Searcy v. Grow

Citations

• 15 Cal. 117

Syllabus

<p>In a proceeding by an elector to contest the right to an office of a party returned as elected thereto at a general election, the defendant first moved to dismiss the proceedings; his motion being overruled, he declined to answer the statement filed by the contestant, and the Court, without proof by either party, annulled the election. Held, that this was error, and that the proceeding should have been dismissed.</p> <p>The public is interested in a contest of this character; it is not a matter solely between the parties to the record, and the popular will is not to be set aside upon the mere failure of a party to respond to charges alleged against his right by an individual elector. It is not sufficient that ample causes of contest be set forth in the statement filed by a contestant; their truth must be established by clear proof, before an election can be annulled.</p> <p>Under the twenty-first section of article four of the Constitution of this State, a person holding the Federal office described in that section, is incapable of being elected to a State office; he cannot receive votes cast so as to give him a right to take the State office upon or after resigning the Federal office. The word “ eligible ” in this section means capable of being chosen, the subject of selection or choice.</p> <p>The term “ compensation,” in section 21, art. 4 of the Constitution of this State, means the income of the office, not the profit over and above the necessary expenses of the office.</p> <p>In suit under our statute by an elector, to contest an election, he becomes a party, and is responsible for costs if he fail. The Court has no discretion to dismiss or entertain the case, as it deems the public interest requires. Uor has the State’s Attorney such discretion. The case is prosecuted like any other action instituted by a private citizen, subject only to the provisions of the statute.</p>