State ex rel. McDill v. Board of State Canvassers & the Secretary of State

Lyon, J. Pursuant to the provisions of the statute in that behalf (R. S., ch. 7, sec. 79), the secretary of state appointed a meeting of the state canvassers, to be held on the 3d day of December, instant, to canvass the votes cast for representatives in congress at the late general election. The board met at the office of the secretary at the time thus designated, made the canvass, and orally announced their determination therefrom that Geo. W. Oate had received the greatest number of votes cast at such election for representative in congress from the eighth congressional district, and was duly elected to that office. The relator appeared by counsel before the board, and claimed that he had received the greatest number of votes for such office, and that the board should so determine. His coun - sel also notified the board, informally, that the relator would immediately apply to this court for a writ of ■mandamus commanding the board to determine and certify that he was duly — 503 — elected to sucb office. On the following day sucb application was made to this court, and an alternative writ of mandamus was awarded. By consent of all parties, the writ was made returnable on the 5th inst., on which day the respondents filed their return thereto. On the same day, the relator filed a general demurrer to such return, and the same was argued by the respective counsel. It is averred in the relation and admitted in the return to the alternative writ, that the whole number of votes cast at such election in the several counties composing the eighth congressional district, for representative in congress (excluding the county of Wood), was 17,978, of which votes the relator received 9,087, and Judge Cate 8,891. It also appeared that the board of state canvassers had before it a return made by the county clerk of Wood county to the secretary of state, which consisted of a certified copy of a statement made by the board of county canvassers, of the votes for representative in congress given in that county at such election From that statement it appears that the whole number of such votes was 1,112, of which number the relator received 457, and Judge Cate 655. So if the return from Wood. county be included in the canvass, Judge Cate has 9,546 votes, and the relator has 9,544 votes, which elects the former by a majority of two votes. The relator claims that the return from Wood county is void on its face, and that it is the duty of the board of state canvassers to reject it entirely, and to determine that he was duly elected to such office. The return to the alternative writ of mandamus contains a copy of such return from Wood county, and discloses the precise grounds upon which it is claimed that the latter return is void. The statement of the board of county canvassers (a copy of which, duly certified by the county clerk, is the return under consideration) is as follows: “State of Wisconsin, County of Wood, ss: We, C. O. Baker, county clerk, and William Roche, county supervisor, and H. A. Clark, county supervisor, in and for said county, constituí- — 504 — ing a county board of canvassers .herefor, do hereby certify that the foregoing and within tabular statement is correct and true, as compiled from the original returns made to the county clerk of said county, and as compared therewith by us; and that from said returns it appears that at the general election held in the several towns, wards and election precincts thereof, on Tuesday, the 3d day of November, 1874, the whole number of votes polled in said county for representative in congress from the eighth congressional district was eleven hundred and twelve (1,112), of which number Geo. W. Cate received six hundred and fifty-five (655) and A. S. McDill received four hundred and fifty-seven (457).” On the back of such return there is a tabular statement of the votes cast in each of the several towns and wards in the county for representative in congress, indicated by figures placed opposite the name of the town or ward, except the first ward in the city of Grand Rapids and the town of Lincoln, opposite each of which is written the following words: “Illegal and defective returns, thrown out.” This statement bears date November 10, 1874, which was the Tuesday next after the election. The relation further alleges (and such allegation is not denied in the return to the writ) that in such rejected ward and town the relator received at such election 96 votes, and Judge Cate 56 votes, for representative in congress; and that returns of such votes were properly and duly made to the county canvassers. From the foregoing statement of the case, it is apparent that the question to be determined is, whether the return of the votes cast in Wood county for representative in congress is void on its face. If so void, the board of state canvassers should reject the vote of that county from the canvass, and should determine that the relator was duly elected to such office. In such case, the return to the alternative writ fails to show cause why a peremptory mandamus, as prayed for in the relation, should not issue, and the demurrer thereto should be sustained. — 505 — We cannot determine the right to the office, but only the duty of the board of state canvassers in respect to the canvass. The power to determine the right is, by the constitution of the United States, vested exclusivaly in the house of