Mayes, O. J.,
delivered the opinion of the court.
The state, through its attorney-general, seeks to mandamus William L. Magee, Thomas S. Lewis, and Warren Pigott, commissioners of election, appointed by the governor under section 2 *614of chapter 321 of the Laws of 1910. The act of the legislature just referred to is an act authorizing the creation of a new councounty, to be called Walthall, and providing for the organization of same. Section 2 of the act is the particular section we are called upon to review in this case, and without setting it out in full we deem it only necessary to say that this section provides, that upon the approval of the act, the governor shall appoint three commissioners from the territory to be taken from Marion county, and three commissioners from the territory to be taken from Pike county, the act providing that the new county shall be composed of territory to be taken from these two counties, and that these commissioners shall be residents of the territory in each county in which they live and out of which the new county is to be created. It is further required of the commissioners that they give notice of the election as required for special elections, and hold the election in their respective territories, as required by the act, submitting to the qualified electors therein the question of the creation of the new county. When this is done, it is further required of the commissioners that they make due returns of the election to the secretary of state within the time' provided.by law for making returns for general elections, showing the result thereof, and if it appear by the returns that a majority have voted for the creation of the new county, the governor shall issue his proclamation declaring the county of Walthall created. The proceeding in this case is instituted against the commissioners appointed for Marion county, against whom alone dereliction of duty is alleged. It is also just to say that Warren Pigott, one of the commissioners sought to be mandamused, does not resist the proceeding in any way, nor did he consent to the action of his co-commissioners which will hereinafter appear, which made the institution of this suit necessary. No irregularity in the proceedings is complained of, except that which will be now stated.
*615It appears that the commissioners appointed to hold the election in the Marion county territory duly designated managers and clerks to conduct it, and on the day named in the notice these managers and clerks assembled at Hull’s precinct and at Slade’s precinct and held the election as directed. It further appears that after the election was held the managers and clerks opened the ballot boxes and counted the ballots, thus proceeding to ascertain the result at each of the two voting precincts, and after doing this made a statement of the result of the election at each precinct, certifying same to the commissioners within the time required by law, and delivering therewith to the commissioners the poll books, tally lists, ballots, ballot boxes, etc. In the returns sent in by the managers and clerks, it appeared that at Hull’s box nineteen votes were cast against the creation of the new county and twelve in favor of same, anc[ at Slade’s 115 were cast in favor of the new county and 100 votes against it; these returns as made by the managers showing that the .new county had carried. The above facts are substantially the allegations contained in the petition for mandamus. Both the answers of Commissioners Magee and Lewis, and their report made to the secretary of state, show that, after receiving the returns from the managers and clerks, they threw out and refused to make any return of the Slade box, because they conceived they had a right to do this, because they stated that so many illegal votes were allowed to be cast at that box they were unable to determine which were legal votes and which illegal, and therefore rejected the entire box. In their answer these commissioners also deny that the returns from Slade’s box showed the result as alleged in the petition. Both before the commissioners at the time they rejected Slade’s box, and again on the trial of the ease before the. trial court, much testimony was taken in order to show that illegal votes were cast at the election at Slade’s box, and on the hearing the trial court dis*616missed the petition and sustained the action of the commissioners, from which judgment an appeal is prosecuted here.
It will be observed, from the facts of this case as stated above, that the commissioners appointed under the act had canvassed and made returns, according to their report, of a part only of the election returns. Under the facts the question in this case is whether or not these commissioners can be made to reassemble and discharge their full duty under the law; it appearing that they have only partially discharged that duty. If it be conceded that under the act many discretionary powers are vested in the commission, is the right to make only partial returns to the secretary of state and to reject the ballots cast -at one precinct such a discretion as can be said to have been committed to the commissioners? We think not. We shall discuss this case in the light of outside authority first, and will then undertake to show that the authorities of our own state have no application to the facts of this. In 15 Cyc. p. 383, it is said: “When a board of canvassers has fully performed its duty, proclaimed the result of the count according to law, and adjourned sine die, its duty must be considered as having been performed once and for all time. The board is functus officio, and the persons who composed it have no power or authority voluntarily to reassemble and recanvass the returns; and upon the theory that the existence of the board as such has terminated, it has been held that mandamus will not lie to compel the former members to reassemble for the purpose of recanvassing the returns, although it be alleged that they did not fully or accurately perform their duty. But, on the other hand, it has been repeatedly decided and seems to be the better doctrine that after canvassers have made one canvass, declared the result, and adjourned, they may be compelled by mandamus to reassemble and make a correct canvass of all the returns, where it appears that upon the first canvass they neglected or refused fully to perform their *617duty. It is settled by abundant authority that, where the board refused to canvass any of the votes, it may be compelled so to do by mandamus, even though it has adjourned sine die, and there can be no difference in principle between a refusal to canvass any and a refusal to canvass a part only of the returns.”
