| Show THE gubernatorial FIAT 1 declares that 1357 Is greater than its ILS assumption of judicial powers A rieff refuting document on the day of december 1880 the secretary of th the T territory err ory in my presence opened ah the returns received by mail of an election for delegate of the territory bof utahan utah in the forty seventh congress held on the tuesday after the first monday of november of said year the returns show that george Q cannon received votes guid arid allen alien G campbell received 1377 votes at that time notice of protest by alien allen G Cath campbell campbeli was given which protest was afterwards filed object objection objecting in to L a certificate being issued to mr tannon cannon following is J the protest the protest was wag published in full in our weekly issue of dec dee the answer answer of mr cannon to the protest protest of mr campbell was filed before me january 7 1881 which answer is is as fol foi follows ibs lbs to his excellency eli ezi H murray y Go governor vernot of the territory of utah ta h sir SIK in reply to the communication of alien apen G cans Cani campbell campbeli esq in in which he protests aga against dinst the issue of a certificate of election to me as delle delie delegate te I 1 of the territory of utah in the po forty arty seventh congress of the united states and demands the issue of the certificate to himself I 1 respectfully submit the following statement the grounds on which mr nin ca campbell in bases his protest and demand deman are 1 that as canvassing officers the tho governor and secretary have power to tog tot 94 go behind the returns and ascertain from extrinsic rinsie eit ext evidence the number of votes legally ast cast tor for each candidate z that there as no evidence tending to disprove P r ve his qualifications ton tor the office of delegate t 9 1 to congress 3 that there la Is no evidence tending to disprove p 0 the qualifications of the 1357 electors electora who voted for lor him 4 that I 1 am an allen alien 5 that being such I 1 am not eil clI eligible gIble to td the office ot of delegate in Con congress gress gregs and that my ineligibility resulting from aliena allena alienage ift iid I 1 h alt aggravated grava ted by polygamy which he thinks is incompatible with citizenship and inconsistent with an honest oath ot of allegiance to the constitution of the united states 6 that all of the votes cast for me at the late election are therefore void and are to be excluded from the canvass 7 that as a consequence the certificate of election la is to bo delivered by tho the canvassers to him and not net to me 8 that the females in the territory who claimed the right to vote outnumbered au all the votes polled at the late election 9 that it must be taked taken for granted that all ali votes cast by females were ivero cast for me 10 that the territorial legislation which extends the right of suffrage to females is void U that it Is therefore impossible to determine without proof that the votes cast sor tor me inc included eded more legal votes than the thel 1317 votes cast eart for him 12 that the votes of the females have vitiated the election with your excellency permission I 1 will answer these several propositions in their order 1 the process of reasoning by bir which mr campbell reaches the conclusion that the governor and secretary as canvassing officers have power to go behind the returns and to ascertain from extrinsic proofs the number of votes cast for each candidate is the first to be considered he refers to the following provisions of the compiled laws of utah 23 immediately upon receiving the eleo toral toai returns of any precinct precincts the county clerk and probate I 1 ludye or in his absence one of the selectmen shall unseal the list and ballot boxy box and count and compare the votes with the names on tho the list listy and make a brie abstract of the offices and names voted for and the number of votes each person receive ed the ballot box shall then be returned nd the votes and list preserved tor for referenda repe refe renoa in case the election of any hermn shall be contested 24 when all the returns and abstracts are made the clerk elerk shall forthwith make a general abstract and post poet it up in his office and forward to the secretary of the territory a certified copy of the names of the persons voted for and the number of votes each edeh has liec received dived elved for territorial of floes offices and furnish each person having febo highest number of votes for county and precinct offices tk a certify cate of his election 25 so soon as all the tho returns are received the secretary in the presence of the governor shall unseal and examine them themy and furnish to each person having the highest number nu aber of votes tor for any territorial office a certificate of election he thinks that because these stat atory provisions do not in express terms reg require alre the canvassers to give the certificate to the person shown by the returns to have the highest number of legal votes they by im do require them thern to give it to the person who whatever the ri re turns tuma may show shove did in fact receive the highest number of legal votes that this duty necessarily implies the power to employ suitable means to ascertain who received the