139 N.W. 960 | N.D. | 1912
Lead Opinion
This proceeding by mandamus was brought in district court to determine the results of an election on- the division of the county of McLean. Relator asks that the existence of the proposed county of Stevenson be declared and established, and the county auditor be required to issue and forward to the secretary of state a certificate cerr tifying such county division carried by a majority of all votes cast at the election had thereon in 1908, and certifying to boundaries and name of said county. This action has twice before been before this court, in various forms. 19 N. D. 804, 124 N. W. 701; and as an incident thereto the original proceeding of State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282. See also State ex rel. Minehan v.
The alternative Avrit, following substantially the petition, briefly recited, shows the right of relator to be such, the boundaries of the county, the preliminary steps to the election on the creation of Stevenson county, the submission of such propositions to the voters of the county of McLean at the general election in 1908, the notices of election on said proposition and the election held thereon, and “that the said judges and inspectors of said general election in each and all of the precincts of said county made a statement in duplicate on blanks provided for that purpose, showing therein the number of votes cast for and against the formation of the said new county of .Stevenson; and certified the same to be correct, and the same were duly subscribed and filed in the office of the county auditor of said McLean county, with the returns of such general election, according to the statute in such case made and provided; that thereafter, on or about the 16th day of ISTovember, a. d. 1908, the can-
Then follow averments that tbe county auditor refuses to certify and make bis certificate showing tbe result of said general election, and tbe formation and tbe boundaries and name of said county, and transmit tbe same to tbe secretary of state, as required by § 2330, Dev. Codes 1905, as amended by chap. 62 of tbe Session Laws of North Dakota of 1907; and closes with a command to so certify or make return of tbe reasons for refusal so to do.
It will be noticed that tbe foregoing portion of the writ, literally copied, alleges that tbe official returns by tbe election boards “in each and all of tbe precincts of said county” were made to tbe county auditor, and canvassed and abstracted by tbe canvassing board of said county, who “found that there were 1,006 votes cast for new county and 741 votes cast against new countyand that thereupon “tbe said canvassing board of said McLean county canvassed and abstracted said votes and! so certified tbe same.” Bear in mind, then, relator specifically pleads; that tbe election boards in each and all tbe precincts in McLean county made returns on said county division question, as provided by law, to tbe county auditor, and said returns were, by tbe county canvassing board, opened, canvassed, and abstracted. Tbe auditor answers, among other alleged defenses, that out of tbe fifty-one election precincts in tbe county of McLean no returns to tbe county auditor were ever made by tbe election boards in six of said precincts, designated by name, and
Then follow allegations of insufficient notice; dissemination of misleading information acted upon by the voters, causing them to refrain from voting against the proposition, under the belief that a failure to vote was in legal effect a vote against the formation of the county; that 3,600 votes were cast in said county at said general election, at which two other county division propositions were submitted, one carrying by a majority of all votes cast at the election, and thereby creating what is now the organized county of Sheridan; that one county division proposition so submitted overlapped, in territory embraced, both of the other two, so that an affirmative vote on all three should not, be counted and was in effect a negative vote, and that as to this county of Stevenson, fifty-two such votes are included in the alleged majority therefor; and that, inasmuch as a majority of the affirmative votes for Stevenson county did not exceed one half of all votes cast at the election on all county
Of the many interesting questions thus arising, but one, and that conclusive of results of said election, need be considered. This arises upon'the pleadings, and the sufficiency of the proof, and the law applicable thereunder concerning whether a legal and sufficient canvass and abstract therefrom of votes was ever made by the county canvassing board. The issue of fact regarding this is presented by the pleadings, to which reference has heretofore been made. Bear in mind the alternative writ and petition therefor constitute the complaint. High, Extr. Legal Rem. 451; 26 Cyc. 470. Also that the burden of proof is on relator, as in ordinary actions and proceedings, to make out a prima facie case by proof of the necessary averments of his pleadings. High, Extr. Legal Rem. §§ 448-451; State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834. “On an application for a mandamus, the burden of proof is governed by the general rule that the party holding the affirmative of the issue must establish his allegations by a preponderance of the evidence. The relator must prove himself entitled substantially to every claim and to all the redress which he seeks in his writ.” 26 Cyc. 476. How is this burden upon plaintiff met under the facts, which, by the way, are in such particular stipulated ? Hnless Exhibit D, hereinafter mentioned, makes prima facie proof of the right to relief, the following stipulation effectually answers this question: “It is stipulated that no returns on the vote on any of the questions of county division appearing on the ballot (a ballot containing all three county division propositions) were ever made to the board of county canvassers from the following precincts of McLean county, viz., Butte, Douglas, Roseglen, Whittaker, Shell Greek, and Turtle Lake; and the aggregate number of electors who voted in said precincts at said election was 354.” The precincts named are the same as those designated in respondent’s answer as the precincts from which no returns were ever made or canvassed. The language of this stipulation is carefully chosen that it may be so explicit and certain as to leave nothing to intendment, interpretation, explanation, or presumption. It establishes “to a certain intent in every particular” the facts pleaded by answer, and that but forty-five out of fifty-one precincts were in fact canvassed by
“Total number of voters who voted at the general election held November 3d, a. n. 1908, 3,600.
