111 P. 133 | Idaho | 1910
In this proceeding it is sought to review the action of the state canvassing board. Since the right of the plaintiff to proceed by writ of review is questioned, it is necessary to recall the province of that writ and the scope of its operation. Under the statute, see. 4962, the writ will only issue to review the exercise, or rather excessive exercise, of judicial functions. A writ brings up the record of the board, tribunal or body whose acts are to be examined. The statute, sec. 4968, provides that, “The review upon this writ cannot be extended further than to determine whether the inferior •tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.” This is not, therefore, a remedy by which the facts in any given case or controversy
In McConnell v. State Board of Equalization, 11 Ida. 662, 83 Pac. 494, this court said: “The writ of review is not a remedy for correcting errors and mistakes of judgment, neither can it be invoked for the purpose of reviewing the facts upon which the inferior tribunal, board or officer acted, except for the purpose of ascertaining the one fact of jurisdiction. Its province is limited entirely to a review of the questions of law involved in the matter. The court should in such cases always confine its inquiries to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred on the tribunal, board or officer. ’ ’
That holding has been reiterated by this court time and again. (Sweeny v. Mayhew, 6 Ida. 455, 56 Pac. 85; Adleman v. Pierce, 6 Ida. 294, 55 Pac. 658; Coeur d’Alene M. Co. v. Woods, 15 Ida. 26, 96 Pac. 210; Utah Assn. of Credit Men v. Budge, 16 Ida. 757, 102 Pac. 390, 691.)
Now, it will appear at once that if the record, to wit, the election • returns from the several counties as filed with the state board of canvassers should be certified up to this court, as requested by the plaintiff, there would be nothing to determine by this court except as to whether or not the board had jurisdiction to canvass the returns, compute the total number of votes received by each candidate as they appear from the returns, and certify to the secretary of state the names of the persons who received the majority or plurality, as the ease may be, for each of the various offices shown and designated on the returns. This is the very thing that the plaintiff alleges the board did, and it is of that action that he complains.
It would have to be conceded that the board has the general power and jurisdiction to canvass election returns and declare the result. Plaintiff contends, however, that since these returns show some six thousand more first choice votes as
Sec. 457 of the Rev. Codes provides that, “whenever the board of county canvassers, or of state canvassers, shall find that the returns from any precinct, ward, county or district (as the ease may be) do not strictly conform to the requirements of law, in the making, certifying and returning of the same, the votes polled in such precinct, ward, county or district shall, nevertheless, be canvassed and counted if such returns shall be sufficiently explicit to enable such boards, or any person or persons authorized to' canvass votes and returns, to determine therefrom how many votes were polled for the several persons who were candidates and voted for at the election of which the votes are being canvassed.”
Sec. 458, in further aid of the provisions of sec. 457, says: “If upon proceeding to canvass the votes it shall clearly appear to the canvassers that in any statement produced to
It would appear from the petition in the case that the returns from the several counties were sufficiently full, complete and explicit to satisfy the state board of canvassers, and to, in their judgment, justify them in proceeding to canvass the returns and declare the result. It is not the business of the board to determine whether any illegal votes have been cast or not; indeed, they have no way to know either whether more votes have been counted than were actually cast, or that the count has been made in every instance correctly by the various election officers or canvassing boards. The duty of the state canvassing board is that of adding up the votes received by the several candidates as returned by the canvassing boards of the several counties and ascertaining the total vote and declaring and certifying the result. These are purely clerical, ministerial and administrative acts and involve no judicial discretion.
In the case of State v. Osburn, 24 Nev. 187, 51 Pac. 838, the supreme court of Nevada held that “the determination as to the result of an election by a canvass of the returns by the city council is not a judicial act, but is purely a matter of calculation, and hence cannot be brought up for review by certiorariThis proposition is sustained by many authori
We will not undertake to say at tbis time that the board could not, under any circumstances, perform a judicial or quasi-judicial function in the discharge of its duties as a canvassing board. It is the nature of the act rather than of the office or board which performs the act that determines whether or not it is the discharge of a judicial or quasi-judicial function. (Quinchard v. Board of Trustees, 113 Cal. 664, 45 Pac. 856; State v. Osburn, 24 Nev. 187, 51 Pac. 837.)
