State ex rel. Minehan v. Thompson

Goss, J. This proceeding by mandamus was brought in district court to determine the results of an election on- the division of the county of McLean. Relator asks that the existence of the proposed county of Stevenson be declared and established, and the county auditor be required to issue and forward to the secretary of state a certificate cerr tifying such county division carried by a majority of all votes cast at the election had thereon in 1908, and certifying to boundaries and name of said county. This action has twice before been before this court, in various forms. 19 N. D. 804, 124 N. W. 701; and as an incident thereto the original proceeding of State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282. See also State ex rel. Minehan v. — 276 — Wing, 18 N. D. 242, 119 N. W. 944. The first-named proceeding involved, matters of pleading and practice, and whether the return of the alternative writ of mandamus in any of the many matters therein presented amounted to a defense in the light of the stipulated facts of the case accompanying the pleadings on appeal, resulting in a reversal of the judgment that a peremptory Avrit issue and the remanding for further proceedings to he had in the district court. Thereafter, and before trial on the merits, the auditor, disregarding the pendency of the action to determine the propriety of the issuance of the certificate certifying that the election had been carried by a majority A^ote, and the' boundaries and name of the county, issued such certificate, forwarded the same to the secretary of state, who in turn notified the governor thereof, who thereupon appointed county commissioners for the county of Stevenson. Proceedings in the organization of this county were there stayed summarily by the original writ of this court, issued on relation of the attorney general in State ex rel. Miller v. Miller, and upon final hearing all proceedings, including said certificate so issued, were vacated, and the status quo reinstated pending trial in the district court of this case uoav here on appeal from that court’s decision, granting the peremptory writ, and in effect thereby adjudging legal the foundation for the organization of said Stevenson county. The case is now before us on the merits under the issues joined by the petition and alternative writ and the return thereto of the auditor. The alternative Avrit, following substantially the petition, briefly recited, shows the right of relator to be such, the boundaries of the county, the preliminary steps to the election on the creation of Stevenson county, the submission of such propositions to the voters of the county of McLean at the general election in 1908, the notices of election on said proposition and the election held thereon, and “that the said judges and inspectors of said general election in each and all of the precincts of said county made a statement in duplicate on blanks provided for that purpose, showing therein the number of votes cast for and against the formation of the said new county of .Stevenson; and certified the same to be correct, and the same were duly subscribed and filed in the office of the county auditor of said McLean county, with the returns of such general election, according to the statute in such case made and provided; that thereafter, on or about the 16th day of ISTovember, a. d. 1908, the can277 massing board of said McLean county met pursuant to and as directed to and required by statute, and, after taking tbe usual oatb of office, opened and publicly canvassed tbe returns theretofore made to tbe said county auditor of said McLean county of tbe said general election hereinbefore referred to, and especially tbe returns of tbe votes east by tbe voters of said McLean county upon tbe formation of said new county of Stevenson ; and that tbe said canvassing board of said McLean county found that there were 1,006 votes cast ‘for new county’ and 741 votes cast ‘against new county’ on tbe question of tbe formation of said new county of Stevenson,” “by tbe voters of said McLean county at said general election in said county of McLean; and thereupon tbe said canvassing board of said McLean county canvassed and abstracted said votes, and so certified tbe same” “in like manner as tbe votes are canvassed and tbe returns made as in tbe case of tbe election of members of tbe legislative assembly of tbe state of North Dakota.” Then follow averments that tbe county auditor refuses to certify and make bis certificate showing tbe result of said general election, and tbe formation and tbe boundaries and name of said county, and transmit tbe same to tbe secretary of state, as required by § 2330, Dev. Codes 1905, as amended by chap. 62 of tbe Session Laws of North Dakota of 1907; and closes with a command to so certify or make return of tbe reasons for refusal so to do. It will be noticed that tbe foregoing portion of the writ, literally copied, alleges that tbe official returns by tbe election boards “in each and all of tbe precincts of said county” were made to tbe county auditor, and canvassed and abstracted by tbe canvassing board of said county, who “found that there were 1,006 votes cast for new county and 741 votes cast against new countyand that thereupon “tbe said canvassing board of said McLean county canvassed and abstracted said votes and! so certified tbe same.” Bear in mind, then, relator specifically pleads; that tbe election boards in each and all tbe precincts