124 N.W. 706 | N.D. | 1910
This appeal is taken from an order of the district court of the Eighth judicial district denying the application of appellant for a writ of mandamus, directed to respondents as the county canvassing board of Ward county. Appellant alleges, in his petition to the district court for the writ of mandamus, that he is an elector and taxpayer of the county of Ward; that on the 3d day of November, 1908, a general election was held within said count of Ward, and at said election there was submitted to the electors of said county a proposition to change the boundaries of Ward county, and to create from a portion of the territory thereof, a new county, to be known as Mountraille, and that such proposition was voted upon at said election; that the respondents, as the duly organized county canvassing board for Ward county, during the month of November, 1908, convened, and, after organizing as required by law, proceeded to make a canvass of the votes cast at said general election upon the proposition to create the county of Mountraille, and prepared and certified as the result of such election an abstract showing that there were 4,207 votes cast in favor of said proposition and 4,024 votes cast against it. The petition further alleges that the respondents, while acting as such county canvassing board, in making an abstract of the votes cast in Ward county upon the proposition to create said county of Mountraille, failed to perform the duty required of
Upon the presentation of this petition to the district court an alternative writ of mandamus was issued and served upon the respondents, who made answer, admitting all allegations of appellants’ petition with reference to their appointment and. organization as the county canvassing board of Ward county and their convening as such board for the purpose of making, among other things, a canvass of the vote cast upon the proposition to create the new county of Mountraille. They .further allege that they in all things fully complied, and sincerely attempted to comply, with each and all of the provisions of law governing the canvass of said votes and the making of an abstract thereof, and that they did in good faith honestly, and sincerely attempt to make a full, fair, honest, complete and accurate canvass and abstract of the votes; that in the regular election blanks furnished by the county auditor of Ward county to the various precincts for use by the officers at said election there was not contained any prepared blank form of certificate to a statement of the vote upon the various propositions for the division of the county of Ward, including that to create the county of Mountraille, and that, as a consequence, in the returns from the different election precincts there was no regular form of certificate of the vote cast in favor of or against such proposition made out and transmitted by the precinct officers; that the officers in some of the precincts interlined the result of such vote in the regular form of certificate furnished them with the ordinary election return blanks; that the officers in other precincts made out statements or certificates of the votes cast, upon separate sheets of paper which were attached, either by fastening with pins or otherwise, to the regular certificates and pollbooks, and returned in that way; that the officers, in a few of the precincts, because of the failure to furnish to them a form of certificate of
As a further defense to the cause of action alleged in appellant’s petition, the respondents then show that, after the canvass of the vote and the transmission of said, certified abstract to the Secretary of State, T. F. McCue, then Attorney General of the state of North Dakota, made application to the Supreme Court of the State of North Dakota for a writ of certiorari, in which application was stated the same facts hereinbefore set out with reference to the general election in Ward county, the submission to the electors of said county, at said election, of the proposition to create the
Upon the presentation of this answer by respondents, appellant demurred thereto, .and all questions arising upon the application
The petition of appellant, as relator, contains no express allegation that the subject-matter is of public concern, or that he is moving in the interest of the large class of citizens constituting the resident electors and taxpayers of Ward county; but his proceeding is entitled in the name of the “State of North Dakota,” and on its face discloses’ that he is seeking to vindicate, not a private right of concern only to himself, but a matter of public interest, in which all electors and taxpayers of Ward county are concerned and interested equally with him. In these particulars his proceeding
While the delay of appellant in waiting from November 30, 1908, to January 22, 1909, before commencing this proceeding is not explained in a manner than is entirely satisfactory, it appears that the only matter of public interest that had intervened during that interval was the appointment by the governor of North Dakota of county commissioners for the new county. Under the circumstances, therefore, we are of the opinion that, if appellant was, upon the merits of his application, entitled to a writ of mandamus, its issuance at the time of his application would not have produced such confusion in the pubic service as to warrant the district court in refusing to entertain the application on the ground that his laches and delay were gross and unreasonable.
