State ex rel. Leech v. Board of Canvassers

Blake, C. J. This is an application to the court for the issuance of a writ ■ of mandate to the board of canvassers of the county of Choteau, in this State, directing the board to reconvene and canvass and count the election returns from the Box Elder Precinct, No. 18, in said county; and also commanding said board, and the county clerk of said county, to deliver to the relator, Eugene E. Leech, a certificate of his election as a member of the legislative assembly of the State for said county. The affidavit of said Leech says that he is a resident of said county, and above the age of twenty-five years. That on the eight day of November, A. D. 1892, there were two vacancies in the office of members of the House of Representatives of the legislative assembly of the State for said county. That the relator was a candidate for this office, at the general election held in said county on the said eight day of November, and was nominated, certified, and published for such office, and received a plurality of the votes cast by the qualified electors of said county. That on the nineteenth day of November, A. D. 1892, Charles W. Gray and Edward Dunne were county commissioners of said county, and that the third member of the board of county commissioners did not attend, and Walter J. Miner, the county treasurer of said county, acted with said Gray and Dunne as members of the canvassing board of said county. That said board of canvassers were in session from the said nineteenth day of November until the twenty-third day of said month, and then adjourned. That the return of the precincts in said county in which the polls were open were in legal form, and were presented and received by the board of canvassers. That at said election the following per — 26 — sons were candidates for members of the legislative assembly for said county: Thomas C. Burns, Eugene E. Leech, Albert B. Hamilton, and George T. Sanderson. That, as shown by said returns, and in fact, said Burns received eight hundred and twenty-seven votes; that said Leech received seven hundred and thirty-two votes; that said Hamilton received seven hundred and twenty-five votes; and that said Sanderson received five hundred and sixty-three votes; and that the returns of said votes were regularly made, submitted, and presented to said board of canvassers. It is further stated that said board proceeded to canvass and make an abstract of the votes cast, as returned, for the candidates of the legislative assembly; that said abstract, which is fully set forth, shows that the relator and said Burns and Hamilton and Sanderson received the number of votes above specified; that thereafter, and before the final adjournment of said board, a protest by said Hamilton, and four affidavits relating to said precinct No. 18, were presented ; that said board thereupon excluded the returns from said precinct, and refused to canvass "and count the same, but executed and signed another abstract of returns and votes cast in said county, exclusive of said precinct; that at said precinct the relator received twenty-nine votes, and said Hamilton received fourteen votes; that by the exclusion of said precinct said Hamilton appears to have received a majority of seven votes in said county over the vote cast for the relator; and that, with the returns of said precinct canvassed according to law, the relator received a majority of seven votes over said Hamilton. It is further stated that said returns from said precinct No. 18 were made in the proper manner and time, and in legal form; that the relator became and is entitled to receive from said board of canvassers and the county clerk of said county a certificate of election to the office of member of the legislative assembly of the State of Montana for the county of Choteau; and that said board and clerk have failed and refused to make, execute, and deliver to the relator the certificate of his election to such office. The protest of said Hamilton alleges, in substance, that a judge of the election in said precinct No. 18 bribed the electors thereof; that at least twenty-five half-breeds voted at said pre — 27 — cinct; that it is a “fair conclusion, from the facts presented, that every one of them were bribed to vote the Republican ticket; and that, left to themselves, they would have voted the Democratic ticket; .... wherefore your protestant demands that the returns from said precinct be set aside, and rejected as wholly unworthy of a place in your returns.” The affidavits of John B. Trottier, Isador Trottier, and Elias Shongray are similar in form. It is deposed therein that each affiant is a half-breed, and unable to read and write; that a certain judge of the election fixed their respective tickets at the polls, and gave a card to the affiants; that another party paid ten dollars to the bearer