Show CITY COUNCIL DECISION in the contest contes for the fourth precinct city officers argued monday february 17 judge zane zahe made the following decision on tuesday february 18 utah territory the third distrust court coure term form 1890 richard W young john F smith and william J tuddenham plaintiffs vs elijah sells defendant ZANE judge this ap an application for a mandamus to compel the defendant to issue certificates of election to the complainants it appears arm the plaintiffs petition and the answer of the defendant that the defendant was duly authorized to canvass the votes cast for the various candidates at the municipal election held in salt lake city on the instant and to declare the result and to issue certificates of elect election lon to the persons receiving the highest number the law provides for the election of th urn en from ech of the five municipal wards it t also appears that t the electors of the fourth ward voted tor for six persons persona ami what baat the electors of the city outside ward also voted for the same persons ej that baub ea h of the three plaintiffs plaintiff s received a greater number of the votes of the electors of that ward than any of the other three persons persona voted for but that the latter three received more of the votes of the electors of the entire city than any of oatlie the plaintiffs that the defendant having ingao ao found from the canvass declared the three receiving the greater number of the otes of the electors at large elected and that he fo ta issue ou e c certificates e of election to the plaintiffs the three receiving the greater number of the votes of the electors of the ward the first question in this case inthe order the court will consider them is of the ward assuming that the councilmen council men should be elect en ed by voters had baa the the discretion to declare the three mei receiving the least number of the votes of the electors of th the jEard eward elected and to issue certificates to them and to refuse to issue berti certificates fixates to the he plaintiffs who received the higher number the ordinance declares that upon the receipt of the ballot boxes and the returns ahe canvassers shall coshal i carefully examine the returns and if no irregularly or discrepancy appear therein affecting the result of the election of any candidate they shall accept said mid returns as correct but if the right of any person voted for for any office is in any way affected then the canvassers shall open the ballots and canvass the same so far as to determine the rights of the persons whose boffice office may be affe affected eted they may also cause to appear before them any person whom they may deem proper and take cake their testimony in relation to said election there is is nothing before the court showing that any irregularity or discrepancy in the returns appeared to the canvasser and without this he be was bound to apt them as correct VF f ordinances of salt lake city 1888 see sec 18 p section 19 same page declares that after the completion of the canvass the canvasser shall declare the result and immediately make out and transmit a certificate of elect election ion to web aach person elected if an irregularity or discrepancy cre pancy appears in the returns the canvasser doubtless has some discretion in making the canvass cani canvass ass but when he be has reached a result lie he has no right to leclare the person re celvi ceiling dg the votes elected and to issue a certificate he he must ave a certificate in that case to the candidate receiving the most legal votes if he is qualified to hold bold the office the qualification of the plaintiffs are admitted by the pleadings I 1 n the case of eilis vs county 1 commissioners of bristol BMW 2 gray the court said chief justice shaw delivering the opinion court atut but we are satisfied lat it is competent for this courtl court on this writ at the instance of the prosecutor I 1 rosec to inquire into the F facts acts and to require the cou counte nty commissioners to do what it was plainly their duty to do and what it la is their power to do to declare and certify it if such was the fact that the prosecutor had the highest number oi 01 votes for the office JP in clarke vs MeX mckenzie enzie etc 7 bush p albert H clarke aud and james 0 ellis were rival candidates for the office ofa adge of county court and on the day designated by law for that purpose W WW W mckenzie Mc Kenzle then the county judge ludge and E M buckner buckler Buc kuer the county clerk organized asan as an examining board for the purpose of comparing the polls and in consequence sequence or of the rejection by the examiner of an unattached and unsigned paper the certificate of election was given to ellis and clarke applied for a writ of mandamus to compel the board to count all the votes polled and to issue to him a certin certificate cate of his bis election and the lower court re fused the abe mandamus but toe the supreme court held on appeal that it was waa the duty of the board to compute the votes east cast for the several candidates and to issue certificates of election to the candidates hecei receiving v the highest number of votes and also held the fact that the board had acted and issued a certificate to a candidate who had not received the highest no reason why they should not be compiled compelled to issue a certificate to the one who had in the case of vallejo vs fay 10 cal the court held that the supervisors had a discretion in makin making the canvass and denied the suit the he court did not hold that the board might refuse a certificate to the person receiving the highest thail number of votes as aa shown by the canvass A further question raised upon this application for a writ of mandate is does the law require the councilmen to be elected by the electors of the respective wards or by the electors of the city at large the supreme court of this territory at the january term of the present year in deciding the case of bynon vs page lage held that the officers provided for in an act for the incorporation of cities in force march 8 1888 were the proper ones to govern salt lake city and also held that section one of article six was applicable to it that section is as fo follows lows I 1 there ab shall all be elected to iu all cities of this terri territory tory the following officers in the cities of the first class a mayor elected at large and three councilmen from each mu waldi ward inc inam elliles esaf of the second class a mayor elected at large and two councilmen from each ward in cities of the third class clam a mayor and seven council men elected at large and in cities of the first and second I 1 classa class a justice of the peace from each municipal ward and in cities of the third class clam two justices of the peace to be elected at large ato vicka vided that in the die case of any incorporated po city in which atthe time of the