13 Mont. 23 | Mont. | 1892
Lead Opinion
This is an application to the court for the issuance of a writ ■ of mandate to the board of canvassers of the county of Choteau, in this State, directing the board to reconvene and canvass and count the election returns from the Box Elder Precinct, No. 18, in said county; and also commanding said board, and the county clerk of said county, to deliver to the relator, Eugene E. Leech, a certificate of his election as a member of the legislative assembly of the State for said county. The affidavit of said Leech says that he is a resident of said county, and above the age of twenty-five years. That on the eight day of November, A. D. 1892, there were two vacancies in the office of members of the House of Representatives of the legislative assembly of the State for said county. That the relator was a candidate for this office, at the general election held in said county on the said eight day of November, and was nominated, certified, and published for such office, and received a plurality of the votes cast by the qualified electors of said county. That on the nineteenth day of November, A. D. 1892, Charles W. Gray and Edward Dunne were county commissioners of said county, and that the third member of the board of county commissioners did not attend, and Walter J. Miner, the county treasurer of said county, acted with said Gray and Dunne as members of the canvassing board of said county. That said board of canvassers were in session from the said nineteenth day of November until the twenty-third day of said month, and then adjourned. That the return of the precincts in said county in which the polls were open were in legal form, and were presented and received by the board of canvassers. That at said election the following per
The protest of said Hamilton alleges, in substance, that a judge of the election in said precinct No. 18 bribed the electors thereof; that at least twenty-five half-breeds voted at said pre
It appears from the record of the proceedings that the said board of canvassers, after the filing of the protest of said Hamilton and said affidavits and the argument of counsel, “ decided to strike out and not canvass the returns from said precinct;” that the members signed the abstract of election returns which was made out in accordance with this decision; that it was declared that the persons named in said abstract, who received the highest number of votes, were “duly elected;” and that said Minar and Dunne “constituting a majority of the canvassing board, together with Alfred E. Rodgers, clerk, .... proceeded to sign the certificates of election of the persons receiving the highest number of votes for their respective offices, as set forth in the abstract.”
The writ of mandate in the alternative was issued and served upon the members of said board of canvassers. The respondents, on the day when they were directed to appear and show cause before this court, filed a motion to quash the writ, upon
It is asserted that this court has no original jurisdiction to issue the writ of mandate to afford the relief which is sought by the relator. We have given this subject a thorough consideration, and adhere to the view announced in State v. Kenney, 9 Mont. 223; and In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451. The respondents maintain that the writ “is directed to certain individuals, and not to the board of canvassers.” The following language is used: “The State of Montana to Charles W. Gray, Edward Dunne, and Walter J. Minar, constituting the board of county canvassers of election returns for the county of Choteau, State of Montana, and Alfred E. Rodgers, clerk of the board of county commissioners, and ex officio clerk of the said board of county-canvassers, greeting.” The statute provides that the “ alternative writ shall state generally the allegation against the party to whom it is directed, and command such party .... to do the act required to be performed, or to show cause.....” (Code Civ. Proc. § 568.) The law creating the board of county canvassers contains this section: “ The board of county commissioners of each county is ex officio a board of county canvassers for the county, and must meet as a board of county canvassers at the usual place of meeting of the board of county commissioners; and if at the time and place appointed for such meetings one or more of the county commissioners should not attend, the place of absentees must be supplied by one or more of the county officers whose duty it is to act, in the order named, to wit, the treasurer, the assessor, the sheriff, so that the board of county canvassers shall always consist of three acting members. The county canvassing board, so constituted, shall
It is contended, however, that a discretion has been vested in the respondents, and that the writ of mandamus cannot, for this reason, be issued. In the recent case of Pigott v. Board of Canvassers of Cascade Co. 12 Mont. 537, we decided this point, and held that the duties of respondents are ministerial, under the following sections of the statute: “The canvass must be public, by opening the returns, and determining therefrom the vote of such county or precinct for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof.” (Stats. 2d Sess. p. 301, § 4.) “In canvassing the returns of the several precincts in the county by the county canvassing board, no return shall be rejected if it can be readily ascertained therefrom the number of legal votes cast for each person named therein.” (Stats. 2d Sess. p. 301, § 5.) “ The clerks shall set down in their poll-books the names of every person voted for, and, 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; such entry to be made, as near as circumstances will admit, in the following form.” (Comp. Stats, div. 5, § 1030.) One of the poll-books of the precinct is comprised in the returns. (Comp. Stats, div. 5, § 1031.) Mr. Justice Knowles, in his concurring opinion in Chumasero v. Potts, 2 Mont. 270, expresses tersely our conclusions, and it is needless to multiply authorities thereon :
“Much might be said in relation to the issues presented in this*31 proceeding. There are a large number of issues tendered in the answers that go to the point that there was a fraudulent and illegal vote cast upon the subject of the approval of the capital law. This is a question that the canvassers of the return of the abstracts of the votes had nothing to do with. It was no part of their duty to determine what was the true and legal vote cast. What they were required to do was to determine what the abstracts of the vote returned to them showed upon this subject. As they have no right to go behind these abstracts, they have no right to assign as a reason for not canvassing the true abstracts that there was an illegal and fraudulent vote behind them.”
