Page v. Utah Commission

Smith, J. This was a proceeding in mandamus begun by the plaintiff against’ the defendants to compel the issuance to him (the plaintiff) of a certificate of election as a delegate to the constitutional convention soon to meet under the enabling act to form a constitution for the state of Utah. The affidavit on behalf of plaintiff on which the alternate writ was issued set out substantially that the plaintiff was an elector duly registered in San Pete county, Utah territory, at the time of the general election held November 6, 1894, in said territory; that the defendants constitute the board commonly known and called the “Utah Commission,” the same being created under section 9 of an act of Congress approved March 22, 1882, and commonly called the “Edmunds Law;” that an election of delegates to the constitutional convention for the proposed state of Utah was legally held on November 6, 1894. It sets out in detail — 125 — that the judges of election were regularly appointed and qualified, and regularly'received and canvassed the votes cast in San Pete county for election of the delegates to-said convention. It was alleged that plaintiff was a candidate for delegate to said constitutional convention, and received a majority of the votes cast in said San Pete county for such office; that the judges of election made due and legal return of their canvass of the votes cast for the plaintiff to the defendants, who constitute the board of canvassers, as above stated; that there was no irregularity or discrepancy or disagreement appearing from the face of said returns; and that, by the face of the returns, the .plaintiff was elected. It is then alleged that the defendants have completed their canvass of the votes, and have refused to issue to plaintiff any certificate of election, although the plaintiff has demanded the same, and that the plaintiff' has no plain, speedy, or adequate remedy in the ordinary course of law. The alternate writ of mandate was issued,, and contained the substance of the affidavit. The defendants answered, and denied: First, that the-plaintiff received a majority of 'the votes cast in San Pete county for delegate to the constitutional convention; second, denied that no irregularity, discrepancy, or disagreement appeared on the face of the returns, and alleged that there were irregularities, discrepancies, and disagreements that affected plaintiff's election^ and alleged there was a disagreement as to the votes cast for plaintiff' shown by the face of the returns; third, denied that their refusal to issue certificate of election to the plaintiff was. wrongful or unlawful; fourth, denied that plaintiff was. without remedy; and fifth, alleged that, discrepancies and irregularities appearing on the face of the returns, they have opened and canvassed the ballots, and that it is thus ascertained that plaintiff is not entitled to a certificate of' election. Without setting out the findings of fact in this126 ■opinion in detail, it is sufficient to say that the court iound the issues in favor of the plaintiff on all contested ■questions, and especially found that there was no irregularity or discrepancy apparent upon the face of the returns, and granted a peremptory writ of mandate, re■quiring defendants to issue to the plaintiff the certificate •of election as prayed for. A motion for a new trial was overruled, and the defendants appeal from the judgment •and order denying a new trial. Several errors are assigned, but they may be grouped under three heads: First, that the evidence was insufficient to justify the judgment and •decision of the court; second, the court erred in receiving •any testimony- on behalf of the plaintiff; and, third, the court erred in awarding a peremptory writ. We shall ■examine these assignments of error in the order stated. The particular finding which is assailed as not supported by the evidence is the eighth, which is the finding, 'in effect, that there were no irregularities upon the face •of the returns authorizing a recanvass of the ballots cast. We have carefully examined the evidence contained in the ■statement, including the original returns, which are made .a part of it, and are unable to find any irregularities or discrepancies which in any way affect the result of the •election of the plaintiff. The irregularities and discrepancies which defendants claim the returns disclose are as follows: The registry list, containing the word “ Voted” ■opposite the names of certain voters, is compared with the poll list, or list of the names of voters made at the election, and they are found not to correspond in certain particulars, as follows: In the precincts of Chester, Ephram, ■Gunnison, and Moroni there is found to be an aggregate •of 17 more names marked “ Voted" than appear on the poll list or list of votes made at the election in these pre■cincts; while in the precincts of Fairview, Fountain Green, Manti, Mt. Pleasant, and Spring there appears to be an — 127 — ■aggregate of 21 more names of voters on the poll list tiran "there are names marked “Voted" on the registry list; and in only one case does there appear to have been any larger number of votes canvassed as shown by the tally sheets than the smallest number shown by either the voted registry list or the poll list, and this case occurred at kit. Pleasant, where only 498 names are marked “Voted" on ■the registry list, while 3,500 votes were cast for candidates .for delegates to the constitutional convention, which would be 14 votes in excess of the number that could have been legally cast, as each voter could only cast 7 votes in that -county, there being 7 delegates apportioned to San Pete county by the enabling act. This makes an apparent discrepancy of 2* votes on an average for each candidate, but in this precinct the poll list shows that 507 men voted, which would have permitted an aggregate legal vote of -3,549 if each man had voted a full ticket, or an average vote of 507 votes for the opposing candidates for each ■office of delegate for the constitutional convention. The plaintiff's majority, as appeared by the face of the returns, was 30 votes over his next competitor; so that, if it be -conceded that there is an irregularity and discrepancy in the return from Mt. Pleasant of two votes, still it would .not affect his election. But it is claimed that the difference between the voted registry list and the poll list are irregularities