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"You do swear (or affirm) that you are the person whose name is entered on

the great register."

May vote if he takes the oath: Secs. 1236, 1237.

Cannot vote if he refuses to take oath: Sec. 1238. See also Pen. Code, sec. 43.

1232. Proceedings on challenge for non-residence.

SEC. 1232. If the challenge is on the ground that he has not resided in the state for one year next preceding the election, the person challenged must be sworn to answer questions, and after he is sworn, the following questions must be propounded to him by the inspector:

1. Have you resided in this state for one year immediately preceding this election?

2. Have you been absent from this state within one year immediately preceding this election? If yes, then,

3. When you left did you leave for a temporary purpose, with the design of returning, or for the purpose of remaining away?

4. Did you, while absent, regard this state as your home?

5. Did you, while absent, vote in any other state?

And such other questions as may be necessary to a determination of the challenge. [Amendment, approved April 16, 1880; Amendments 1880, 81 (Ban. ed. 370); took effect from passage.]

Reading rules as to residence: See sec. 1241.

Residence: See sec. 1239.

Statements of voter, what evidence in a

contested election case, as to his right to vote: Norwood v. Kenfield, 30 Cal. 393.

Refusal to take oath: Sec. 1238, post.

1233. Same, on challenge for non-residence in precinct.

SEC. 1233. If the challenge is on the ground that he has not resided in the county for ninety days, or precinct for thirty days, next preceding the election, the person challenged must be sworn to answer questions, and after he is sworn, the following questions must be propounded to him by the inspector:

1. When did you last come into this county or election precinct?

2. When you came into this county or precinct, did you come for a temporary purpose merely, or for the purpose of making it your home?

3. Did you come into this county or precinct for the purpose of voting here? And such other questions as may be necessary to a determination of the challenge. [Amendment, approved April 16, 1880; Amendments 1880, 81 (Ban. ed. 371); took effect from passage.]

Words "county or" are new in subdivisions 1 and 2. See note to previous section.

1234. Same, on challenge for having before voted.

SEC. 1234. If the challenge is on the ground that the person challenged has before voted that day, the inspector must tender to the person challenged this oath: "You do swear (or affirm) that you have not before voted this day."

May vote if he takes the oath: Sec. 1236. See note to sec. 1231.

Voting twice is a felony: Pen. Code, sec.

45; attempt so to do is a misdemeanor: Id. 46;

see note to sec. 1230.

1235. Same, on ground of conviction of crime.

SEC. 1235. If the challenge is on the ground that the person challenged has been convicted of an infamous crime, or that he has been convicted of the embezzlement or misappropriation of public money, he must not be questioned, but the fact may be proved by the production of an authenticated copy of the record, or by the oral testimony of two witnesses. [Amendment, approved April 16, 1880; Amendments 1880, 81 (Ban. ed. 371); took effect from passage.]

1236. Challenges, how determined.

SEC. 1236. Challenges upon the grounds either:

1. That the person challenged is not the person whose name appears on the great register;

2. That the party has before voted on that day;

-Are determined in favor of the party challenged by his taking the oath tendered.

See People v. Gordon, 5 Cal. 235.

1237. Trial of challenge.

SEC. 1237. If the challenge is on the ground that the person challenged is not the person whose name appears on the great register, he must take the oath tendered by the board. Challenges for causes other than those specified in the preceding section must be tried and determined by the board of election at the time of the challenge. [Amendment, approved April 16, 1880; Amendments 1880, 81 (Ban. ed. 371); took effect from passage.]

First clause herein is new.

1238. If person refuses to be sworn, vote to be rejected.

SEC. 1238. If any person challenged refuses to take the oaths tendered, or refuses to be sworn and to answer the questions touching the matter of residence, he must not be allowed to vote.

Refusal to answer or to take oath is a misdemeanor: Pen. Code, sec. 43.