representatives. Art. I, sec. 5. Hence we cannot go behind the returns and investigate and correct frauds and mistakes, and adjudge which of the candidates was elected, but can only determine whether the board of state canvassers ought to include in its canvass and statement of the votes cast for representative in congress those returned from Wood county. This proposition is not controverted, Neither is it claimed that the board may receive testimony aliunde the returns before them, to sustain or invalidate such returns. These must stand or fall by what appears in them. Hence, if the return from Wood county is, on its face, what the law requires it to be, however fraudulent or false it may be in fact, it must be received, and the votes returned therein must be included in the canvass. In such case the board has no authority to reject the return. The question, therefore, is, whether the return from Wood county is valid on its face; or (stated in another form), does the statement of the canvass of the votes, and the result of the election made by the board of canvassers of that county and certified to the secretary of state, show on its face a compliance with the law on that behalf? If the tabular statement of the votes by towns and wards, made by the canvassers and included in the return from Wood county to the secretary of state, is a part of the return required by law, we are strongly inclined to think that the whole return should be rejected. The record before us does not inform us what were the alleged illegalities and defects for which the board of county canvassers threw out the votes cast in the rejected town and ward. But whatever they were, the statute pointed out the duty of that board in unmistakable terms. “ If in the canvass of votes any returns shall be found to be so informal or incom506 píete that the board cannot canvass them, they may dispatch a messenger to the inspectors who made the returns, commanding them to complete the returns in the manner specified by law; and such corrected returns shall forthwith be returned to the canvassers for their further action; and for the reception of such returns the.board may adjourn for a time not exceeding two days.” Tay. Stats., 230, § 89. It is not necessary that a person should be a lawyer in order to know that the word “ may,” as first used in the statute above quoted, means “ must.” Any one would so read it who has sufficient intelligence to comprehend that the preservation of our system of free government is impossible unless the will of the people, lawfully expressed through the ballot box, is respected and obeyed. See State ex rel. Burnett v. Pierpont, 29 Wis., 608. There is nothing in the statement of the board of county canvassers showing or tending to show, neither was it claimed on the argument of the demurrer, that any effort was made to procure corrected returns from the rejected town and ward. On the contrary, the silence of their statement on that subject, the suppression of the nature of the alleged defects in such returns, for which they were rejected, and the fact that it does not appear that the board availed itself of the power given by law to adjourn for the purpose of procuring corrected returns, leaves upon our minds a most painful impression that the county canvassers utterly neglected their duty in this respect, and illegally and wantonly disfranchised all of the electors who voted at such election in the rejected town and ward. If they did so, they committed a most serious offense, an offense which strikes at the very foundations of our system of. government, and which cannot be too severely censured. Hence it was that we felt justified in saying, during the argument of the demurrer, that he who, by fraud or by willful disregard of his sworn duty, defeats the will of the people as expressed by their votes, commits a political crime next to trea — 507 — son and nearly akin to it, and that tbis court will never fail, on any proper occasion, to characterize such an offense in fitting terms. But whether a return which shows upon its face that it does not include all of the votes cast in the county from which it is made, but that a portion of the voters have been illegally disfranchised by the county canvassers; should be rejected or not, we think it is the settled law of this state that the tabular statement before mentioned is no part of the return from Wood county, and cannot be resorted to, to contradict the return itself. This was expressly held in Attorney General v. Barstow, 4 Wis., 567. In that case the statement of the county board of canvassers of Outagamie county, returned to the secretary of state, was before the court. We have examined the original return, and find that the statement is substantially in the same form as the statement made by the Wood county canvassers, with similar tabular statements contained therein. The law then in force, prescribing the form of such returns, has not been materially changed, but still remains the law of the state. Such tabular statement showed that Bashford, the relator, received but 414 votes in that‘county, while the statement proper of the, county canvassers was that he received 464 votes. It is understood that the board of state canvassers followed the tabular statement, and only allowed him 414 votes. In correcting the errors in the state canvass, the court” rejected such tabular statement entirely, and allowed the relator the full number of 464 votes. On this subject, Chief