that authorize ■a recount of the ballots by the. canvassing board. We ■cannot agree to this. The statute, after pointing out what shall constitute the returns, and that on their receipt by the canvassing board they shall be opened and examined, provides: “And if no irregularity or discrepancy appear therein affecting the result of election of any candidate, they shall accept said returns as correct; but if the right •of any person voted for, for any office, is in any way .affected, then [the canvassing board] shall open the bal — 128 — lots from said precinct and canvass the same, so far as to' determine the rights of the person whose office may be affected.” See section 256, p. 324,- 1 Comp. Laws Utah. It will be seen that the irregularity and discrepancy must appear upon the face of the returns; in the language of the statute, “it must appear therein.” It must be such as to affect the election of the candidate, and it is apparent, also, that it must be one which may be corrected or reconciled by a recount of the ballots; otherwise a recount-can do no good. Now, let us see what irregularities or discrepancies would fulfill these manifest requirements, and whether the difference between the voted registry lists and' the poll list are of such character. The tally sheets,, according to the statute, are to be made in duplicate, and are a tabulation of the face of the ballots. Manifestly,, therefore, if there appear to be more ballots counted than, were cast as shown by the voted registry list and poll list,, this is an irregularity indicating that the' judges have-made a mistake in the count, or that they have suffered ballots illegally to be put into the boxes and counted. A. recount of the ballots will at once disclose which it is,, and permit its instant correction. But it may be asked,, if the tally sheets show a less number than the poll list- and voted registry list, why is not this an irregularity?’ The answer is plain. The voter may not vote a full ticket.. Some names may be scratched, and no others inserted.. This would be perfectly legal. The presumption is that, the judges of election have done their duty. Therefore,, when they make a return which is legally consistent with itself, no irregularity is then apparent therein; and, where the tabulation of the ballots shows a number of votes counted no greater than was cast, then the return is-legally consistent. The statute requires the tally sheets,, as we have before stated, to be made and returned im duplicate. If they agree with each other, there is no dis — 129 — crepancy; if they disagree* then a recount of the ballots will sbow which, if either, is right. This discrepancy, therefore, is one pointed out by the statute that authorizes a recount of the ballots. We have seen that the return from San Pete county at the late election in every instance shows either an equal or less number of votes counted than were cast, except at Mt. Pleasant, where there is a disagreement of two votes between the voted registry list and the tally sheets, and there is no discrepancy apparent in the duplicate tally sheets at all. The differences between the voted registry list and the poll list could in no> wise be reconciled or explained by a recount of the ballots, and it is not pretended that they could. Y,Te are therefore of the opinion that there were no irregularities or discrepancies appearing upon the face óf thé returns affecting the plaintiffs election, and that the court below properly so found. The next question is whether the court erred in admitting evidence in support of the alternative writ of mandamus. The contention of appellants is that inasmuch as the defendant canvassing board must, in the first instance, decide whether there are irregularities, their decision is not subject to review by mandamus; and it is not denied that this proceeding, in its nature, does attempt to revise their decision in this matter. I do not know if the other members of the court agree with me in this statement, but I am of the opinion that the powers of the canvassing board under section 256, above cited, are purely ministerial. The last clause of that section (not embraced in the citation) is not involved here, but I may say, in passing, that I think, it wholly nugatory, as it does not empower the board to> render any decision or take any action on the proof which it may receive. Every canvassing board must decide, in the first instance, what are the returns of the election, but. — 130 — it has never been held that this was the exercise of judicial power. It must determine that fact from the face of the returns themselves, and cannot go further; and it may not •capriciously reject returns for some imaginary or real informality, which does not destroy the character of the returns as such. In the case of State v. Steers, 44 Mo. 223, it was expressly decided that mandamus would lie to •compel a canvassing board to accept and canvass a return from the precinct which they had undertaken to reject. It was held that their powers were purely ministerial, and subject to control by mandamus, even in respect to deciding what were the returns of an election. See, also, McCrary, Elect. (3d Ed.) §§ 226, 227. I have attempted to show that the determination as to whether there were irregularities or discrepancies was to be made from the face of the returns alone, and involved nothing more than the simplest kind of a problem in arithmetic; and, if found to exist, the resulting duty was to recount the votes in the boxes, — another purely ministerial act. To hold that either or all of these duties are judicial I cannot. As well might we say that the action of the county clerk in casting up the taxes on a tax roll, or that ■of a commissioner of schools in apportioning school money .among the several districts of the territory is judicial. The truth is that the statute declares what the decision must be when the mathematical calculation is completed. There is no room left for discretion or judgment; there is no power or right to decide in but one way, and that is according to the result of the mathematical problem, which must in its nature be exact. If I know the distinction between ministerial and judicial duties, the powers of the •canvassing board in this territory belong wholly to the former class, and it is not the duty of the court, as I conceive it, to in any wise extend the powers of such boards. — 131 — There is much in the record in this