Show hie judge s clear BOXES ALSO commission cannot touch ithem certificates must bb issued jide bartch in hia lengthy decuior in the sanpete cases holds that ballat bobea tally sheets and poll lis constitutes the returns bat the commission cannot them authority auth ia limited to canvassing return cheeta and basuini iasu ini after renewing the territorial election liw of 1878 in detail he bays thus from an examination of the act of is it was before aba act of congress took effect it will be seen thai there ia a provision made lor four distinct classes of officers and that each cibbs IB endowed with certain special howera and required to perform certain specific duties these classes are farat the registration officers whose duty it is to register the voters the statute the assessors of the respective counties such officers with power to appoint depati ea second the judges of election duty it ia to open the polls receive the ballots cloce the polls canvass tb ballota declare the result certify and transmit tha returns with the ballot box to the clerx of the county court they are appointed by the county court third the clerk and members of the county court acting as a canvassing board whose duty it ii to canvass tha declare the results thereof and in proper caama canvass the bal loti ani declare the result and then gach clerk must then issue certificates of alecuson to county and precinct cars and forward a certified copy of the cam as of the persons voted for and the number of votes each hag received for territorial to aba of the territory and at the time specified in the statute destroy the ballots fourth the governor and secretary of the territory and it is the duty ot tie secretary of the territory to canvass the returns for territorial offices a transmitted to him by the clerk of the county court in the presence of the governor and issue certificates to all territorial officers including of the legislature hamiag thus indicated my conclusions as to the powers and duties of election cera and as to what tha returns under the act of 1878 one of tha most important questions yet to bo entertained in this case is bow and in what its provisions are modified or changed by the act of congress Con gresa ap march 22 1892 known as th law ejection 9 of this act so far as ma here provides as follow that all the registration and election of evev eve v in the territory of Ut abare hereby declared vacant and each and every duty relating to the of voters ahe conduct of the receiving or rejection of and the and rebun of the same and the issuing of certificates or other evidence of elec lion in said territory shall until other provision be made by the legislative assembly of eaid territory ii hereinafter bv this section provided be performed under the existing laws of the united and of eaid territory by proper persons who shall be appointed to execute such offices and par forna uch duties by a board of five persons to ba appointed by the president etc under this section all tha election offices created dy the territorial act of 1878 were declared vacant and tee of the anitad states waa authorized to appoint a board of biye oer sous this board ii known aa the utah Commisa ioa and the defendants ia this case bald board which is given power to fill all the offices thus declared vacant by the appointment of proper persons the duties powers and of such proper persona are thi game s those which were incumbent upon the persons who fillad gaid offices under the territorial act bedora the enactment ot the edmunds law ni part of the methods of procedure pra by the act of 1878 ia repealed 01 limited or modified by tha auction nn der consideration except that the officers to carry out tha pro of the territorial act must be appointed as provided in thia action of the with this exception the territorial act remains in lull force and effect and ia the rule of action to guide the afen danta ic ia manifestly the doty of the defendants to appoint all tb officers re onfred lor the conduct of elections in the manner prescribed in the territorial act and they cannot themselves perform adv powen or duties under laid act which nave not been devolved cp on them by express of the act of congress the donee of a power to appoint ia not necessarily or by reason of buinz fanch donee clothed with power to perform it j insisted however by counsel for defenda ata that the powers and duties to be performed andor section 18 and 19 of the act of 1878 in BO far as election for members of the are concerned are devolved upon the defendants by lection 9 of the act of contreas Con greas of which another ma aerial clause affecting the question reads a follows the canvass and ol 01 all the votes at in said territory for meui berj of the legislative assembly thereof shall canvass all such returns and issue certificate i of election to those persona who absing eligible for such election shall appear to have been lawfully elected which certificates shall ba the only evidence of the right of such persons to ait iii euch assembly tha abla arguments of counsel in support of their position I 1 am unable to agree that this or any clause of eaid section confers such DOW er upon said board such tion would not only render useless and ineffectual Bc tiona 21 and 22 of the act of 1878 without any words of repeal or limitation in the provision which is claimed to produce such x but also would do violence to the spirit and intent of the territorial act and to the economical method of procedure pro tided theraby in cases of irregularities and discrepancies in the returns which would the rights of persons to