We have no hesitation in holding that the foregoing affidavits were received by the respondents without legal authority, and the exclusion of the returns from said precinct upon this ground was invalid.
The next contention in support of the demurrer is that this court does not possess the power to compel the respondents to bold another session after they have adjourned sine die, and recanvass the returns of said election, and issue a certificate of election to the relator. It appears that said Hamilton has been declared elected a member of the House of Representatives of the legislative assembly, and that the certificate of his election has been issued by the respondents. This is, in the main, a new question for our tribunal, but there are many adjudications in other courts upon these propositions. We have examined the authorities which uphold the theory of respondents, and cite them without indulging in extensive comments: Clark v. Buchanan, 2 Minn. 346; State v. Stewart, 26 Ohio St. 216; State v. Rodman, 43 Mo. 256; People v. Supervisors etc. 12 Barb. 217; Sherburne v. Horn, 45 Mich. 160; People v. Cover, 50 111. 100; Oglesby v. Sigman, 58 Miss. 502; Myers v. Chalmers, 60 Miss. 772; O’Hara v. Powell, 80 N. C. 103; Swain v. McRae, 80 N. C. 111. The weight of judicial authority, and the sound rule for our guidance, are in conflict with these positions. In Ellis v. Commissioners, 2 Gray, 370, the writ of mandamus was held to be the appropriate remedy for the relator, although another candidate had been declared to be the county treasurer, and was in possession of the office. In
There are two leading cases, which should be carefully weighed, because they affect members of the legislature: In O’Ferrall v. Colby, 2 Minn. 180, decided in the year 1858, Chief Justice Emmett, for the court, said: “Another position urged by the defense is that, as by the Constitution the senate is made the judge of the election and eligibility of its members, no other tribunal can or ought to take jurisdiction of this case. This position, we think, is sufficiently answered by the fact that this is not a proceeding to try the right of any party to the office of senator, but simply to determine whether the plaintiffs are entitled, at the hands" of the defendant, to certificates of election to that office. Nor can our decision in the least affect the question of the election of either of the candidates. That question can be definitely settled by the senate alone. The aid of this court is sought to prevent the consequences of a usurpation of authority on the part of this board of canvassers, and to compel the defendant to do his duty. All that we can do is to arm the parties entitled with the credentials necessary to enable
The demurrer was overruled, and the respondents filed their answer. The relator demurred thereto, and also moved that a peremptory writ of mandate be issued, upon the ground that the answer did not state a good cause for the refusal of respondents to canvass and count the returns from the Elder Box Precinct. We have been embarrassed by the lack of precedents upon a question of pleading. It should be observed that the reasons which controlled the respondents in rejecting the returns from this precinct are set forth in the foregoing protest of said Hamilton, and the accompanying affidavits. They are incorporated in the official record of their proceedings, which is before us. Their attorneys do not justify the action of respondents upon this ground, or offer any excuse of a similar character, but specified in the answer several defenses, which are different from what were relied on by the canvassing board. Are the principles which are applicable to ordinary cases to be followed in this proceeding? Mr. Justice Swayne, in Railway Co. v. McCarthy, 96 U. S. 267, for the court, said: “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.” (See, also, Fisk v. Cuthbert, 2 Mont. 593, and Newell v. Meyendorff, 9 Mont. 254; 18 Am. St. Rep. 738.) We do not think, however, that the respondents ai’e confined, upon this hearing, to the foregoing reasons. They are required at this time to show cause why they have not done certain acts, and their defenses are thereby enlarged, and cannot be pleaded subject to limitations, which will be pointed out.