highest number of legal votes and that therefore the governor and secretary as canvassers have the right to resort to extraneous evidence to ascertain the real facts in this case he seeks to fortify his conclusion by the following citation from page 52 of Cush ings lugs law and practice of legislative assemblies there can be no doubt that in those branches dh when wherein n the law has bag marked out a definite line it Is ministerial but as regards the two material branches ot of deciding upon the capacity or incapacity of candidates or upon the qualifications or dis qualifications ot of elect elec ormy orty t the e subject requires some bome investigation but it if the returning officer be fully apprised of some notorious whether of a candidate or an elector as their being minors or claiming in the right of property which clearly does not entitle them to the privilege ege he be la Is so far tar a judicial officer as to prevent vent their voting or being returned in J judicial decisions ot of this country counte when the point JS 13 adverted to it seems to be considered that the functions of returning officers are chiefly judicial in their character 1 I respectfully submit thab that each and every avery step in this reasoning is erroneous aront and that the conclusion reached is absolutely destitute of war wor warrant in law the provisions of sect sections jons lons 23 24 1 a and 25 of the statutes of utah confer upon the governor and Secreta ryas cardias canvassing ang v no judicial power to go behind the returns for the purpose ot ascertaining the number of votes cast ear for any candidate it is made maee their duty daty to alcert lin whom the returns show to have received the highest hi hest best number of votes and to gie give i the certificate to him the only judicial or quasi J judicial u dacial power vested vest edAn in them is to determine whether the papers before them purporting i tini to be returns are returns nade made in substantial conformity to the law if they ecile that the papers are aie such uch returns they must embrace their showing show ingin fhi hii fil the official i canvass hns vash vass if they decide that they are i not nob such returns they must clude elude them thein fro from nithe the canvass the pr precinct ehluct judges of elections in this territory mak makei e no returns beyond the mere transmission couii county ty elew clew eeik elea of the sealed ballot bailot box lind and list of bf electors they are tire not precinct canvassers canvassers they do not note return to the colin eolin county tV clerks the number of votes cast for fo reach edeh candidate they only return the ballots and the poll pol lists upon the county clerks ancl and probate judges or selectmen is imposed the duty of canvassing the vot voi votes teIn in the first instance by counting the ballot ballots sr and c comparing om ing their number with the n number u aff r of names on the poll hs ts an a preparing statements of the offices and names name s vo voted ifor and add the number of votes totes cast for ion each candidate the votes and lists are not sent to the secretary of the territory I 1 but re remain malti malfi in charge of the clerks the law makes no provision for any inspection of the ballots or of the poll lists by the governor or secretary before their canvass canvasses can ean I 1 is completed and the certificates delivered to the successful candidates it places nothing before the governor and Sec bec secretary retarn except a certified copy of the names of the persons voted for anu anti ana the number dumber of votes cast for each eath if the tho law w requires them not merely to ascertain the number of votes shown by the clerks returns to have been received by each candidate but the number of votes shown by the ballots and poll lists and by extrinsic proof to have been legally cai cast L for each candidate that is to say not merely to canvass the clerks returns but to canvass the votes themselves and add determine their legality legalley ethen then the law is an outrage not only on the edve governor M or and secretary who are compelled to make makeI bricks without straw but on the candidates whose rights are 6 to be adjudicated by officers from whom ge the law deliberate ly withholds the means essential to correct adjudications this would ie be a most scandalous condition of the territorial law if it really existed but such sueh is not the law of utah butali the hii question astion now under uander consideration has been adjudicated man many times by judicial and legislative tre tribunals in n the tho united states state u upon pa 11 statutory provisions substantially aike like ilke those embraced in sec sections lions 23 24 21 and 25 of tife the laws claw s of utah 1 it has never been decided in fa favor or 1 l of mr cam campbell campbeli mr tac lAc mccrary CrAry in his hig laws of elections sec 82 cor i erectly states the rule established by the concurrent authority of these decision s to be that the canvassers must receive and count the votes as shown by the returns and they cannot go behind tae the returns jor for any purpose and this necessarily implies that when a paper is presented as a return and there is a question as to whether it is a return or n not 0 they ey must decide that question from what h at appears upon