Rehearing denied Dec. 15, 1969.
Opinion on pages 108 to 114 omitted
See 3 Cal.3d 118 for subsequent opinion.
Ephraim Margolin, Henry C. Krivetsky, San Francisco, for plaintiffs-appellants.
Johnston & Miller, by Faber L. Johnston, Jr., San Jose, for defendant-respondent, City of Alviso.
Ferdinand P. Palla, City Atty., Richard K. Karren, Asst. City Atty ., by Donald C. Atkinson, Deputy City Atty., San Jose, for defendant in intervention and respondent City of San Jose.
ELKINGTON, Associate Justice.
On January 9, 1968, the electors of the City of Alviso by an official count of 189 votes to 180 voted to consolidate with the City of San Jose. Thereafter the above-named contestants claiming to be electors of Alviso filed a statement of election contest under the provisions of Elections Code sections 20021, 20050, and 20089. The grounds of contest, as relevant here, were specified as (1) illegal votes were cast in favor of consolidation, (2) one or both defendant cities, and their agents, had offered or given certain electors valuable consideration to induce them to vote for consolidation, and (3) the precinct board and members thereof were guilty of malconduct. After trial the superior court entered its judgment confirming the election, from which judgment the contestants have appealed.
The trial court found in favor of the defendant cities on each of the three alleged causes of contest. Contestants' contention on this appeal is, in effect, that there was no substantial evidence in support of these findings.
In our analysis of the points made by contestants we must keep in mind basic policy principles relating to election contests. As early as 1899 California's Supreme Court announced in People ex rel. Lee v. Prewett, 124 Cal. 7, 10, 56 P. 619, [82 Cal.Rptr. 406]620, that 'Elections should never be held void unless clearly illegal. It is the duty of the court to give effect to them, if possible." Citing People ex rel. Lee. v. Prewett, supra, the same court in Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430, 197 P. 74, 75, stated the applicable policy as 'It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible; that is to say, the election must be held valid unless plainly illegal.' In Davis v. County of Los Angeles (1938) 12 Cal.2d 412, 426-427, 84 P.2d 1034, 1042, the court held that a trial court's finding 'was a proper application of the policy that an election will not be declared a nullity, if upon any reasonable basis such a result can be avoided.' And, of course, in election contests the burden of proof rests upon the contestant. (Huston v. Anderson (1904) 145 Cal. 320, 332, 78 P. 626; Murray v. Coachella Valley Junior College Dist., 185 Cal.App.2d 310, 312, 8 Cal.Rptr. 150; Bagg v. Wickizer, 9 Cal.App.2d 753, 760, 50 P.2d 1047.)
Since contestants' principal attack is on the trial court's findings the rule recently reiterated in Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 427 P.2d 805, 807, is applicable. That rule is stated as 'When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]'
As indicated, the first cause of contest was that 'illegal votes were cast in favor of consolidation.' (See Elec.Code, § 20021, subd. (d).) The court found that there were eleven illegal (but not fraudulent) ballots; that one of them had been cast for, and another against, consolidation; and 'that it cannot be ascertained and there was no evidence how the remaining nine illegal ballots were cast.' The court subtracted one vote from each of the respective totals found by the official canvass. The remaining nine illegal votes were then cancelled by deducting 4 1/2 votes from each total.
The trial court thereupon found 'that 358 legal votes were cast at the election, a majority of which is 180; that there were no less than 183 1/2 legal votes cast in favor of consolidation, that there were 174 1/2 legal votes cast against consolidation, that the majority of all legal votes cast at the election were in favor of consolidation.'
It is proper, where illegal ballots have been voted, and there is no substantial evidence indicating for which person, or which way, they were cast to divide such illegal votes in the same proportion as the total legal votes were cast, and then deduct such illegal votes from the respective totals. (Russell v. McDowell, 83 Cal. 70, 72-74, 23 P. 183; Singletary v. Kelley, 242 Cal.App.2d 611, 612, 51 Cal.Rptr. 682.) This formula was substantially followed by the trial court.
The contestants, however, contend that undisputed evidence shows that the subject nine illegal votes were all cast for consolidation, and that the court erred in not so finding. Had the court so found, a tie vote (179 to 179) would have resulted and the consolidation would not have carried.
The 'undisputed evidence' relied upon by contestants is the following evidence relating to the nine illegal voters. All had signed petitions for consolidation. Three testified that they were in favor of consolidation. Two said they were registered to vote at the same time they signed the petition. One was a friend of a proponent of consolidation and another rented his place of business from a consolidation supporter.