“ Official Return. At an election held at the-house of-, in-Precinct, in-County, and State of Montana, on the-day of-, A. D. 189-, the following named persons received the number of votes annexed to the names of the following described offices.”
This document, which was received through the mail by the county clerk of Choteau County, and was before the respondents, is entitled as follows: —
“Poll-book of an election held in Box Elder Precinct, in Choteau County, State of Montana, on the eighth day of November, A. D. 1892, at which time Jno. Henry, David Adams, and A. M. Brough were judges, and Clem Sailor and J. P. Carberry were clerks, of said election, the following named persons voting thereat.”
The poll-book contains the oaths of the judges and clerks of election, which were duly subscribed November 8, 1892. The names and numbers of the electors were entered therein by the clerks, and the tally sheets are also recorded. The certificate at the end is in the following form: —
“Certified by us this eighth day of November, A. D. 1892.
Attest:
J. P. Carberry, 1 Clerks of A. M. Brough, | jU(jgeg Qp Clem Sailor, ( election. ° ° e°ry> > eiecfcjon-» ’ ) David Adams, I
The statute provides for the return and certificate: —
“ At an election held at the house of A. B., in the township or precinct of-, in the county of-, and the State of Montana, on the-day of-, A. D. 18 — , the following named persons received the number of votes annexed to their respective names for the following described offices, to wit: — Certified by us. Attest: AB1 M N | and > Clerks of election. O P > Judges of election/' CDJ Q,R j (Comp. Stats, div. 5, § 1030.)
This allegation appears in the answer: “That it appeared from an inspection of the registration list, and of the list of persons returned as voting at said Box Elder Precinct No. 18, that sixteen names of persons, to wit, Henry F. Schwartz, Henry Brough, John B. Trottier, William Trottier, Frank Trottier, Antoine Trottier, Andre Trottier, John Trottier, Ermine Trottier, J. B. Moture, W. H. Murray, L. K. Devlin, Isadore Trottier, Samuel Pepin, and J. B. La Framboise,
The demurrer and motion of the relator were overruled, and the case was heard upon its merits by the court without a jury. The testimony will be presented in connection with the legal propositions which have been argued by counsel. It was proved that no check lists of the precinct, or surrendered certificates, were ever sent to the county clerk, and that the board of canvassers acted upon the poll-book alone.
Names oe Voters as Shown List oe Voters as Kegis-
by the Poll-book. tered and Shown in the
Check List.
Henry E. Swartz. Henry Brough. John B. Trottier. Frank Trowtier, Antoine Trowtier. Ermine Trottier. John Trowtier. Alex Trottier. And rue Trowtier. William Trowtier. J. B. Moture.
Henry F. Schwartz. Henry S. Brough. John B. Troehet. Frank Troehet. Antoine Troehet. Ermine Troehet. John Troehet. Alex Troehet. Andre Troehet. William Troehet. Baptist Móture.*39 Names of Voters as Shown by Certificates of Registration Surrendered to the Judges.
W. H. Murray.
L. K. Devlin.
Isadore Trottier.
Samuel Pepin.
J. B. La Framboise.
W. H. Murray.
L. K. Devlin.
Isadore Truchot.
Simon Pepin.
John B. Lafrombois.