in McLean county made returns on said county division question, as provided by law, to tbe county auditor, and said returns were, by tbe county canvassing board, opened, canvassed, and abstracted. Tbe auditor answers, among other alleged defenses, that out of tbe fifty-one election precincts in tbe county of McLean no returns to tbe county auditor were ever made by tbe election boards in six of said precincts, designated by name, and — 278 — that the hoard of canvassers of McLean county never canvassed the votes on county division cast in said six precincts, and that the aggregate number of electors who voted in said precincts at said election was 354, more than sufficient to have changed the alleged election result had they voted on said question, and said vote had been returned and canvassed and included in the abstracts of votes, as should have been done. That “it was held and determined by said canvassing board that the proposition to form Stevenson county was lost;” “that the county commissioners of McLean county and the county officers thereof all understood and believed in good faith that under the laws of this state the said proposition to create Stevenson county had been defeated“all of which was well known to the relator herein and to all other persons in the same situation as relator and interested in the question of the formation of Stevenson county.” “That this defendant and many other citizens in said McLean county would have contested said election with respect to the vote on Stevenson county had they known or been informed in proper time that it was asserted or claimed that said vote was, on the face of the returns, sufficient to authorize the formation of Stevenson county; but this defendant and other citizens generally who were adverse to Stevenson county in good faith believed and were led to believe by the silence and nonaction of the supporters of Stevenson ■county that it was conceded that the Stevenson county proposition was defeated, and therefore did not institute any contest.” Then follow allegations of insufficient notice; dissemination of misleading information acted upon by the voters, causing them to refrain from voting against the proposition, under the belief that a failure to vote was in legal effect a vote against the formation of the county; that 3,600 votes were cast in said county at said general election, at which two other county division propositions were submitted, one carrying by a majority of all votes cast at the election, and thereby creating what is now the organized county of Sheridan; that one county division proposition so submitted overlapped, in territory embraced, both of the other two, so that an affirmative vote on all three should not, be counted and was in effect a negative vote, and that as to this county of Stevenson, fifty-two such votes are included in the alleged majority therefor; and that, inasmuch as a majority of the affirmative votes for Stevenson county did not exceed one half of all votes cast at the election on all county — 279 — division propositions then submitted, said county could not be created under § 168 of the Constitution and under the statutes regulative of county division. Of the many interesting questions thus arising, but one, and that conclusive of results of said election, need be considered. This arises upon'the pleadings, and the sufficiency of the proof, and the law applicable thereunder concerning whether a legal and sufficient canvass and abstract therefrom of votes was ever made by the county canvassing board. The issue of fact regarding this is presented by the pleadings, to which reference has heretofore been made. Bear in mind the alternative writ and petition therefor constitute the complaint. High, Extr. Legal Rem. 451; 26 Cyc. 470. Also that the burden of proof is on relator, as in ordinary actions and proceedings, to make out a prima facie case by proof of the necessary averments of his pleadings. High, Extr. Legal Rem. §§ 448-451; State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834. “On an application for a mandamus, the burden of proof is governed by the general rule that the party holding the affirmative of the issue must establish his allegations by a preponderance of the evidence. The relator must prove himself entitled substantially to every claim and to all the redress which he seeks in his writ.” 26 Cyc. 476. How is this burden upon plaintiff met under the facts, which, by the way, are in such particular stipulated ? Hnless Exhibit D, hereinafter mentioned, makes prima facie proof of the right to relief, the following stipulation effectually answers this question: “It is stipulated that no returns on the vote on any of the questions of county division appearing on the ballot (a ballot containing all three county division propositions) were ever made to the board of county canvassers from the following precincts of McLean county, viz., Butte, Douglas, Roseglen, Whittaker, Shell Greek, and Turtle Lake; and the aggregate number of electors who voted in said precincts at said election was 354.” The precincts named are the same as those designated in respondent’s answer as the precincts from which no returns were ever made or canvassed. The language of this stipulation is carefully chosen that it may be so explicit and certain as to leave nothing to intendment, interpretation, explanation, or presumption. It establishes “to a certain intent in every particular” the facts pleaded by answer, and that