“Votes cast for governor, 3,437.
“Votes cast on Stevenson county, 1,817.
“Votes cast on Sheridan county, 2,674.
“Total vote cast on division ballots, 2,764.”
To which the auditor affixed his certificate, required by § 651, that such constitutes a copy of the abstract of votes cast by such precincts on said county division.
And it was stipulated that Exhibit D, offered in evidence, “is a true and correct copy of the original abstract of votes as made and prepared by the proper officers at the different elections enumerated therein and upon the division questions enumerated, which were held in the different election precincts shown by said abstract in the county of McLean at the time and places therein stated,” subject to objection as to relevancy and materiality.
The question before us, then, under this phase of the case, is whether a canvass of but forty-five precincts out of fifty-one in a county, and where there were sufficient elector’s voting on other questions in the omitted six precincts that, had they voted against the creation of the-new county, the negative votes would have exceeded the votes for the-creation of such county, while with such precincts omitted a majority as abstracted appears from forty-five precincts out of fifty-one in favor of the creation of the county, is the new county created under the constitutional and statutory provisions relative thereto. If this question must be answered in the negative, this action is thereby determined' against relator.
Under the burden of proof, arises the question of whether, by the re
Our statute, notwithstanding § 2329, is silent on the necessity of the-execution and filing of the equivalent of a certificate of election on the-canvass of a county division election, unless it he that either the abstract, by precincts on the canvass, required under § 651, or the certificate of formation of the new county, embracing not only the fact of the result of the election hut the territorial boundaries and contents and name of' the new county, is in effect the certificate of such an election. Considered in connection with § 688, as to contests in county-seat and county-division matters, providing the statutory contest must he begun “within thirty days after the result of such vote is canvassed,” instead of from the date of issuance of any certificate or return, it would appear-that no certificate of election, strictly speaking, is provided for, and that, the auditor’s certificate, mentioned in § 2330, as amended by chapter 62 of the Session Laws of 1907, because required by special statute-with otherwise no statute requiring aught hut an abstract of votes by precincts, constitutes such certificate. A certificate of election is usually issued as a separate instrument from the returns of the hoard of' canvassers, and § 651, the governing statute here, makes the distinction between the certificate of election and the canvasser’s returns, by requiring “the county auditor immediately to make out a certificate-of election to each of the persons having the highest number of votes-for county and precinct offices respectively, and to deliver such certificate to the person entitled thereto on his making application to the-county auditor therefor;” and on state-wide questions that said official “shall make a certified copy of each abstract and forward it to the secretary of state” as the returns from such county on such state-wide proposition; and the state hoard of canvassers, after the canvass made of such “certified abstracts of votes from the several counties,” as provided by § 656, issues the certificate of result or the certificate of election according to the fact, as provided in §§ 661 et seq. Throughout all these provisions the distinction between returns of the canvassing board and certificates of election is clearly drawn. Undoubtedly, however,.