From an examination of the moving papers and the admissions of the answer, it is apparent that respondents, as the county canvassing board of Ward county, exceeded their duty in entering upon their abstract of the votes cast in said county upon the proposition to create the new county of Mountraille, a record of votes from certain precincts, of which the precinct officers had made no certified statement or return. The duties of a canvassing board are purely ministerial, and in performing them they are limited to a consideration of the certified statements returned by the precinct election officers. State v. McKenzie, 10 N. D. 132, 86 N. W. 231. It is admitted by respondents that, in the case of at least a few of the precincts, they took the results entered on their abstract from tally sheets, or other unofficial memoranda which should not have been considered. Does it follow from this that
Appellant strenuously contends that the interests he represents are entitled, as a matter of right, to a writ of mandamus requiring that such new abstract be made out by .respondents when it is shown that a recanvass of the votes will necessarily produce a certificate differently worded, though the general result may still be the same. In other words, his contention seems to be that the public interest demands that there be produced and placed of record by respondents a certified abstract showing that a certain vote was returned by the precinct election board in a form that can be officially recognized, whether or not the existing political status of Ward county is in any manner affected thereby. If this contention can on principle be sustained, then it may be conceded that appellant is entitled to a writ of mandamus in this case whether or not his moving papers show that the new abstract would present a result the reverse of that shown by the one already prepared.
The reasonable presumption is that, an election being held in Ward county on the day in question, and a proposition in which the people were generally interested legally presented to the electors for determination, votes were cast pro and con thereon in all of the election precincts of the county. We ca,nnot disregard the fact raised by this presumption for no other reason than that no certified statement of the number of votes cast for and against the proposition was made by the precinct election officers. The presumption that a vote in about the amount shown on the abstract was actually cast, though irregularly determined, is certainly stronger than the presumption, which appellant urges, that no vote was cast because there is no return thereof made that can be recognized officially. If respondents were required to reconvene as a county canvassing board in accordance with the prayer of appellant, it would be their legal duty, not only to enter on a new abstract the votes from all precincts of which there was a certified statement, but also to require the presence of the election officers from the precincts in which no such return was made, and to ob
If the result shown is substantially correct, appellant is not entitled to a writ of mandamus merely for the purpose of producing a certificate somewhat different, but not showing a reverse result to the one already made by the county canvassing board. The writ of mandamus is not a mere writ of right. It will not be awarded in all cases, even where a prima facie legal right to relief is shown. It is a high prerogative writ that will, in the exercise of sound judicial discretion and on equitable principles, be issued only when called for by exceptional circumstances, and where, if the extraordinary relief afforded by the writ is refused, a failure or miscarriage of justice will result. High on Extraordinary Remedies, sections 14-15; Tennant v. Crocker, 85 Mich. 328, 48 N. W. 577; State v. U. S. Express Co., 95 Minn. 442, 104 N. W. 556.
Unless a different certificate of the county board of canvassers will show, with reference to the vote upon the proposition to create the new county of Mountraille, a result exactly the contrary of that shown by the abstract prepared, its preparation will vindicate only a mere barren right. The status of the county of Mountraille will be entirely unchanged, and the public interest which appellant represents will be entirely unaffected, beneficially or .otherwise. Respondents will be put to great inconvenience ,and the county of Ward to great expense, in order that an experiment may be made for the purpose of testing the absolute technical correctness of the certified abstract prepared by the county board of canvassers. In our view the writ of mandamus should not be awarded for the purpose of compelling an act which, even though legally required, would be fruitless of any remedial or beneficial result. The reconvening of respondents as the county board of canvassers, and the preparation of a new abstract in the absence of a reasonable belief that the result shown by the new abstract would be
There is, however, as heretofore noted, in appellant’s petition for mandamus, an allegation to the effect “that the pretended votes so unlawfully and wrongfully included in said pretended abstract of votes are sufficient in number to change the result of said election, and a true, complete and lawful canvass of the votes cast at said election for and against said proposition, will disclose that said proposition was defeated by a large majority, and that said board should so certify.” The trial court found that this allegation, coupled with the other averments and suggestions of the writ, did not amount to an assertion that a majority of the votes actually polled upon -the proposition of forming the new county were opposed to the proposition. It is evident from the attitude of appellant’s counsel before this court, as well as before the district court, that they did not, as we have before pointed out, rely upon such allegation, but, as the trial court states in its memoranda, “took the bold position that it is immaterial what the final result may be; * * * the writ must issue.” Having, however, held that mandamus should not issue unless it clearly appears from the moving papers that there is reasonable cause to expect a different, fruitful and beneficial result, we will assume that the averments of appellant’s petition assert such result, and will view the case upon the point of whether or not appellant can now be heard to say that the result of the vote actually cast is the reverse of that shown upon the abstract produced by respondents. We have already held that appellant, proceeding as he does in the name of the state, and upon a cause of action affecting the citizens of Ward county, is not acting in a private or personal capacity, but stands as a representative of the public interest. If it were otherwise,
