2 S.D. 185 | S.D. | 1891
On the 27th day of December, 1890, Daniel M. Smith, plaintiff and respondent, applied to the circuit court of the sixth circuit, sitting in vacation, for a peremptory writ of mandamus, to be directed to the defendants, commanding them to reconvene as a board of canvassers of Sully county, and to complete said board by calling to its assistance another county officer, as provided by law, and to proceed to count, canvass, and abstract all the votes cast in said county, including precinct No. 26. Notice of the application was duly served, with a copy of the affidavit on which the application was to be made annexed thereto. The affidavit is, in substance, as follows: That on the 4th day of November, 1890, a general election was held in the county of Sully, for the election of state and county officers and for members of congress; that at said election the respondent, Daniel M. Smith, and one Albert A. Faust were candidates for the office of sheriff of said Sully county; that there were in said county 28 precincts or polling
The proceedings were originally commenced in the name of the state, on the relation of Daniel M. Smith, but, on motion of the defendants, the name of the state was stricken out, and the case has since proceeded in the name of the plaintiff, Daniel M. Smith, who «is the real party in interest, and is, we think, the proper party ijlaintiff. When the proceeding is to redress a private wrong, as was evidently the object of this proceeding, the party beneficially interested should be named as the plaintiff. Linden v. Alameda Co., 45 Cal. 7; Damrell v. San Joaquin, 40 Cal., 158; Hagerty v. Arnold, 13 Kan. 367. Counsel for the defendants filed a motion to dismiss the application on certain grounds therein stated, which being denied, the defendants interposed a demurrer to the application, upon substantially the same grounds as stated in the motion; the sixth ground of said demurrer being “that the affidavit presented for said peremptory writ of mandamus does not state facts sufficient to justify the cpurt in granting said writ. ” The demurrer was overruled, and from the order overruling the demurrer an appeal was taken to this court, and is now pending. But as the sufficiency of the pleading is raised by the objection to the affidavit taken in this court, as well as by the demurrer, we will consider the sufficiency of the affidavit on this appeal from the judgment, reserving the question argued .on appeal from the order, as to whether or not an appeal can be taken
Does the affidavit state facts sufficient to authorize a court to issue the writ? It is contended by counsel for appellants that the writ should not issue for the reason that the facts disclosed by the affidavit show that the board of canvassers was properly organized by the county auditor, performed its duties as such, and adjourned prior to the institution of this proceeding, and as a part of the relief demanded by the plaintiff is that the three canvassers, defendants herein, shall call to their assistance another county officer, as provided in Section 18, Chapter 84, Laws 1890, and which relief the court will not grant any relief in the premises.
While we agree with the counsel in their contention that the board of canvassers was legally and properly constituted, we do not agree with them in their conclusion that the court is precluded from issuing the writ because it cannot grant plaintiff all the relief asked But we are of the opinion that, though plaintiff may have demanded greater relief than he is entitled to by law, the court may grant him the relief to which he is entitled under the facts stated. State v. Crites (Ohio,) 26 N. E. Rep. 1052; State v. Board, 36 Ohio St. 409; Ross v. Board, 42 Ohio St. 379. It appears from the affidavit that in Sully county there were five county commissioners duly elected and qualified, and that the auditor took to his assistance in canvassing the vote of said county a majority of said board. It also appears that the auditor was himself a candidate for re-election. This renders necessary the construction of Sections 1, 18, Chapter 84, Laws 1890. Section 1 of that Chapter provides: ‘ ‘On or before the tenth day after the close of any election, or [as] soon thereafter as all the returns are received, the county clerk or auditor shall take to his assistance a majority of the county commissioners of the county, or the county treasurer, judge of the county court, and one county commissioner, none of which persons so called shall be candidates for office, unless there is not sufficient of said officers who are not such candidates, and shall proceed to open the returns from the various voting pre
We think the counsel are right in their contention, and that it is only in cases where there are two only taken to the assistance of the auditor, and the auditor is himself a candidate, that a third must be called in, under the provisions of Section 18. The provisions of Section 18 are only brought into exercise when there are but two competent canvassers. When the auditor has brought into existence the three members of the can
The plaintiff alleges that the returns from precinct No. 26 were regularly made, and that the poll books so returned show that plaintiff had 37 votes in said precinct, and said Faust' had 20 votes, which, if properly counted and abstracted, would have shown that plaintiff had a majority of 10 votes in the county, and that he was entitled to, and should have received, the certificate of election. When, therefore, the board of canvassers, failed and neglected to count, canvass, and abstract the vote and returns from precinct No. 26, it neglected to perform a clear, plain, and specific duty imposed upon it by law. It did not complete the canvass it was its duty to make and complete, and, until this is done, the duties of the board remain unperformed and unfinished as to that particular precinct.