but forty-five out of fifty-one precincts were in fact canvassed by — 280 — the board and included in the abstract of votes. In connection with this stipulation, there was offered and received Exhibit D, such purported original abstract of the votes cast in forty-six of the fifty-one precincts of McLean county on county division matters, from' which it appears that no votes are abstracted as to precincts of McLean county numbered 4, 7, 9, 33, 42, and 50, and with totals as so abstracted for and against Stevenson county of 1,006 and 811, respectively, exclusive of said numbered precincts. And accompanying said abstract is the following certificate: “Total number of voters who voted at the general election held November 3d, a. n. 1908, 3,600. “Votes cast for governor, 3,437. “Votes cast on Stevenson county, 1,817. “Votes cast on Sheridan county, 2,674. “Total vote cast on division ballots, 2,764.” To which the auditor affixed his certificate, required by § 651, that such constitutes a copy of the abstract of votes cast by such precincts on said county division. And it was stipulated that Exhibit D, offered in evidence, “is a true and correct copy of the original abstract of votes as made and prepared by the proper officers at the different elections enumerated therein and upon the division questions enumerated, which were held in the different election precincts shown by said abstract in the county of McLean at the time and places therein stated,” subject to objection as to relevancy and materiality. The question before us, then, under this phase of the case, is whether a canvass of but forty-five precincts out of fifty-one in a county, and where there were sufficient elector’s voting on other questions in the omitted six precincts that, had they voted against the creation of the-new county, the negative votes would have exceeded the votes for the-creation of such county, while with such precincts omitted a majority as abstracted appears from forty-five precincts out of fifty-one in favor of the creation of the county, is the new county created under the constitutional and statutory provisions relative thereto. If this question must be answered in the negative, this action is thereby determined' against relator. Under the burden of proof, arises the question of whether, by the re — 281 — ception in evidence of Exhibit D, relator has made prima facie proof in his favor of the result of the election. Must this abstract of votes be given the same force and effect as though it was an ordinary certificate of election .declaring an election result, such being the office of the usual certificate of election? Our statute, notwithstanding § 2329, is silent on the necessity of the-execution and filing of the equivalent of a certificate of election on the-canvass of a county division election, unless it he that either the abstract, by precincts on the canvass, required under § 651, or the certificate of formation of the new county, embracing not only the fact of the result of the election hut the territorial boundaries and contents and name of' the new county, is in effect the certificate of such an election. Considered in connection with § 688, as to contests in county-seat and county-division matters, providing the statutory contest must he begun “within thirty days after the result of such vote is canvassed,” instead of from the date of issuance of any certificate or return, it would appear-that no certificate of election, strictly speaking, is provided for, and that, the auditor’s certificate, mentioned in § 2330, as amended by chapter 62 of the Session Laws of 1907, because required by special statute-with otherwise no statute requiring aught hut an abstract of votes by precincts, constitutes such certificate. A certificate of election is usually issued as a separate instrument from the returns of the hoard of' canvassers, and § 651, the governing statute here, makes the distinction between the certificate of election and the canvasser’s returns, by requiring “the county auditor immediately to make out a certificate-of election to each of the persons having the highest number of votes-for county and precinct offices respectively, and to deliver such certificate to the person entitled thereto on his making application to the-county auditor therefor;” and on state-wide questions that said official “shall make a certified copy of each abstract and forward it to the secretary of state” as the returns from such county on such state-wide proposition; and the state hoard of canvassers, after the canvass made of such “certified abstracts of votes from the several counties,” as provided by § 656, issues the certificate of result or the certificate of election according to the fact, as provided in §§ 661 et seq. Throughout all these provisions the distinction between returns of the canvassing board and certificates of election is clearly drawn. Undoubtedly, however,. — 282 — the return in whatever form, whether it be a certified abstract or instead a formal certificate of election, “makes a prima facie case of the correctness of the matters therein contained.” 