Barry v. Board of Directors

J.This is an application for a writ of mandate compelling the respondents, as the Board of Directors of the Imperial Irrigation District, to meet and count all of the votes cast at an election held in said district on February 6, 1935.

This district was organized under the California Irrigation District Act, approved March 31, 1897, as amended. (Deering’s Gen. Laws, Act 3854.) In 1915 an act was passed giving certain enlarged powers to the board of directors of irrigation districts having an area of more than 500,000 acres. (Stats. 1915, p. 1.) In 1933, the latter act was amended (Stats. 1933, p. 2028) by adding thereto two sections, which read as follows:

“Sec. 4a. In such districts, no person shall be entitled to vote at any election unless such person possesses all of the qualifications required of electors within the county election precincts in such districts under the general election laws of the State, and shall have appeared on the last preceding equalized assessment roll of the district as the holder of title or evidence of title to real property situate within the district in which the election is being held. Any holder of land under' a possessory right acquired by entry or purchase from the United States or the State of California, or by a contract of purchase shall be deemed to be a holder of evidence of title to said land within the meaning of this act. ’ ’

“Sec. 4b. Prior to any election in any such district, the secretary of the district shall prepare a roster of all persons

possessing the qualifications prescribed in the preceding section for each precinct or consolidated precinct within such district by reference to the last preceding equalized assessment roll of the district and the registers of voters in the county or counties in which such -district may be situate, and prior to the election he shall certify to each of the election boards in the district the roster of persons qualified to vote in their respective precincts or consolidated precincts. Only persons whose names appear on such rosters shall be entitled to vote at the election for which such rosters were prepared. ’ ’

The Imperial Irrigation District has an area of more than 500,000 acres and in the election here in question, the first to be held after the adoption of the amendment last referred to, an attempt was made to apply the property qualification provisions of that amendment to the voters of said district. It is conceded by all parties hereto that the legislature may legally provide for a property qualification for electors voting at irrigation district elections, if the same applies to all districts organized under the general act, but questions are here raised with respect to the interpretation, the validity and the effect of this particular amendment of 1933.

Among other things, the petition alleges that the petitioner’s term of office as assessor-collector of said district expires in March, 1935; that she was a candidate for reelection; that one Charles Bratton was also a candidate for the same office; that the secretary of said district prepared a roster of all persons possessing the qualifications required of electors under the general election laws of the state and who appeared on the last preceding equalized assessment roll of said district as the holder of title or evidence of title to real property situated within said district for each precinct within the district by reference to the last preceding equalized assessment roll of the district and the registers of voters in Imperial County; that the secretary certified to each of the election boards in said district the roster of persons qualified to vote in such precinct; that the several rosters so prepared contained, in the aggregate, the names of 5,670 electors; that on the day of the election referred to, 3,082 electors whose names were on these rosters appeared at the polls in the various precincts, were given ballots, voted the same in the usual manner, and all of said ballots were thereupon placed in

The answer filed by the majority of the respondent Board of Directors alleges that only 2,659 persons who had been certified by the secretary as properly qualified voters appeared and voted at said election; that in addition thereto 423 persons appeared at the polls who had not been certified as qualified voters and whose names did not appear on the roster certified by the secretary as being persons qualified to vote; that each of these 423 persons was in truth and in fact not the owner of, or the holder of title or evidence of title to, any real property within this district; that each of said 423 persons was given a ballot and permitted to designate thereon his choice of the respective candidates but that none of said 423 ballots was in any way counted or tallied or reflected in the certificates or returns made by the election officers; that if these 423 ballots were to be counted it might change the result of the election in favor of the petitioner as against the candidate declared elected by the election boards and by the Board of Directors of the District; that a recount was had before the Board of Directors of the District, at which the petitioner demanded that these 423 marked ballots be counted; that the Board of Directors refused to count the same; that at said recount the board received evidence as to the identity of the persons who had cast the 423 specially marked ballots, and as to their qualifications to vote at said election, and decided and determined that said 423 persons were not entitled to vote at said election for the reason that none of them owned any real property within the district, and refused to count said ballots because the persons casting the same had not been certified by the secretary of the

