Show DECISION IN THE constitutional ELECTION CASES follows following ng to la the full text of the decision given in the third district court friday by judge bartib in the case ot of J D page pages ve Commission the county constitutional election elec ilon oases cames the relator in this ease was waa at the general election held to in november 1894 a candidate for delegate to the constitutional convention which la Is to convene in march 1895 to draft a constitution for the now new state in pur nance fuance ot of the act of july lath 1894 known as the enabling act the defendants constitute the utah Cow commission mission a board appointed by the febe president of the united baates and clophed with certain powers under the laws of the united states lothe management and conduct of the elections in this territory the controversy arose because of an attempt by the commission ito to certain powers which the relator claims are not within its province and because ol of its failure to perform certain sets acts which the relator claims it was its it duty to perform the tais relator avers that at the time of the election which was held on the ath day of november 1894 he be was a duly registered and and qualified elector and candidate in the county of in this his territory Teni tory and was eligible to the office for which he was a candidate that judges and clerks of election were appointed as an provided by law and noted acted at ai saiu said election anu that the formalities provided and required by law were in ail respects complied with and the election was in all respects duly and legally that as soon as we the polls closed the fuges and clerks immediately attly proceeded to canvass tun the votes castin cast in the several precincts ol oi said county and without completed WO canvass in accordance with law that he was a candidate for election to 10 the office of delegate to sale onto constitution as 88 one of several delegates ates apportioned to said amid county by saiu enabling act that it was determined by beald said canvass that he be received a majority of the votes cast for saiu mato office that the results ol of said canvass were placed on we the lists were certified corti llod and toe the lists sealed and forwarded as directed by said utah I 1 in n the manner provided by law jaw that thai said commission received the returns of said election and having broken the seals and carefully examined the returns no irregularities or dis appeared therein affecting the result of said eaid election or the result of the election of said relator or of stay any candidate for said office nur mr the of any person voted tor for for said office that bat the she said commission refused to accept said returns as cOrte correct ct bat theft WM WAS no occasion to open the ballot boxes irom from we the precinct of said laid county for the purpose ol of canvassing the ba same to determine the rights ol of any person to said office because there was wa no disagreement in the returns which affected the rights of any per son tr to said office that the after the completion of the canvass can refused to declare the result thereof and refused to make an abstract thereof or to certify to its correctness as required by law jaw mud aud that it has refused to make an n abstract of the returns showing the election of the relator to said office or to make out and transmit to him a certificate of his election niter alter demand made the defendants deny the allegations of the relator as so u his right to the office aa a result of said maid election and that there were no discrepancies in the returns of the election which affected the result of the elect election ign an aa to the relator or others and allege that there were such irregularities and discrepancies on the face of the he returns that the he right of the relator was affected tao thereby reby and that for that reason there was occasion to open the ballot boxes and became of such irregularities and ana discrepancies the ballot boxes were opened by the defendants defend auta auts in order that the ballots might be canvassed and the error por corrected rooted after an alternative writ of mandate had bad been granted the relator made application for a writ of prohibition alleging substantially the same facts and asked that the defendants the saiu said utah commission be prohibited from certifying the result of said election and tue number of votes cast for the plaintiff from the canvass of the said ballots otherwise than from said returns an alternative writ rit was issued as prayed for and thereafter various other candidates for delegates to the constitutional convention applied for writs of mandate and prohibition all of which were based substantially on the same facts and raise similar questions of law therefore it was agreen by both sides that the determination of the questions of law under the he statute raised in the case at bar should determine such questions raised in all similar cases pending in this court it appears substantially from the facts admitted and from liao evidence in the case that the rel relator oktor was wag t i candidate in Ball pote county tot for the office of delegate to the said constitutional convention that the election tor for such delegates was held on the bab day of november 1894 that