1239. Rules for determining question of residence.

SEC. 1239. The board of election, in determining the place of residence of any person, must be governed by the following rules, as far as they are applicable: 1. That place must be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning;

2. A person must not be held to have gained or lost residence by reason of his presence or absence from a place while employed in the service of the United States, or of this state, nor while engaged in navigation, nor while a student at any institution of learning, nor while kept in an alms-house, asylum, or prison;

3. A person must not be held, by reason of having moved from one precinct to another, in the same county, within thirty days prior to the election, to have lost his residence in the precinct so moved from, provided he was an elector therein on the thirtieth day prior to such election;

4. A person must not be considered to have lost his residence who leaves his home to go into another state, or precinct in this state, for temporary purposes merely, with the intention of returning;

5. A person must not be considered to have gained a residence in any precinct into which he comes for temporary purposes merely, without the intention of making such precinct his home;

6. If a person remove to another state with the intention of making it his residence, he loses his residence in this state;

7. If a person remove to another state with the intention of remaining there for an indefinite time, and as a place of present residence, he loses his residence in this state, notwithstanding he entertains an intention of returning at some future period;

8. The place where a man's family resides must be held to be his residence; but if it be a place for temporary establishment for his family, or for transient objects, it is otherwise;

9. If a man have a family fixed in one place, and he does business in another, the former must be considered his place of residence; but any man having a family, and who has taken up his abode with the intention of remaining, and whose family does not so reside with him, must be regarded as a resident where he has so taken up his abode;

10. The mere intention to acquire a new residence, without the fact of removal, avails nothing; neither does the fact of removal, without the intention. [Amendment, approved March 30, 1874; Amendments 1873-4, 26; took effect July

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1240. Term of residence, how computed.

a "residence," within the meaning of this statute: Id. So also People v. Riley, 15 Id. 48; Hunt v. Richards, 4 Kan. 549; Bildle v. Wing, 1 Cong. Elec. Cas. 504. Paupers do not acquire a resi dence in the place where the alms-house is situated: Monroe v. Jackson, 2 Id. 98. And an act of the legislature authorizing United States soldiers to vote elsewhere than at their place of "residence" is unconstitutional: Bourland v. Hildreth, 26 Id. 162; Day v. Jones, 31 Id. 261.

SEC. 1240. The term of residence must be computed by including the day on which the person's residence commenced, and by excluding the day of the election.

See People v. Holden, 28 Cal. 123.

1241. Rules must be read if requested.

SEO. 1241. Before administering an oath to a person touching his place of residence, the inspector must, if requested by any person, read to the person challenged the rules prescribed by sections twelve hundred and thirty-eight and twelve hundred and thirty-nine.

1242. Proceedings upon determination of challenge.

SEO. 1242. If the challenge is determined against the person offering to vote, the ballot offered must, without examination, be returned to him; if determined in his favor, the ballot must be deposited in the ballot-box.

1243. List of challenges to be kept.

SEC. 1243. The board must cause one of the clerks to keep a list showing: 1. The names of all persons challenged;

2. The grounds of such challenges;

3. The determination of the board upon the challenge. "This statement is primary [prima facie] evidence of the facts, and as it has to be transmitted to the clerk's office and filed there, it would be open to the examination of the grand jury, or any officer or person, and would afford

valuable aid in the examination of prosecution of a charge of perjury, based upon false swearing, on the trial of such challenge:" Commissioners' note.

An Act to prohibit " piece clubs," and to prevent extortion from candidates for office.

[Approved March 14, 1878; 1877-8, 236.]

Assessments for election expenses to be voluntary.

SECTION 1. All payments and contributions of money for election expenses, made by candidates for office in this state, shall hereafter be assessed and made by such candidates by voluntary assessment among themselves, and not otherwise, and at meetings to be called for such purpose, at which meetings none but candidates for office at the next ensuing election shall be present or participate.

Candidates paying contributions not agreed upon-Misdemeanor.

SEC. 2. Any person being a candidate for office in this state, who shall directly or indirectly pay, or knowingly cause to be paid, any money or other valuable thing to any person, as an assessment or contribution for the expenses of the election at which such person or candidate is to be voted for, except the contribution or assessment so agreed upon by such meeting of candidates, shall be deemed guilty of a misdemeanor, and, upon conviction, punished accordingly.

Committees and conventions not to make assessments.