None of the nine witnesses was asked by contestants, whose witnesses they were, how he had voted at the election. Although he would be privileged not to answer, [82 Cal.Rptr. 407]such privilege is personal to the witness and may be waived by him. (See Patterson v. Hanley, 136 Cal. 265, 276, 68 P. 821, 975; Robinson v. McAbee, 64 Cal.App. 709, 714-715, 222 P. 871; 26 Am.Jur.2d, p. 167.) And upon establishment of the fact of his illegal balloting the privilege was lost as a matter of law. (See Patterson v. Hanley, supra, Robinson v. McAbee, supra.) Evidence Code section 412 states: 'If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.'
Courts have recognized that electors often vote differently than in accordance with their professed or otherwise suggested intent. In Smith v. Thomas, 121 Cal. 533, 536, 54 P. 71, reviewing an election contest, the court said: 'The requirement of secrecy is based upon the idea that voters may find it inconvenient to have it known for whom they voted,--may, in fact, be weak enough to desire to create the impression that they voted otherwise than as they did vote. They may not be willing to risk their political standing by openly voting independently. And [we] think results show that many do vote differently from their professions.' The court then held that 'very clear evidence should be furnished' as to how an illegal vote was cast, before a court may deduct that vote from the total of any candidate in Smith v. Thomas, an elector who had illegally voted, although declining to answer whether he had voted, testified that on election day he had preferred candidate 'Thomas.' The court declared that the testimony could not be considered as any 'evidence' that the witness had in fact voted for the named candidate.
We think the trial court's finding 'that it cannot be ascertained and there was no evidence how the remaining nine illegal ballots were cast' is adequately supported. It may not reasonably be said, as a matter of law, that the contestants met the burden cast upon them to produce 'very clear evidence' as to how the illegal voters did in fact vote. Certainly no conclusive inference may be drawn that all nine witnesses voted for consolidation--unanimity essential to a successful contest here. This result gives effect to the policy pointed out ante, 'that an election will not be declared a nullity, if upon any reasonable basis such a result can be avoided.' (Davis v. County of Los Angeles, supra, 12 Cal.2d 412, 427, 84 P.2d 1034, 1047.)
One more claim of error relating to the 'illegal votes' issue is made by contestants. It is contended (1) that the court granted a nonsuit under Code of Civil Procedure section 581c on that issue, at the close of contestant's case, and (2) that such was error in that there was at least some evidence in support of the contest on that issue. We find this contention to be wholly without merit. The defendant cities did not move for a nonsuit, a motion abolished in court trials in 1961. It was instead a motion for judgment of dismissal under Code of Civil Procedure section 631.8. It is clear that the court weighed the evidence and drew only such inferences as it found reasonable; it also made findings on the issue. These judicial acts are proper under section 631.8, but foreign to proceedings on nonsuit.
The second cause of contest, as stated, is that the cities and their agents offered, or gave, valuable consideration and promises to Alviso electors to induce them to vote for consolidation.
There was undoubtedly much pre-election discussion of the extent to which Alviso city employees and residents could or would become employees of San Jose. There was a clear conflict, however, as to whether jobs were offered in return for votes. And the evidence is, without conflict, that no responsible city official or legislative body made or authorized such an offer. Assuming arguendo that promises of jobs were made, an election is not to be defeated by irresponsible unauthorized misconduct or statements of an individual; otherwise few elections would [82 Cal.Rptr. 408]be valid. And, at very least, the record shows a conflict whether San Jose, or any of its responsible officials, as contended by contestants, 'offered to refrain from enforcing its building code in Alviso for the purpose of procuring a favorable vote for consolidation.'
The trial court found that neither San Jose nor Alviso nor any of their officers, employees or agents, offered or gave 'any valuable consideration, performed any actions, made any promises or representations, or, directly or indirectly, made any offers to induce any elector or any other person to come to the polls to vote or to vote in favor of consolidation or to procure or endeavor to procure a favorable vote on consolidation.' We conclude that this finding was based on substantial evidence.
We also find the third cause of contest, malconduct of the precinct board, to be without merit.
The court found 'That the precinct board and members thereof were not guilty of any malconduct; that said board and members did not knowingly accept any illegal votes; that no member of the precinct board was aware of any impropriety of the registration of any of the 11 unqualified voters who were permitted to vote; that said board and members thereof did not accept illegal votes cast in favor of consolidation knowing that the individuals casting those ballots were not legally entitled to vote; that said board and members thereof did not make errors sufficient to change the results of the election; that the said board did not interrupt the count on several occasions so as to change the results of the election.' Here again, although a conflict appears, the trial court's finding is clearly supported by substantial evidence.
We find nothing illegal or supportive of the contest in the November 1, 1967 agreement between San Jose and the Alviso Improvement Corpration. Nor do we find applicability to the instant case of Election Code section 20021(c) authorizing an election contest where a candidate has given or offered 'any bribe or reward for the purpose of procuring his election.'
It becomes unnecessary to discuss the cities' contention, and the trial court's finding, that the contestants were not qualified electors of Alviso.
The judgment confirming the election is affirmed.
MOLINARI, P. J., and SIMS, J., concur.