In the comparison of these names the board of canvassers must recognize some presumptions of law and fact, to wit, that the judges and clerks of the Box Elder Precinct performed their sworn duty, and permitted no persons to vote at this election who were not legal voters; and that, under the laws of this State, the names of such voters must be found upon the check lists of the precinct, or the surrendered certificates. It is established by the check lists that there were thereon the names of forty-six voters; that five of this number failed to vote; that five electors voted upon county registry certificates; and that the voting list contains the names of forty-six voters. The spelling of the names of the voters by the clerks in the poll-books is unimportant if the officers of the precinct are satisfied concerning their identity. The statute provides: “When the judges of election shall have good reason to believe, or when they shall be informed by a qualified elector, that the person offering to vote is not the person who was so registered in that name, the vote of such person shall not be received until he shall have proved his identity as the person who was registered in that name.” (Stats. 16th Sess. p. 132, § 14.) Under our mode of conducting elections the misspelling of names by the clerks must frequently take place. A forcible example of this assertion is afforded by a glance at the names of the foregoing voters who produced the county certificates. What should have been the legitimate conclusion of the canvassing board from these documents? There is only one name upon the check list resembling, respectively, Henry F. Schwartz, Henry Brough, or J. B. Moture. The surnames of the family written Trochet, or Trowtier, or Trottier, with their Christian names, and initial
Concurrence Opinion
(concurring). — The determination of this proceeding by an order for the issuance of a peremptory writ of mandate was concurred in by all the members of this court, but upon a question of practice raised, and as to what constitutes “election returns” under the provisions of the statute, there appears to be some difference of views. At the commencement of the proceeding, on the affidavit of the relator, an order was made by the chief justice of this court, at chambers, in vacation, for the issuance of the alternative writ of mandate, returnable to the court, for hearing and determination by the court at a time designated. The question of practice comes by way of motion to quash the proceeding, on the ground that the court has no jurisdiction thereof for hearing, because the preliminary order for the alternative writ was issued by one justice instead of being issued by the court, convened and sitting as such. The writ of mandamus, as defined by the statute of this state, is a mandate by a court of competent jurisdiction “to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Comp. Stats. Mont. § 566, Code Civ. Proc.) The statute provides that the proceeding for mandamus shall be commenced “ upon affidavit, on the application of the party beneficially interested,” and prescribes two methods of bringing on the hearing of the application before the court. One method prescribed is by the applicant giving at least ten days’ notice to the party about to be complained of that application for the writ will be made to the court at the time and place stated in
It is made plain from the provision of the statute that the alternative writ amounts to no more, in effect, than to cite the party complained of to appear and show cause, if any he has, why he should not be compelled by mandate to perform the duty in question. Therefore, to hold that the court may not, in its practice, under the provisions of this law, allow the preliminary process to issue upon the order of one justice, is holding the power of the court very narrow in the realm of mere formal practice. If the court may not, through the order of one of its justices, allow the preliminary process to be issued to bring on the hearing, the power of the court in this regard is limited by such construction below that of a private suitor in the proceeding. The applicant may bring on the hearing by notice, on his own motion, without any order or process of the court, and that notice accomplishes the same purpose as the alternative writ. Respondent’s counsel have cited no authority to support the point they contend for. It is urged on hypercritical and extremely narrow construction of terms. The Constitution provides that this court “shall have power, in its
The most important point which arose in this proceeding, in my opinion, was the question as to what documents the county canvassing board may examine as constituting the election returns from the several precincts. An important part of such
“-, Montana,-, 18 — .
“ I do solemnly swear that I make this application for registration in District No. - of -, county of-, Montana, because there is no registry agent within election district No.-, which is the district where I reside and am entitled to vote.
“Subscribed and sworn to before me this-day of -, 18 — .--, Registry Agent.”
Whereupon such person shall receive from the registrjr agent of such district a certificate, which said certificate shall bear the registry seal, and be substantially as follows, to wit: —
“Registration Certificate: I hereby certify that-is a citizen of the United States, or has declared his intention to become such, of the age of-years, and has been a resident of Montana for the past-consecutive months, and a resident of-,-County, for- months, and of the precinct for more than-days, and that he is in all respects a qualified registered elector under the laws; and I further certify that the reason he applies for and that I grant this registration certificate is because within election district "No.-, where he resides, there is no registry agent; and I*46 further certify that he is, under the laws, entitled to vote in the ■-- precinct oí election district No.-,-County, Montana.