In no sense can this partial abstract be held to have the force of a completed one, as the partial performance of an official duty cannot be said to be the full performance of it. Lewis v. Marshall County, 16 Kan. 102, 22 Am. Rep. 275; State ex rel. Byers v. Bailey, 7 Iowa, 390; McCrary, Elections, § 269. This authority says: “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.” “The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance.” See also § 272 of the same work, where, speaking of a legislative contest wherein the returns of one county out of five were missing, with the certificate of election signed by the canvassing officers of four out of the five counties, quite similar to the case before us, we find the following comment: “The case did not come properly within the rule that the certificate of the majority of the board is the certificate of the board; for while it is true, ordinarily, that less than the whole number may make a valid certificate in such case, it must be upon a canvass of the whole vote of the district. If a part of the vote is omitted, and the certificate does no more than to show that a
But to avoid this, the only conclusion, relator asks that we assume that no votes were cast upon county division in the six unretumed precincts. But if any presumption is to be indulged in it is settled that it must be the contrary presumption of fact, and to the effect that there were votes cast upon this proposition in said omitted precincts. State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, from page Ill of which we quote: “The reasonable presumption is that . . . votes were cast pro and con thereon in all of the election precincts of the county. We cannot 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.” We see no reason for overruling part of the basis of that decision. The presumption, then, is that votes were cast in said six precincts; and in the face of such presumption we cannot assume the returns not containing them to be either prima facie or any evidence of the actual result of said election in the fifty-one precincts in McLean county.
But another all-sufficient reason exists as to why testimony should be taken, touching the result of this election, upon which depends the issuance or denial of the writ prayed for. The relator must prove himself entitled to “the redress which he seeks in his writ.” 25 Cyc. 416. We may grant the impossible, and assume that upon the reception in evidence of this incomplete abstract of returns a prima facie ease
But yet the greatest reason of all still exists why this writ should be-denied relator. To grant the writ, in effect, is to create a new eounty. This cannot be done under § 168 of our state Constitution without a strict compliance with the letter and the spirit of that fundamental law. It provides the proof to be here exacted as a condition precedent to the
Several other questions briefed by counsel might be passed upon, but those already discussed fully decide this case against relator. "Upon the relator is cast the burden of making the proof 'of the result of this election, as to which result it is impossible to determine, there being a failure of proof thereon and concerning a matter in which § 168 of our state Constitution requires unquestionable proof of a majority favoring county division before relator is entitled to this writ.
It is ordered that the alternative writ, the order for and the judgment entered in the District Court granting a peremptory writ requiring appellant to issue the certificate of the division of McLean county and the territorial limits, contents and name of the proposed new county of Stevenson, be in all things quashed and set aside, and judgment directed to be entered dismissing this proceeding on the merits.
Concurrence Opinion
(concurring specially). I concur in the result reached by my associates in the foregoing opinion. I do so, however, solely for the reason that this case was before this court in State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701, on an appeal from an order of the district court striking out portions of defendant’s return or answer. After due consideration it was there held that the trial court erred in its action, for the reason that the portions of the answer stricken out stated defenses. Among the portions so stricken
If the Meyers Case is to be ignored, I am of the opinion that, in view of the defective returns, this court would be amply justified in disregarding the technical question as to whether the official abstract of votes
Concurrence Opinion
(concurring specially). I concur in tbe result of tbe opinion filed by Mr. Justice Goss. I do not, however, wish to be understood as concurring in, or expressing an opinion upon, all of the propositions discussed either in the majority or dissenting opinions in this case. Much depends upon the conclusions that are to be derived from the former cases of State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701; State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, and State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and as to what was the actual intent of the court in these cases. As I was not a member of this court at the time of the writing of the opinions therein,
I am, however, clearly satisfied as to two basic propositions, and those are, that there is no showing in this case that the proposition for the creation of the new county of Stevenson was carried either by a majority of the voters who voted upon that proposition, or by a majority vote of the electors who voted upon the question of county division generally. As I understand § 168 of the Constitution, a majority of those who voted upon the question of county division, generally, was necessary; but be that as it may, it is quite clear to me that there is not even a showing that a majority of those who voted upon the particular proposition was obtained. Ido not agree with Mr. Justice Burke in his conclusion as to the nature and effect of the certified copy of the report of the board of canvassers. Mr. Justice Burke seems to be of the opinion that the record shows that such canvassers actually reported that the total number of votes cast upon the proposition was 1,817. He almost goes so far as to intimate that that report should be conclusive in mandamus proceedings. I, on the other hand, am of the opinion that the showing is merely that 1,817 votes were returned by some of the precincts, and that there were still outstanding other precincts from which no returns had been received, and the vote from which had, therefore, not been counted by the canvassers. According to the case of State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, the presumption is that votes were cast pro and con on this proposition in these precincts. To me, therefore, the record shows that there were a number of votes outstanding and uncounted. If this be so, the case is taken out of the rule laid down in State ex. rel Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, and State ex rel. Davis v. Willis, supra. There being no proof in the record as to how the vote stood in these unreported precincts, the presumption merely being that there was a vote, there is no showing that the proposition was carried by a majority vote, even of those who voted upon the particular Stevenson county proposition. The stipulation that 356 votes were cast, generally, in the omitted precincts, tends also, to strengthen this conclusion.