15 Cyc. 386. But such a return does not necessarily prevent the determination by mandamus of the result of such election and of the legal consequences of the returns so certified. In matters of office contest between two claimants for office, both claiming under an election, it is the rule that where the return of the canvassing board is made upon a full canvass of proper election returns, the board’s determination is conclusive in mandamus as to matters which by statute the board was authorized to certify. Such is the holding in State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231. But nowhere can authority be found that a return or certificate of election, showing as here, apparent from Exhibit D, that upon its face it is based upon a partial and incomplete canvass of official precinct returns, is conclusive or even prima facie evidence of the result of such election. It is also true that an election return, or certificate of election, issued upon full and substantial compliance with prior statutory duty, cannot be impeached in mandamus proceedings; nor can the title to office, if prima facie or regular, be overthrown in mandamus. But these questions are without this case. This issue is whether, in this mandamus action to determine the issuance of a writ to create a new county, the court is bound by a return appearing on its face to have omitted the canvassing of six precincts out of fifty-one, and this in the face of a constitutional provision requiring a majority of all votes cast at the election on the proposition to he in favor of the creation of Stevenson county before this writ can issue. We may concede, then, respondent’s contention, that a complete abstract by this hoard of canvassers would 'be prima facie evidence of what it may contain, including the totals of the vote cast on this county division proposition. But that does not establish that a partial canvass, as is apparent from the face of these returns, is prima facie evidence of anything more than the returns of the vote of that portion of the whole county therein tabulated and certified. It is apparent that the board of canvassers has but partially performed its duty, and neglected to perform the duty cast upon it by § 613, wherein it was required to procure and canvass the official returns from the six precincts uncanvassed and omitted; and adjournment before so doing amounted to a noncompliance — 283 — with the statute, and tbe certificate issued cannot be other than it purports to be, tbe incomplete returns of duty but partially performed. Tbat it might by mandamus bare been compelled in proper season to have reconvened and to procure the returns omitted, and canvass the .same, is tbe great weight of authority. “If the canvassers neglect or refuse without sufficient reason to meet and canvass the votes, they may be compelled to do so by mandamus, and if they perform their duty in part only, or in any other illegal and unwarranted manner, they may be compelled to perform it in full or in a proper and legal manner.” Mechem, Pub. Off. § 210, and cases cited; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834. In both of these cases the opinion is partially based upon the assumption that, under certain circumstances, it is proper in mandamus to compel reconvening of a board of canvassers and the performance of its duty, the issue being whether, under the facts considered, the writ for that purpose would issue; and this notwithstanding that in the last-cited case a certificate of election declaratory of results of the election had been previously regularly issued and filed. To the same effect, see Merrill, Mandamus, § 182, that “the fact that a canvassing board has already declared the result and issued a certificate of election to another person is no adequate return to an alternative writ of mandamus to canvass the returns properly, and declare the proper result when the returns have been improperly counted or improperly rejected,” citing many authorities. To the same effect is Spelling, Extr. Eelief, § 1557, reading: “Mandamus is not the proper remedy for determining the result of a disputed election, though it may lie, in a proper case, to compel an officer to certify the result of the election. . . . Where the board of canvassers of an election have canvassed but a portion of the returns and issued a certificate of election, mandamus will lie to compel them to reassemble and canvass the returns correctly, and issue a certificate to the one found elected from the whole returns, notwithstanding the person holding the certificate of election has qualified and entered upon the discharge of the duties of the office.” Among the authorities cited by this author is Barnes v. Gottschalk, 3 Mo. App. Ill, an action in prohibition to prevent a subordinate court compelling by mandamus the issuance of a certificate by the mayor of St. Louis, certifying the passage by a majority vote at — 284 — an election of a new charter for said city. We take the following from page 120 of that opinion: “It is insisted that mandamus cannot b& employed to accomplish the purposes of a contested election. Granted; but here are no such purposes. A contested election can have no existence until after the result has been declared and the certificate awarded by the proper ministerial officer. This, in the present case, has never been done. The proceeding is not to investigate the truth of a declared result, but to compel an official declaration of result where none has been made. Such a process lies precisely within the legitimate operation of the writ of mandamus.” Relator began this proceeding in mandamus. The defendant has made reply, not contesting an election, but in effect putting relator to his proof as to the election results. Relator then offers this incomplete abstract as sufficient proof to meet his burden assumed