| Show I TH MANDATE 1 o p WRTS STAND Writs of Prohibition Were Useless and Are Revoked SUPREME COURT SO RULES In the Sanpete Election Suits Against the Utah Comission I fEJicrc Were Jfi Discrepancies With iH iic Cleaning of the Act to Justify Jus-tify Going to the Ballot Boxes Vlc Duties of the ta Commission Commis-sion Are Ministerial and Not Judicial Ju-dicial la Cases Where Real Discrepancies Dis-crepancies Exist tlie Commission Has the Some Right to Go to the HalTot Boxes as the Olil County Court Had No Intermediate Boara ReQuIred The supreme court yesterday handed fi < nf n the opinion of the Sanpete county election cases appealed from Judge Bartchs judgment In the Third district dis-trict court J D Page et a vs the Utah Commission The opinion was delivered by Judge Smith and concurred In by Chief Justice Jus-tice CMerritt and Judge King Its effect Is that the ruling of Judge Bartch granting the writs of mandate Is sustained sus-tained and that granting the writs of prohibition is denied the latter fpr the reason that after the granting of the writs of mandate the prohibition proceedings pro-ceedings were useless Their honors hold that there were no discrepancies within the meaning of the act to justify going to the ballot boxes that the duties of the commis Eton j3 ministerial and not judicial and tet where discrepancies arise such as wil affect the election of any candidate candi-date the Utah Commission has the right to go into the ballot boxes without with-out the appointment of an Intermedi ntory board of canvassers I was stated that owing to the short time allowed their honors to decide the question the concurring judges did not have an opportunity to fully go into the reasons set down by Judge Smith for th decision arrived at and although al-though they might on some points differ dif-fer from Judge Smith in his definitions of the law their conclusions in these cases Trereldentical The opinion in full is as follows The Opinion Thi was a nroceedlntr In mandamus be gun nb the plaintiff against the defendants defend-ants to compel the issuance to him the plaintiff of a certificate of election as a delegate to the constitutional convention soon to meet under hc enabling act to form a constitution for the state of Utah The affidavit on behalf of plaintiff on which the alternate ivrlt was issued setout set-out substantially that the plaintiff was en elector duly registered Jn San Pete Bounty Utah territory at the time of the general election held November 6 1S91 in said territory That the defendants constitute the board commonly known and called The Utah Commission the same being created under section 9 of an act of Congress approved March 2 1S32 and commonly called The Edmunds Law That an election of delegates tote to-te constitutional convention for the proposed pro-posed state of Utah was legally held on i P Ji rl November 61S91 It set out in detail that the judges of election were regularly appointed ap-pointed and qualified and regularly received re-ceived and canvassed the votes cast In KanJJo county for election of the dele gateso said convention It vas alleged that plaintiff was a candidate for delegate dele-gate to said constitutional convention and receives a majority of the fotes cast in said Sanpete counts for such office tate tat-e judges of election made due and legal returns of their canvass of the votes cast for the plaintiff to the defendants who constitute the board of canvassers as above stated That there was no Irregularity Irregu-larity or discrepancy or disagreement appearing ap-pearing from the face of said returns and that bv the face of the returns the plaintiff was elected I is then alleged that the defendants have completed their canvass of the votes and have refused to Issue to plaintiff any certificate of elertfpn although the plaintiff has demanded de-manded the same and that the plaintiff 1a no plan speedy or adequate ready in hip ordinary course of law The alternate alter-nate writ of mandate a Issued and contained the substance of the affidavit Tie defendants answered and denied irst that the plaintiff received a majority ma-jority of the votes cast in Sanpete county coun-ty for delegate to the constitutional convention that discrepancy vention Denied no irregularity crepancy or disagreement appeared on the face of the return and alleged that there were irregularities discrepancies ppfl disagreements that affected nlain its election and allowed there was a disagreement as to the voles cast for plaintiff shown by the face of the returns 1 Third Denied that their refusal to i rue cpriificate of election to the plaintiff plain-tiff was wrongful or unlawful Fotrth Denied that plaintiff was with but remedy And fifth alleged that discrepancies I dis-crepancies and Irregularities appearing I I on the face of the returns they have opened and canvassed the ballots and that It them ascertained that plaintiff is rot entitled to a certificate ol election Without setting out the finding of fact in this opinion hi detail i is sufficient to Fay that the court found the issues in favor fa-vor at the plaintiff on all contested questions ques-tions and especially found that there was HO irregularity or discrepancy apparent re1arit tioninc face of the returns and granted n pf5mptory writ o mandate requiring defendants to issut to the plaintiff the certificate of election a orayed for A motion fo1 u new trial rcas overruled and the defendants anpeal from the Jufigr jsiont and order denying n new t ial Several Sev-eral errors are assigned but they may be grouped under three beads First That the evltence was inpuffi lent to Justify the judgment and decision deci-sion of the court Second The court erred in receiving Sc testlmoni on behalf of the plaintiff and third the court erred in awarding n peremptory rait Y > re shall examine these assignments of error in the