As an affirmative defense, the majority of the directors alleged that the 1933 amendment above referred to was passed at the request of this district and its directors; that immediately thereafter the respondent Mark Rose, together with four other individuals, conspired to circumvent and defeat the property qualification provisions therein contained; that in carrying out this conspiracy these parties executed and caused to be recorded six purported deeds each conveying a small parcel of practically worthless land to a large number of persons named as grantees therein who did not otherwise own any land within the district; that this was done with the sole intent and purpose of conveying a paper or record title to an infinitesimal parcel of land to each of said purported grantees for the purpose of giving to each of said purported grantees a purported property qualification, for the sole intent and purpose of fraudulently attempting to circumvent and defeat the intent and purpose of the property qualification provided in the amendment; that one of these deeds quitclaimed one acre to 318 grantees, another quit-claimed a vacant lot in Imperial to 421 grantees, another quit-claimed a lot in Holtville to 577 grantees, another conveyed an undivided one-half interest in ten acres to 431 grantees, another quitclaimed an undivided one-half interest in ten acres to 1156 grantees while another quitclaimed ten acres to 609 grantees; that most or all of these small parcels were worthless pieces of land which had been sold for taxes; that no consideration passed as to any of these deeds and most of the grantees named had no knowledge that they were so named therein; that in any case where the grantee had consented thereto such consent had been fraudulently given as a part of said conspiracy; that this petitioner was persuaded to join in said conspiracy and to place the names of the purported grantees in these deeds upon the assessment rolls of said district; that in so placing the said grantees on the assessment rolls of the district the petitioner did not purport to assess a separate interest to each of said grantees but purported to assess the property described in each of said deeds to all of the grantees named therein; that these answering majority members of the board and the secretary of the dis

The respondent Rose filed a separate answer setting up various claimed irregularities in the holding of the election; that the 1933 amendment is unconstitutional in various respects ; that the secretary of the board did not carry out the provisions of that amendment; that in preparing the roster of voters provided for in section 4b of that amendment the secretary placed a star or asterisk before the names of those persons who appeared as grantees in the deeds referred to, which deeds the secretary considered to be void; that in his certificate to said rosters the secretary certified that only those persons named therein were qualified to vote where no asterisk appeared before the name on the roster; that the

Demurrers were filed to the petition and to the answers and while certain matters of fact have neither been admitted nor proved, as for instance the fact that the various deeds to the large numbers of grantees were given for a fraudulent purpose and are void, enough of the actual situation appears from the admitted facts for the purpose of this decision. It fully appears that in preparing the roster provided for in section 4b, the secretary did not take and certify all names appearing on the assessment rolls of the district and also appearing on the registers of voters in that county; that he included in this roster the names of many, if not all, of the persons named as grantees in the deeds above referred to; that he placed a star or asterisk opposite the names of such of these grantees as were included in the roster; that in his certificate he certified that only those before whose names no asterisk appeared were entitled to vote; that he certified to nothing with respect to those persons before whose names an asterisk appeared; that while it is admitted in the answers that the names of the persons thus marked with an asterisk on these rosters actually appeared on the assessment rolls of the district, the secretary did not certify such persons as qualified voters and it does not appear whether or not these persons were registered as voters; that the roster furnished to the election officers contained both names marked with an asterisk and not certified as qualified voters and other names not so marked but which were certified as voters; that when a person whose name was marked with an asterisk on the roster appeared at the election he was given a ballot which had been specially marked by the election board by impressing thereon with a rubber stamp the words 1 ‘ Cast by Special Permission’’; that other persons were given ballots not so marked; that both classes of persons were allowed to go through the form of voting and all of the ballots were placed in the same boxes; and that in counting and returning the results of the election the ballots east by those persons whose names had been marked with an asterisk on the roster and