It is apparent, therefore, that appellant, acting as he does as a representative of the public interests of the citizens of Ward county, is privy to any other action in which the same interest was brought in question, even though not by name a party thereto. For “in any inquiry with reference to the binding force of a former judgment the term ‘parties’ includes all who are directly interested in the subject matter, and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment.” Ashton v. City of Rochester, 133 N Y. 187, 30 N. E. 965, 31 N. E. 334, 28 Am. St. Rep. 619; Robbins v. City of Chicago, 71 U. S. 657, 18 L. Ed. 427. The proceedings entitled “State of North Dakota v. Blaisdell” was an application for certiprari, brought in the name of the state by the attorney general,, for the purpose of determining the status of Mountraille county as one of the municipalities of North Dakota. The determination of this status necessarily included an investigation of and finding upon the question of whether or not a majority of the vote upon the proposition to create such county, as shown by the official statement of the county board of canvassers, was in favor of such proposition. Otherwise it would not have been necessary for the Supreme Court to pass upon any other question presented by that proceeding. In the moving papers of that proceeding, as shown by the answer in this case, the attorney general, acting on behalf of the citizens of Ward county, expressly admitted, that, while the proposition or measure for the division and organization of the county of Mountraille “received a large majority of all the votes cast at said general election upon that particular proposition, such proposition did not receive, and was not adopted by a majority of all the legal votes cast in said Ward county at such
Appellant urges, however, that he is not bound by any of the facts adjudged in that proceeding, for the reason that he was not a party thereto, and that the record of that proceeding nowhere discloses any connection of his with that case. It is apparent, however, that plaintiff, acting as he does in a representative capacity, is,. constructively at least, a party to any action or proceeding in which the same interest was plaintiff. He also claims that it was impossible for the Supreme Court in that proceeding to call in question the legality of the acts of the canvassing board of Ward county. It will be noted, however, that the basis of the proceeding was the certificate of the county auditor of Ward county to the result of the vote upon the proposition to create the county of Mountraille, as shown by the abstract that is brought in question here. If the result so certified was not only incorrect, but the reverse of that warranted by the facts, and the board could be required to prepare an abstract showing the true result, certainly a consideration of that question was obviously of prior importance to that of whether the vote actually shown by the abstract constituted a majority vote such as is contemplated by the constitution. In order that the court might reach and consider the question that was passed upon in the certiorari proceeding, eithfer an admission or judicial determination of the correctness of this result was first necessary; and such admission was made, as we have seen, by the representative of the public right, and acted upon by the court. “A judgment against a county or its legal rep
It is our conclusion, therefore, that the question of the result of the vote cast in Ward county upon the proposition to create the new county of Mountraille is res adjudicata so far as appellant is concerned. Being a citizen and taxpayer of Ward county, he was constructively a party to the certiorari proceeding, and had the right to be heard, and to have any question pertinent to the issues litigated in that proceeding adjudicated. He remained silent while the attorney general, acting as his representative, admitted the correctness of the result shown by the abstract of the board of county canvassers, and only when it has been decided that such result, if correct, establishes the status of Mountraille county as an existing county of North Dakota, does- he attempt to bring a proceeding that can be maintained only upon a showing that the result is the reverse of what the representative of the public interest has admitted it to be. This point once litigated, the public interest requires that it should be at rest. Otherwise the political status of the county of Mountraille, as announced in the case of State v. Blaisdell, might be again brought in question by any citizen of the county of Ward; and, as shown from the summary of the entire vote presented in that case, these citizens number between 9,000 and 10,000. To hold that this mass of
We find, therefore, that appellant is concluded, and will not be heard to assert that a recanvass of the votes by the county canvassing board of Ward county would produce a result different from that admitted to be correct in the case of State v. Blaisdell. We further find that, unless a result the reverse of that shown by the first canvass would with reasonable probability be produced by a recanvass, the writ of mandamus will not issue for the purpose of compelling an idle ceremony that can at best produce only a barren and fruitless result.
The order of the’ district court denying the writ of mandamus is affirmed.