order stated AVJiat Constitutes Discrepancies Tli particular finding which Is assailed ns nonsupported by the evidence is the eighth which is the finding in effect that there were no irregularities upon the face of the returns authorizing a recanvass of the ballots cast We have carefully examined the evidence contained in the fctatement including the original returns which are mad a part or It and are unable un-able to find any Irregularities or discrepancies discrep-ancies which in any way eftect the result of tho election of the plaintiff The ir i srularltiee and dlscreoancies which defendants de-fendants claim the returns dIsclose are follows n The registry list containing the word J i cstcd opposite the names of certain livotetS Is compared with the poll Ust or IY list otelS the names of voters made at the I Taectlon and they are found not to core i V jond in certain particulars 3 follows Yin the precinct of Chester Ephraim Uunnlson and Moroni there is found to XX unlson aggregate of seventeen more lezjnarked voted than appear on P 1igt or list of votes made a the tron In tee precincts while 1 the p 3 h r prscincts of Piirvlew Fountain Green t tfanti Mount Iteaftant and Spring there i uppears to Ire aiaggregate of twentyone more names oflvoters on the poll list than there are times marked voted on the registry list and in only one case does there appe to have been any larger larg-er number of v < tes canvassed as shown F the tally shets than the smallest number shown M either the voted registry I regis-try lst or the pill list and this case occurred oc-curred at Mount Pleasant where only 498 I I leasant I names are marled voted on the registry regis-try lst while 3300 votes were cast for candidates for legates to the constitutional constitu-tional conventio which would be fourteen four-teen votes In exSss of the number that could have been legally cast as each voter could only ast seven votes In that county there byOff seven delegates to Sanpete county hY the enabling act This makes an apparent discrepancy of two votes on an avenge for each candidate but in this precinct the poll list shows that 507 men voted which would have permitted an aggregate legal vote of 3549 agegte legl if each man had voted a full ticket oran or-an average vote of 507 votes for the opposing op-posing candidates for each office of deletes dele-tes for the constitutional convention I The plaintiffs majority as appear by the face of the returns was thirty votes over his net comPetitor so that if it be conceded con-ceded that there is an irregularity and discrepancy dis-crepancy In the return from Mount Pleasant Pleas-ant of two votes still it would not affect his election But I is claimed that the difference between the voted registry list and the poll list are irregularities that I authorize a recount of the ballots by the I canvassing board We cannot agree to this The statute after pointing out what shall constitute the returns and that on their receipt by the canvassing board they shall be opened and exam ined provides And if no Irregularity or discrepancy appear therein affecting the result of election of any candidate they shall accept said returns a correct but If the rights of any person voted for for any officials are in any way affected then the canvassing board shall open the pallets from said precinct and canvass the same so far as to determine the rights of the person whose office may be affected See Sec 250 par 324 of Vol 1 Comp Laws of Utah I will be seen that the irregularity and discrepancy must appear upon the face of the re turns in the language of the statute It must appear therein 1 must be such as to affect the election of the can didate and I is apparent also that it must be one which may be corrected or reconciled by a recount of the ballots otherwise a recount can do no good Now let us see what irregularities or irelaItes discrepancies would fulfill these manifest requirements and whether requirements nnd the difference between the voted registry lists and the poll lists are of such character The tally sheets according to the statute are to be made in duplicate and are a tabu lation of the face of the ballots Maui festly therefore if there appears to be more ballots counted than were cast as shown b r the voted reSstry list and poll lst this is an irregularity indicating that the judges have made n mistake in the count or that they have suffered bal lots illegally to be put into the boxes and counted A recount of the ballots will at once disclose which it is and permit its Instant correction but it may be asked Is the tally sheet slows a less number than the Poll list and voted registry list why is not this an irregularity The answer is Plain The votermay not vote a full ticKet Some names may be scratched and no others inserted This would be perfectly legal The presumption is that the judges of election have done their duty Therefore when they make a return which is legally consistent with itself no irregularity is then apparent therein and whether tabulation of the ballots shows a number of votes counted no greater than is cast then the return is legally consistent cast statute requires the tally sheet as we have before stated to be made and re turned In duplicate I they agree with < agee each other there is no discrepancy if they disagree then a recount of the bal t will show which if either is rJirhr This discrepancy tberefore is one pointed out by the statute that author izes a recount of the ballots We have nave seen that the return from Sanpete county at the late election in every instance shows either an equal or less number of Votes counted than w ie cast except at Mount Pleasant where there is Plesant a disagreement dis-agreement of two votes between the voted tl voed registry list and the tally sheets and there is no discrepancy apparent in the duplicate tally sheets at all