The case of Lewis v. Commissioners, 16 Kan. 102" court="Kan." date_filed="1876-01-15" href="https://app.midpage.ai/document/lewis-v-commrs-of-marshall-co-7884126?utm_source=webapp" opinion_id="7884126">16 Kan. 102, 22 Am. Rep. 275, is a ease very similar in its facts to the case now on Irial. In the above case a petition for mandamus was applied for, in which petition it was alleged that the applicant in fact received a majority of the lawful votes cast for county clerk; that the votes of the several voting precincts were duly returned and filed; that the county canvassers assembled, opened, and canvassed the returns from all the precincts, except from the precinct of Waterville; that the canvassers, after throwing out this last precinct, did determine that the petitioner received 856 votes, and that his opponent, McIntyre, received 972, whereupon McIntyre was declared to be duly elected. The petitioner further alleged that in truth he had received 280 votes at Water-ville, the precinct the canvassers rejected, whereas McIntyre had only received ninety-one, and if this box had been counted the petitioner alleged that he would have been declared to be elected. The commissioners answered, and admitted refusing to canvass Waterville precinct, and answered that certain parties at the Waterville box entered into an unlawful and corrupt agreement and conspiracy to defeat the election of McIntyre and procure the election of petitioner; that in pursuance of this agreement certain persons placed in the ballot box, fraudulently and unlawfully, a large number of ballots, aggregating over 100. The answers also stated that a large number of persons were allowed to vote at Waterville who were not voters of that county, etc. The answers also stated that the poll books, tally lists, etc., sealed up by the judges of the Waterville precinct, were never delivered to the proper authorities, but that fraudulent and *618spurious poll books, tally lists, ballots, etc., were returned. There were other facts in the case, but we deem the above synopsis sufficient. The supreme court of Kansas, speaking through Justice Brewer, afterwards a member of the supreme court of the United States, said: “This is an action of mandamus, to compel a correct canvass of the votes cast in the county of Marshall for the office of county clerk. Upon the canvass that was made, the canvassers rejected the returns from the'Waterville township, and declared one J. G. McIntyre elected. If those returns had been counted, the.plaintiff would have received a majority, and been declared elected. Three questions are presented: First. Will the court, after a canvassing board has made one canvass, declared the result, and adjourned, compel it, by mandamus, to reassemble and make a correct canvass, on the ground that at the prior canvass it had improperly omitted to canvass all the returns ? * * * The first question must be answered in the affirmative, and the other two in the negative. We are aware that the authorities are not uniform upon the first question. See, on the one hand, People v. Supervisors Green County, 12 Barb. (N. Y.) 217, and, as partially indorsing this view, State v. Berry, 14 Ohio St. 315; and, on the other side, State v. County Judge Marshall County, 7 Iowa, 186" court="Iowa" date_filed="1858-11-06" href="https://app.midpage.ai/document/state-ex-rel-rice-v-county-judge-7091524?utm_source=webapp" opinion_id="7091524">7 Iowa, 186; State v. Bailey, County Judge, 7 Iowa, 390" court="Iowa" date_filed="1858-12-14" href="https://app.midpage.ai/document/state-ex-rel-byers-v-bailey-7091551?utm_source=webapp" opinion_id="7091551">7 Iowa, 390. The view taken by the Iowa court seems to us the correct one. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority that, where the board refuses to- canvass any of the votes, it may be compelled so to do by mandamus, and this though the board had adjourned sine die. Hagerty v. Arnold, 13 Kan. 367" court="Kan." date_filed="1874-07-15" href="https://app.midpage.ai/document/hagerty-v-arnold-7883834?utm_source=webapp" opinion_id="7883834">13 Kan. 367, is a ease in point. The canvass- is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as *619milch right to insist upon a canvass of all the returns as he has-of any part, and may be prejudiced as much by a partial as-by a total failure. The adjournment of the board does not deprive the court- of the power to compel it to act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the signing of a bill of .exceptions by the judge of that court which has been tendered to him before the adjournment. As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is hot destroyed by the lapse of the time within which in the first place the duty ought to have been done.” This decision is cited with approval in section 234 of McCrary on Elections. See, also, the cases of State v. County Judge, 7 Iowa, 186" court="Iowa" date_filed="1858-11-06" href="https://app.midpage.ai/document/state-ex-rel-rice-v-county-judge-7091524?utm_source=webapp" opinion_id="7091524">7 Iowa, 186, and of State v. Bailey, 7 Iowa, 390" court="Iowa" date_filed="1858-12-14" href="https://app.midpage.ai/document/state-ex-rel-byers-v-bailey-7091551?utm_source=webapp" opinion_id="7091551">7 Iowa, 390.