upon the receipt of this card; and that the affiants consider or believe that this money was paid for voting the Republican ticket. The affidavit of Simon Pepin is to the effect that he was informed, and fully believes, that each halfbreed who voted the Republican ticket at said precinct at said election received therefor the sum of ten dollars. The affidavit of said Hamilton is to the effect that he has made many inquiries, and believes that twenty-five half-breeds voted at said precinct at said election; that he has conversed with a number of them, and “ believes that all the half-breeds that voted there were paid ten dollars each to vote the Republican ticket.” It appears from the record of the proceedings that the said board of canvassers, after the filing of the protest of said Hamilton and said affidavits and the argument of counsel, “ decided to strike out and not canvass the returns from said precinct;” that the members signed the abstract of election returns which was made out in accordance with this decision; that it was declared that the persons named in said abstract, who received the highest number of votes, were “duly elected;” and that said Minar and Dunne “constituting a majority of the canvassing board, together with Alfred E. Rodgers, clerk, .... proceeded to sign the certificates of election of the persons receiving the highest number of votes for their respective offices, as set forth in the abstract.” The writ of mandate in the alternative was issued and served upon the members of said board of canvassers. The respondents, on the day when they were directed to appear and show cause before this court, filed a motion to quash the writ, upon — 28 — the ground that the same had been issued by an order of the chief justice in vacation. During the past twenty years there has not been any amendment to the statutes which would affect this question of procedure. The practice which has prevailed in the Supreme Courts of the Territory and State was followed, and the usual order was made by the presiding justice upon the application, for the purpose of securing a hearing and determination of the controversy by this court. The motion is therefore overruled. The respondents then filed a demurrer to the alternative writ, upon the grounds which will be hereafter examined. It is asserted that this court has no original jurisdiction to issue the writ of mandate to afford the relief which is sought by the relator. We have given this subject a thorough consideration, and adhere to the view announced in State v. Kenney, 9 Mont. 223; and In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451. The respondents maintain that the writ “is directed to certain individuals, and not to the board of canvassers.” The following language is used: “The State of Montana to Charles W. Gray, Edward Dunne, and Walter J. Minar, constituting the board of county canvassers of election returns for the county of Choteau, State of Montana, and Alfred E. Rodgers, clerk of the board of county commissioners, and ex officio clerk of the said board of county-canvassers, greeting.” The statute provides that the “ alternative writ shall state generally the allegation against the party to whom it is directed, and command such party .... to do the act required to be performed, or to show cause.....” (Code Civ. Proc. § 568.) The law creating the board of county canvassers contains this section: “ The board of county commissioners of each county is ex officio a board of county canvassers for the county, and must meet as a board of county canvassers at the usual place of meeting of the board of county commissioners; and if at the time and place appointed for such meetings one or more of the county commissioners should not attend, the place of absentees must be supplied by one or more of the county officers whose duty it is to act, in the order named, to wit, the treasurer, the assessor, the sheriff, so that the board of county canvassers shall always consist of three acting members. The county canvassing board, so constituted, shall — 29 — meet at the office of the county clerk of such county within ten days (Sundays excepted) after each election held under the laws governing general and special elections in this State, to canvass the returns; and the clerk of the board of county commissioners is the clerk of the board of county canvassers.” (Stats. 