10 Or. 52 | Or. | 1881
By tlie Court,
Tbe determination of tliis cause lias become comparatively unimportant to tlie parties, since tbe decision of tliis court in tbe case of tbe appellant against D. P. Thompson, on writ of review, lias settled tlie title of tbe office in controversy in bis opponent. But tbe case presents some questions as to tbe power of statutory boards in canvassing election returns, of no 'little interest to the public, which we feel it our duty to determine.
In tbe first place, this board of canvassers, provided for in tbe Portland city charter, undertook to consider, in making their canvass of the returns of tbe city election of June
It is true the poll books themselves did not contain the entries of the votes in the columns under the names of the persons voted for as required by sec. 23, title 2, chap. 14 of the general laws, (Code of 1872, page 571,) nor did they contain the enumeration of the whole number cast for each person, as provided in section 26, of the same title, but these defects we conceive furnished no justification for the resort to the loose sheets spoken of, in order to contradict and overturn the regular certificates, and change the final result.
We are disposed to concede the power of such a board, in the legitimate exercise of ministerial functions only, where these entries and enumerations are made in the poll books themselves, and authenticated by the certificates of the judges and clerks of election, as provided by the statute, to compare the number of entries in the appropriate column with the number certified to have been cast for any candidate, and to correct any plain clerical error in computation
A motion has been filed in this court to dismiss the appeal on the ground that the ultimate right to the office in controversy is involved in another case, also here on appeal, and that the determination in that case must necessarily supersede any further action on the part of the respondent board,' and render the issuance of the peremptory writ useless and of no possible benefit to the appellant. The case of Ingerson v. Berry, 14 Ohio St., 324, was cited in support of the motion. The proposition that mandamus should not issue when it can produce no benefit to the relator we regard as well settled. But the supreme court of Ohio had original jurisdiction in that case, and this court has only appellate authority in the present case. Besides, in the former the matter showing that the writ would prove fruitless if issued, appeared in the return, and was not controverted, while in the case before us there is nothing in the record paper denoting such objections to the issuance of the writ, and we cannot take judicial notice of what another record in an entirely different case may contain, although here on appeal, in disposing of the present. The record of each case should be complete in itself and exhibit all the grounds upon which its final determination in this court is based. (24 Cal., 73; 31 Id., 170, 215.) But we have no doubt of the power of the circuit court, after the mandate has gone down, to allow an amended or supplemental return to be filed, upon proper application, showing the facts attempted to be brought into the case by the respondent’s motion, and if admitted or established, if controverted by the appellant, to deny the writ. But whatever disposition may be made of this branch of the case by the court below, we are satisfied the judgment appealed from must be re
Judgment reversed.