The dif ferences between the voted the registry list and the poll list could in no wise be reconciled rec-onciled or explained by a recount of the ballots and It is not pretended that they could we are therefore of the opinion that there were no irregularities or dis crepancies appearing upon the face of the returns affecting the plaintiffs elec ton and that the court below properly so found Posacas Ministerial Power Only The next question Is whether the court erred in admitting evidence in support of me alternative writ of mandamus The contention of appellants is that inasmuch as the Jufendant canvassing board must in the frt instance decide whether there are irregularities that their decision is not subject to review by mandamus and it is not denied that this proceeding in its nature does attempt to revise their decision in this matter I do not know j tho other members of the court agree with me In this statement but I am of the opinion that the powers of the canvassing can-vassing board under section 236 above I cited are purely ministerial the last I clause of that section not embraced in I the citation Is not involved here but 1 may say in passing that I think it wholly I mandatory as it does not empower the board to render any decision or take any action on the proof which it may receive re-ceive Every canvassing board must decide in the first instance what are the returns of the election but it has never been held that this was the exercise of judicial power I must determine that fact from the face of the returns themselves and cannot go farther and It may not capriciously capri-ciously reject returns for some imaginary or real informality which does not destroy the character of the returns a such In the case of State vs Steers 44 No 233 i was expressly decided that mandamus would he to compel n canvassing board to accept and canvass a return from the precinct which they had undertaken to reject It was held that their powers were purely ministerial ana subject to I control by mandamus even in respect to deciding election what were the returns of an See also HIcGrary on election third edition section 221 and 227 I have attempted at-tempted to show the determination as to whether there were irregularities or discrepancies dis-crepancies was to be made from the face of the returns alone and involved nothing moro than the simplest kind of a prob lem in arithmetic and if found to arise the resulting duty was to recount the the votes in the boxes another purely mInisterIal min-isterial act To hold that either or all of these duties are judicial I cannot As well might we say that the action of the I county clerk in calling up the tax roll or I that of n commissioner of schools in apportioning school money amongst the I several districts of the territory is judicial judi-cial The truth is that the statute declares de-clares what the decision must be when the mathematical calculation is completed com-pleted There is no room left for discretion or judgment there is no power or right to decide in but one nay and that is according cording to the result of this mathematical problem which must in its nature be exact I I know the distinction between ministerial minis-terial and judicial duties the powers of the canvassing board in this territory belong be-long wholly to the former class and i is not the duty of the court a I conceive It to In any wise extend the powers of such boards There is much in the record rec-ord in this case and in the kindred case In prohibition which was heard with i in this court to indicate corrupt and crimInal crim-inal practices Intended to affect the elec tion occur ng between the election and the canvass by defendants In fact in the prohibition case the court expressly found there had been corrupt and criminal forgeries for-geries and It is not denied that such did exist the tally sheets and upon taly shets returns made and while In my view this evidence could have no proper place in either of these cases inasmuch as the canvassing canvass-ing board had no power to hear evidence In regard to It and while it is not hinted on either side that the defendants are In any wise responsible for these practices yet it only too clearly demonstrates the danger to fair election that would result from the exercise of such power as is claimed by an Irresponsible returning board The performances of boards of this character assuming judicial functions j in Louisiana ana other southern states in 1S7C are matters of iecent history in this I cpuntry and known to us all They be I t Continued on Page 3 on i r S THE MANDATE WRIT STANDS Continued from Page 1 cam so corrupt and outrageous as to bring the nition to the verge of civil war and with this historical example before us it seems to me that we should below be-low to cUlarge the powers of such a body in this territory In the direction claimed I am therefore of the opinion that the court properly permitted the evidence offered by the plaintiff I An Intermediate Board Not Necessary Neces-sary The last question is did the court prop rly render judgment awarding the peremptory emptory writ This brings us to the consideration of the power and duties of the defendant board Tho board is organized by the ninth section of what known as the Edmunds act The third clause of that section provides The canvass and return of all the votes at elections in said territory for members of the legislative assembly thereof shall also be returned to said board meaning the defendants which shall canvass all such returns and issue certificates of election to the persons who being eligi ble for such election shall appear to have been lawfully elected It is admitted that this legislation of Congress creating the Utah commission and authorizing it to appoint registration and election oiflcers did not repeal any part of the election laws of the territory