demurrer thereto was properly overruled. (Id.)

7. FAILURE OF ELECTION BOARDS PROPERLY TO SIGN CERTIFICATE TO LISTS SIGNATURES PROPERLY ALLOWED BY CANVASSERS-CHANGES NOT PERMITTED.-Where the boards of election in certain precincts had failed to sign the certificate to be attached to the lists, the canvassing board properly permitted such signatures. The duty of

ELECTION (Continued).

certifying such returns is purely ministerial, and may be completed seasonably, though such officers have neglected such duty at the time specified in the statute. But, at the time of such completion, there can be no modification or correction of the returns, and no addition or additions made thereto. (Id.)

8. CERTIFYING NUMBER OF VOTES FOR CANDIDATES IN FIGURES-SUBSTANTIAL COMPLIANCE WITH STATUTE-RETURNS NOT INVALIDATED. The fact that certain boards of election, in lieu of writing in long hand in the certificate the number of votes received by each candidate respectively, had inserted the number of votes so received in figures, shows a substantial compliance with the statute, and in no sense invalidated the returns. (Id.)

9. CERTIFICATE TO INSERT NAMES OF RESPECTIVE CANDIDATES-NAMES CONNECTED THEREWITH BY HORIZONTAL LINES-SUBSTANTIAL COMPLIANCE WITH STATUTE.-Where the returns in certain precincts show that the tally-sheets had printed thereon the names of the respective candidates, separated by horizontal lines extending uninterruptedly across the page designated for the tally-lists and across the opposite page upon which the certificate of the number of votes received by such candidate was printed, there appears a substantial compliance with the statute requiring the officers to insert in the certificate the names of the respective candidates. (Id.)

10. IMPROPER EVIDENCE OF WITNESSES BEFORE CANVASSING BOARDDISREGARD OF TESTIMONY.-Where the improper evidence of witnesses was received before the canvassing board, without warrant of law, but constituted no ground of action upon the part of the board in making the canvass, any such testimony must be disregarded. (Id.)

11. CONSTRUCTION OF STATUTORY PROVISIONS AS DIRECTORY OR MANDATORY. It is a recognized rule as to the construction of statutory provisions as directory or mandatory, that directory acts are such as are not of the substance of the thing provided for, but relate to matters of form, while matters of substance are to be construed as mandatory. (Id.)

12. MANDATORY PROVISION AS TO TALLY-LISTS.-Section 1258 of the Political Code, though containing some provisions which have been held directory, yet, in so far as it provides for the duty of clerks and the manner of placing tallies upon the tally-sheet as they are called aloud by the proper officer, and for the preservation of the tally-lists, is matter of substance, and is mandatory upon the election officers. (Id.)

13. RESULT OF ELECTION OF CANDIDATES TO BE DETERMINED FROM TALLY-LISTS.-The result of the election, or determination of the number of votes for any particular candidate, must be determined

ELECTION (Continued).

from an inspection of the tally-lists, which must control as to the election or non-election of a candidate. (Id.)

14. EFFECT OF CERTIFICATE OF ELECTION-DECLARATION OF RESULT COMPUTED FROM TALLY-LISTS-TALLY-LISTS CONTROLLING.-The certificate of election provided for in section 1174 of the Political Code, declaring the number of votes cast for the candidate named therein, as elected, is, in legal effect, only a declaration of the result of the computation from the tally-lists, and if incorrect or at variance with the tally-lists, the certificate must yield in importance to that of the tally-list itself. (Id.)

15. DUTY OF BOARD OF CANVASSERS-TALLY-LISTS TO CONTROL ACTION OF ELECTION BOARD.-When the tally-list is presented to the board of canvassers showing the same to have been kept or purporting to have been kept in the manner provided by section 1258 of the Political Code, the number of votes properly computed from such tallies shall be taken and received as the vote for an individual candidate at the election, even though the election board had declared a lesser or greater number than shown by the tally-sheets. (Id.) 16. VOTES FOR PRESIDENTIAL ELECTORS IN PRECINCT-ABSENCE OF TALLY-MARKS AS TO ONE ELECTOR.-Where the returns from a precinct in the county showed that one of the candidates for presidential elector received upwards of one hundred votes, as shown by the tally-marks, whereas another, as shown by the tally-marks, received five or six votes, while in other cases no tally-marks were set opposite the names of other candidates, yet the certificate showed that each of said candidates received a number of votes in excess of one hundred, it is held that in each case the vote of the precinct must be considered as shown by the tally-marks, and that a candidate receiving no tally-marks is entitled to no votes at such precinct. (Id.)

17. DUTY OF CANVASSERS TO COMPUTE AND NOT CONSTRUE EFFECT OF RETURNS. The board of canvassers has no power to conjecture the number of votes received by any candidate, or to make inference that any candidate received votes in excess of the marks indicated by the tallies. Their duty is simply to compute, and not construe the effect of returns. (Id.)

18. IRREGULARITIES IN ACTION OF BOARD NOT VITIATING RETURNS.-The breaking of the sealed envelopes containing the precinct returns under the direction of the board prior to the time set for the opening thereof in public, and the permitting of the board of electors to insert in their certificates the total number of votes received by candidates, were irregularities contrary to the provisions of the statute, but under the circumstances appearing, constituted no good cause for rejecting the returns. (Id.)