registration officers were appointed and the election conducted oen ducted substantially as an required by law jaw that the ballots wort were canvassed the results declared deo Jared anti anil returns forwarded by the election officers that the papers or documents forwarded warded lor by said officers to the defendants conflated ol oi tue toe poll list hat and tally sheets in duplicate duplica tt that the defendants received the said returns and canvassed the same that the tally sheets show the number of votes cast at said election in said county a as canvassed and declared by said election officers and show that the relator to said canvases received a majority of the votes cast and show no irregularity or discrepancy as to the Kela relator tors or as to aff affecting acting his right or the right of an any person to the office that thai able defendants by comparing the tally sheets slie litS with the registry lists mind and judges V lists and by adding together we tee whole dumber camber of votes cast and dividing this sum by the number dumber of candidates and then comparing the result thus thug obtained with the results on the he registry and judges dig dia in said county amoun amounting Ung to 44 votes which were more than the majority of votes in favor of the ro re lator as an shown by the tally sheets beets and that hat the defendants refused to issue a certificate of election to the rotator relator after demand made claiming the right to go behind the returns and the ballots under this state of facts and the pleadings in the case came it becomes new feces nary to inquire what powers th abde defendants fend ten danta ants may or may not exercise and what its duties are in the conductor conduct of elections the laws applicable to this ibis case came are found in the act of the territorial legislature approved february 22 1878 aud and in the not of congress approved approve 1 march after the provision made for the registration ot of voters the said laid territorial in section 9 provides as aa lol lowe low the county court shall hall at it semion in june of each year ampol appoint 9 three capable and discreet persona ini in each precinct to in the county one at least of whom shall be of the political party that was in the minority at ai the th last previous election it any much party there be in bob such precinct to at MB is judge ot of general and special sloe eleo lions and wey bey shall designate desI guate one or oc the persons persona appointed to preside pr eskle anui theother two to act as clerks ot ol said ald aid then provide that such persons beall be notified ot of their ftp ap by the clerk of aceb court and how they shall quality qualify and in case of a vacancy how it shall to diled i I 1 this section places the power to sip an point the judges of election in tile tn county court and section 10 id mke ii 11 the duty ot of said court to provide the she necessary books booke blanks stationery anu and ballot boxes tor for the election aud epe pool fles how and with what material the ballot boxes shall ahall be made with what kind ol of looks and number of 01 key they shall be provided and by w nomine keys key a are to be kept section 11 id after requiring the county court shall tur bleb the thai judges of eleo election gion la in every pre precides cines with envelope enve lopea directing how they shall be made provides provide Bo belore lore opening the pons the ballot boxes shall be carefully oare tully examined by the ibe jud judgener judged geser of election who shail ahall satisfy ahat nothing doming lit iti therein it abah then rm ir looked locked and the mae key thereof delivered deliver edl to the presiding fudge and the ballot bux shall not be opened during the be oleo lion under section 12 id this the judges of election at the opening of the poil sar required to unreel one of the judges acting as clerk to have in the registry or of voters and to make tn inar entries therein required by law and we bolher of acting as clerk Is n required quiren to arilo the lila name of each voting mud and opposite to it the number ol of thu vote as it 16 is pulled polled tibia section authorizes the keeping of two twe lists listo one the registry lisi lists which contains the registration of voters to b kept while the polls polli are open by oft 0 of toe thi judges judgen acting as aa work the other tile thili judged list lilt on which is ia to ae be writ teu the name bof or each person parson voting by the other ludge judge acting as aft clerk this IM hat is to be made up as aa the voting progresses gr Cree esses see section 18 id provides how the ballot shall hall be prepared by the voter to whom it shall be delivered by whom and under what circumstances deposited and section 14 id provides shat where a person jarson has cast nis his ballot the judge fudge having the registry list lisi shall liall write opposite the name of such person the word voted and tue atie other judge acting as aa clerk shall write upon a lint to be made by him use the name of such voter and the number ot at the vote the lists lisis here referred to are the some same as an those mentioned in section ecklon 12 thus fat far the act deals almost entirely with the registration of voters their qualifications and the manner of holu and conducting albe election elect