by his pleadings and the issues joined, and asks the court to presume it to be prima facie evidence of the whole election, when on its. face it does not purport to be such, but only partial returns, a partial performance of duty by the canvassing board, and evidences an obvious disregard by it of the provisions of § 673. In no sense can this partial abstract be held to have the force of a completed one, as the partial performance of an official duty cannot be said to be the full performance of it. Lewis v. Marshall County, 16 Kan. 102, 22 Am. Rep. 275; State ex rel. Byers v. Bailey, 7 Iowa, 390; McCrary, Elections, § 269. This authority says: “It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part and refusing to canvass the others, as by refusing to canvass any.” “The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance.” See also § 272 of the same work, where, speaking of a legislative contest wherein the returns of one county out of five were missing, with the certificate of election signed by the canvassing officers of four out of the five counties, quite similar to the case before us, we find the following comment: “The case did not come properly within the rule that the certificate of the majority of the board is the certificate of the board; for while it is true, ordinarily, that less than the whole number may make a valid certificate in such case, it must be upon a canvass of the whole vote of the district. If a part of the vote is omitted, and the certificate does no more than to show that a — 285 — canvass of part of tbe vote east shows the election of a particular person, it is not even prima facie evidence, bécause non constat that a canvass of the whole vote would produce the same result.” Under this authority the return of this canvassing board from forty-five out of fifty-one precincts is not prima facie evidence that the same would be the result of a canvass of the whole vote. After the reception in evidence of this proof as to these forty-five precincts, it was incumbent upon relator to at least prove that had all six omitted precincts heen canvassed the result would have been the same. Instead he stipulated that 354 electors voted in said precincts at said election, and there rested his case, leaving the court in ignorance of the conclusive question of whether a majority of all votes cast on the county division proposition was in favor of the creation of the new county, and leaving an utter failure of proof on this question. But to avoid this, the only conclusion, relator asks that we assume that no votes were cast upon county division in the six unretumed precincts. But if any presumption is to be indulged in it is settled that it must be the contrary presumption of fact, and to the effect that there were votes cast upon this proposition in said omitted precincts. State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, from page Ill of which we quote: “The reasonable presumption is that . . . votes were cast pro and con thereon in all of the election precincts of the county. We cannot disregard the fact raised by this presumption, for no other reason than that no certified statement of the number of votes cast for and against the proposition was made by the precinct election officers.” We see no reason for overruling part of the basis of that decision. The presumption, then, is that votes were cast in said six precincts; and in the face of such presumption we cannot assume the returns not containing them to be either prima facie or any evidence of the actual result of said election in the fifty-one precincts in McLean county. But another all-sufficient reason exists as to why testimony should be taken, touching the result of this election, upon which depends the issuance or denial of the writ prayed for. The relator must prove himself entitled to “the redress which he seeks in his writ.” 25 Cyc. 416. We may grant the impossible, and assume that upon the reception in evidence of this incomplete abstract of returns a prima facie ease — 286 — of results of said election was made out, and that prima facie relator had then and there met the burden of proof upon him, and that such testimony would have been sufficient upon which the court might in its discretion have issued a writ as prayed for. Assume, also, that such burden had been so met as to the total vote cast in said county on such proposition. Still it does not follow that relator would be entitled to his writ certifying the creation of this new county, as the granting of the writ is a matter not of strict legal right, but discretionary, and concerning which, under this assumed state of the proof, the court, with the answer interposed as here, could have even then exacted further proof of the facts disclosing the actual result of this election, and could have insisted upon the proof of the total number of votes for and against the proposition. And this over any objection that could be urged that the court was in effect permitting a contest of the election. We quote from State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834. “We hold that the writ [of mandamus, and prayed for in a county-seat controversy] is not one of right, but one to be granted, as a general rule, in the discretion of the court; and that, in determining how his discretion should be exercised, that court to which application is made may take testimony; and that it is not an abuse of discretion to deny the writ when it is shown that its issuance would