2d Sess. p. 299, § 2.) The duties of the members of the board and its clerk are specifically defined, and the writ states “generally” the acts which the parties have omitted to do, and which they are required to perform. Under the statute, supra, the members of the board of county canvassers did not embrace the same officers, but are subject to changes, which depend upon circumstances. At one time they may include the county commissioners, and at another time the treasurer, assessor, or sheriff may be compelled to supply the places of the absentees. In State’s Attorney v. Selectmen of Branford, 59 Conn. 409, the court said: “The writ must be directed to those, and those only, who are to obey it. This is necessary, so that, in case the demand is disobeyed, it may be certain who is to be proceeded against for the contempt.” In Coll v. City Board etc. 83 Mich. 367, the writ was directed to the city board of canvassers of election “and A. G. Kronberg, city clerk of the city of Detroit.”' It appears from the opinion that the “respondents, composing the board of canvassers, by a vote of thirty-four to twenty declared” certain candidates elected. It is also stated that “each member of the canvassing board is made a party respondent to this proceeding.” In Brown v. Commissioners, 38 Kan. 436, the alternative writ was directed to the county commissioners and county clerk as a board of canvassers. Mr. High reviews the authorities upon this subject, and says: “ In cases of mandamus to subordinate courts, to set them in motion, and to compel action upon matters properly within their jurisdiction, on which it is their duty to act, it would seem to be correct practice to direct the alternative writ, either to the court as such, or to the individual judges of whom it is composed. But the direction should be to the particular judge or judges of the court when there are other judges authorized by law to hold the terms of the court, that it may be known against whom the authority to enforce obedience to the writ shall, if necessary, be exercised.” (High on Extraordinary Demedies [2d ed.], § 544.) These principles are appli — 30 — cable to the facts before us. The statute does not designate the name by which the board of county canvassers shall sue or be sued, and the direction of the alternative writ is to the particular members of this board, and its clerk, against whom obedience must, if necessary, be enforced. The doctrine of the old authorities respecting the contents of the alternative writ of mandamus has been modified by the Code of Civil Procedure, and the allegation is to be stated “generally,” and not specifically. The term “generally” seems to have the same meaning as the word “general” in the Code, which requires the summons to contain the “general nature of the action.” (§ 68.) We are satisfied that this writ complies substantially with the statute, supra, and that the respondents are thereby notified of the wrongs of which the relator complains, and the relief which he demands. It is contended, however, that a discretion has been vested in the respondents, and that the writ of mandamus cannot, for this reason, be issued. In the recent case of Pigott v. Board of Canvassers of Cascade Co. 12 Mont. 537, we decided this point, and held that the duties of respondents are ministerial, under the following sections of the statute: “The canvass must be public, by opening the returns, and determining therefrom the vote of such county or precinct for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof.” (Stats. 2d Sess. p. 301, § 4.) “In canvassing the returns of the several precincts in the county by the county canvassing board, no return shall be rejected if it can be readily ascertained therefrom the number of legal votes cast for each person named therein.” (Stats. 2d Sess. p. 301, § 5.) “ The clerks shall set down in their poll-books the names of every person voted for, and, at full length, the office for which such person received such votes, and the number he did receive, the number being expressed at full length; such entry to be made, as near as circumstances will admit, in the following form.” (Comp. Stats, div. 5, § 1030.) One of the poll-books of the precinct is comprised in the returns. (Comp. Stats, div. 5, § 1031.) Mr. Justice Knowles, in his concurring opinion in Chumasero v. Potts, 2 Mont. 270, expresses tersely our conclusions, and it is needless to multiply authorities thereon : “Much might be said in relation to the issues presented in this — 31 — proceeding. There are a large number of issues tendered in the answers that go to the point that there was a fraudulent and illegal vote cast upon the subject of the approval of the capital law. This is a question that the canvassers of the return of the abstracts of the votes had nothing to do with. It was no part of their duty to determine what was the true and legal vote cast. What they were required to do was to determine what the abstracts of the vote returned to them showed upon this subject. As they have no right to go behind these abstracts, they have no right to assign as a reason for not canvassing the true abstracts that there was an illegal and fraudulent vote behind them.” We have no hesitation in holding that the foregoing affidavits were received by the respondents without legal authority, and the exclusion of the