Davies v. Board of County Commissioners

SULLIVAN, C. J. This is an application for a writ of mandate to compel the board of county commissioners as a board of canvassers of the election returns of a special election held on May 27, 1914, in Nez Perce county, to reassemble and announce and enter of record the result of said election as claimed by plaintiffs. A demurrer to the petition has been submitted by the defendants. The petition clearly shows that said hoard has canvassed the returns of said election; but it is contended that the returns canvassed by the board and the result announced therefrom are not correct returns nor the correct result. It appears that said board has acted in said matter and in acting rejected some of the returns on account of informality, ambiguity or uncertainty, and placed them in the hands of the sheriff under the provisions of sec. 448, Rev. Codes, and he returned them to the proper precinct election officers for correction, and such election officers proceeded to correct such returns and for that purpose they opened the ballot-box as they were clearly authorized to do by the provisions of said sec. 448. But it is contended that the election officers had no authority to open such boxes under the provisions of sec. 442, Rev. Codes. We concede that, but they were not acting under the provisions of that section, but were acting under the provisions of see. 448, which gave them authority to open the ballot-box in correcting the returns. The provisions of sec. 442, as amended by Laws of 1913, p. 379, apply when the returns are properly made out and [454] not returned for correction, but when sent back for correction, under the provisions of sec. 448 the ballot-box may be opened for the correction of the returns. The provisions of sees. 442 and 448 must be construed together in order to ascertain and carry out the true intent of the legislature. Under the provisions of sec. 448, the board of canvassers had authority to reject the returns for the causes mentioned in said sec. 448, and return them for correction. The allegations of the petition show they did just what that section authorizes them to do. The main contention of the petitioners, however, is that the election judges had no right to open the ballot-boxes for the correction of' said returns. That contention is without merit, since sec. 448 authorizes them to open the ballot-box for that purpose. A writ of mandate is for the purpose of compelling the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; but the writ cannot be used to correct errors made in passing upon questions regularly submitted to a board for its determination, provided it keeps within the law. The writ will not lie for the purpose of having the action of a canvassing board declared incorrect and to compel it to reeanvass the votes and change the result from what it originally determined. Mandamus, however, will lie in a proper case to compel action on the part of a canvassing board, but it cannot direct what the result of the action must be. This view of the matter disposes of this case without entering into a discussion of the other points raised. We therefore conclude that the demurrer must be sustained and the writ denied. Costs are awarded to the defendants. Truitt, J., concurs.