Third-Misconduct on the part of the Inspector of Election in Natividad Precinct, who, it is charged, took the poll list, tally lists, and ballots, after the votes had been counted and the returns made up, to his own house, and there took from the ballots five tickets, and substituted other five tickets for them, and changed the tally list to correspond.

Fourth-Misconduct on the part of the Board of Enrollment in Peach Tree, Tres Pinos, San Benito, Hollister, San Juan, San Lorenzo, Soledad, Natividad, Santa Rita, Salinas, Castroville, and Pajaro Precincts, in Monterey County, in placing the names of persons on the poll lists of said precincts who were not registered on the "Great Register" of the county. Fifth-That illegal votes were cast for Thomas Beck, to the number of sixty in the aggregate, in the several precincts in Monterey County, and to the number of twenty-five in the several precincts in Santa Cruz County.

To support these several allegations the depositions of a great number of witnesses were taken, swelling the testimony to a great volume. To read and analyze this mass of incongruous and conflicting statements has required no inconsiderable time and labor. It will not be expected that the committee will do more than present, with as much brevity as is consistent with perspicuity, the conclusions to which they have come. The testimony adduced leaves no room to doubt that the election in Salinas Precinct was held at a place about five hundred feet distant from the one appointed by the Board of Supervisors. It is also conceded that it is the doctrine of our Court that "time and place are of the substance of every election." (Dickey vs. Hurlburt, 5 Cal. 343). However, in Knowles vs. Gates (31 Cal. 82), in which the vote of four precincts was thrown out because the polls were held at places different from those designated by the Board of Supervisors, the following language

occurs:

"We do not say officers of election would not have authority to hold the election at any other house than the one designated by the Supervisors, in case of necessity, provided the same be held in the immediate vicinity of the place designated; but" in case of a deviation from the order of the Board of Supervisors a reason and necessity therefor should be shown to exist."

The testimony in the present case shows that "Sherwood's Land Office," the place designated by the Supervisors for holding the election. in Salinas Precinct, was on a side street, at one end of the town, and immediately adjoining a house of prostitution, while the American or Blocke Hotel, the place where the election was held, was near the centre of the town, more commodious, a more general resort of the people, and so near to the place appointed by the Supervisors for holding the election that no voter could be deprived of voting by the change of place. The election was "held in the immediate vicinity of the place designated," while the testimony with regard to the character of the neighborhood in which it was designated that the polls should be held showed a reason and necessity" for their removal to some other point.

Your committee is of the opinion that the change of the place of voting from the one designated by the Supervisors, in this instance was not such an irregularity as should vitiate the vote and cause it to be thrown out. But even if we should hold so strictly to the doctrine that "place is of the substance of every election" as to condemn this election as illegal, we would still be unable to correct the aggregate vote of

the county by the rejection of the vote of this precinct, for the reason that there is no testimony to show either what the total vote of the precinct was, or what part of said vote was cast for contestant, or what for respondent. There is no testimony whatever adduced to show how the rejection of the vote of said Salinas Precinct would affect either of the parties to this contest-whether it would give to the contestant a majority in the district, or place him in a still greater minority than he

now is.

The second ground of contest stated, to wit: Misconduct on the part of the Board of Election in the said Salinas Precinct, in permitting bystanders to pick up and take from the ballot box tickets before the same had been called off and tallied by the officers of the election, is not, in the judgment of your committee, sustained by the testimony. It is, therefore, quite unnecessary to attempt to determine what would have been the proper legal effect of such misconduct on the vote of the precinct had it been proven to have occurred. It would seem, however, that if the tampering with votes as charged should have any effect whatever, it must be to so vitiate the whole vote of the precinct as to make its entire rejection a necessity. But in this case we would be unable to do this, as the testimony does not, as already stated, disclose what the vote of the precinct was.