returns from said precinct upon this ground was invalid. The next contention in support of the demurrer is that this court does not possess the power to compel the respondents to bold another session after they have adjourned sine die, and recanvass the returns of said election, and issue a certificate of election to the relator. It appears that said Hamilton has been declared elected a member of the House of Representatives of the legislative assembly, and that the certificate of his election has been issued by the respondents. This is, in the main, a new question for our tribunal, but there are many adjudications in other courts upon these propositions. We have examined the authorities which uphold the theory of respondents, and cite them without indulging in extensive comments: Clark v. Buchanan, 2 Minn. 346; State v. Stewart, 26 Ohio St. 216; State v. Rodman, 43 Mo. 256; People v. Supervisors etc. 12 Barb. 217; Sherburne v. Horn, 45 Mich. 160; People v. Cover, 50 111. 100; Oglesby v. Sigman, 58 Miss. 502; Myers v. Chalmers, 60 Miss. 772; O’Hara v. Powell, 80 N. C. 103; Swain v. McRae, 80 N. C. 111. The weight of judicial authority, and the sound rule for our guidance, are in conflict with these positions. In Ellis v. Commissioners, 2 Gray, 370, the writ of mandamus was held to be the appropriate remedy for the relator, although another candidate had been declared to be the county treasurer, and was in possession of the office. In — 32 — People v. Fives, 27 Ill. 241, it was adjudged to be no defense to the petition for mandamus that a certificate of election had been issued, and that the governor had commissioned the competitor of the relator a justice of the peace. In Brown v. Commissioners, 38 Kan. 436, the board of canvassers refused to count seventeen votes from one township for the relator, and declared that another person had received a majority of the votes cast for county commissioner in the district, and issued a certificate of election accordingly. The board was commanded to count this vote upon the face of the returns, and determined that the relator had been elected, and issued to him a certificate of election. In State v. Wilson, 24 Neb. 139, it was decided that the writ of mandamus should issue, although certain school trustees had received their certificates of election, and had qualified and entered upon their duties. In State v. Howe, 28 Neb. 618, this ruling was approved in a mandamus proceeding concerning the office of justice of the peace. In Smith v. Lavyrmce, South Dakota, June 19, 1891, 49 N. W. Rep. 7, the court reviewed at length similar questions, and arrived at the same result, where the party had received the certificate of his election as sheriff. There are two leading cases, which should be carefully weighed, because they affect members of the legislature: In O’Ferrall v. Colby, 2 Minn. 180, decided in the year 1858, Chief Justice Emmett, for the court, said: “Another position urged by the defense is that, as by the Constitution the senate is made the judge of the election and eligibility of its members, no other tribunal can or ought to take jurisdiction of this case. This position, we think, is sufficiently answered by the fact that this is not a proceeding to try the right of any party to the office of senator, but simply to determine whether the plaintiffs are entitled, at the hands" of the defendant, to certificates of election to that office. Nor can our decision in the least affect the question of the election of either of the candidates. That question can be definitely settled by the senate alone. The aid of this court is sought to prevent the consequences of a usurpation of authority on the part of this board of canvassers, and to compel the defendant to do his duty. All that we can do is to arm the parties entitled with the credentials necessary to enable — 33 — them properly to assert their rights before the proper tribunal. "Whether they, or either of them, were legally elected, is not a question here. One candidate may be entitled to a certificate of election, while his opponent may have a clear right to the office.” In People v. Hilliard, 29 Ill. 413, decided in the year 1862, Mr. Justice Breese, for the court, said: “Though the House of Bepresentatives is the sole and exclusive judge of the qualifications of its members, this application has no reference whatever to the point of qualifications. Its sole purpose is to procure the requisite evidence, to present to that body, of a prima facie right to a seat in it, independent wholly of the question of qualification. It is clear, then, the appropriate remedy is not with the House of Bepresentatives. The only remedy the relator has — the only means by which he can obtain evidence of the right claimed — is by this compulsory writ of mandamus. This is very clear. No other process or proceeding can give the specific