But it is contended by counsel for appellants that, though the board of county canvassers has failed to perform its duty by neglecting to canvass the vote from precinct No. 26. it has made and filed the abstract required by law, and a certificate has been issued thereon to Mr. Faust, the opposing candidate,
It is further contended by the appellants that a mandamus should not issue in this case, for the reason that plaintiff has a plain, speedy and adequate remedy by contest and quo warranto proceedings. But we are of the opinion that such is not the case. The remedy by contesting the election of Faust under the statute was not available at the time this proceeding was instituted, as it does not appear that notice of such contest had been given within the 20 days after the canvass, as required by the provisions of the law governing contest proceedings. Bowler v. Eisenhood, (S. Dak.) 48 N. W. 136. But, even if this were not so, that remedy would not be adequate to accomplish the result sought to be accomplished in this case, — the proper canvass of the returns of the votes, and the filing of the proper abstract in the office of the auditor, upon which the proper certificate should issue. Mandamus is the only proceeding that can give plaintiff the desired remedy, and place him in the position with reference to the office of sheriff that he is entitled to by law; and that is the person shown by the abstract of the votes of said election to be elected to the office of sheriff of Sully county, and entitled to the certificate of election; and the law relating to contesting elections specifically provides that the ‘ ‘act shall not be construed to affect any of the remedies or rights of action or proceedings provided for in the Code of Civil Proceedure.” Section 1499, Comp. Laws. Proceeding by quo warranto is neither adequate, plain, or speedy, and the remedy sought here could not, in any event, be obtained under that proceeding. If a proper and legal canvass of the returns by the officers whose duty it is to make such canvass will show that plaintiff is the elected sheriff of said Sully county, why should he be compelled to institute other proceedings than those necessary to compel the canvassing board to perform its duty, and make the proper canvass and abstract
But a further and more conclusive reason why plaintiff could not have instituted proceedings in quo ivarranto is that, when these proceedings were instituted,' Faust was not an incumbent of the office, and quo ivarranto proceedings could not then have been commenced against them.
Again, it is contended that plaintiff has been guilty of laches in not sooner instituting proceedings to compel this board to do its duty in the premises. But there is no merit to this contention, as applied to this case. The returns and abstract of the votes are within the control of the county, and when that is the case, it cannot be said that the proceeding bap gone beyond the jurisdiction of the board. It is alleged that the board of canvassers adjourned November 8th, and the notice of these proceedings was served December 3d, — only about 25 days, — certainly not an unreasonable delay. We are of the opinion, therefore, that the affidavit states facts sufficient to entitle the respondent to the issuance of the writ, and that the court properly overruled the demurrer.
This brings us to the merits of the case. The defendants on the demurrer being overruled made answer or return to the affidavit, admitting substantially all the facts alleged, but setting up, in substance, that two ballot-boxes were returned from precinct No. 26. That it appeared from the face of certain papers in the auditor’s office that in said precinct certain soldiers from the regular army of the government of the United States voted. That the votes of said soldiers were placed in one ballot-box and the votes of civilians were placed in another and different box. That it did not appear from the boxes or papers which box contained the soldiers’ votes and which contained the votes of civilians. That it further appeared that the votes of said soldiers were entered in the pretended poll-books
The plaintiff having rested, the defendants offered in evidence the following document, taken from the sealed envelope with the poll-book from precinct No. 26: “Greenview Voting Precinct, November 4, 1890. To the canvassing board of Sully county: We, the undersigned judges of election for precinct number 26, Greenview township, hereby submit the following statement of facts. There appeared before this board, [nine persons named. ] and offered their votes, they being men listed as soldiers in Fort Sully, and entitled to vote, under the statutes of the United States, at the nearest voting precinct. We ‘excepted’ their votes in a separate ballot-box. canvassed the same separately, put them back in the same box, and return the same inclosed in the larger box, under seal and lock. [Signed] Charles W. Porter. E. A. Fieldhouse. R. N. Arthur. ” This document was objected to by the counsel for the plaintiff, on the ground that it was incompetent, irrelevant, and immaterial, and was excluded by the court. This is assigned as error. Counsel for defendants insist that this document should have been admitted in evidence, that, being found in the same envelope with the poll-book, and signed by the same judges as the poll-book admitted in evidence, it constituted a part of the return from that precinct.
We are clearly of the opinion that the court committed no error in excluding this paper. It was a document that the judges of election were neither required nor authorized to make, and it was therefore incompetent, irrelevant, and immaterial in the case. The certificate of officers not authorized or required by law has no more force or effect than the certificate of private persons. U. S. v. Bank of Columbus, 21 How. 356; Goose River Bank v. Willow Lake School Tp., (N. Dak.) 44 N. W. Rep. 1002; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep 315; Daviess Co. v. Dickinson, 117 U. S. 657, 6 Sup. Ct. Rep
A return by the judges of election is required and authorized by law, and hence is competent evidence of the facts the judges are authorized and required to state therein, but not of other facts not so authorized or required. The duties of judges of election and the returns or certificates they are required and authorized to make are clearly and specifically defined in Chapter 14. §§ 1440-1470, Compiled Laws. Their duties as defined are larely ministerial. When the ballots of the voters have been received and placed by the judges in the ballot-box, they have no further control over them, except to canvass them, and set down in their poll-books ‘ ‘the name of every person voted for, written at full length, the office for which such person received such votes, and the number he did receive, the number being expressed at full length,” and such entry to be made substantially in the form specified in Section 1467, Comp. Laws. ‘ ‘The judges of election shall then inclose and seal one of the poll-books, and, under cover, direct the same to the county clerk [or auditor] of the county in which such election was held,” and the other'poll-book, together with the ballots and ballot-boxes, shall be deposited with the chairman of the board. Section 1468 Id. In this case the lawr had been complied with by the judges of election in precinct No. 26. The’ poll-book with the proper entries therein had been forwarded to the auditor, and the other poll-book and ballot-box deposited with the chairman of the board, as required by this section. The judges, it will be seen, are not required or authorized to make any other statement or certificate, and, when they assume to so make any, it can and should have no effect whatever. Not only is such a document without force and effect, but inclosing it with the poll book was highly proper.
