Dimond v. Ely

Lxsk, J. This is a contest of an election involving the permanent location of the county seat of Burke county. The question of the permanent- location of the county seat for such county was submitted to the electors thereof at the 1910 general election, and according to the abstract of votes prepared by the canvassing board, Bowbells received 783 votes, Lignite 440 votes, and 95 votes divided between other of the candidates for such county seat. The trial in the district court resulted in findings of fact and conclusions of law favorable to the eontestees and respondents, and judgment was entered dismissing such contest, from which judgment this appeal is prosecuted. The canvassing board declined to canvass the x*eturns from certain precincts in the county upon the alleged ground that the election therein was null and void because not held at the voting places designated by the commissioners. It is claimed that if the returns from all the precincts had been received and canvassed, Lignite would have received a majority of all votes cast upon that proposition, and it is contestant’s contention that the canvassing board wrongfully and illegally refused to canvass all of such returns. In order to secure what they deemed [430] their legal rights, the friends of Lignite, in due time, instituted, mandamus proceedings to coerce the canvass of the omitted precincts. Such, proceeding was tried in the district court, resulting in a judgment in defendants’ favor, adjudging the election in such precincts void upon the ground that the votes were not cast at the duly established polling-places therein. From such judgment an appeal was taken to this court, resulting in an affirmance of the judgment below. State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834. The judgment thus entered on the remittitur from this court in such mandamus proceedings is. pleaded by respondent in this contest action, and is relied upon as res judicata of all issues tried and decided in that proceeding, and it is. respondents’ contention here that the following issues were properly raised and adjudicated in such mandamus proceeding: 1. That the election held in the omitted precincts was illegal, null,, and void, and of no effect, and that the votes attempted to be east thereat were illegal, null, and void.” 2. “That Bowbells received a majority of the legal votes and was. duly elected the county seat of Burke county.” 3. “That it would be an abuse of discretion to require the canvassing-board to canvass the illegal votes cast in the omitted precincts;” and, 4. “Costs and disbursements to the respondents.” At the trial of this contest action in the district court, contestants; offered certain proof in the form of exhibits in support of the allegations in the notice of contest, which exhibits consist of the returns from the precincts omitted by the canvassing board. Such offers were rejected upon the ground “that the matters and things sought to be established by the exhibits are now res judicata and finally decided by the judgment of this court, controlling in this case, which judgment, was rendered in the case of State ex rel. Johnson v. Ely, and which judgment has been entered in this court upon the findings of fact and' conclusions of law and order therefor, made by his Honor, Judge Templeton, acting by the written request of the then judge of this district.” For a more detailed statement of the facts, see State ex rel. Johnson v. Ely, supra. Counsel are agreed that but two questions are involved on this appeal. These questions are stated by appellant as follows r “1. Was the objection to the offered proof that the mandamus action [431] was res judicata of this contest well taken ? 2. If not, was the proof offered sufficient to establish prima facie contestant’s case?” Respondents’ counsel states the propositions somewhat differently,, but in substance they are the same as above. The chief controversy between counsel involves the question as to the legal effect, if any, of the decision in the mandamus case upon the issues in this contest action. It is vigorously and with much plausibility asserted by appellant’s counsel that the prior decision in the mandamus proceeding is not res judicata of the issues herein, for three reasons, the substance of which are, (a) that the right or title to the county seat or the question of its location was not properly triable by mandamus, the statutory contest affording the exclusive remedy; (b) it was not the duty of the court in the mandamus case to go back of the returns to investigate and adjudicate the question as to the condition or validity of the vote in these various precincts, although it had discretionary power to investigate such vote fon the purpose merely of aiding it in exercising its discretion in granting or denying the writ; (c) such investigation was unnecessary under the status of the pleadings in the mandamus proceeding, relators therein having in effect demurred to the sufficiency of the answer and refused to litigate the issues sought to be raised by such answer. Counsel call attention! in their brief to the cases of State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; and Chandler v. Starling, 19 N. D. 144, 122 N. W. 198, in support of the proposition that the ultimate right or title to the county seat was not triable in the mandamus proceeding. The correctness of the rule thus announced is not, and cannot be successfully, questioned. But it does not follow from this that the court in such mandamus case did not have jurisdiction to determine certain issues which might, in the absence of such special proceeding, have been the proper subject of adjudication in the contest action. The crucial question seems to be whether, in the mandamus case, as presented, the court had jurisdiction to determine, as it did, that the election in the omitted precincts was illegal, null, and void. If it had such jurisdiction, then its adjudication of such issue is conclusive and final in the case at bar. This we deem well settled. 23 Cyc. 1215, 1216; Southern P. R. Co. v. United States, 168 U. S. [432] 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Murphy v. Scott County, — Minn. —, 147 N. W. 447, and cases cited. Also note to Peterson v. Butte, 27 Ann. Cas. 538-541. Indeed, appellant concedes this to be the law, but he contends, as above stated, that no such jurisdiction was possessed nor attempted to be exercised by the court in the mandamus proceeding. The difficulty with such contention is the fact that the court unquestionably did assume to adjudicate the validity of the election in such precincts, and its judgment declaring the same null and void was in all things affirmed by this court. State ex rel. Johnson v. Ely, supra. Such decision, whether right or wrong, is therefore conclusive in the present action. But we think the court had such jurisdiction. It goes without saying that it had jurisdiction to determine any proper issue raised in that proceeding, and it seems quite clear that the question of the validity of the election in the challenged precincts was squarely presented and litigated hy the parties, not, however, for the direct purpose of determining in such proceeding the ultimate right or title to the county seat, but for the purpose of enabling the court to determine relator’s right to the writ. Relator sought the issuance of such writ to coerce the canvass of returns from certain precincts, and in opposition thereto respondents, the members of the canvassing board, alleged and proved the fact that in such precincts the election was not held at the legally designated polling places therein, thus disclosing, in the absence of further proof, the invalidity of the election, and that the issuance of the writ as prayed for would therefore be entirely useless. Manifestly, this was a proper issue for consideration. The writ does not issue as a matter of absolute right. It must appear that it will serve some beneficial purpose and tend to promote rather than hamper justice. 26 Cyc. 143; 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, and authorities cited. In the latter case it was said: “It would be an improper use of the writ of mandamus to issue it when clearly apparent to the court to which application is made, or when it could be readily ascertained, that it could serve no purpose and would be useless when issued. Hence, evidence regarding the location of the voting places and the unauthorized change was pertinent and materialIt would seem that the foregoing completely disposes of appellant’s contention on this point. We conclude, for the [433] above reasons, that the question of the invalidity of the election in the omitted precincts is not now open to further controversy, but that such question was conclusively settled in the prior litigation. But it is urged by appellant that such former judgment is not res judicata, for the alleged reason that the district court at the time of its entry had lost jurisdiction because of an appeal which had been previously taken from the order dismissing the alternative writ. Such contention is, we believe, clearly without merit, for several reasons. Such appeal from the order, if permissible, which we need not here determine, was apparently abandoned, and an appeal from the judgment was later perfected and prosecuted to a final determination, resulting in an affirmance in all things by this court, and on such appeal no point was raised as to the jurisdiction of the district court to enter such judgment. Hence, appellant is not in a position to urge such question. Furthermore, the question was effectually set at rest by the decision of this court in such mandamus proceeding. The judgment appealed from is affirmed. Goss, J., being disqualified, did not participate.