I am quite clear that the relator has not proved his case, and personally I am of the opinion that § 168 of the Constitution requires a majority vote of all those who voted at the particular election upon the-;
Dissenting Opinion
(dissenting). The first proposition to which I desire to call the attention of ■ those persons interested in this case is that the views of Judge Goss in no manner constitute an opinion of this court, having been concurred in by but two of the five members. The only matter in which three members of the court agree is that the county of Stevenson did not receive a majority of the votes cast at the election. Although the syllabus has but two of the five members of this court back 'of it, and is repudiated by three members, yet it is set up as “by the court.” The bar will probably realize, however, that a court holding that 1,006 votes are too few to be a majority of 1,817 will not agree that two is a majority of five.
With the conclusion reached by the majority I wish to take issue, and at the start will say that the views of Judge Goss do not, in my opinion, correctly state the facts. To my mind the issues are simple and the conclusion plain. There was an election in 1908 upon the creation of Stevenson county. The canvassing board of McLean county, under their oaths of office, made a return that there was 1,817 votes cast upon Stevenson county, of which 1,006 were for the new county and 811 against. This statement is stipulated to be true by the attorneys, and a certified copy thereof is in evidence. This finding of the said canvassing board has never been questioned by contest, as required by §§ 693-695, Rev. Codes 1905, and after the time wherein such contest must be taken the said finding became conclusive upon all persons concerned. However, the county auditor of McLean county neglected and refused to make the proper returns to the secretary of state as required by § 2330, Rev. Codes 1905, and this action was brought in
As a matter of fact tbe auditor did attack tbe election as void, and succeeded in getting tbis court to bold with bim once (see State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701), but in another appeal it was shown that tbe court was wrong (see State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282) and it is now conceded by all members of tbis court that tbe election itself was valid. As a second ground of attack upon tbe new county tbe auditor asserted and proved that six of tbe fifty-one precincts of McLean county made no return upon tbis proposition. It does not appear that any votes, either for or against tbe new county, were cast in said missing precincts, although it is admitted that, upon other matters, there were cast enough votes that, bad they all voted against Stevenson county, it would have been defeated. Tbis attack and tbis proof are, to my mind, excluded because not brought by contest, and such is tbe bolding of this court in at least seven cases (State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164; State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; Dean v. Dimmick, 18 N. D. 397, 122 N. W. 245; Chandler v. Starling, 19 N. D. 144, 122 N. W. 198), and is also tbe views taken by tbe recognized authorities. See 26 Cyc. 257; 19 Am. & Eng. Enc. Law, 2d ed. 769; McCrary, Elections, 358-599; Spelling, Extra. Rem. 55-60; Merrill, Mandamus, 180, and tbe hundreds of cases therein cited.