The third ground of contest stated is alleged misconduct on the part of the Inspector of Election in Natividad Precinct. The specific misconduct charged under this head was this: That Michael Riordan, Inspector of Election in this precinct, took the returns home with him before the same were sealed up, and there took from the ballots five tickets, and substituted other five tickets for those he had taken, and changed the tally lists to correspond. The attempt to sustain this charge was an entire failure. The testimony adduced for this purpose failed to convict Mr. Riordan of any misconduct whatever, or to show that any change took place in the ballots or tally lists while they were in his possession. On the contrary, the testimony does show that they were in exactly the same condition when opened by the Board of Supervisors for the purpose of canvassing them, as they were when the election officers signed them on the evening of the election.

This

It appears that the officers of the election made a mistake in footing up the tallies for County Clerk. Their count gave to Johnson, the Democratic candidate, five votes less than he was entitled to; and the returns, as sent to the Board of Supervisors, contained this error. error was discovered by Mr. Riordan, in inspecting a private tally kept. by a Mr. Hughes, after the official returns had been sent to Monterey. The Board of Supervisors being notified that such a mistake had been made in footing the tallies for Clerk in this precinct, made an examination, and found the matter as represented. No error, however, was found in the tallies for Senator.

The fourth ground of contest stated is alleged misconduct on the part of the Boards of Enrollment in twelve several precincts in Monterey County, in this: that the Boards of Enrollment in said precincts enrolled. persons on the precinct poll lists whose names were not on the Great Register of the county.

The inspection of the voting lists of these several precincts, as returned by the Board of Supervisors and preserved in the office of the County Clerk, and of the Great Register of the county, discloses these facts, to wit: That in Hollister Precinct thirteen persons voted whose names were not on the Great Register; in Tres Pinos, four; in San Juan,

one; in Pajaro, three; in Castroville, one; in Santa Rita, two; in Soledad, one; in Salinas, five; in San Lorenzo, one; in Peach Tree, ten. Total, thirty-three.

It is undoubtedly true that the Registry Act contemplates that no person shall be enrolled on the precinct poll list till after his name has been placed on the Great Register. The mere fact, therefore, of persons being enrolled whose names are not on the Great Register, raises the presumption of misconduct on the part of the precinct enrolling officers; but this fact should not be conclusive of such misconduct. It is possible the discrepancy, when one exists, between the precinct poll lists and the Great Register, may be due to the negligence of the officer charged with the duty of placing names on the Great Register, or his deputies, or to accidents or inadvertencies over which they have no control. The testimony adduced in this case does not by any means make it clear that the placing of a great number of names on the poll lists of the several precincts named, which were not on the Great Register, was due in many instances, or perhaps even in a majority of instances, to misconduct on the part of the enrolling officers. The testimony of W. M. R. Parker, County Clerk of Monterey County, disclosed the fact that he had, just prior to the late general election, fourteen persons deputized in the several precincts of the county for the purpose of registering or enrolling voters; and that W. V. McGarvey, Assessor of the County, had seven. One of the deputies appointed by the County Clerk to register voters was H. M. Hayes, at present member of Assembly from Monterey County. His deposition was taken before the Commissioner to take testimony in this contest. From his testimony we are able to get some idea of how the business of registration was done by the Deputy Clerks and Deputy Assessors who were charged with this duty; and from it we will be able to form some idea also of the extent to which precinct enrolling officers should be held responsible for the discrepancies which exist between their rolls and the Great Register of the county. The following are some of the questions and answers on Mr. Hayes' cross examination:

Question 9.-How many of the names you have mentioned in your examination in chief did you place or enroll on the Great Register of the county by virtue of your appointment?

Answer. I enrolled five of them.

Q. 10. Did you not after enrolling their names issue a certificate, as Deputy County Clerk, to be presented before the Board of Registration or Election to the effect that they were so enrolled or registered?

A.-I did in the case of two or three, I think. I am not positive in regard to those particular five. The Board of Registration of Hollister Precinct decided that when I enrolled a name, and they were notified of the fact, the person so enrolled was entitled to go on the poll list of that precinct.

Q. 11.-How many had you enrolled before the Board of Registration had so decided?

A. I cannot tell the number or who they were, as regards your question.

Q. 12. Did you not receive the transfer of William Breck, and file it as Deputy County Clerk, on the fifth day of September, eighteen hundred and seventy-one?

A.-I do not remember the name. I may have received it.