We are clearly of the opinion that the commissioners in this ease had no right to throw out Slade’s box; but it was their duty to canvass and return this box, as well as that of Hull’s.. Since they did not do so, they had not fully performed the duty-resting on them under the law, and can be compelled by mandamus to reassemble and fulfill their whole duty. As to the' power of election commissioners to reject ballots supposed by them to have been cast by persons not eligible to vote, after the' ballots have been received and counted by the managers and clerks and certified by them to the commissioners, we are not now interested to inquire, since it appears from this record that the whole box was rejected, and no such question is directly presented.
The above holding does not conflict with any prior decision of this court on this subject. In the case of Oglesby v. Sigman, 58 Miss. 502" court="Miss." date_filed="1880-10-15" href="https://app.midpage.ai/document/oglesby-v-sigman-7985530?utm_source=webapp" opinion_id="7985530">58 Miss. 502, it did not appear that there had been only a partial discharge of the duties imposed by law on the-commissioners as in this case. In the above case the court said:: *620“We do not think that the commissioners of election can be required to meet and recanvass the returns of the election. Having made their canvass and declared the-result, and transmitted a statement of it to the secretary of state, their connection with the returns ended. Any error committed by them is not to be corrected by requiring them to reassemble and correct it. The legality of their action may be the subject of judicial investigation in cases in which provision is made for contesting the election by an appeal to the courts of the state, but only in those cases.” In the case on trial there was no canvass and return of Slade’s bos, but a total rejection of it, and a refusal to make any return of it to the secretary of state, as is required by the law. The same distinction runs through all eases cited by appellee. Thus, in the case of Native Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 171" court="Miss." date_filed="1906-11-15" href="https://app.midpage.ai/document/native-lumber-co-v-board-of-supervisors-7989685?utm_source=webapp" opinion_id="7989685">89 Miss. 171, 42 South. 665; McHenry v. State, 91 Miss. 562" court="Miss." date_filed="1907-10-15" href="https://app.midpage.ai/document/mchenry-v-state-7989924?utm_source=webapp" opinion_id="7989924">91 Miss. 562, 44 South. 831, 16 L. R. A. (N. S.) 1062, and State v. Board of Supervisors of Coahoma County, 91 Miss. 582, 3 South. 143, it does not appear that there had only been a partial performance of the duty of the boards against whom relief was sought. This constitutes the difference between the case on trial and all other cases heretofore decided by this court and bearing upon this question.
Brice '& Whitfield; J. M. Alford, and Alexander & Alexander, for the motion.
For the reasons indicated in this opinion, this judgment is reversed and cause remanded.
On Motion nob a Final Judgment.
After the decision of this case as above reported, counsel for appellant presented a motion to set aside the judgment remanding the cause, and for the entry of a final judgment by the supreme court awarding the writ of mandamus as prayed for in plaintiff’s petition.
Mounger & Mounger; Dale & Hall, and McWillie & Thompson, contra.
The motion was argued orally'by J. H. Price, and O. H. Alexander for, and by E. II. Mounger and B. H. Thompson, against.
Mates, O. J.,
delivered the opinion of the court on the motion.
The statute relative to this case gives no authority to the commissioners to take testimony on the question of the legality or illegality of the votes cast, at the election, and of course they cannot do so. The sole power of the commissioners is confined to the canvass and return of the ballots. We see no reason to remand this cause, and for that reason the former judgment reversing and remanding is hereby vacated, and in place of the former judgment a judgment is hereby directed to be entered requiring appellees, Thomas S. Lewis, William L. Magee, and Warren Pigott, commissioners, to meet and canvass the returns made to them by the managers of election of Marion county, which managers were appointed to conduct the election in Marion county to determine whether or not the county of Walt-hall should be created. The commissioners are also required to make due return to the secretary of state, after making the canvass, as is required by law. The court declines to direct the commissioners herein as to how they shall make the canvass and return, and this feature of the motion is hereby overruled.
So ordered.
Final Proceedings.
After the entry of the final judgment awarding the mandamus, the commissioners reassembled and canvassed the ballots and made return, showing that a majority of all the ballots cast was against the creation of Walthall county. Thereupon the appellant, plaintiff, moved the supreme court for a subpoena duces *622.tecum, requiring tbe commissioners to appear in tbe supreme court and bring tbe ballots witb tbem and also to sbow cause wby .two of tbem, Magee and Lewis, wbo bad made tbe report (Pigott •dissented), should not be punished for contempt.
Price & Whitfield; J. M. Alford, and Alexander & Alex-under, for tbe motion.
Mounger & Mounger; Dale & Pall, and McWillie <& Thompson, contra.
Argued orally by J. P. Price, for tbe motion, and by B. P. Thompson, E. P. Mounger and T. S'. Dale, contra.
The motion was overruled by tbe court, without'delivering a written opinion, and thus ended the so-called “Walthall county.”