The opinion
SHAW, J., Concurring.
I concur in the opinion of the chief justice.
I think, however, that something additional should he said in regard to the seeming conflict between subdivisions 4 of section 1211 of the Political Code and the preceding portions of the chapter bearing on the subject of improper marks on the ballot.
With respect to all these inconsistencies the case calls for the application of the rule expressed in section 4484 of the Political Code, that where there are conflicting provisions in different sections of the same chapter or article, “the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.” The rule is founded in reason and it exists independently of the code. It therefore, for like reasons, applies to conflicting provisions of different subdivisions of a section. (1 Sutherland on Statutory Construction, sec. 268.)
There is also the rule that specific provisions relating to a particular branch of a subject must govern that branch, “as against general provisions in other parts of the statute, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate.”
(Harrigan
v.
Home Ins. Co.,
128 Cal. 537 , [ 58 Pac. 180 , 61 Pac. 99 ];
Franzden
v.
San Diego County,
101 Cal. 321 , [ 35 Pac. 897 ];
Earl
v.
Bowen,
146 Cal. 762 , [ 81 Pac. 133 ];
Healy
v.
Superior Court,
127 Cal. 659, 662 , [ 60 Pac. 428 ].)
Since subdivision 4 is later in numerical order than any of the provisions conflicting therewith, it must, under 'the rule
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first stated, prevail over them, and since it specifically provides that the intention of the' voter to identify his ballot must appear, before it could be declared invalid because of an unauthorized mark thereon, and there is no other specific provision on that precise subject, it must govern that subject, under the rule last stated.
Applying these rules we will see that the provision of subdivision 1 of section 1211 declaring that “in canvassing the votes any ballot which is not made as provided in this act shall be void,’’ must yield to the later and specific provision of subdivision 4, which requires that the intention on the part of the voter to identify the ballot must appear. Similar reasons may be given regarding all of the other provisions supposed to conflict with subdivision 4, aforesaid.
It may be further said, with respect to the provision of subdivision 8 of section 1197, as amended in 1911, and of subdivision 10 of the amendments of 1913, [Stats. 1913, p. 1157], and 1915, [Stats. 1915, p. 272], providing that there shall be printed on the ballot certain instructions to voters, one of which is that distinguishing marks and erasures make the ballot void, that this is not an enactment of substantive law at all, but a mere provision that certain cautions shall be given to the voter himself. These instructions to voters have been carried down in the same form from the time when the statute provided that every distinguishing mark should invalidate the ballot, and it apparently has not been perceived that subdivision 4 aforesaid changes the rule in that respect.