GARRISON v. ROURKE

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District Court of Appeal, Third District, California.

GARRISON v. ROURKE.*

Civ. 7460.

Decided: April 19, 1948

Frank E. Carleton, of Los Angeles, for appellant. Carr & Kennedy, of Redding, for respondent.

This is a contest of primary election for the office of County Assessor of the County of Trinity held November 58 1946, at which the respective parties were the only candidates for said office. The board of supervisors of said county duly canvassed the returns by the various boards of election of the several precincts, as required by law, and determined that the contestant, John N. Garrison, received 1026 legal votes and that the defendant, John D. Rourke, received 1028 legal votes for said office, and thereupon declared that the latter was duly elected as County Assessor, as required by Section 8100 of the Elections Code. A certificate of election was issued, pursuant to Section 8101 of said code, to Mr. Rourke, who assumed and still retains said office.

This contest of election was filed under Section 8600, subdivisions (c) and (d), of the Elections Code, on the grounds that illegal votes and mistakes in counting ballots for the defendant entitle the contestant to election to said office.

The complaint alleges that seventeen persons who were not legal residents of or registeed in Hayfork Precinct were permitted to and did illegally vote for the defendant; that in Lewiston Precinct two persons similarly disqualified, voted for the defendant, and that, in Hyampom Precinct, one person similarly disqualified, voted for the defendant; that ballots which were legally cast for the contestant were erroneously and illegally counted for the defendant; that the election officers of certain precincts permitted voters, including one Herman Albiez who voted for the defendant in Hayfork Precinct, to retire from the polling place after their ballots had been delivered to them, and to subsequently return and mark and deposit their ballots, instead of ‘forthwith’ marking and depositing them, ‘without leaving the enclosed spaces,’ as required by Section 5709 of the code, rendering such ballots invalid; that an elector by the name of Benjamin F. Burns, who voted for the defendant in Hayfork Precinct, was illegally assisted in marking his blalot by Mrs. Idell Rourke (the wife of defendant), who was not a member of the election board, contrary to the provisions of Section 5721(b) of the code, rendering his ballot invalid; that absentee ballots were received and counted by the canvassing board in favor of the defendant, which were not marked or voted as required by Section 5931 of the code; that the election returns from Hyampom Precinct were not delivered by the precinct board ‘without delay’ to the county clerk or other designated eprson, as required by Section 7109 of the Code, but were left at Hayfork in ‘an unguarded place’, and subsequently taken by Walter Glass, who was not authorized to receive or transport them and deposited with the county clerk at Weaverville, rendering the returns from that precinct invalid, and that a correct and lawful tabulation of the ballots cast at that election will show that ‘J. N. Garrison received the highest number of legal votes given for any person for the office of Assessor of Trinity County, and that he was duly elected to said office and is entitled to have and receive the certificate of election therefor.’ The complaint prays for judgment accordingly.

A general and special demurrer and motion to strike out portions of the complaint were filed by the defendant. The demurrer was sustained as to two or three paragraphs of the complaint, not heretofore mentioned. It is not necessary to refer to those stricken portions of the complaint, since both parties concede the demurrer was properly sustained in that regard. The demurrer was otherwise overruled and the motion to strike out portions of the complaint was denied.

A list of the challenged illegal votes upon which the contestant relies was served on the defendant as required by Section 8532 of the code. That fact is not disputed.

The defendant answered the complaint, denying the material allegations thereof, and affirmatively setting up certain new matter, which, by stipulation, was deemed to have been denied by the contestant.