Q. 13. Did you not receive and file transfers from other counties of voters, and file them as Deputy County Clerk?

A.-I did in one or two cases; perhaps three. I did in a few instances. Q. 14. Did you not in more instances than that?

A.-1 may probably have done it in more instances. I do not know positively and certain in how many.

Q. 15. Did you not register as such Deputy County Clerk the name of William Weathers prior to said election? A.-I did. I think it was the morning of the election; it might have been the day before.

Q. 27. Did you or did you not register the name of Detliff Jansen as such Deputy County Clerk before the day of election, and certify the same to the Board of Registration?

A.-I registered Mr. Jansen, I think, several days before election; don't think I certified the same to the Board of Election or Registration.

Re-direct examination.

Q. 1.-State whether either of the parties that you enrolled, as you have herein stated, at the time of their said enrollment deposited with you any affidavit?

A.I think they did, some parties that I know.

Q. 2.-State whether Mr. William Weathers, Detliff Jansen, and John Wesley Greevill made affidavit before you showing why they were entitled to be placed on the Great Register of the County of Monterey? A.-I think that Greevill and Weathers did; Jansen I am not positive of. Jansen produced his naturalization papers, and I did not require anything further from him.

Q. 3.-What did you do with the affidavits that you received in the discharge of your duty as Deputy County Clerk?

A.-I am not positive whether I sent them to the County Clerk or gave them to the Board of Registration.

It will be observed here that Mr. Hayes testifies directly and explicitly to having registered William Weathers, Detliff Jansen, and John Wesley Greevill before the general election held on the sixth day of September; yet William Weathers and John Wesley Greevill appear on the Great Register as registered on the third of October, while the name of Detliff Jansen does not appear on the Great Register at all. Mr. Hayes registered William A. Moody and James Hudner, also, before the general election, but their names appear on the Great Register as registered on the third of October.

The testimony of Mr. Hayes discloses another fact also; it shows that he was in the habit of certifying upon registering a person to the election officers of the precinct that said person was entitled to be enrolled on the precinct poll list. His testimony leaves no room to doubt that such was the practice in Hollister Precinct; at least the testimony of Mr. Parker, the County Clerk, in relation to the practice of his deputies and the Deputy Assessor, shows that the registration of persons-that is, the affidavits to name, age, citizenship, etc.-were in many instances deposited with the Board of Election, and by them forwarded to the county seat inclosed in the election returns. Thus did he explain how it was that persons who had been registered by his deputies before the sixth of September appeared on the Great Register as registered on the third of October.

It is not a violent presumption to suppose that the practice of each of the twenty-one Deputy Clerks and Assessors was similar in this respect to what Mr. Hayes' testimony shows his to have been, and if so, it is not so much a matter of surprise that there should appear on the list of voters thirty-three persons who are not on the Great Register as that double or treble that number does not appear in that category.

The testimony of Mr. Hayes shows at least that something more than the mere fact of names being on the poll lists which are not on the Great Register is required to convict the officers of precinct enrollment of misconduct.

Whatever presumption of misconduct or fraud on the part of precinct. enrolling officers is raised by the circumstances of names being on the poll lists which are not on the Great Register is rebutted by the evidence of Mr. Hayes, a registering officer, showing that names which ought to have been on the Great Register were not there. But even were the alleged misconduct of election officers in this respect fully sustained by proof, it would be impossible to apply any remedy, except to declare the election void and order a new one, for it is nowhere shown what the vote of these precincts was where it is claimed the alleged misconduct existed.

The fifth and last ground of contest stated is alleged illegal votes cast for Mr. Beck in several precincts in Monterey and Santa Cruz Counties, to wit: sixty illegal voters in Monterey County, and twenty-five in Santa Cruz County.

The testimony adduced to sustain this allegation is very voluminous, and is directed to three points, to wit:

First-To show that persons voted for Mr. Beck whose names were not on the Great Register.

Second-To show that persons who voted and whose names were not on the Great Register were reputed to be Democrats or to act with the Democratic party.