relief in the premises. But it is urged that, as the certificate has already issued, the office is filled, and therefore the only remedy is by a contest before the house. Some cases are referred to in support of this position, but it will be seen most of them were applications for a mandamus to admit to an office. This is not such a case. The relator asks not to be admitted to an office, but that evidence of his having been elected to an office shall be furnished him. It is not to turn one man out and put the relator in office that this proceeding is had. A mandamus will not lie for such purpose, and a decision in this case cannot affect the right of another claiming the office. That is for the House of Representatives to determine.” (See, also, State v. County Judge, 7 Iowa, 186; Clark v. McKenzie, 7 Bush, 523; Alderson v. Commissioners, 32 W. Va. 454; Lewis v. Commissioners, 16 Kan. 103; 22 Am. Rep. 275; Paine on Elections, § 919; Merrill on Mandamus, § 185; McCrary on Elections [3d ed.], § 350.) Judge Cooley, in his treatise on Constitutional Limitations, observes: “But we should think the better doctrine to be that, if the board adjourn before a legal and complete performance of their duty, mandamus would lie to compel them to meet and perform it.” (Cooley on Constitutional Limitations [4th ed.], p. 785.) Judge McCrary says: “ Thus it has been held by the Supreme Court — 34 — of Kansas that, where a board of canvassing officers has adjourned after making only a partial canvass of the votes cast, mandamus will lie to compel them to reassemble, and complete the canvass. Upon this question the authorities are not uniform. In New Yox’k and Ohio there are decisions holding to some extent the contrary doctrine. But the ruling in the Kansas case is supported by the Iowa decisions. And we think the reasoning of the Supreme Court of Kansas is sound.” (McCrary on Elections, p. 156, § 234.) The demurrer was overruled, and the respondents filed their answer. The relator demurred thereto, and also moved that a peremptory writ of mandate be issued, upon the ground that the answer did not state a good cause for the refusal of respondents to canvass and count the returns from the Elder Box Precinct. We have been embarrassed by the lack of precedents upon a question of pleading. It should be observed that the reasons which controlled the respondents in rejecting the returns from this precinct are set forth in the foregoing protest of said Hamilton, and the accompanying affidavits. They are incorporated in the official record of their proceedings, which is before us. Their attorneys do not justify the action of respondents upon this ground, or offer any excuse of a similar character, but specified in the answer several defenses, which are different from what were relied on by the canvassing board. Are the principles which are applicable to ordinary cases to be followed in this proceeding? Mr. Justice Swayne, in Railway Co. v. McCarthy, 96 U. S. 267, for the court, said: “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.” (See, also, Fisk v. Cuthbert, 2 Mont. 593, and Newell v. Meyendorff, 9 Mont. 254; 18 Am. St. Rep. 738.) We do not think, however, that the respondents ai’e confined, upon this hearing, to the foregoing reasons. They are required at this time to show cause why they have not done certain acts, and their defenses are thereby enlarged, and cannot be pleaded subject to limitations, which will be pointed out. — 35 — It is averred in the answer that the returns from this precinct were not properly certified by the judges and clerks, and that they omitted to fill the following blank in the poll-book:— “ Official Return. At an election held at the-house of-, in-Precinct, in-County, and State of Montana, on the-day of-, A. D. 189-, the following named persons received the number of votes annexed to the names of the following described offices.” This document, which was received through the mail by the county clerk of Choteau County, and was before the respondents, is entitled as follows: — “Poll-book of an election held in Box Elder Precinct, in Choteau County, State of Montana, on the eighth day of November, A. D. 1892, at which time Jno. Henry, David Adams, and A. M. Brough were judges, and Clem Sailor and J. P. Carberry were clerks, of said election, the following named persons voting thereat.” The poll-book contains the oaths of the judges and clerks of election, which were duly subscribed November 8, 1892. The names and numbers of the electors were entered therein by the clerks, and the tally sheets are also recorded. The certificate at the end is in the following form: — “Certified by us this eighth day of November, A. D. 1892. Attest: J. P. Carberry, 1 Clerks of A. M. Brough, | jU(jgeg Qp Clem Sailor, ( election. ° ° e°ry> > eiecfcjon-» ’ ) David Adams, I The statute provides for the return and