Justice Whiton, who delivered the opinion of the court, said : “We are also of opinion, that the additions which the state canvassers made to, and the deductions made from, the votes mentioned in the statements of votes made by the county canvassers, for the reason that such statements did not correspond with the tabular statements of the vote of the several towns, were 'wholly unauthorized, because the tabular statements were not authorized by law, and of course could not be evidence of the facts stated in them." p. 801. — 508 — That decision, made, as it was, in a case of great public concern, and after the most mature deliberation by the court, we cannot overrule or disturb. Its influence in preserving the purity of the ballot box cannot well be overestimated. Its teaching is, that the will of the people, expressed in accordance with the forms of law, must be respected and must prevail. That it is sound in principle we cannot doubt. The authority of a decision so valuable in its results, so long acquiesced in, so fully approved (as we believe) by the bar and people of the state, and so manifestly correct, should not and must not be shaken. The learned counsel for the relator, in his very able argument in support of the demurrer, endeavored to draw a distinction between that case and the present one. But it seems very clear to us that the principle of the two cases is the same, and that we cannot sustain the demurrer to the return of the state canvassers, without overruling the former decision in respect to such tabular statements. We must hold, therefore, that the tabular statement contained in the election return from Wood county (and which alone dis- . closes the alleged infirmity in such return) was not authorized by law, and cannot be received as evidence of any fact stated therein. Excluding such tabular statement, the return is in all respects in the form prescribed by the statute (R. S., ch. 7, sec. 58); and the board of state canvassers cannot go behind it, but must receive it, and include the votes returned therein, in their canvass and statement of the result of the election in the eighth congressional district for representative in congress. It follows that the secretary of state properly refused to send a special messenger to Wood county for a statement of the .result of the election in that county, as requested by the relator before the time appointed for the meeting of the state canvassers. The secretary has no authority to send for such statements, except in cases where none have been received by him. Hav — 509 — ing received such statement from Wood county, he had no authority to send for another. Besides, had he done so, it is obvious that he could have obtained no statement different from that already in his office. The defect in the canvass in that county could not have been cured by another canvass, for the state board are prohibited by law from considering any statement or return made by the county canvassers after the time fixed therefor by law, and the latest day thus fixed was November 12th. This was only two days after the canvass in Wood county was made, and the return from that county was not received at the office of the secretary of state until November 14. See R. S., ch. 7, sec. 113. The state canvassers were powerless in the premises. They can only act upon the certified statements of the county canvassers returned by the several county clerks to the secretary of state, and have no authority to procure corrected returns, or to go behind the returns thus made. R. S., ch. 7, sec. 80. They have, however, pending the present proceedings, voluntarily abstained from making the certificate required by law, of their determination of the result of such election, thus relieving the relator and the court from what might have caused great embarrassment, and have gracefully submitted the whole matter to the adjudication of the court. The statute carefully guards against excess of election returns, but fails to provide adequate means for supplying deficiencies and correcting errors therein. It is well worthy the consideration of the legislature, whether these tabular statements should not be required to be made and returned, and whether the board of state canvassers should not be clothed with power to enforce the correction of returns which are manifestly erroneous, to the end that the person who is the choice of the electors for any public office may in the first instance receive the certificate of election, and not be driven to assert his title thereto by a proceeding in court, or before a tribunal having jurisdiction to try his right to such office. — 510 — It follows from the foregoing views that the return to the alternative writ of mandamus shows that the .board of state canvassers should include the votes returned from Wood county in the canvass and statement of votes given for representative in congress from the eighth congressional district, and should accordingly certify that Judge Cate was duly elected to such office. In other words, the return to such alternative writ shows good and sufficient cause why the peremptory writ of mandamus, prayed for by the relator, should not issue. The demurrer to such return must therefore be overruled. By the Court. — Demurrer overruled. By reason of his absence from the court, caused by the illness of a member of his family, Mr. Justice Cole did not hear the argument of the demurrer, and took no part in the foregoing decision.