The petitioner contends that under the provisions of sections 4a and 4b, the secretary is directed to make up the roster of voters by a reference to the assessment rolls and to the registers of voters and to nothing else; that the duty of the secretary -in this regard is purely ministerial; that he must certify the entire roster thus prepared and not merely a portion of the names thereon; that this simple interpretation of sections 4a and 4b overcomes any objections to the validity of these sections, constitutional or otherwise, and makes immaterial any irregularities in the election procedure; that it must be presumed that the secretary complied with this law and any failure in this respect is an immaterial error with no resulting injury; that there was a substantial compliance with the act when the secretary prepared the list of names; that the act does not provide for placing an asterisk in front of any of the names on the list and such marks here must be disregarded; that while there were certain irregularities in this election, these consisted of violations of directory, as distinguished from mandatory, provisions of the law; that while the marking of certain of these ballots by the election board was unauthorized by law, the same was a minor and unsubstantial variation from the law and must be disregarded; that since the 423 ballots' in question were cast by persons who were actually entitled to vote, any irregularity in the holding of the election is immaterial; and that nothing remains to be done except to count the specially marked ballots which the election boards and the Board of Directors refused to consider.

The respondent majority of the board contend that the persons who cast the 423 ballots in question were not certified by the secretary as qualified to vote; that in fact they were not owners of property in the district and were not so qualified; that their names were included on the assessment rolls of the district as the result of a conspiracy and by reason of fraudulent deeds to worthless lands; that it was not possible to challenge such voters because the situation was not within the grounds of challenge provided in section 1230 of the Political Code; that it was not possible to purge the lists of these names since it was impracticable to serve all of the grantees in these deeds; that it was therefore decided to keep

The respondent Rose contends that this entire election is void because sections 4a and 4b are unconstitutional in that they are local and special laws where general laws can be made applicable, that they do not have a uniform operation, that they grant special privileges or immunities to an arbitrary class of persons selected from a larger body of persons standing in the same relationship to the subject matter, that they unlawfully delegate legislative and judicial powers, and further that these sections are void because they cannot be construed in such a manner as to make it possible to comply with the terms thereof.

With reference to the contention that these sections violate article IV, section 25, of the Constitution, in that they constitute local and special laws where general laws can be made applicable and that they violate article I, section 11, of the Constitution in that they do not have a uniform operation, it may be observed that there is some support for the view that these amendments are not unconstitutional for these reasons and that it is within the power of the legislature to provide for a property qualification for voters in elections in irrigation districts of this size. Larger districts may have a larger population, bringing about different and greater problems, a fact which is recognized by permitting cities to be classified according to their population for many purposes. There may be a considerable difference between larger districts which are more apt to contain large bodies of land which are farmed by tenant farmers or employees and in which there are a number of towns and cities, some of them of considerable size, and smaller districts with fewer nonresident owners and composed entirely or largely of small farms operated by their owners. We must presume that the legislature took evidence as to such matters and others that might be mentioned and we could not arbitrarily hold that there was no natural or reasonable ground for such a distinction in the absence of a more complete showing as to the facts than we have here. In Wores v. Imperial Irr. Dist., 193 Cal. 609 [ 227 Pac. 181 ], in considering the act of 1915, prior to these

The objection that these amendments provide for an unlawful delegation of legislative and judicial power and discretion, might apply under some interpretations thereof. If they are to be construed, as they were by the Board of Directors in this district in this election, as permitting or authorizing the secretary of the district to decide and determine not only which of the names on the assessment roll appeared there as the holders of title or evidence of title to land in the district, but also that an evidence of title so held was in fact void and worthless, and this without notice or hearing of any kind and without any opportunity to such holder of title to appear and defend the same, it must be held that the act confers judicial powers on a subordinate appointive officer of the district and that the same is unconstitutional. On the other hand, if these amendments mean that the secretary is merely authorized to make up the rosters for the election by placing thereon the names of persons whose names appear both on the assessment roll of the district and on the register of voters, the amendments would not be subject to this objection.