19. ELECTION RETURNS-DUTY OF CANVASSING BOARD-DISCREPANCY BE TWEEN CERTIFICATE AND TALLY-LIST-POWER OF DECISION.-It is

ELECTION (Continued).

the duty of the canvassing board, in making the abstract of the votes of an election, to consider the entire returns, to wit, the certifi cate of the election officers, the list of voters, and the tally-list; and when there is a discrepancy or conflict between the certificate of the officers conducting it and the tally-list, as regards the number of votes cast for a particular person, the canvassers, after comparing the certificate and tally-list with the list of voters returned, must decide which is correct, and make an abstract of the votes accordingly. (People v. Murphy, 398.)

20. ABSENCE OF ARBITRARY RULE AS TO DUTY AND POWER OF CANVASSERS. No arbitrary rule can be laid down as to the duty and power of the canvassers. Upon the proper comparison, the canvassers may be justified in counting the votes as shown by the tallylist, rather than the number stated in the certificate, and vice versa. (Id.)

21. MISSING RETURNS-POWER OF CANVASSERS TO SUPPLY DUPLICATE HELD BY INSPECTOR-Where the official returns from a precinct were missing and lost after their return to the county clerk, and could not be found after diligent search, the canvassers, after waiting six days, had the power to supply evidence of such returns from the official duplicate held in the custody of the inspector of elections, as required by law to be kept. Such official duplicate may be resorted to, as lawful secondary evidence of the lost returns, to establish the result of the vote. (Id.)

22. CANVASS OF RETURNS OF PRESIDENTIAL ELECTION-REPRESENTATIVE VOTE OF ELECTION OFFICERS FOR FIRST ELECTOR-CERTIFICATE ΤΟ ALL ELECTORS IN EACH GROUP-REASONABLE ASSUMPTION AGAINST FRAUD.-At a presidential election, each voter by voting alike for a group of electors, is in fact voting for the president of his choice. Upon a canvass of such returns, it is held to be a fair and reasonable conclusion from the facts appearing, that the returns as a whole justify the assumption that the election officers, as the count progressed, finding that the several names in each group were receiving the same votes, decided to tally against the first name in each group, as and for all in each group, while giving the certifi cate of election to each one of them. This assumption will acquit the election officers of fraud in the certificates of election. (Id.) 23. MANDAMUS TO CANVASSERS OF PRESIDENTIAL ELECTION IN CERTAIN PRECINCTS NOT PERMISSIBLE-ABSENCE OF SHOWING OF ELECTION RETURNS.-Mandamus will not lie to compel the board of canvassers to disregard the certificate of election, and require them to canvass the votes of presidential electors in certain precincts by exclusive reference to the tally-list therein, especially where there is no full showing as to the contents of the election returns in those particular precincts. In the absence of such showing, no clear violation of a legal right appears to sustain the writ. (Id.)

ELECTION (Continued).

24. MANDAMUS IN DISCRETION OF COURT-CLEAR LEGAL RIGHT INJUSTICE OR WRONG NOT ALLOWED.-Mandamus lies to a great extent in the discretion of the court. It should be allowed only to secure or protect a clear legal right, and should never be granted when its enforcement would work an injustice or accomplish a wrong. (Id.) 25. PRESIDENTIAL ELECTION-CANVASS OF RETURNS AS TO ELECTORS COMPLETED RETURNS CERTIFIED TO SECRETARY OF STATE-MANDAMUS AS TO TALLY-LISTS DISALLOWED.-Where the canvass of the returns at a presidential election as to electors has been completed by the board of supervisors sitting as a board of canvassers, and their returns have been certified to the secretary of state, and no fraud or mistake is shown as to their action, mandamus will not lie, in such case, to compel the canvassers again to meet and canvass the returns in accordance with the tally-sheets, as distinguished from the aggregate shown by the certified returns. (Devlin v. Donnelly, 495.)

26. CONFLICTING OPINIONS OF APPELLATE COURTS AS TO CONTROL OF TALLY-LISTS IN CANVASS-QUESTION NOT HERE INVOLVED.-Though the opinions of two appellate courts conflict as to whether the tallylists shall control in making a canvass of the election returns, yet whatever may be the outcome of such conflicting opinions, the question is not necessary to be considered in determining the matter here involved. (Id.)

27. RULES AS TO MANDAMUS.-Mandamus will not issue for a "vain and nugatory purpose," or on mere technical grounds. Its design is to do substantial justice and prevent substantial injury. It lies to a great extent in the discretion of the court. It should be allowed only to protect a clear legal right, and should never be granted where its enforcement would work an injustice or accomplish a wrong. Where the right is not clear nor the duty of the court imperative, the consequences to flow from granting the writ should be considered.

(Id.)

28. PRESIDENTIAL ELECTION-CANVASS OF RETURNS-RETURNS TO SECRETARY OF STATE-MANDAMUS DISALLOWED.-By stipulation in open court, the writ of mandamus is denied on the authority of Devlin v. Donnelly, ante, p. 495. (Devlin v. Wright, 807.)

EMPLOYER AND EMPLOYEE. See Negligence, 4-6, 19-25.

EQUITY. See Injunction; Trust.

ESTATES OF DECEASED PERSONS.

1. VENDOR AND PURCHASER-TITLE OF VENDOR UNDER DISTRIBUTIONRIGHTS OF MINORS PURCHASED ADJUDICATION OF SUFFICIENCYTITLE NOT COLLATERALLY ASSAILABLE.-Where the vendor of land