passage of this act the the members of the board of aldermen or council are elected from districts or wards the provisions of this section shall not apply nor shall this act I 1 iu u any manner interfere with weh the existing qualifications of tile the electors or officers or with the manner of selecting the officers the court also held in the ease case of bynon vs page supra that salt lake cit city ity belonged to the first class I 1 giving to the language used in the section quoted its ordinary meaning it would require the mayor in cities of the first and second classes to bv be elected lay by a majority of the electors voting in the entire city and the councilmen to be elected by a electors voting in the respective wards in ili section 17 of the same act this language is used and fifteen councilmen three from each ward council men alOM 8 shall hall be chosen by the qualified voters of I 1 their re uv warp and in the follow following li ni se section action language is in found and the councilmen shall be chosen by the qualified volam of their res respective alve wards warde thus the L legislature a u has as manifested nife sted an intention in various sections of the act to give to the people of the respect i ve wards of cities of the first and see sec ond classes the right to elect their councilmen rho fhe election of a resident of the ward by a majority of the electors of the entire city does hot satisfy the requirements of the law lav the councilmen n must be elected by the electors of therard they are to represent it is argued however that the proviso to section one above quoted annuls the provisions requiring councilmen to be elected by the voters of the respective tive wards which they are to represent the language relied upon is nor shall this act interfere with the manner of selecting the officers while the term elected is used in other places I 1 in u the section quoted the term here used is selecting belec ting the former refers to an election by the vo voters includes such an election and appointments point ments by the mayor anti and council as well before the rut aut under consideration took effect home bome of the officers of the city were elected and others were appointed by the mayor and council by this provision the intention was to prevent any inference of a change in the manner of selecting officers the construction contended for by the defendant bri nga the phrase in conflict with three plain provisions of the section in which it is found and also with other provisions of the set act of which it is a part in cities elsewhere councilmen coun oilmen are usually elected by the voters of municipal djs is local representation is a car ift srlucy ale in our system of gov intent by loin in question to the class of cities mentioned in the proviso or to regard it as si simply relating to the manner of selecting the of ficere of the city and not to the territorial limits of the municipal I 1 districts makes it accord with aga tga the e provisions of the 8 act 4 t pointed out in construing the language of a 9 statute the court will presume that the legislature intended it to have its ordinary meaning unless it clearly appears from the connection in which it is found or the purpose of the enactment that a different meaning was intended and the act should be so construed as to give div effect to all of its provisions and it should have a reasonable construction in view cf its purposes and objects it is apparent from the whole tenor of the act in question that the intention of t e legislature was to give to the people of the municipal wards in cities of the first and second classes through their electors the right to elect their own councilmen physically a municipal ward consists of the territory within its limits and the people residing upon anon it but the political po lideal action of those people with respect to the municipal government is another thing the municipal pal wards warda are composed ot of different people but the manner of their political action is precisely the same in all it appears plain that the legisa legislature ture in the use of the phrase nor shall this act interfere with the manner ot of selecting the officers did not intend to require the councilmen of the respective wards to be elected at large but it to is said that the supreme court of this territory in the case of watson vs corey decided at the january term 1889 held that phrase last quoted required the councilmen to he elecie elec tel I 1 as they were under the old law in considering the question as to whether sections 16 17 18 and 19 applied to existing cities no not re incorporated under the laws in which they lanb w found the court incidentally referred to the provision now under consideration in that opt opinion nion the court did not consider and construe section one of article six of the act I 1 do not regard the point now under consideration as decided so as to make it binding u upon P this court in deciding the question but counsel contend that the electors of the respective wards have no authority to elect councilmen until the city council has divided the city into five wards under the act of 1888 above referred to TI tle tie e pleadings that the city was divided into five wards when that act took effect defect and counsel concede it in their argument and the court in decad deciding ig the case of the people ex rel bynon vs page assumed the fact in holding that the officers to he be elected in salt lake city were those mentioned is in the act of 1888 the election of three councilmen for each of the five dds must have been based on the assumption of the existence of those wards it also appears that the defendant canvassed the votes of the fourth ward and found that the plaintiffs were the three candidates for or councilmen who received the highest number of votes from the electors of that ward I 1 am of the opinion that the existence of ove five municipal wards at the time the act of 1888 took effect and at the time of the election in question was sufficient these alve wards constituted local subdivisions of the city which the court may take notice of it appearing that the plaintiffs were ele ted by the electors of the fourth ward of the city they are entitled to their certificates the fact that the defendant has sued certificates to the candidates who received the fewest number of votes in the ward and that he has delivered the returns to the officer entitled to their custody furnishes no excuse for not dot issuing the certificates of election to the plaintiffs it was his duty to canvass the votes and declare the result and give certificates showing the result to the persons receiving the most votes from the electors of the ward the peremptory writ of mandamus asked for lq is gran granted teil mcbride and dickson gave notice that they would appeal jd from the ruling of the court anaf and the bond on appeal was fixed a at |