Third-To show that persons who voted for Mr. Beck, though on the Great Register, were illegal voters, on account of their lack of the neces-* sary constitutional qualifications. The testimony seems to establish that the following persons, whose names do not appear on the Great Register, voted for Mr. Beck, to wit: In Monterey County, in Tres Pinos Precinct, Alonzo Heller and Jeremiah Hilleher; in Hollister Precinct, Charles Anderson and A. J. Rader; Santa Rita Precinct, Henry Riley; in Peach Tree Precinct, C. A. Imus; and in Santa Cruz County, Pajaro Precinct, W. H. Morris. Total, seven. It is in evidence that A. J. Rader had been registered in the Great Register of Monterey County, but that his name was cancelled on the twenty-sixth day of June, eighteen hundred and seventy-one. Said Rader stated in his deposition that he had not ordered the cancellation of his name, nor authorized any other person to do it for him. W. H. Morris makes affidavit that he was registered in Santa Cruz County on the fourth day of August, eighteen hundred and seventy one, by A. J. Jennings, a Deputy Assessor, who was then enrolling and registering names on the Great Register; that he was duly sworn by said Jennings as to his place of birth, age, occupation, and that he was not registered in any other county in this State; that said Jennings reduced the same to writing; and that said Jennings being Inspector of Election in Pajaro Precinct did then place his name on the poll list of the precinct. This affidavit of Morris is accompanied by a certificate of A. J. Jennings, Deputy Assessor, in which he certifies that he enrolled the name of William H. Morris for the Great Register of

Santa Cruz County, on the fourth day of August, A. D. eighteen hundred and seventy-one. The testimony that Jeremiah Hilleher voted for Beck is not direct; but one Edmund Buck testified that he heard Hilleber tell Colonel Heath, counsel for contestant, that he, Hilleher, voted for Beck. If the votes of Rader, Morris, and Hilleher be deducted from those which are given above as having voted for Beck without being on the Great Register, and they probably should be, the number of those so voting will be reduced to four. The evidence adduced showed that all those four, except Henry Riley, had all the constitutional qualifications of voters; but left it in doubt whether their failure to get on the Great Register was due to their own negligence or to the negligence of the officers who were charged with the duty of registering all persons entitled to registration. With reference to the second point attempted to be proven, we will state that the testimony abundantly established the fact that a considerable number of persons who voted without being on the Great Register were reported to be Democrats. Exactly what number falls into this catagory we are unable to state, as the testimony with regard to the reputed political character of some persons was more or less contradictory and uncertain. Nor have we deemed it necessary to ascertain or determine just what the reputed political status of persons who voted without being qualified by previous registration on the Great Register was, for the reason that we have supposed the inquiry to be one not material in deciding this contest. The law with respect to the rejection of an illegal vote we understand to be this, to wit:

"To reject an illegal vote it must appear for whom it was polled. It cannot be taken from the majority candidate unless proved to have been polled for him." (McDaniel's case, in Court Quarter Sessions, Philadelphia; Brightley's Leading Cases on Elections, 238). And, "In purging the polls of illegal votes, the rule is that unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election-not from the majority candidate." (Note to People vs. Holden, Brightley's Leading Cases on Elections, 492). "In purging the polls, illegal votes are to be deducted from the entire vote-not from the majority." (Gibbons vs. Sheppard. See Brightley's Leading Cases on Elections, 558).

If the doctrine of these cases is to be followed it is not material to inquire how many illegal votes were cast, or what the political proclivities of the persons casting them were reputed to be, if it cannot be ascertained for whom they were cast. And there would be a manifest injustice in deducting the illegal votes from one candidate more than another, unless it were shown that they were cast for him. our opinion, therefore, that the illegal votes polled at the election at which Mr. Beck and Mr. Flint were opposing candidates for the office of State Senator, should not be deducted from Mr. Beck's vote except in the instances where it is shown they were cast for him.

It is

The third case of alleged illegal votes is where it is attempted to be shown that persons, though enrolled on the Great Register, were not legal voters for the want of the necessary constitutional qualifications. Two persons fall into this category; they are, Thomas Kerns, of Pajaro Precinct, Santa Cruz County, and José Buelna, of Santa Cruz Precinct, Santa Cruz County. The names of both these persons were on the Great

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