case and in the kin■dred case in prohibition which was heard with it in this ■court (39 Pac. 502) to indicate corrupt and criminal practices intended to affect the election occurring between the ■election and the canvass by defendants. In fact, in the prohibition case the court expressly found there had been eorrupt and criminal forgeries; and it is not denied that such did exist upon the tally sheets and returns made. And while, in my view, this evidence could have no proper-place in either of these cases, inasmuch as the canvassing board had no power to hear evidence in regard to it, and while it is not hinted on either side that the defendants ■nre in any wise responsible for these practices, yet it only too clearly demonstrated the danger to fair elections that would result from the exercise of such power as is claimed by an irresponsible returning board. The performances of boards of this character assuming judicial functions in Louisiana and other Southern states in 1876 are matters of recent history in this country, and known to us all. They became so corrupt and outrageous as to bring the nation -to the verge of civil war, and, with this historical example before us, it seems to me that we should be slow to enlarge the powers of such a body in this territory in the direction ■claimed. I am therefore of the opinion that the court properly permitted the evidence offered by the plaintiff. The last question is, did the court properly render judgment awarding the .peremptory writ? This brings us to the consideration of the powers and duties of the defendant board. The board is organized by the ninth section of what-is known as the “Edmunds Act.” The -third clause of that section provides: “ The canvass and xeturn of all the votes at elections in said territory-for .•members of the legislative assembly thereof shall also be returned to said board [meaning the defendants] which aIi all canvass all such returns and issue certificates of elec — 132 — tion to the persons who being eligible for snch election,, shall appear to have been lawfully elected.'” It is admitted that this legislation of Congress, creating the Utah Commission, and authorizing it to appoint registration and election officers, did not repeal any part of the election, laws of the territory of IJtah, except that part which provided the agencies by which such laws were to be-executed. There is no' contention between counsel upon this point. By the enabling act, delegates to the constitutional convention are to be elected and the votes therefor to be canvassed in the same manner provided by law for canvass and certification of the election of the members of the legislative assembly. The whole controversy turns upon the proposition as to what part of the duties and powers conferred by the territorial election law passed directly to the defendants, and what part passed to their appointees, provided for in the second clause of the ninth section of the Edmunds Law. Formerly the county clerk and some members of the county court received the returns, of election both for the legislature, the county, and precinct officers and territorial officers direct from the judges of election; and the duties prescribed in section 256, above-cited, of the election law, were the duties and powers conferred upon the clerk and members of the county court as a canvassing board. It is claimed by one of the counsel for the respondent that these duties are still to be performed by some board appointed in the county, or rather by some proper person, to use the language of the act of' congress, appointed in the county; while one of the counsel for the respondent and both counsel for the appellants contend that the judges of election are to return the-canvass of votes for members of the legislature, and therefore the canvass of votes for candidates for delegate to the. constitutional convention, directly to the defendant board» We agree to this latter opinion. — 133 — It seems to us the only construction of the statute which will make all its parts consistent, and which is the •construction which was placed upon the statute by those charged with its execution immediately after it was en-acted, 12 years ago. If it were a case of doubt, this contemporaneous construction should have great weight with ■the court in determining the meaning of the statute. However, its meaning appears plain to us that the return •of votes means the return by the first agency who are making the return, to wit, the judges of election, after they themselves have canvassed the ballots cast. The language is: “The canvass and return of all the votes at the time •of the election shall be returned to said board.” We think this means that the judges of election shall canvass the votes, and make their return in the manner provided by 'law, direct to the Utah Commission, and that, they shall 'thereupon proceed to canvass any such election in the ¡same manner that the county court was formerly required to do; that they possess the same power that the county •clerk and members of the county court formerly possessed, and no more. The statute clearly provides that the defendant board shall issue to members of the legislature, and therefore, by the enabling act, to delegates to the constitutional convention, certificates of election to the persons who appear to have been lawfully elected. As we have ¡already seen, the returns show that the plaintiff appears •to have been lawfully elected. Our conclusion, therefore, is that the court properly •found there were no irregularities or discrepancies affect-ing the election of the plaintiff appearing upon the face of the returns; that the court properly awarded the peremptory writ against the defendants, commanding them to ■certify to the plaintiff’s election. We are asked to set aside the judgment for costs in this •case, because the defendants are public officers acting in — 134 — good faith. If the judgment against defendants *is right,— and we have seen that it is, — then we cannot disturb the judgment for costs. Section 3684 of the Compiled Laws-provides: “Costs are allowed of course to the plaintiff upon a judgment in his favor in the following casesr * * * Fourth. In a special proceeding. This is a special proceeding. See Code Civ. Proc. pt. 3, tit. 1, §§■ 3716-3749. For the reasons stated, the judgment of the court below is affirmed, with costs. Merritt, C. J., and King, J., concur in the judgment in this case.