certificate: — “ At an election held at the house of A. B., in the township or precinct of-, in the county of-, and the State of Montana, on the-day of-, A. D. 18 — , the following named persons received the number of votes annexed to their respective names for the following described offices, to wit: — Certified by us. Attest: AB1 M N | and > Clerks of election. O P > Judges of election/' CDJ Q,R j (Comp. Stats, div. 5, § 1030.) — 36 — The mistake in the certificate in this poll-book in the use of the word “attest” occurs in the principal blanks which were furnished to the officers of the precinct by the county. The legislative assembly, at its last session, enacted that such defects should not be grounds for rejecting the returns. “The fact that the returns do not show who administered the oath to the judges of election, or a failure to fill out all the certificates in the poll-book, or a failure to do or perform any other act in or about the making up of the returns that is uot essential to determine for whom the votes were cast, shall not be such an irregularity as to entitle the said board to reject the same, but the same must be canvassed as other returns are canvassed.” (Stats. 2d Sess. p. 301, § 5.) “If all the returns have not been received, the canvass must be postponed from day to day, until all the returns are received: provided that, if the returns from any of the election precincts have not been received by the county clerk fifteen days after such general or special election, it shall be the duty of the said board of canvassers to forthwith send a messenger to the judges of such election precincts, whose duty it shall be to open the ballot-box, and from the returns therein inclosed make a copy of the same, and furnish the messenger with such copy.” (Stats. 2d Sess. p. 300, § 3.) The respondents did not appoint a messenger to perform this duty, but treated the returns of Box Elder Precinct as worthy of full credit respecting their contents. The genuineness and regularity of these documents were never questioned or attacked until this answer was filed. The names of the candidates for the House of Representatives of the legislative assembly, and the number of votes which was received by them at this precinct, can be readily ascertained by the board of canvassers upon an inspection of this poll-book. This allegation appears in the answer: “That it appeared from an inspection of the registration list, and of the list of persons returned as voting at said Box Elder Precinct No. 18, that sixteen names of persons, to wit, Henry F. Schwartz, Henry Brough, John B. Trottier, William Trottier, Frank Trottier, Antoine Trottier, Andre Trottier, John Trottier, Ermine Trottier, J. B. Moture, W. H. Murray, L. K. Devlin, Isadore Trottier, Samuel Pepin, and J. B. La Framboise, — 37 — appeared upon the list of persons returned as voting at said Box Elder Precinct, which said sixteen names did not appear to have ever been registered as,voters at said precinct; and no surrendered certificates of registration were transmitted by the judges of election to the clerk of the board of county commissioners in connection with or as a part of the election returns of said precinct, or in any manner whatever; and it appeared from said returns that said sixteen persons were not entitled to vote at all at said election.” It is easily understood that cases may arise in which it would be the duty of the board of canvassers to compare the names upon the check lists with those of the actual voters. This course might be the sole remedy if a precinct with a small number of electors returned a large number of votes for candidates for office, exceeding the registration lists. It is difficult to prescribe a rule which would govern all contro-, versies of this kind. An extreme illustration of the danger to be guarded against is shown by the remarkable case of State v. Stevens, 23 Kan. 456; 33 Am. Rep. 175. Mr. Justice Brewer, for the court, said: “ The defendants, for one ground of defense, return that there were only about eight hundred legal voters in said county at the date of said election, whereas the returns as made show a vote of two thousand nine hundred and forty-seven purporting to have been polled, and that therefore at least two thousand one hundred and forty-seven of such votes were fraudulent and illegal, and that by reason thereof it is impossible to determine and declare the will of the people, or the true result of such election.” It was adjudged that these facts constituted a defense to the proceeding for a mandamus to compel the canvassing board to declare the result of the election in accordance with such returns. A majority of the court is of opinion that, when the pleadings are reviewed, this paragraph of the answer presents an issue which should be tried. The demurrer and motion of the relator were overruled, and