of Utah except that part which provIded the agencies by which such laws were to be executed There is no contention between counsel upon this Joint By the enabling act delegates to the constitutional convention are to be elected and the votes therefor to be canvassed In the same manner provided I by law for canvass and certification of the election of the members of the legls ative assembly The whole controversy turns upon the proposition as to what part of the duties and powers conferred by the territorial election law passed directly di-rectly to the defendants and what part passed to their appointees provided for in the second clause of the ninth section of the Edmunds law i Formerly the county clerk and Borne I members of the county court received the I returns of election both for the legislature I legisla-ture the county and precinct officers and territorial officers direct from the judges duties in I of election and the prescribed section 256 above cited of the election law were the duties and powers conferred upon the clerk and members of the county coun-ty court as a canvassing board It is claimed by one of the counsel for the respondent that these duties are still to be performed by some board appointed In the county or rather by some person to use the language of the act of Congress Con-gress appointed In the county while one of the counsel for the respondent and both counsel for the appellant contend that the judges of election are to return the canvass of votes for members of the legislature and therefore the canvass of votes for candidates for delegates to the constitutional convention directly to the defendant board We agree in this latter opinion It seems to U s the only construction con-struction which will make all its parts consistent and which Is the construction which we placed upon the statute by those charged with Its execution immediately Im-mediately after it was enacted twelve years ago If it were a case of doubt this contemporaneous construction should have great weight with the court in determining de-termining the meaning of the statute However its meaning appears plain to us that the return of votes means the return re-turn hv the first agency who are making ho returns towlt the Judges of election after they themselves have canvassed the Ballots cast I The language is The canvass and return re-turn of all the votes at the time of the election shall be returned to said board We think this means that the judges of election shall canvass the votes and make their return in the manner provided bylaw by-law direct to the Utah commission and that they shall thereupon proceed to canvass can-vass any such election in the same manner that the county court was formerly possessed and W more The statute clearly provides that the defendant defend-ant Tioard shall issue to tne members of I the legislature and therefore by the I enabling act to delegates to the constitu tional convention certIficates or eieccion to the persons who appear to have been lawfully elected As we have already seen the returns show that the plaintiff appears to have been lawfully elected Our conclusion therefore is that the court properly found there were no irregularities I ir-regularities or discrepancies affecting the election of the plaintiffappearing upon the face of the returns That the court properly awarded the peremptory wrIt against the defendants commanding them to certify to the plaintiffs election We are asked to set aside the judgment for costs in this case because the defendants defend-ants are public officers acting in good faith If the audgment against defendant Is right and we have seen that it is then we cannot disturb the judgment f o cta ffpotlnn S6S4 of the compiled laws provides Costs i are allowed of course to the plaintiff upon a judgment in his favor in the following cases S Fourth In a special proceeding ThIs is a special proceeding See code of cIvil procedure part three title one section 3T1G to 3749 I For the reasons stated the judgment of I the court below is affirmed with costs rronilJitlon Suits Useless In the prohibition cases the opinion says We do not care to go Into a lengthy discussion of this case This action was a useless multiplication of remedies if it was a remedy at al The whol question was before the court in a proceeding of whlchi this is a mere counterpart There would bas b-as much reason to permit a plaIntiff in ejectment while his suit was pending pend-ing to bring an action in equity to enjoin his adversary from asserting a hostile title as to permit this proceeding proceed-ing or to further illustrate while I mandamus proceedings were pending against a clerk to compel him to Issue an execution in favor of the plaIntiff upon a judgment in favor of the plaintiff to permit also a proceedIng in prohibition to prevent him from issuing is-suing one In favor of some other person per-son This kind of multiplication of remedies cannot be permitted The judgment In one case Is just as effectual ef-fectual as a judgment In both There Is but one duty for the defendants to perform and when they have performed formed that duty legally their functions func-tions cease in that respect entirely When they have performed their duty under the judgment in mandamus man-damus proceedings they will no longer possess the power to issue a certifi cate of election for the office to which the plaintiff was elected and If they should do so their act would be of no more effect than if any other equal number of men holding no official position sItion had done the same thing We think the court below erred in entertaInIng this proceeding at all andre and-re of the opinion that the judgment I should be reversed that the case should be remanded with direction to he court below to dismiss the proceedings ceedings respondent to pay the costs of this court and of the lower court |