Indeed so well settled is the law that my associates seek to avoid its consequences by saying that no complete canvass of the votes was had, and that therefore there is no certificate of the canvassing board in existence. This they assert in the teeth of the stipulation of the attorneys that Exhibit D is a true and correct copy of the original abstract of votes made by the proper officers, and in the teeth of the certified copy of the said abstract of votes duly stipulated into the record. To me it seems that the trouble with Judge Goss is that he has gotten the idea that certain parts of Exhibit D relative to the total number of votes cast in the county is a certificate made by the county auditor, and not by the canvassing board. He is led into this error, because the auditor happened to be the official who made the certified copy of the record of the canvassing board. As a matter of fact, however, Exhibit D is stipulated by the attorneys to be a correct copy of the returns made by the canvassing board, and contains the following extracts: “Total number of voters who voted at the general election on November 3d, 1908, 3,600. Vote cast for governor 3,437; vote cast on Stevenson county 1,811.” If my associates just comprehend that this is a statement made by the canvassing board, who are all acting under their oath of office, I think the fallacy of their position would become apparent to them. When it is remembered that this is a solemn statement or finding of the
Bor the sake of argument, we can admit that six precincts did not make any returns to the canvassing board. That fact does not appear upon the face of the returns, but is proven by evidence which was only admissible in a contest case. The canvassing board had certified that there were 1,006 votes for Stevenson county, — 811 against it, and a total vote of 1,817 cast thereon. This negatives any presumption which might otherwise arise that there were in fact votes cast upon this proposition in the six missing precincts. Thus, it will be seen that an attempt has been made here to change this mandamus suit into a contest suit without the necessity of having any person start such contest. Sections 693 — 697, Rev. Codes 1905, sets out the procedure necessary to contest the election of a new county as follows: “In any county where there is a vote for . . . changing the county lines thereof, any elector of such county on leave of the district court may contest the validity of such election . . . such elector shall give notice in writing of such contest to the county commissioners or a majority of them, of the county in which such vote was taken, by serving a notice . . . within thirty days after the result of such vote is canvassed. Such notice shall specify the grounds of such contest, and shall be filed with
It will thus be seen that Judge Goss’s idea that this action is brought, to determine the result of an election, which is found in the opening-sentence of his opinion, is entirely erroneous. This action was not brought to determine the result of the election. It was brought to compel the county auditor to do a ministerial duty after the voters had determined the election.
Judge Bruce has not concurred in the reasons given by Judge Goss, for holding that no canvass had been made of the votes in McLean county; but he joins in the reversal in this case for the reason, which he alone maintains, that it was not shown that Stevenson county had received a majority of all the votes cast upon all county division propositions. It is conceded there were presented to the voters at the same election three different propositions to create new counties, and that upon the three different propositions there were more than 2,012 votes cast. This, however, is but another phase of the old contention that a proposition of this kind must receive the affirmative vote of a majority of all the voters who attend the polls, whether they vote upon the proposition or not; and I did not know it was longer open to debate in the United States or North Dakota; since practically every court in the United States that has passed upon the question at all has held that, where language like our Constitution and statute is used, the majority of all votes cast means a majority of all votes cast upon the proposition under discussion. In North Dakota alone the proposition has been passed upon at least six times. State ex rel. Little v. Langlie, 5 N. D. 594, 32 L.R.A. 723, 67 N. W. 958; State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360; State ex rel. Davis v. Fabrick, 18 N. D. 402, 121 N. W. 65; Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. Practically all of the cases in the United States are collected and digested in a note at page 478, vol. 22 L.R.A.(N.S.), which note surely must have escaped the attention of brother Bruce. From these eases it appears to be well settled that when a voter refuses or neglects to cast his vote upon a proposition of this kind, that he is presumed to have delegated
The decision of the majority in this case in fact holds that 1,006 votes is not a majority of 1,817 votes, and these are the mathematics used to disfranchise the entire electorate of one of the largest counties in our state, and I respectfully decline to become a party to such a procedure.
Rehearing
On Petition for Rehearing.