The complaint was filed December 21, 1946. The trial was commenced January 14, 1947, and lasted five days. Oral and documentary evidence was adduced. Eight challenged ballots were received in evidence; and marked as exhibits. Those bllots are before this court for consideration. At the close of the evidence, on January 18th, instead of orally arguing the case, the parties were granted fifteen, fifteen and ten days to file briefs. It was then ordered that the cause ‘be marked submitted upon the filing fo the last brief.’ With the approval of the court, by stipulation dated January 28, 1947, the contestant was allowed to and including February 12th to file his opening brief, the defendant was granted fifteen days thereafter to file his brief, and the contestant was given ten days thereafter to file his closing brief. The briefs were duly filed. The last day allowed for filing briefs expired on March 10th. That time was not extended. We assume the cause was submitted for decision, pursuant to the former order, on March 10th. Findings of fact were required to be filed ‘withinten day after the submission.’ (Elections Code, Sec. 8556.) That time for filing findings expired March 20th. The court adopted findings, which are dated April 16th, but they were not filed until April 25th. Judgment, however, appears to have been prematurely filed April 18th. The court did file an elaborate written opinion on April 7th. That opinionmay not be construed to constitute the findings of the court. But if it be so construed, it was not filed within ten days after the submission of the cause. The court determined that the contestant, Garrison, received and was entitled to 1027 legal votes for County Assessor of Trinity County, and that the defendant, Rourke, received only 1022 legal votes therefor, and thereupon cancelled the defendant's certificate of election and adjudged the contestant to be the duly elected County Assessor, and directed the issuance of his certificate of election to that office.

The appellant insists that the court lost jurisdiction to render judgment in this case by failing to adopt and file findings, as required by Section 8556 of the Elections Code, within ‘ten days after the submission thereof.’ We are of the opinion this contention is correct. On account of the interest which the public has in the election of its public officers and in a speedy determination of election contests (Elections Code, secs. 8531 and 8550; Sweeney v. Adams, 141 Cal. 558, 561, 75 P. 182; 18 Am.Jur. 373, sec. 300), Section 8556 of the code specifically provides that:

‘The court shall continue in special session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within ten days after the submission thereof the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be rendered immediately thereafter.’ (Italics added.)

Findings were not filed in this case until a month and a half after the submission of the cause. Moreover, the judgment appears to have been prematurely filed before the filing of the findings. The cause was submitted on March 10th, as we have previously stated, and the findings were not signed until April 16th, and they were not filed until April 25th. Certainly that procedure was in conflict with the provisions of Section 8556, unless the language of that section is held to be merely directory and not mandatory. In view of the provisions of Section 15 of the Elections Code, which was adopted in 1939, we are of the opinion it is mandatory. The last mentioned sections declares that the word ‘shall’ is mandatory and ‘may’ is permissive. That section appears to be controlling with respect to the language used in Section 8556 of the same code, which declares that the court shall file its findings ‘within ten days after the submission’. We may assume Section 15 was adopted to render certain the construction of the word ‘shall’ as it is used in Section 8556, in view of the fact that in 1914 the Appellate Court rendered an opinion in an election contest in which it stated, with respect to the construction of the last mentioned section: ‘We incline to the opinion that the sections of the act governing the court's action upon the trial of proceedings of this character are directory, in the absence of an express provision of the statute declaring them to be mandatory.’ Bernardo v. Rue, 26 Cal.App. 108, 110, 146 P. 79. The last cited case is the only one upon that subject in election contests which has been called to our attention, or which we have been able to discover in the California reports. We assume the subsequent adoption of Section 15 now leaves no doubt that the word ‘shall’, as it is used in Section 8556, is mandatory, and that the trial court therefore had no jurisdiction to render its judgment against the defendant in this case rescinding his certificate of election.

It is true that the word ‘shall’, as it appears in certain statutes, has been construed to be merely directory when the language of the statute fails to indicate that it is intended to be mandatory. Thomas v. Driscoll, 42 Cal.App.2d 23, 27, 108 P.2d 43. But all uncertainty in that regard has been removed in the present case by the adoption of Section 15 of the Elections Code.

In view of our conclusion that the trial court was without jurisdiction to render the judgment which was entered in this case determining that the contestant, Garrison, was duly elected as County Assessor of Trinity County by a majority of the valid votes cast at the election, and cancelling the defendant's certificate of election to that office, it becomes unnecessary to consider the other issues presented.

The judgment is reversed.

THOMPSON, Justice.

PEEK, J., and ADAMS, P. J., concur.