In the case at bar, however, it is clear that no judicial function has been invoked or called into action. We are not unmindful of the ease of Green v. State Board of Canvassers, 5 Ida. 130, 95 Am. St. 169, 47 Pac 259, on which plaintiff relies as authority for resorting to the writ of review to review the action of the board in canvassing the vote and declaring the result. That was a friendly suit invited by resolution of the canvassing board in order to get a construction by the court of art. 20 of the constitution, and no question was raised as to review being the proper remedy, nor do we ■desire to be understood as questioning but that it was the proper remedy in that case. There the only thing to be determined was whether or not the board reached the right conclusion of law upon the facts that it had found. After canvassing the vote the board made a finding that 12,126 votes had been cast in favor of the amendment and 6282 votes .against it. The board thereupon concluded and so certified that the amendment had been lost. This was based wholly and solely upon the construction which the board placed on the several provisions of art. 20 of the state constitution. No question of fact was involved. It was purely a question of law. The court considered the matter and reached the conclusion that the canvassing hoard had exceeded its jurisdiction as a matter of law when it decided that in order to adopt
It has been argued very forcibly by counsel for plaintiff that in this case there is no remedy by appeal, no remedy by mandamus, no remedy by prohibition, and no remedy by contest, and that since there must be a remedy for every wrong he must be entitled to invoke the writ of review. It is a maxim of the law that for every wrong or injury the law affords a remedy. That has its exceptions, however, the same as all other maxims and rules that have been devised by man, and that exception is to be found in popular elections. Each member of society has to suffer some burdens and inconveniences for the sake of society or in order that some other member of society may exercise his equal rights as a citizen. A man may be defeated by all kinds of foul and unfair means having been used against him with the electorate of the state, and yet- he may not find any remedy in the courts. (Sherer v. Superior Court, 94 Cal. 354, 29 Pac. 716.) If he has any remedy at all, he must seek it before the people. This grows out of the very nature of popular elections. Falsehood and misrepresentation which would vitiate a contract or afford a man relief in a civil action involving his business and property interests is often passed unrebuked and is sometimes rewarded with victory in politics.
It has been repeatedly held by numerous courts that the holding of elections belongs to the political branch of the government, and is beyond the control of the judicial power of the state except in so far as the law-making body has specifically vested such power in the courts; that.it was not designed by American constitutions that any one department of government should interfere with or control another; and that it is for the political power of the state within the
It will also be seen from a mere cursory examination of the authorities that tbe courts have been extremely reluctant to interfere with tbe bolding and conducting of elections in any manner except as specially authorized by tbe statute or constitution. Since tbe right to vote and bold office is not among tbe inalienable rights of wbicb tbe American people are so jealous, tbe regulation of this branch of tbe rights and privileges of tbe citizen has been delegated to tbe political department of tbe state in every state in the Union. (15 Cyc. 280, 281, and cases cited.)
And so it may happen, and often does, that in tbe course of elections many persons who are either defeated candidates or tbe friends and supporters of those candidates may feel that they have been wronged either by someone being allowed to vote who was not an elector or some vote being improperly rejected or improperly counted, but tbe aggrieved party must depend upon tbe honesty and sense of fair dealing of those conducting tbe elections for bis redress unless a specific remedy is pointed out by law for such a case. Where tbe law commands action and election officers or boards refuse to act, tbe courts will also compel action, or where they attempt to act in a manner contrary to or violative of tbe statute, tbe courts will reach out and restrain them, but will never interfere to correct mere errors or irregularities unless specifically so authorized.
It is clear that there is no such thing as a contest provided for by the primary election law for tbe office of governor, because contests for governor take place before tbe legislature meets. But aside from this it is extremely doubtful if tbe
Under the primary election law as construed by this court in Adams v. Lansdon, ante, p. 483, 110 Pac. 280, there being more than two candidates for governor at the late primary election, it was necessary for the voter to cast both a first and second choice vote. If, therefore, every first and second
As heretofore stated, if it should be conceded that this was error on the part of the board, still it could not be termed an excess of jurisdiction nor did it oust the board of jurisdiction to proceed and canvass the vote. Taking the allegations of the complaint as true, which we must do for the purposes of this demurrer, it is then clear that the election officers or canvassing boards have either counted and returned more first choice votes than were actually cast or fewer second choice votes than were in fact cast. It is, however, more reasonable to assume that the latter is true than the former, and it is most likely that the board took that view of the matter. It is altogether probable that election officers in many of the precincts where second choice votes were cast for persons whose names were not on the official ballot did not return these miscellaneous second choice votes to the county canvassing boards, and that in that manner the count of a great many scattering second choice votes that were cast promiscuously for persons whose names did not appear on the official ballot were lost between the time of the count in the precinct and the certification of the official canvass to the state board. Had the board sent back these several returns to the county canvassing boards, the county boards
Some errors will necessarily occur in the holding of elections. It is perhaps safe to say that no election was ever held that was free from error, but no man has any vested right in an office or in the right to run for office. Upon the whole and in the aggregate the results obtained accomplish substantial justice and achieve the will of the people. Persons who become candidates for office must of necessity assume the risks and run the chances of mistakes and errors being made in the holding of elections. In the conducting of elections by popular vote, much has to be trusted to the honesty and integrity of election officers and the people at large and to the vigilance of the electors in detecting error or fraud and causing its correction at the time when and place where it is committed. Fortunately, in this country, there can scarcely be found an election precinct anywhere in which all the electors are the friends or partisans of any single candidate or of any one political party, and so it generally happens that the vigilance of the friends and adherents of opposing candi
The complaint fails to show that the canvassing board has exercised any judicial functions or has exceeded its authority in the exercise of any of its powers, and we conclude that the writ of review will not lie to examine its action in canvassing the election returns. "We are also satisfied that if this were a case in which the writ might issue that the facts pleaded would not authorize or justify the court in vacating or modifying the action of the board in canvassing the returns and certifying the result. Demurrer sustained, writ denied and action dismissed. No costs awarded.