It is urged on rehearing that, because written exceptions were not taken and filed to the findings of fact and conclusions of law, the same are conclusive, and the court cannot examine a stipulated record, embodied in a settled statement of the case, in which specifications of error of fact and of law challenge both the conclusions and the findings. Such may have been the common law, but we construe the statutes as abrogating any necessity for taking and filing exceptions in findings in appeals such as this. Section 7053, Rev. Codes 1905, defines an exception as “an objection upon a matter of law to a decision made either before or after judgment by a court in an action or proceeding.” This definition confines an exception to “an objection upon a matter of law,” and manifestly an objection that a finding is not in accord with or supported by the facts disclosed by the evidence cannot amount to an exception. Under the statutory definition of an exception, there cannot be such a thing, in a legal sense, as an exception to a finding of fact, on the ground that it is contrary to the evidence; and this alone is sufficient to show that no exceptions to findings of fact can be taken or are necessary. Por example, § 992 of the New York Code of Civil Procedure was in such respect nearly in the language of § 7053, Rev. Codes 1905. And it was held that the
Then again, under § 7053, “the exception must be taken at the time the decision is made, except as provided in § 7054,” which reads: “The verdict of the jury, the final decision in an action or proceeding, . . . are deemed to have been excepted to, and the same may be reviewed both as to questions of law and the sufficiency of the evidence upon motion for new trial or upon appeal, as fully as if exception thereto had been expressly taken.” Bnder § 6717 the word “verdict” in § 7054 must include “not only the verdict of a jury, but also the findings upon the facts of a judge or of a referee appointed to determine the issues in a cause.” And again, under § 7040, findings and conclusions amount to a decision. It reads: “In giving the decision the facts found and the conclusions must be stated separately; judgment upon the decision must be entered accordingly.” So that under the express terms of § 7054, whether the word “verdict” be considered as including findings, the decision mentioned in § 7054 is the findings under § 7040. Exceptions are unnecessary, and, by the terms of the statute, the sufficiency of the evidence may be reviewed “upon appeal as fully as if exception thereto had been expressly taken.” We find §§ 7053-7054 coming to us from territorial times, and still remaining the statute of South Dakota as well as of this state. Eo.r South Dakota’s interpretation in line with the foregoing, see Smith v. Commercial Nat. Bank, 7 S. D. 465, 64
Section 7226, prescribing the powers and duties of the supreme court on appeal, is in strict harmony with the foregoing provisions. It provides that upon appeal from a judgment the supreme court may review any intermediate order or determination of the court below “which involves the merits and necessarily affects the judgment, . . . whether the same is excepted to or not;” also errors apparent on the judgment roll itself may be reviewed without exception or a statement of the ease; “any question of fact or law, decided upon trials by the court or by a referee, and appearing upon the record properly excepted to in a case in which an exception is necessary, may be reviewed by the supreme court, whether a motion for a new trial was or was not made in the court below,”, but excluding jury trials from such review. The appellate court is thus explicitly empowered to review the sufficiency of the evidence to justify findings of fact in cases tried by the court and without a motion for a new trial. There is no necessity for an exception to secure such review, as no exception is provided for, and, strictly speaking, none can be taken to the findings; and this fact is recognized by § 7226 in the language: “Properly excepted to in a case in which an exception is necessary;” stating plainly that an exception is not necessary in certain cases.