SEC. 3. It shall not be lawful for any committee, convention, or other association, formed for the purpose of nominating a candidate or candidates for office in this state, to levy, assess, collect, demand, or receive, directly or indirectly, any money or other valuable thing from any candidate or candidates nominated for office by such committee, convention, or other association, either for the expenses of printing or distributing tickets, or for any of the expenses of the election of such candidate or candidates, or as or for the expenses of such nominating convention, committee, or other association, or under or upon any pretense whatsoever. Misdemeanors by members of committees or conventions.

SEC. 4. Any officer or member of any such committee, convention, or association, or other person, who shall vote for, aid, authorize, assist, or consent to any such levy, assessment, or collection, from any candidate or candidates, shall be deemed guilty of a misdemeanor, and, on conviction, punished accordingly.

Asking money from candidates.

SEC. 5. Any person who shall demand, ask for, collect, or receive, either directly or indi rectly, any money or other valuable thing from any candidate or candidates for office in this state, on the ground that such money or other valuable thing has been assessed to such candidate or candidates, or asked for, demanded, or required by any person, nominating convention, committee, or other political association, as or for the costs of printing or distributing tickets, or for the payment of election expenses of any kind or nature whatsoever, or as or for the expenses of such nominating committee, convention, or association, shall, for each offense, be deemed guilty of a misdemeanor, and, on conviction, shall be punished accordingly; but nothing herein contained shall prevent the candidates at any election from assembling together, and voluntarily assessing themselves for any expenses authorized by law for the common good of the ticket, and to collect and disburse the same by agents appointed for such purpose.

Working for candidates in expectation of compensation.

SEC. 6. Any person who shall voluntarily and unsolicited offer to work for and assist, or in any manner whatsoever contribute to the nomination or election of any candidate or other person to any office in this state, for the purpose and with the intent to have such candidate or person pay for, or in any manner compensate such person so offering for such work or services, shall be deemed guilty of a misdemeanor, and, on conviction, punished accordingly. SEC. 7. This act shall apply only to the city and county of San Francisco. SEC. 8. This act shall take effect and be in force from and after its passage.

CHAPTER X.

CANVASSING AND RETURNING THE VOTE.

1252. Canvass to be public, and without adjournment.

SEC. 1253. As soon as the polls are finally closed the judges must immediately proceed to canvass the votes given at such election. The canvass must be public, in the presence of by-standers, and must be continued without adjournment until completed and the result thereof is declared.

1253. Canvass, how commenced.

SEC. 1253. The canvass must be commenced by taking out of the box the ballots unopened (except so far as to ascertain whether each ballot is single), and counting the same to ascertain whether the number of ballots corresponds with the number of names on the list of voters kept by the clerks. In the city and county of San Francisco, at the closing of the polls, the inspector must administer to the additional members of the board of canvassers the oath prescribed in section eleven hundred and forty-eight, and likewise to two clerks appointed by such additional members. He must then proceed to take out of the box the ballots, unopened, one at a time, numbering them on the backs in numerical order, commencing with number one, and writing with ink the initials of his own name upon the back of each ballot as taken out. He shall pass each ballot, as soon as thus indorsed, to the additional inspector, who must, in like manner, write thereon the initials of his own name, so that each ballot can be subsequently identified by either or both such inspectors. [Amendment, approved March 30, 1874; Amendments 1873-4, 28; took effect July 6, 1874.]

Irregularities in election.—Mere irregularities which do not affect the final result do not

vitiate an election. Dillon, 1 Mun. Corp., sec.

197, states: "It is now a canon of election law that an election is not to be set aside for a mere

