State ex rel. Birmingham v. Dinsmore

Gantt, J. This cause is heard upon an alternative writ of mandamus, and the answer thereto, and proofs. It appears that an election was held in Olay county upon the question of the relocation of the county seat, which resulted in no choice of a place; and therefore, under proclamation duly made, a second election was ordered to be held on the twentieth day of September, 1875, designating “ Fairfield, Sutton, or Harvard,” as the eligible places or candidates for the location of the county seat. Upon a canvass of the votes cast at this election, the board of canvassers rejected thirty-three votes cast in Edgar precinct, which it is alleged were cast for Fairfield. The alternative writ commanded the county clerk to make a canvass of all the votes cast at this second election, and especially to count the thirty-three- votes cast in Edgar precinct, and that a complete abstract be made of [147] all the returns of votes cast at said election, or show cause why he has not done so. The answer denies that the thirty-three votes cast in Edgar precinct were for the town of Fairfield; but avers that they were cast for the north half of the northwest quarter of section three, in township five, north of range seven west, and ought not to be counted or canvassed for the town of Fairfield; and denies that said description of land is a part of the town site of Fairfield. The proofs in the case clearly show that the land described on the ballots, is within the limits of and constitutes a part of the town site of Fairfield. And all the ballots cast in the several precincts of the conntv were preserved in the mode required by law, and were offered in evidence on the trial of the cause; and, upon a careful inspection of them, it clearly appears that all the ballots voted for Fairfield, in the several precincts of the county, are in the same form, in all respects, as those voted in Edgar precinct, and all of them were counted by the canvassers, except those of said precinct. And furthermore the proofs show that at the first election on the question of a relocation of the county seat, the ballots voted for Fairfield were in the same form. It is therefore clear without doubt, that it was universally understood and known throughout the county that these ballots voted in Edgar precinct- were intended and were cast for the town of Fairfield; and, besides, these ballots correctly describe a part of the town site of Fairfield as the point for the relocation of the county seat, and from the designation of place on the ballots, the intention of the voter may be plainly ascertained. Upon the facts in this case, there can be no doubt that the votes cast in Edgar precinct must be counted. The doctrine is well established that extrinsic evidence of a public nature connected with the election, is admissible to ascertain the intention of the voter from the ballot. And the rule is well settled that when the canvassers neglect or refuse [148] to perform their duty, they may be compelled to discharge that duty by writ of mandamus. Peremptory writ granted.