Show THE MANDAMUS CASE a DEMURRER hus VS ftfe eife HE kiec LIEc riON I AW VALID A MANDAMUS TO ISSUE this morning at ten judge schaeffer Bc haeffer rendered a decision on the plaintiffs demurrer in the tooele thoele mandamus case the following his is written opinion THIRD DISTRICT COURT utah territory F M LYMAN vs all ail ENOCH MARTIN et ct al J demurrer io to the answer of defendants the affidavit of the plain plaintiff tift tilT in substance stated states that plaintiff plain tifT is a citizen of the united states of lawful age a resident and voter of tooele thoele county I 1 utah territory that on the theoph M th day of august 1878 8 an election election was wits held in said county coun at which plaintiff voted and with several other dersa persa ders pers a he be I 1 was tor according to law yaw tb that what bl at plain plaintiff tint tift was a candidate and massuch as buch such was voted for for the of county recorder and for the office of representative to the territorial rit nit ri orial legislature liegi slature that the defendant on and before that time was and now is clerk of the co county anty court of owsald said sald county and that the other defendants were and now are members of the county court of said county that on the ath day of aug Aus rust 1878 the election returns from all the precincts in said county were or had been sent to and received by the defendant enoch martin as such clerk that about 3 pm of said ath day of august 1878 the said martin as such clerk had all the said returns and the tho ballot boxes from all baid enid precincts in the presence of the other defendants or members of said county court that sald said ballo ballot t boxes were all securely sealed or locked that envelopes secured and safely sealed containing the lists hats required by law to be kept addressed to said clerk from the following named were then and there in U the said clerk to wit jacob C city ity stockton grantsville Grants ville tooele thoele city mill Bates batesville ville lake view bt johns vernon and quincy quiney and the ballot boxes from the other precincts in said county were then and there in the possession of sald eald clerk and that plain plaintiff tift is informed and believed they contal contained ned the returns from said other precincts that the plain plaintiff tiffand and other persons who were voters or ot candida candidates tes tei were then present atTo oele city C in said county and then theft and there demanded that the said clerk break the seals and dud open said election returns and that he in connection with other defendants as such members of the said county court carefully examined said returns and canvass the tho same as required bylaw by law but that the eaid said defendant martin aa as such clerk then and there utterly and absolutely refused to open said eaid returns and lie he and the other members of said eaid county court the defendant By dalch daich then and there refused to examine and canvass said returns or any of them either at the time aforesaid or at tit any time and that they still refuse to examine or carl cari canvass vass the same or any part thereof giving asa as a reason for such refusal that the returns had not been sealed with wax whereas in fact some of them were sealed with wax and the remainder thereof were otherwise safely and securely sealed with mucilage or other tenacious substance or con talked in ballot boxes as aforesaid and then prays for a writ of mandamus etc an alternative writ was issued and a rule to show cause if any why it should not be made peremptory was served the defendants except the defendant now nov now nov answer in substance admitting that the defendants held and still bold the official post eions as alleged by plaintiff that on tbt ath day of of august the defendant fen dant enoch Bl martin artin acting in his capacity of such clerk and the other defendants as members of the county court after the returns of th the election mentioned in bald said affidavit had rind been received and placed before them to be canvassed as by the pretended law berelia hereinafter after aften referred to required then and there proceeded to examine the baid eaid returns and then and there fully passed on the same and canvassed the force effect and iera legH legality lIty of said bald returns and then adjourned the answer then denies that the ballot boxes were locked and securely sealed or that envelopes containing the lists required by the pretended law hereinafter referred to to be kept addressed to said clerk were in his possession securely sealed at the day above named or abany at any other time from the precincts of jacob city stockton grantsville Grants ville tooele thoele city mill bill batesville ville ile lle lake view st john vernon and quincy or from any of the said named precincts denies on information and belief that the ballot boxes from the other i precincts contained the returns from the tie clerks of said precincts or any other returns securely sealed as required by the pretended law hereinafter referred to denies that a demand was made on defendants td open and canvass the returns as alleged in the affidavit denies that dependants refused to examine or canvass said returns or rny any of them at the time f fled tied in eald affidavit or at any I 1 other time but on the contrary these defendants efen dauts allege that they didon didou emmie iffie gub oth day of august at tooele thoele city being then and there la bession session as a board aboard of canvassers carefully examine and canvass sid ald returns and wad fully passed on tho the th same and caux eaux assed the and legality of haia enid iek yet leyonna ams and rejected the same as illegal and void that they then and there completed the canvass thore thereof of the answer then alleges that an election was held on the ath day of august substantially as alleged in plaintiffs affidavit but that the pretended law under which it was held was void having never been passed by the legislative assembly of utah and that therefore the said election was wa kasnot snot held and the returns thereof not made in accordance cor dance with any law then or since in force asks atlis that the writ be dismissed and that the t defendants ant recover costs ta this anaw answer or the plaintiff filed a general demurrer which is now to be passed upon it will be observed that the answer admits that the returns had received bv the defendants on the ath day of august and it dfcia is twice alleged that they wernex were examined and that the defendants then and there fully passed on the same and canvassed the force foree effect and legality and that the defendants i ejected rejected