“Witness my hand and seal of office in election district No. -,-County, Montana.
[seal.] “--, Registry Clerk.
“Election District No.--,-County, Montana.”
The other class of certificates is called in the Registration Act, “State Registry Certificates,” and comprise those issued to an elector after such elector has been registered in the district where he resides, and his name is erased from the register upon his request, and a State certificate of registration is granted to him by the registry agent. Upon presentation and surrender of such certificate the elector holding the same may be registered in another place, where he has established his residence in time to become a qualified voter at the next ensuing election. On being so registered in the latter district, such elector surrenders his registration certificate, and his name goes into the check list of the precinct where he is last registered. But it is further provided in section 11 of the Registration Act that “in case any registered and qualified elector who has had delivered to him a State registration certificate pursuant to this section, and who has for good cause been unable to register the second time anywhere within Montana before the date of the closing of the registration books, may offer to vote at any precinct within the county where he resides and was registered to vote, or in any precinct in the county, but not the precinct where he lives and was registered, the judges of election shall challenge such person peremptorily, and put to him under oath such questions making him prove his identity as the person to whom such certificate is issued, and such other questions as may seem to them proper in order to fully test such person’s qualifications; and if he be , disqualified for any cause, or fail or refuse to answer any question concerning his qualifications, or if he fail to identify himself, he shall not be permitted to vote; but if he be qualified he shall surrender his certificate, and the judges shall enter his name on the lists, and he shall be entitled to vote.” By these provisions it appears that votes may be received of electors whose names are not on the check list of the precinct, but
Now, in relation to the returns of election (in addition to one of the poll-books of the precinct, to be returned to the county canvassiug board, as provided by the general election law), the Registration Act provides as follows: “ The copy of the official register, together with the ‘check lists’ for election precincts, as herein provided, shall be carefully preserved and duly certified to by the registry agent, and delivered, together with affidavits of objection, to some one of the judges of election in each election precinct, at a time not later than the day next preceding that on which such election is to be held, and such ‘check lists’ shall be carefully preserved, and any surrendered certificates which may have come into the hands of such registry agents pursuant to this act, and after election they shall be transmitted by the judges of election to the clerk of the board of county commissioners in connection with and as a part of the ‘election returns,’ as provided by law.” (§ 10, Registration Act.) It seems plain from the provision that the legislature, in requiring the registration of all qualified electors, and that no votes should be received except upon evidence of previous registration, shown by the check lists, or certificates of registration surrendered to the judges, and in further expressly providing that the check lists and certificates of registration which come into the hands of the judges from the registry agent “shall be transmitted by the judges of election to the clerk of the board of county commissioners, in connection with, and as part of, the election returns, as provided by law,” intended to place before the canvassing board, in the returns, the documentary evidence showing the registration of the electors appearing from the poll-book to have been allowed to vote at such precinct. This provision was evideutly made to carry out the spirit and purpose of the Registration Act. The return of the evidence of registration with the poll-book, as part of the returns, would show at once that the vote appearing from the poll-book to have been received and returned was a registered vote, and would thus constitute in some measure a voucher for the regularity of the returns shown by the poll-
It being clear that the legislature, by providing that check lists and certificates of registration mentioned should constitute “part of the election returns,” intended that the evidence of registration on which the votes were received as returned by the poll-book should be subject to examination by the canvassing board, as part of the returns, the majority of this court held that such manifest intention should have effect. This was an important point in the case. The canvassing board alleged in its answer as cause for rejecting the returns from said precinct, in effect, that the names of sixteen persons appeared upon the poll-book as having beep allowed to vote at said precinct, who did not appear to have been registered; and that “ it appeared from said returns that said sixteen persons were not entitled to vote at all at said election.” If this was true, more than one third of the forty-six votes returned by the poll-book from said precinct were fraudulent, and did not represent votes cast by registered electors, as appeared from examination of the registration lists.