informality or irregularity which cannot be

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said in any manner to have affected the result of the election;" and in addition to a large number of English and Canadian adjudications, refers to People v. Cook, 14 Barb. 259; Clifton v. Cook, 7 Ala. 114; Truehart v. Addicks, 2 Tex. 217; Dixon v. Smith, 10 Iowa, 212; Attorney-General v. Ely, 4 Wis. 420; State v. Jones, 19 Ind. 356; People v. Higgins, 3 Mich. 233; Gorham v. Campbell, 2 Cal. 135; Bowland v. Hildreth, 26 Id. 161; Sprague v. Norway, 31 Id. 173; Day v. Kent, 1 Or. 123; Piatt v. People, 29 Ill. 54; Ewing v. Filley, 43 Pa. St. 384; McKinney v. O'Connor, 26 Tex. 5; Fry v. Booth, 19 Ohio St. 25. So also Gass v. State, 34 Ind. 425; L. M. &B. R. Co. v. Geiger, Id. 185; Mustard v. Hoppess, 69 Id. 324. Brightly, Election Cases, 448, recognizes the same principle, and attempts to draw the following distinction between "matters of substance" and "mere irregularities: "Matters of substance in the holding of an election, it would seem, may be resolved into such as affect the time and place of election, the due qualification of the officers by whom it is holden, and those affecting the legal qualifications of the electors; but the conduct of the election officers in the performance of the duties enjoined by law, and their observance of the provisions of the statutes in regard to the recording and return of the legal votes received by them, would seem to fall within the description of directory provisions, and any departure on their part from a strict observance of such portions of the election law to be regarded as irregularties which do not vitiate." This distinction has been observed in regard to receiving and counting votes: Whipley v. McKune, 12 Cal. 352; to the selection of officers of election: Sprague v. Norway, 31 Id. 173; Keller v. Chapman, 34 Id. 635; to the change of the poll

ing-place: L. M. & B. R. Co. v. Geiger, 34 Ind. 185; to the formation of the board of canvassers: Mustard v. Hoppess, 69 Id. 324. And in Hodge v. Linn, 100 Ill. 397, the failure to number the ballots cast at an election, and to count the votes in the manner required by the statute, and to string the ballots on a thread in the order of their reading, and the allowance of persons not judges or clerks of the election to assist in counting the votes, and the presence of persons in the room during the count not challengers or officers, were deemed not to vitiate the election, there being no evidence showing that any injurious effect had been caused, or that all the votes had not been truly counted.

The matter is, of course, to be viewed in the light of the statute in the state where the question arises. And as was determined in Oglesby v. Sigman, 58 Miss. 502, with reference to distinguishing marks on the face of a ballot (see note to section 1197, ante), so also in other particulars the courts may feel constrained, by the peculiar wording of the legislative directions concerning the conduct of elections, to pronounce as fatal what under less stringent enactments would be disregarded. For example, in Hodge v. Linn, 100 Ill. 397, above cited, the ballots were not numbered, yet the court overlooked the omission; whereas in West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Id. 422, a similar objection was sustained. As a general rule, however, the regulations prescribed by law for conducting an election are directory merely, and will not be literally enforced where their nonobservance has occasioned no injury: Cases first above cited; Taylor v. Taylor, 20 Minn. 107; Du Page County v. Scott, 65 Ill. 360; Knox County v. Davis, 63 Id. 405.

1254. Proceedings where ballots folded together.

SEC. 1254. If two or more separate ballots are found so folded together as to present the appearance of a single ballot, they must be laid aside until the count of the ballots is completed; then, if upon a comparison of the count with the number of names of electors on the lists which have been kept by the clerks, it appears that the two ballots thus folded together were cast by one elector, they must be rejected. [Amendment, approved March 30, 1874; Amendments 1873-4, 29; took effect July 6, 1874.]

1255. Proceedings where too many ballots.

SEC. 1255. The ballots must be immediately replaced in the box, and if the ballots in the box exceed in number the names on the lists, one of the judges must publicly, and without looking in the box, draw out therefrom singly, and destroy, unopened, a number of ballots equal to such excess; and the board of election must make a record, upon the poll-list, of the number of ballots so drawn and destroyed. In the city and county of San Francisco the numbers

appearing

on the backs of the ballots so drawn must likewise be recorded.

[Amendment, approved March 30, 1874; Amendments 1873-4, 29; took effect July

6, 1874.]

1256. Proceedings when names and ballots agree.

SEC. 1256. The number of ballots agreeing or being thus made to agree with the number of names on the lists, the lists must be signed by the members of the board and attested by the clerks, and the number of names thereon must be set down in words and figures at the foot of each list, and over the signatures

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