The opinion
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VAN DYKE, J., dissenting.
I dissent. A person to be elected to an office must receive a plurality, or the highest number of votes, cast for such office; and where two or more persons receive an equal and the highest number of votes there is no choice, and a special election to fill such office must be ordered by the proper board or officer. (Const., art. XX, sec. 13; Pol. Code, secs. 1066, 1067; Code Civ. Proe., sec. 1112.) In declaring the contestee elected when he did not receive the highest number of legal votes was such improper conduct on .the part of the judges of election as to avoid the election; and whenever this fact appears, either before the canvassing board or the court upon a contest, it should be so declared. From the facts found by the court in this case, it should have been adjudged that there was no election. This is a special proceeding in which the public is interested as well as the nominal parties, and no judgment therein should be rendered whereby a person found to be not elected is still retained in office.
Snibley
v.
Palmtag,
128 Cal. 283 , seems to be the only case which is directly in line with the judgment of the lower court herein. That was a Department opinion, and does not appear to be well considered. For instance, it is said therein, referring to the code provisions, “Under these provisions, it is obvious that the judgment annulling the election is unauthorized by the statute, or by the facts found.” On the contrary, section 1125 of the Code of Civil Procedure says: “But if the election is annulled and set aside, judgment for costs must be rendered against the party whose election was contested, in favor of the party contesting the same.” This clearly recognizes the power of the court in a case where the facts warrant it, as in this case, to render a judgment annulling the election.