156 Iowa 582 | Iowa | 1912
The plaintiff, Truman Jones, and one A. C. Eisher, who as chairman of the board of supervisors is one of the defendants in this action, were opposing candidates for the Hepublican nomination to the office of supervisor at the primary election held June 3, 1912. The returns of the election from all the voting precincts gave Jones a majority of one vote over Eisher. Within the time provided by law, Eisher filed with the board of supervisors a verified statement alleging fraud and mistake in the returns from the Eirst precinct of Bloomfield township, and that illegal votes had been received in that precinct, and demanding a recount of the ballots as provided by the statute regulating primary elections. The board ordered a recount, and found that the vote as shown by the voting machines used in such precinct had been cor
The provisions for a contest with reference to the result of a primary election are those found in section 9 of the amending act, which, so far as it is material, reads as follows:
Any candidate whose name appears upon the official primary ballot of any voting precinct may require the board of supervisors of the county in which such precinct*585 is situated to recount the ballots cast in any such precinct as to the office for which be was a candidate, at the time fixed for canvassing the returns of the judges of election, by filing with the county auditor ... a showing in writing duly sworn to by such candidate, that fraud was committed or error or mistake made in counting or returning the votes cast in any such precinct as to the office for which be was a candidate. The showing must be specific, and from it there must appear reasonable ground to believe that a recount would produce a result as to bis candidacy different from the returns made by the judges. If such showing is made to the satisfaction of the board, it shall thereupon recount the ballots cast in any such precinct for the office for which the contestant was a candidate, and if the result reached by the board on the recount of the ballots as to such office be different from that returned by the judges of election, it shall be substituted therefor as the true and correct return, and so regarded in all subsequent proceedings. The action of the board shall be final and no other contest of any, kind shall be permitted.
The voting at the precinct in question was by voting machines, and therefore the sole function of the board of supervisors making a recount was to verify the votes as shown by the machines for the purpose of determining whether the returns of such votes were correct. Having ascertained by examination of the machines that the votes shown were correctly returned, and the recount was concluded, and the board had no other authority than that of announcing the result in accordance with the correct returns. That the action of the board was wholly unauthorized and illegal is apparent from another consideration. If they had authority to inquire into the validity of the votes by taking evidence of voters as to their qualifications, then they should have determined anew the result of” the primary election in the precinct in question. Evidence was introduced before them tending to show other illegal votes were cast than the three illegal ones which were cast for Jones and which they rejected, but, without any finding as to whether any other illegal votes were cast and for whom they were cast, the board simply determined that three illegal votes were cast for Jones) and thereupon the conclusion was reached that these three votes should be deducted from the total in his favor. It may have. been that, if the, board had passed upon the evidence presented, it would have been found that illegal votes were also cast for Fisher which should be deducted from the total of the votes returned
There is a further contention for the appellant that the remedy of plaintiff, if any, was by mandamus to compel the board to act, and not by certiorari. But it appears that the board did.act, and did find the_returns of the primary election, so far as' it was authorized to inquire into the matter, were correct. Its action in conducting a wholly unauthorized inquiry and in announcing as a result of such inquiry that the returns were incorrect and should be set aside was outside of its jurisdiction and illegal.
Judgment of the trial court was in accordance with the law, and it is — Affirmed.