the illegal and void it is not said that the defendants examined and can cassed the papers purporting to be returns and found them to be no returns and the rejection of them ia is not in the answer based upon i the fact that they were not the returns or of the respect respective precincts ai was argued by defendants attorney 9 but the answer seems eema to be based upon the assumed ground that the law under which the election vas wai held was void section 18 of the election law in controversy provides that clon on receipt of the ballot boxes and returns the clerk elerk in the presence of 0 at it least one member of the county court who ia Is not publicly know c candidate andi andl date voted for at buch such election shall break the seals ol 01 the returns and all candidates wiy may be present as provided in section 15 1 in this act and said clerk and add ad member or members of the tho county court shall carefully examine the returns and if no irregularity ot of discrepancy appear therein affect ing the result of the tho election of any ady shall accept ald aid said returns as correct but if the right of any person voted for for any office is in any way affected affect edy eds then the clerk and said members of ot the county court shall open the ballots from said precinct and canvass the same so far jar as to determine the rights tights of the person whose mee office of elijay may ae 6 affected they may also cause enuse to appear before them any huy persons whom they may deem proper shil ahll an d take th in le ie lation to said baid election in said precinct section 25 provides that any dinis omission slon sion or irregularity 1 of any assessor or other offic officers erb ers pertaining tog too to lection election matters shall not invalidate vall date dato any election or authorize the rejection aej action of any legal kotes rotes cast miep to the extent tha thaC tsuch such omission or irregularity shall have pre pro faim fair 11 1 f 1 section 19 points out the duties of the clerk ot of the county court and the members of said court acting as a board of canvassers in id cases eases where off meers officers are to be elected in districts composed of more mord than one county and in cases cages of tle tie under this law jaw the first duty of defend defendants sno anO after the returns on papers were where received by the clerk was wae to determine whether they were such returns which they might do from an inspection of the pa papers and if there was any omission in them the canvassing board should have sent for proper persons persona and taken their testimony mony moDy on the subject and being satisfied that the papers were the returns they should have carefully compared the several lists of papers and thereby as ascertained certa ined whether there was any irregularity in them and if they discovered any such irregularity they should then have opened the ballots from such precinct and canvassed v ased them with a aview view to determine the tho thoughts rights ot of the person whose office was affected and for this purpose they might have taken testimony on the subject the requirements quire ments of bf the statute that the ballot boxes should be locked and securely sealed and that the return lists should be securely sealed arg directory and the failure lire of the judges of election to comply therewith would be an irregularity larity but should not invalidate the election or authorize the rejection of votes which otherwise appeared to be legal I 1 the statute imposing the duty to td open the returns and specifying the time and specifying the circumstances cum stances under which it W was a to be bedo dadej doand and it being a n matter aa it ta arof enof of public interest as well as a benefit to the plaintiff plain tint tift and others who were voted for no denland demand was wag in my judgment necessary whilst under our statute it doubtless true that the board have to perform bome some duties which partake 0 ot a quasi judicial nature as far as it concerns the determination of whether the papers received and purporting to be election returns are in fact such yet beyond this preliminary question their duties must be regarded as mainly ministerial minister lif and ana even in casas eases cases where they are authorized to exercise a discretion they can be compelled iby manda musto act and decide bulit buu but if they decide erroneously the injured party must resort to some bome other proper remedy to have his wrongs redressed sed the office of of mandamus is to compel coffiel the performance of acts purely ministerial in their nature and it may inay be employed to compel but not to control the exercise of Jud judicial lelal iclal functions according to the answer of the defendants they have not noi perd perr performed ormed the duties imposed upon them by the statute but they have assumed to pass paw upon the tho validity of the statute and having decided that the statute hasvold was void vold they did not go any further the answer in in my oy judgment ud sets ieta up no good reason a w why hg the pew peremptory apt ory writ should 3 n not ot 1 issue the demurrer to the ihn answer must buu bum sustained it ia is insisted however that the demurrer should by relation back go to the affidavit of plaintiff upon which the writ is the qu question estfon whether a demurrer to a subsequent pleading will relate back to a prior pleading to which a demurrer had previously been over I 1 am clearly orthe of the opinion thief the neav new point sought to be taka thia taken taia against the elect erect election erection iori lori law to wit it t that thal it in it its s first section it re a qualification for male alq from that which it requires for female voters is not well taken our laws have lave always recognized a different rule in regulating the banel banet obligations of maio majo citi zeris zelis regu U lates the rights and obligations of female citizens in many particulars and while it is true that our obligations grow mainly out of our rights and that when new rights righta are conferred new obligations are thereby imposed yet I 1 know of no constitutional prohibition to conferring upon females special privileges in iii the exercise of the elective franchise and to require them to be tax payers would in most moyt instances deprive them of voting whether thi thia glaWs aw ill III that or in any other re Is wise or politic is not now the question I 1 think the ehe legislature bad the right to make the distinction if it it saw proper to do so 80 and having previously held that the law in question quest son was regularly passed the peremptory writ of mandamus should issue M iz judge |