ione and ot dt casting and receiving the ballots the requisites necessary to constitute an elec election tiou lawful are clearly and distinctly set met forth when the ballots have been received and the polls closed it is incumbent bum bent upon the to ue determine termine we result ot of the the legis hazure has clearly indicated how this kwaii be done 15 id reads as aa follows vas AB A B soon aoun as aa gnei ane polk shall be closed tie judges of election shall hall immediate ly proceed to canvass the votes cast at iron election and continue without adjournment until completed and man provides that all candidates may maj if be present either in person or by rep ren to witness the canvass d that when two ballots are found in one envelope only one shall be emil counted ted the judges must proceed with the immediately after the polls been closed and continue without intermission until completed thlu dion is Mrinda mandatory Lory and is Tl VI dently intended to prevent any un interference with the ballots 16 id specifies that the fantes acting as clerks shall oom com the canvass by their lists to ascertain the number of mf votes cast that is in the registry list 1 0 o I ti 91 e jud judges es list mentioned in sec c then doa 12 then the boxes shall ball be the he ballots counted and nd the acting as clerks shil shall snob intake a list of all persons voted for it provides as follows fol lowe the pre aiding I 1 fudge a dge shall then proceed to open A ballots bailor and call oft the amee of the persons voted forand the friol bame bey are intended to fill and the images acting as clerks shall take an of the same upon their date sad nad all the ballots shall immediately be Mo turned to the ballot box and the 6 box shall be looked and securely issi kled alede this section gives specific directions bow to proceed with the canvas and what to do with the ballots after ane mafte toe have been canvassed its ita intentions are mandatory and the judges intentionally or wilfully dla bwy them without doing violence to lhoir oaths the list of all the persons voted for which each judge acting as an irb to is by the terms of at the statute re coifed to make in ia what to is known as tally lit list and la Is distinct from those ja mentioned in section 12 it to out bot upon the judges judge to look and se aurely seal the ballot boxes after be ballots have hare been returned to them section 17 reads reada as follows follow after the canvass shall have been completed the tho judges of election shall add up anti and determine toe the number dumber of votes cast for each person for the he several offices which result shall be placed on the list made by the judges acting as clerks of the election and the judges shall thereupon certify berti y to the same and forward all ail the he lists securely sealed to gether with the ballot box to the clerk of the county court by a qualified voter of the county comity who shall before taking the same take and subscribe an oath to the that he be will deliver the same to the be said clerk without un on uni i necessary nece esary delay and anat be will use his bis utmost ability to prevent say any interference whatever therewith by acty any person whatsoever it will be noticed that this section imposes upon the he judges the duty to determine the number of votes cast tot lor each candidate for office place the result upon the lists of the judges acting as clerks certify the same and forward all the lists liste securely sealed together with the ballot box to 0 the clerk of the county court and they must be so for warded by a voter under oath for the law jaw makes this a pren qui site it was evidently the intention of the legislature that the delivery by the he judges to such qualified voter should be a personal without delay and likewise the delivery by him to said clerk and this to avoid unlawful interference any other manner or any other means of forwarding iu its unwarranted under the law when all the lists and the ballot box have thus been forwarded to said clerk by be abe judges their authority as such election judges to is man at an end nor have they any further responsibility the lists thus forwarded are mentioned as returns in the next section ol of the act and there has been much contention on the question as an to what lists or documents constitute the election returns counsel for the relator ap pear to maintain that the tally sheet orl or lists lets made by the two judges acting as clerks while canvassing the vote alone constitute the returns while counsel tor for defendants insist that the registration lists and judges list mentioned in section 12 together with the tally ally lists constitute the returns I 1 am of the me that counsel for the de fen ten jants are correct in their view oo on this question the legislature evidently intended by the use of the word all in ID the clause and forward all the lists securely sealed 31 1 to include not only the tally list but also the registry list and the judges list in order that the canvassing canvas aing board which would have charge of the same thenceforth it if in any proper case li it would become necessary to again can vass vaesther the ballots mig might b t be placed in the same position so tar as the lists were concerned us the judges of election were in when they |