
    [No. 9820.
    Department Two.
    May 11, 1912.]
    S. D. Kinder et al., Appellants, v. School District No. 126 et al., Respondents.
      
    
    Schools and School Districts — Bond Election — Ballots—Form —Sufficiency. In a school bond election, a ballot so printed on a narrow slip of paper that it may be torn in the middle, leaving the voter to deposit onerhalf with the words “Bonds, Yes” or “Bonds, No,” is sufficiently regular in form, under the statute requiring the ballots to contain the words “ ‘Bonds, Yes,’ or ‘Bonds, No.’ ” where the voter could so fold the portion voted as to preserve the secrecy of the vote.
    Same — Method of Voting — Deposit of Ballot.' Under Rem. & Bal. Code, § 4660, requiring that one of the judges pronounce the name of any person offering to vote, at a school bond election, and “lie shall receive the ballot . . . and deposit the same” the judge pronouncing the name shall receive and deposit the elector’s ballot.
    Same — Retubns—Impeachment—Evidence — Sufficiency. Election returns showing that only 37 out of 103 votes were cast against the issuance of school bonds, are not sufficiently impeached by the affidavits of 46 voters to the effect that they voted against the issue, where the ballots had been destroyed, and it appears that certain of such voters had made contradictory statements and others had made no concealment 'when voting and it was testified that their ballots were seen to be for bonds, and that the officers publicly counted the ballots correctly after the election.
    Appeal from a judgment of the superior court for Whitman county, Neill, J., entered August 1, 1911, upon findings in favor of the defendants, in an action to enjoin an issue of school bonds.
    Affirmed.
    
      Hanna $ Hamma, for appellants.
    
      Pattison, Stotler <§• Pattison and J. M. McCrosky, for respondents.
    
      
      Reported in 123 Pac. 610.
    
   Per Curiam.

On May 20, 1911, an election was held in school district No. 126, of Whitman county, to determine whether the district should bond itself in the sum of $12,000 for the purpose of building a new school house. The election board made return to the proper officers to the effect that 103 votes were cast at such election, that 66 of such votes were cast in favor of the proposition, and 37 against it. The returns showing the necessary three-fifths votes to be in favor of the issuance of bonds, the board of directors proceeded to issue them, when the present action was begun to enjoin them from so doing.

In their complaint, the plaintiffs attacked both the regularity of the election proceedings and the correctness of the return. It was alleged that the ballots furnished the electors for use at the election failed to comply with the requirements of the statute, in that they were not uniform in size or shape, contained written matter on them not authorized, and were distinguishable, so that the judges of the election could tell which way the elector voted from the appearance of the ballot. It was further alleged that the electors were not permitted to put the ballots into the ballot box themselves, but were required to hand them to one of the judges of the election; and that the return made by the judges of the election was incorrect in that 46 at least of the 103 votes cast at the election were cast against the issuance of bonds, and that the proposition did not in fact receive the three-fifths votes necessary to give it effect under the statute.

Issue was taken upon the complaint, and a trial had, which resulted in a judgment to the effect that the plaintiffs were not entitled to injunctive relief. The plaintiffs have appealed.

The statutes relating to bond elections in school districts do not prescribe any form of ballot for use at súch elections, other than that it is required that the ballots “must contain the words ‘bonds, yes,’ or ‘bonds, no’.” The ballots provided by the election board for the use of the electors at the election here in question were in the following form:

Bonds, Yes. Bonds, No.

Calling the direction from top to bottom the length of the ballot, and the direction from side to side, its width, the ballot was about 1 inch in length and 8% inches wide. They were made from white paper, were practically of uniform size and quality, and contained no other matter than the words above indicated. When an elector applied to vote, he was handed one of the ballots so provided, and insti’ucted to tear it down the middle and vote the part that expressed his preference.. After the ballot had thus been prepared by the voter, it was received from the voter by one of the j udges and deposited in the ballot box, and the voter’s name registered in the list of voters.

It is contended by the appellant that the statute requiring the ballot to contain the words “bonds, yes, or bonds, no.” does not express the will of the legislature; that it was meant that the ballots should contain both of the terms “bonds, yes,” and “bonds, no,” so that the voter could indicate his preference by making a mark after, or by erasing, the one term or the other. The general text of the statute indicates, we think, that the legislature did intend to use the word “and” instead of the word “or,” in the clause of the statute we have quoted; and we think also that a ballot prepared in the form indicated by the appellants would be a sufficient compliance with the terms of the statute, but we hold that the form used in the present instance is sufficiently regular. As the legislature has not seen fit to prescribe a form of ballot for use at such elections, it follows that any form of ballot by which the elector can clearly, secretly, and without serious danger of mistake, express his intent, is sufficient in form. We see no reason why the ballot here used is not sufficient in these respects. The intent of the voter is expressed as clearly by tearing off the words that do not express his wish as they would be by crossing such words with a pencil or making a mark after the words that express his wish. Nor do we see any reason why a secret vote cannot be had with a ballot in the form here used. Certainly the portion voted could be folded so as to hide the words upon it, and no more could be done with a ballot more perfect in form. In fact, we think that the evidence demonstrates that no one who desired to conceal the manner in which he voted had any difficulty in so doing.

It is not an objection to the validity of the election that the elector was required to hand the ballot to one of the judges of the election after he had prepared it for voting, instead of being permitted to deposit it himself into the ballot box. On the contrary, such is the procedure the statute contemplates. It is provided that whenever any person offers to vote, “one of the judges shall pronounce his name in an audible voice, and if there be no objection to the qualifications of such person as an elector, he shall receive the ballot in the presence of the election board and deposit the same without being opened or examined in the ballot box.” The pronoun “he” in the phrase “he shall receive,” clearly refers to the antecedent phrase “one of the judges,” and means that the judge pronouncing the name of the elector shall receive the elector’s ballot from the elector and shall himself deposit it in the ballot box.

At the preliminary hearing on the application for the injunction, the plaintiffs produced the affidavits of forty-six of the persons whose names appear on the list of voters returned by the election board to the effect that they voted against the issuance of bonds. On the final hearing it was stipulated that these persons, if called and sworn, would testify to the same effect. As the statute requires the assent of three-fifths of the voters voting at such an election to authorize the issuance of bonds, it is plain that, if these persons are to be counted in the negative, the issue must fail for want of authorization. The ballots were destroyed before the controversy arose, so that there is no way of definitely determining the question, but the trial court heard both sides and ruled that there was no ground for concluding that the return was incorrect. We think the evidence justifies the conclusion. Certain of the persons so testifying were shown to have made contradictory statements concerning the manner in which they voted, and certain others made no attempt at concealment when voting, and their ballots were seen prior to the time they were deposited in the ballot box, and it was testified that they voted contrary to the manner stated by them in their affidavits. Moreover, the election officers were not charged with having fraudulently manipulated the returns, nor was any attempt made to prove fraud against them. On the other hand, the election officers testified that the ballots were taken from the ballot box and counted publicly in the presence of a number of persons who stayed to learn the result of the vote; that they were counted correctly, and in the manner ballots are usually counted, and that the returns correctly showed the result of the count. We think the preponderance of the evidence supports the conclusion of the trial judge, and the judgment will stand affirmed.  