On demurrer to the answer it was contended that the canvassing board had no right to look at all the evidence of registration on which votes were received, as part of the returns, to see whether the list of electors recorded in the poll-book as having voted were registered. The demurrer was overruled by a concurrence of a majority of the court, and the respondents were thus allowed to substantiate by proof the allegation of their answer as to the great discrepancy between the registration lists and the vote returned by the poll-book. But on the hearing the canvassing board utterly failed to establish such allegation. On bringing in the check lists and certificates of registration
Dissenting Opinion
(dissenting from the order denying the motion to quash the writ, on the ground that it toas not issued by the court; that point being passed as decided, of opinion that the demurrer to the answer should be sustained, and peremptory writ thereupon issued).— I am of opinion that one justice in vacation had no authority to order the writ issued. The majority of the court held that the writ was • properly issued. That point being decided, and being now the law of this court, I come to the demurrer to the answer, and the accompanying motion for the peremptory writ forthwith. That demurrer and that motion, I think, should have been sustained. The result of these views is, of course, that I am of opinion that the peremptory writ should have issued without going further in the hearing than overruling the demurrer to the answer. I will state the reasons for my conclusions upon these two points : —
On the third day of December, 1892, the October term of this court adjourned without day. On the sixth day of December, 1892, the December term opened. On the fifth day of December, 1892, the alternative writ in this matter was issued. It is therefore a fact that the writ was issued in vacation. How it came to be issued appears by the following indorsement on the application: —
“Upon reading the foregoing affidavit and application of Eugene E. Leech, it is ordered that the clerk of the Supreme Court issue a writ in the alternative, in accordance with the prayer of the said Leech, returnable before the Supreme Court upon Friday, the ninth day of December, A. D. 1892, at ten o’clock A. m. Henry N. Blake,
“ Chief Justice of the State of Montana.
“Dated December 5, 1892.”
Upon the return day, December 9th, the respondents, the canvassing board, moved to quash the writ for the reason that it was issued without authority. The provision of the Constitution in reference to the issuance of the writ of mandamus (§ 3, art. viii.) is, in full, as follows: “The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in
These two writs — that is, habeas corpus, and certiorari in contempt — are singled out from the general list of writs mentioned in section 3, article viii., and the power is given to a justice to issue, hear, and determine them. Why so distinguish them from other writs, among which is mandamus, unless the distinction means something? The Constitution says that the court may issue, hear and determine all the writs. The Constitution says that a justice may issue, hear, aud determine the writs of habeas corpus and certiorari in contempt. I think it is conceded that a justice may not hear and determine a writ of mandamus. But the words “issue, hear and determine” are used together in section 3, article viii. The same construction that holds that a justice may not hear and determine, would hold that he may not issue, the writ. It may be suggested that this is an alternative writ, and that, while one justice may not issue a peremptory writ, he may issue the alternative. But the alternative writ is a writ of mandamus. In the Constitution neither the word “peremptory” nor “alternative” is mentioned. All that we find mentioned is the “ writ of mandamus,” and that writ may be issued by the court only. I do not, therefore, understand where the authority is found in the Constitution for one justice to issue an alternative writ any more than a peremptory writ. Nor does the statute help it. (Code Civ. Proc. tit. 13, ch. 2.) The peremptory and alternative writs are there
But, it being decided otherwise by the majority of the court, and also having gotten beyond the matters raised upon the demurrer to the writ, I hold the following opinion as to the demurrer to the answer of respondents: —
The respondents filed an answer, which is their showing of cause why they, as the canvassing board of Choteau County, should not be required to count the vote of Box Elder Precinct. The answer sets up that votes were bought at that precinct, that some of the voters were aliens, and other matter which is not necessary to recite in detail, to the effect that, if true, many of the votes at that precinct were illegal. Matter of this nature, if true, would, of course, be competent and pertinent in an election contest (which this proceeding is not), a contest prosecuted in a court to determine the title to an office other than that of legislator, or a contest prosecuted before a house of the legislature to determine the right of a member to a seat in such house. But, as is held in Pigott v. Board of