the face of the paper itself under statutory provisions similar to those of utah the supreme court of missouri held that the powers of the canvassers were restricted to the determination of the result shown by the returns the fol foi following lo 10 wing ving is the provision of the missouri statute the secretary Secre iary lary of state in the tho presence of the Gover governor nort nors shall proceed to open the returns and to cast up the votes given for tor all candidates mor tor any office and shall give to the person having the highest number of votes mor tor members of congress from each district certificates of election under his hand band with the seal of the state affixed thereto jn in state va vs steers 44 court held here is no discretion given no power to pass upon and adjudge whether votes are legal or illegal but the simple ministerial duty to cast up and to award the certificate to the person having the highest number bumber ol 01 votes totes tle the who new york election jaw law of april 17 1822 provides that the inspector appointed for that purpose shall shail in person deliver to the said sald clerk at the office or to his deputy or to the keeper of the said office a true copy of the said state ment ot of votes and thereupon the board of canvassers stall shall shail proceed to calculate and ascertain the whole number of votes which shall bergiven be given atsuchi at such election in the said county for the several persons who wh oshall shall be voled voted foras govenor senators and representatives in the congress ot of the united states or so many of the said officers as shall bo be voted sor tor and shall let iet down in writing the names of the several candidates so voted for at any such election tor for any of the offices aforesaid and the num her ber at votes in words written at ruil lull length which shall be given for any such candidates at any such election ejection in the said county and shall certify the same to bo be a true copy of the votes totes given in said mid county in the case ease of the people vs van 4 cow which was decided in february 1825 1925 under the foregoing statutory provision the court COWL said the duties of the canvassers are ministerial they are required to attend at the clerks office and calculate and ascertain the whole dumler of votes given at any election and certify the same to be a true canvass this is not a judicial act but merely rial blat they have no power to controvert the votes of lot the electors it is provided in section 25 of the revised statutes of illinois 1856 that the clerk of the county commissioners ners court taking to bis his assistance si two justices justice of the peace of his county countr shall shail proceed d to open the returns and make abstracts of the votes in the follow following man a n hf nor ncr and audit I 1 it to shall be the duty of the said clerk dork of the county com corn 1 missioners ners court immediately to make out a ik certificate of election to each of the persons persona having the highest number of votes totes the case dase of bf the people vs mead head 25 23 ill ili the tho court coutt held this contest under our pur statute is angrl an original proceeding instituted by the contestant lor loi the purpose of trying the legality of the elect election lons long and not of the canvass it goes bo be hind the canvass and purges the elec election tion tiou itself ube the court in trying itis it is not confined to the PC acu books as return u it t can go behind these and inquires inquire by proof debars whether the votes or any of the them 9 were reilie illegal but hut the canvassers canvasser have shave no right rig to do this theirs isa iga is a mere mechanical calor or rather arithmetical duty they may eay probably I 1 j adge whether the returns are in due fo form r M but after that they can only canvass the votes cast for tho the several candidates and declare the re sult section 95 chapter capter 6 of the revis ed statutes of Wl wise ansin 1849 is in these words When everit s hall shall satisfactorily appear that any person has baa received a plurality of legal votes cast at any election for any office the canvassers shall give to such person a certificate of election notwithstanding the provisions of law may not have been fu fully complied n with in noticing or conducting the election or canvassing tho the returns of votes eo so that the tho real will wui ol 01 the people aly not be d defeated by any informality under this statute it was held by the supreme court of wisconsin in attorney general vs barstow 4 wis as follows whether it would ouid have been competent for the le legislature lature under t the e constitution ahl h dele delegates all of the ther judicial power of the the of the state to the state to co courts board rd of state canvassers can rs Jual judicial kial cial authority to settle and adjudicate rights of this nature it is 13 not necessary necess necessary dry to inquire they have not given them any such power their duties are strictly ministerial they are to add up and ascertain by calculation the number of ox votes given tor for aay any office they have no discretion to he arand take proof as to frauds even if morally certain that monstrous frauds have been perpetrated the ninety alnah fifth lection of this statute |