such offices if had intended such a if it had intended to confer upon the board such great bewer it is but reasonable to presume that it would not haye left such intention to mere implication nor ie there any express in section 9 of the act of congress for the delivery of ballot boxes tohaid board by special ger or as provided in the act of 1878 this important provision cf the territorial rit orial law by which the purity of tho ballot could be preserved pra served aleo b rendered nugatory by tho interpret ao tion contended for that power too were conferred upon the board by more appi cation the rule of law is that such a board being the creature of statute must look to such statute for its authority and power which otherwise would not ex m in its favor and that it will not be aided by implication or judicial construction st it is evident that tha word returns in the clause of fiction 9 last quoted was aeed in the barns sense and should be given the same interpretation as in auction 22 of the territorial act by comparison of the two statutes it will be gaea that before the passage of the edmunds law the assessors were the registration caffi ers now said officers are appointees ot said board then the judges of election were ap pointed by the county court now they are the appointees of the board then the clerk of the county court and mem bars thereof constituted the board to canvass the returns irom the judged of election and recount the ballots in proper cases now such canvassing board must be appointed by the board of then th secretary ot the territory in the presence of the governor canvassed the returns under lection 22 which are provided for in section 21 of the act of 1878 and issued certificates of election to the members of the legislature now in addition to makenz all the appointments of election officers provided tor in said last mentioned act the board of commissioners perform the duties formerly devolved upon the of the teri tory and the governor under the act of congress of 1894 to admit tarn into aba union as a state tho said board is also required to the election returns for delegates to the constitutional convention which res bains mast bs and certificate issued by the eaid board in abo manner provided in auction 22 of the territorial act nowhere do I 1 find any authority either dy express provision provi aion of statute or by necessary implication for said board in any case whatever to go be biad the returns and open the ballot bor for the purpose of canvassing the ballots to declare the ef any election of any candidate condi date for office this is an ef power unauthorized by law nor ia there ny provi Biao of law which authorized the sending of a ballot box to said board for any such purpose or lor any purpose abo bal lot box afar tho close el an election be kept and the ballots disposed of by a board of proper persona appointed by said board and they must be kept and tha ballots disposed die posed of in ane manner provided in section 20 of the act of 1878 the next material question is whether mandamus manda mua is the proper remedy to enforce the performance of an official duty on the part of said board in a case where they refuse such a perform maach aber the performance of a specific act in its character is re faiad by an officer or board of officer epou whom the duty of performance ia resolved de solved and any person will be injured of euch refusal buch person may have a writ of mandamus to compel its performance so where as in the caso at bar an election board whose it is to can tasa the returns of an election maae an abstract thereof and issue a certificate of election to the candidates for offices refuses after the canvass and abstract aba tract haye been made to issue such certificates which is purely a minister ial duty the person who will be injured because of euan refusal may have a writ of mandamus pon pub officers beca and on elections bec eec board of liquidation ys macoomb 92 US in this case no question bein made as to the legality of the election although there appears to be have been some irregularity in its conduct the court will presume in order that justice may be done that the law was substantially complied with in ane caad of the application for the writ of prohibition the controversy is between the same parties and the legel questions arising under the statutes are substantially the same and therefore ther elore the construction of the statute in the mandamus proceeding applies with eq ul force in this proceeding proceed inz the only remaining is whether under the circumstances of this case the writ of prohibition will lia to prohibit the aid beard from canvassing the ballots and declaring the result of the election as to adv candidate and issue a certificate of election on euch canvass it is shown by the evidence that the ballots were canvassed and the result of the election declared on said canvass and that the enly act remaining which the defendants were attempting to perform under the assumption of power was the iasu anca of a certificate ot alee tion at the close of the thial the defendants signified their willingness to issue the certificate in accordance with the original canvass under the circumstances there appears to be no necessity for the writ the objection of counsel for the rotator to the admission in evidence of the registry lists and judges lists ia overruled the admissions made bv the defendants in the prohibition cases as to the evidence render it unnecessary to rule on the points raised during the course 0 the trial the writ of mandate is granted the writ of prohibition is denied |