avail nothing to the rela-tors.” This effectually answers the question of the right of the court to require proof of the propositions here made, and after the canvassing board’s returns were in evidence, even though the result of the testimony so received and supplementing the returns should overthrow them to the extent of causing the court to adjudge them insufficient and deny the writ. The evidence here so required was admissible for such purpose, and discloses absolute uncertainty as to what the result of said election on county division was in the whole of said county, hence rendering it impossible to grant the writ prayed for and showing conclusively an abuse of discretion in the granting of the writ in the face of such failure of proof. But yet the greatest reason of all still exists why this writ should be-denied relator. To grant the writ, in effect, is to create a new eounty. This cannot be done under § 168 of our state Constitution without a strict compliance with the letter and the spirit of that fundamental law. It provides the proof to be here exacted as a condition precedent to the — 287 — relief sought, by the following language: “All changes in the boundaries of organized counties, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby at a general .election, and be adopted by a majority of all of the legal votes cast in each county at such election.” This has been construed, as to majority, to- mean a majority of all votes cast on county division. See State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360. We do not here determine whether to create this new county a majority of all votes cast on all county division propositions submittted at said election was necessary under such constitutional provision, but most certainly a majority of all votes cast upon the Stevenson county proposition must favor such division before it may be judicially determined as carried within the meaning of the constitutional provision quoted. A parallel case is Rich v. State Canvassers, 100 Mich. 453, 59 N. W. 181, where the respondent board failed to procure proper returns from one county in the state, concerning the passage of a proposed constitutional amend-ment, and officially declared the same carried without the returns from said county. In a mandamus action against the board to reconvene, procure returns, and canvass the vote of this county, notwithstanding such certificate of election certifying the result of the election as the passage of the amendment, the court says: “It is to be noted that under § 1 of art. 20 of the Constitution of the state, no amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority in the legislature and afterwards be adopted by the requisite vote. - The question here involved is not whether the court will, in a collateral proceeding go into proofs to ascertain whether the board of canvassers has committed an error, but whether in a direct proceeding, when it appears that a palpable mistake has been committed, due in part to an omission of duty and in part to a fraudulent and criminal alteration of the returns upon which-the determination of the board is based, the board itself may not right the wrong committed and may not be required to do so. . . . But the consequences of holding that the determination of the board of canvassers is forever conclusive, and that no matter how flagrant the fraud perpetrated upon the board or how gross its own neglect of duty, the determination is to stand for all time and an alleged amendment become — 288 — .a part of the organic law which it can be demonstrated beyond peradventure never received the requisite vote from the electors, are such that we should adopt such construction of the statute only when convinced that no other is open. The able argument of counsel for the attorney general has failed to convince us that the action of the board is not subject to direction by the court by its process of mandamus.” And the same holds true here in this case. No one can tell the fact of whether in the fifty-one precincts in McLean county a majority vote duly canvassed would show the approval of the people of that county on this proposed county division. This is all-sufficient upon which to deny the writ. If the constitutional provision can be circumvented and virtually set aside by any such presumptions as here urged from a canvass of a portion of the vote, it is the equivalent of saying that the Constitution does not mean what it says when it requires the adoption of the proposition “by a majority of all the legal votes cast in each county at such election.” Several other questions briefed by counsel might be passed upon, but those already discussed fully decide this case against relator. "Upon the relator is cast the burden of making the proof 'of the result of this election, as to which result it is impossible to determine, there being a failure of proof thereon and concerning a matter in which § 168 of our state Constitution requires unquestionable proof of a majority favoring county division before relator is entitled to this writ. It is ordered that the alternative writ, the order for and the judgment entered in the District Court granting a peremptory writ requiring appellant to issue the certificate of the division of McLean county and the territorial limits, contents and name of the proposed new county of Stevenson, be in all things quashed and set aside, and judgment directed to be entered dismissing this proceeding on the merits.