the case was heard upon its merits by the court without a jury. The testimony will be presented in connection with the legal propositions which have been argued by counsel. It was proved that no check lists of the precinct, or surrendered certificates, were ever sent to the county clerk, and that the board of canvassers acted upon the poll-book alone. — 38 — In passing upon the demurrer and motion of the relator, we were obliged to review, as admitted, this portion of the answer: “That there was returned with said pretended returns, and as a part thereof, a list of the persons registered at said Box Elder Precinct No. 18.” This allegation is contradicted by all the witnesses, including one of the respondents, who verified the answer. There was posted in the office of the county clerk the “verified copy” of the list of electors who had been registered in the Box Elder Election Precinct. (Stats. 16th Sess. p. 129, § 9.) The vote from Box Elder Precinct was canvassed, and then rejected, without an examination being made of said list. It is contended by respondents that the surrendered certificates should have been forwarded to the county clerk by the judges of this election precinct. Conceding that this contention •is correct, although the statute is not perspicuous upon this point, it was the plain duty of the board of canvassers, under the statute, supra, to procure the checks lists, and such certificates, before the returns were rejected. What, then, appears upon the face of these returns which the respondents should have had before them as to the names of persons alleged not to have been registered? The following table shows such names of the electors as they appear upon the voting list, in the poll-book, and upon the cheek list and surrendered certificates of the Box Elder Precinct: — Names oe Voters as Shown List oe Voters as Kegis- by the Poll-book. tered and Shown in the Check List. Henry E. Swartz. Henry Brough. John B. Trottier. Frank Trowtier, Antoine Trowtier. Ermine Trottier. John Trowtier. Alex Trottier. And rue Trowtier. William Trowtier. J. B. Moture. Henry F. Schwartz. Henry S. Brough. John B. Troehet. Frank Troehet. Antoine Troehet. Ermine Troehet. John Troehet. Alex Troehet. Andre Troehet. William Troehet. Baptist Móture. — 39 — Names of Voters as Shown by Certificates of Registration Surrendered to the Judges. W. H. Murray. L. K. Devlin. Isadore Trottier. Samuel Pepin. J. B. La Framboise. W. H. Murray. L. K. Devlin. Isadore Truchot. Simon Pepin. John B. Lafrombois. In the comparison of these names the board of canvassers must recognize some presumptions of law and fact, to wit, that the judges and clerks of the Box Elder Precinct performed their sworn duty, and permitted no persons to vote at this election who were not legal voters; and that, under the laws of this State, the names of such voters must be found upon the check lists of the precinct, or the surrendered certificates. It is established by the check lists that there were thereon the names of forty-six voters; that five of this number failed to vote; that five electors voted upon county registry certificates; and that the voting list contains the names of forty-six voters. The spelling of the names of the voters by the clerks in the poll-books is unimportant if the officers of the precinct are satisfied concerning their identity. The statute provides: “When the judges of election shall have good reason to believe, or when they shall be informed by a qualified elector, that the person offering to vote is not the person who was so registered in that name, the vote of such person shall not be received until he shall have proved his identity as the person who was registered in that name.” (Stats. 16th Sess. p. 132, § 14.) Under our mode of conducting elections the misspelling of names by the clerks must frequently take place. A forcible example of this assertion is afforded by a glance at the names of the foregoing voters who produced the county certificates. What should have been the legitimate conclusion of the canvassing board from these documents? There is only one name upon the check list resembling, respectively, Henry F. Schwartz, Henry Brough, or J. B. Moture. The surnames of the family written Trochet, or Trowtier, or Trottier, with their Christian names, and initial — 40 — letters of John B., William, Frank, Antoine, Andre, John, Alex, and Ermine, which are given in the poll-book and cheek lists, can be identified. The small number of names (forty-six) upon the check list is a circumstance to be remembered in trying to reach a satisfactory determination. There is no foundation for the deduction pleaded in the answer, that there were upon the list of voters the names of sixteen, or even one, person, who had no right to vote at Box Elder Precinct. It is therefore ordered that the peremptory writ of mandamus be issued.