What, then, is the proper interpretation of these sections or can their real meaning be understood and determined! This brings us to what we consider the most important objee

The act is also inconsistent in its express provisions. Section 4a, as one qualification for a voter, provides that he shall have appeared on the last assessment roll as the holder of title or evidence of title to real property in the district. Not only would this naturally involve and require an outside investigation as to whether those named on the roll appeared there as the holders of title or evidence of title, since that fact would not appear on the face of the assessment roll, but that section goes on to specifically provide that persons claiming under entry or purchase from the federal or state governments, or by contract of purchase from others, shall be deemed holders of title within the meaning of the act. This plainly indicates an intention that an investigation is to be made into the actual facts and that the status of those appearing on the assessment rolls is to be investigated to the extent and to the end of determining whether they are, in fact, holders of title or evidences of title, it being even provided that certain forms of claim to property shall be deemed to be evidence of title. On the other hand, section 4b providés that the secretary of the district shall prepare a roster of all persons possessing the qualifications prescribed in section 4a and that he shall do this “by reference to the last preceding equalized assessment roll of the district and the registers of voters in

It further appears that in this particular case neither this amendment of 1933 nor the other election laws were complied with. Whatever this amendment means and if it can be interpreted as having a reasonable meaning, it cannot possibly be held that, under its provisions, the secretary of an irrigation district had the power, after determining that certain persons appeared on the assessment roll of the district and also on the register of voters of the county, to arbitrarily determine and decide that the deeds under which these persons claimed were void and in fact conveyed no title and that said persons had no right to vote for that reason. In any event and whatever be the meaning of this amendment, the secretary did not comply with the same in making this roster of voters. He prepared a list containing the names of persons named as grantees in these deeds and a large number of other names. He marked the names of these1 particular grantees with a star or asterisk and attached his certificate that the persons whose names were so marked were not qualified to vote, and that the other persons named were qualified. If these other persons were not qualified to vote their names should not have been included in such a list. And we have no way of knowing whether or not the 423 voters whose votes we are asked to order counted were otherwise qualified or not. They were not certified as voters and it does not appear whether or not their names were on the registers of voters in that county.

Section 23 of the Irrigation District Act provides that elections in irrigation districts shall be conducted as nearly as practicable in accordance with the general election laws of the state. This provision was not followed in the election here in question. Under instructions given to them by the Board of Directors of this District the election officers

If these deeds with the many grantees named therein were, in fact, fraudulent and if such grantees were not authorized to vote, those facts should have been determined in advance in an action to purge the rolls or by challenge or in some other proper procedure and not by going through the pretense of allowing these persons to vote, marking their ballots and refusing to count the same. We are not impressed by the argument of the respondent majority of the board that because they believed the six deeds were recorded to carry out a fraudulent conspiracy to avoid the effect of the amendment in question, the course adopted by them was the only one open to them after the Supreme Court decided that election rolls could not be purged without personal service on the persons involved (see Pierce v. Superior Court, 1 Cal. (2d) 759 [ 37 Pac. (2d) 453 ]) since the number of these grantees was so great as to make personal service on them impracticable. The deeds were recorded nearly a year before

Because we think this amendment of 1933 is void as so vague, uncertain and inconsistent that its meaning cannot be determined and because neither this amendment nor the other laws relating to elections were complied with, we are compelled to hold that the purported election of February 6, 1935, is void. It would be an idle act to order the questioned votes counted, under these circumstances. (Page v. Board of Supervisors, 85 Cal. 50 [ 24 Pac. 607 ]; Wilson v. Blake, 169 Cal. 449 [ 147 Pac. 129 , Ann. Cas. 1916D, 205].)

As a part of the relief demanded the petitioner asked that the respondent board be directed to cancel the certificate of election issued to Charles Bratton, and this was included in the alternative writ. • Under the general rule, a peremptory writ follows the terms of the alternative writ and should be denied when the complete relief asked for cannot be given. (Gay v. Torrance, 145 Cal. 144 [ 78 Pac. 540 ].) While this rule may be departed from in a proper case ((Larkin v. Superior Court, 171 Cal. 719 [ 154 Pac. 841 , Ann. Cas. 1917D, 670]) the circumstances do not warrant such an exception here. To order this certificate cancelled would do the petitioner no good, the holder of the same is not a party to this proceeding, and it seems best to deny the application for a writ in its entirety.

The petition for a writ of mandate is denied.

Marks, J., and Jennings, J., concurred.

An application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 5, 1935.