This brings us to the consideration of the action of the board of canvassers in failing to canvass precinct No. 26. Have the board shown any justification for their action in reference to this precinct? None, we think, is presented by the record. The duties of a board of county canvassers under our election
Counsel for appellants further insist that, conceding this to be so, no mandamus should issue, for the reason that Faust is now an incumbent of the office of sheriff of Sully county, performing its duties. But we are of the opinion that this does not affect plaintiff’s right to the writ. The decisions upon this question are not uniform, but we think the cases holding that the fact that there- is an incumbent of the office will not prevent the writ issuing are based upon the better reason, and supported by the weight of authority. In Ellis v. County Commissioners, 2 Gray, 370, the answer set up as a defense to the -writ that Townsend, who had been declared elected, had duly qualified, and was in the discharge of the duties of the office. In delivering the opinion of the court, Chief Justice Shaw says: ‘ ‘The questions are whether, upon the return of the commissioners and their record, as amended, the prosecutor of the writ was entitled to a certificate and adjudication that he had the highest number of votes for county treasurer, and whether this question can be inquired into under this process. We are not now to consider whether the county commissioners can be required to place the prosecutor in the office. It may be that, even if he should succeed, and show that he ought to have been declared duly elected, he may be obliged to resort to his quo warraoto, in order to remove the present incumbent from the office, before he can be restored; and we understand that an application for such a proceeding is now pending. But we are satisfied that it is competent for this court, on this writ, at the instance of the prosecutor, to inquire into the facts, and to require the county commissioners to do what it was plainly their duty to do, and what it is still in their power to do,' — to declare and certify, if such was the fact, that the prosecutor had the highest
It is also contended by counsel for the defendants that the auditor should be a party to the proceedings, and the writ should issue to him commanding him to convene a new board, as the canvassers taken by the auditor, having performed their duties and adjourned, cannot now be reconvened. But the board organized by the auditor to perform the duties of making a canvass of the result of the election in Sully county has failed to perform that duty, and, until it does complete its labors, it continues as a board of canvassers for that special purpose, and may be reconvened by the order of the court. While the auditor would, perhaps, have been a proper party in connection with the canvassers, he is not an indispensable party, and the court will not presume that he will not perform, his duties as clerk of the board, or, as auditor, file a corrected abstract as to the candidates for sheriff, and issue the proper certificate thereon.
Again, it appears from the record that Mateer, one of the former county commissioners, and a member of the board of canvassers, has since the canvass ceased to be a county com
It is further insisted that no proper demand was alleged or proven on the trial. There is in the affidavit the general allegation of demand and refusal, which is not denied. We think this is sufficient, if a demand in such cases is necessary.- But we are of the opinion that where, as in this case, the duty is clearly and specifically imposed by law, and the defendants have neglected to perform the duty as required by law, no special demand is necessary. ‘ ‘The law itself makes the demand, and the omission to perform is the refusal.” High Extr. Rem. § 41; State v. County Judge, 7 Iowa, 186; State v. Bailey, Id. 390; Com. v. Commissioners, 37 Pa. St. 237; Humboldt Co. v. Churchill Co., 6 Nev. 30. But as the judgment in this case was rendered by the court upon the theory that the board of canvassers in said Sully county was not properly constituted or organized, and that another officer should be added to said board, and that it should then proceed to canvass the returns from all the voting precincts, for all officers voted for, and upon all questions voted on, at the said election held on November 4, 1890, in said county, the same must be modified and made to conform to this opinion by striking out all of said judgment after the words, ‘ ‘considered, ordered and adjudged that the peremptory writ of mandamus issued herein to the defendants James Lawrence, J. H. Maxwell, and Thomas Mateer,” and inserting, “as members of the board of county canvassers of said Sully county, ordering and commanding them, as members of said board, that they do reconvene and reassemble as such board of canvassers at the court house in the town of Onida, the county-seat of Sully county, State of South Dakota, on the -day of----, 1891, at 10 o’clock a. m. of that day, [date to be inserted by the judge of the court below, ] and that they do then and there at once proceed to open and canvass the