Respondent urges that § 7226 was adopted from the Wisconsin statutes, and cites many Wisconsin authorities that findings of fact and conclusions of law cannot be reviewed without exceptions. A comparison of the Wisconsin statute, § ,2870 of Sanborn’s and Berryman’s
[Respondent claims that the finding as to the number of votes cast for and against county division is plead by defendant’s answer to have been 1,006 for and 811 against, and that by defendant’s answer he has admitted that 1,817 votes were all the votes cast on said proposition in said county at said election. It is true the answer contains the allegation that “out of 3,600 voters voting at said general election, 1,006 votes were cast in favor of the county of Stevenson, and 811 votes were cast against the proposed change; and that upon the question of the proposed changes to be effected in the boundaries, of the county of McLean there were 2,700 votes cast; out of which the proposed change for the formation of Stevenson county received 1,006 votes in favor of the formation thereof.” This is said in connection with the defense plead, in effect that granting that a majority of the votes cast upon the Stevenson county proposition were cast for the creation of that county, no county division could be had without a majority of all votes east on all county division propositions favoring the creation of Stevenson county; in which event about 1,800 votes would have had to have been cast for Stevenson county to create it, inasmuch as at the same election the creation of Sheridan county was voted upon. When this paragraph of the answer is considered with the alleged defense in connection with which it is plead, it cannot be said to constitute an admission that 1,817 votes were all that were cast in said county. Especially is this true when we find in the answer the following allegation: “Defendant, further answering, alleges that the entire vote on the question of county division was never returned to or canvassed by the county board of canvassers of McLean county; that although in each of the precincts of
On the trial it was stipulated “that all the requirements of the-election law were fully complied with other than as set forth in these stipulated facts.” Among the stipulated facts we find it is stipulated that no returns on this county division proposition “were ever made to' the board of county canvassers” from the six precincts in question, in which 354 electors voted at said election. Upon this respondent contends-that the presumption that “a duty imposed by law has been regularly and duly performed,” aided by said stipulation, should compel us to-conclude that notwithstanding the stipulated facts as to the returns from these six precincts, all county division ballots cast on this division have been canvassed and returned, and the presumption should be that no ballots were cast in these six precincts upon county division. To reach this conclusion we must ignore stipulated facts that no returns were made from these precincts, and assume to the contrary that returns were made and were counted. The answer pleads exactly whaf was subsequently stipulated at the trial in this respect; and the stipulation must be taken not only as proof of the facts stipulated, but as a judicial admission made in the course of a trial of the truth of the paragraph of the answer pleading such facts. Certainly a mere presumption of fact, arising from a presumption of duty performed, is overthrown by proof inconsistent with the application of any such presumption.
Respondent labors heavily with the burden of proof. He states that “it is of course elemental that in the first instance the party having the affirmative must assume the burden of proof to establish the essential allegations of his pleadings, that is, to present to the court the facts entitling him to recover.” This we agree has the support of reason and authority. He next asserts: “The vital, essential fact necessary for the relator to establish was that the canvassing board ascertained and determined the result, and that the result showed a majority in favor of division.” We agree with this assertion. So far we are on common
With due deference to tbe opinions of tbe dissenting member of this court, Justice Burke, bis conclusions must ignore such stipulated facts when be agrees with tbe contention of respondent concerning and contrary to admitted facts, and is ready to find that this county has been constitutionally created, when tbe parties stipulate that but less than seven-eighths of tbe number of precincts in tbe county have been canvassed, and no proof is offered as to how tbe 354 voting electors in such omitted precincts voted on this question.
And this leads to a word upon tbe assertion of counsel for respondent, and tbe two dissenting justices of this court, that in deciding this case we have overruled much of tbe established precedent of this state.
State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, alleged in the dissents to be overruled, is cited in the main opinion in support of our holding. In that case the abstract of votes involved was a complete one, covering all precincts in the county, instead of being, as here, but a partial abstract of the county vote. And said abstract was sought to be impeached in mandamus proceedings, the moving papers of which charged that the county board of canvassers compiled the abstract from unofficial documents or improper precinct returns. The fact that the
State ex rel. McCue v. Blaisdell, supra, above referred to, also claimed by the dissent to be overruled by our holding, was a mandamus proceeding wherein the propriety- of the remedy was not involved, nor was there in issue a single question of fact. That opinion was written by the present chief justice. It discloses that the question for determination was whether an affirmative majority vote of all electors in the county voting upon county division was sufficient to constitutionally authorize county division. One side claimed such a majority was all that was necessary, while the opponents of division asserted that a majority of all electors voting on any proposition'before the electors at such election was necessary before division was constitutionally carried. The decision of this point decided that case. There was no question of fact raised; it was conceded that a majority of those voting on county division favored the division, but that such majority would not amount to a ma
Another case we are charged with overruling is State ex rel. Johnson, v. Ely, 23 N. D. 619, 137 N. W. 834. That case decided a county-seat controversy between Bowbells and Lignite. It is cited in our main opinion as authority on one phase of our holding. It too was a mandamus proceeding, arising out of the action of a county canvassing board in casting out and refusing to include in their official canvass of a county-seat .election several precincts in which the voting places therein, where the election was held, were considerably distant from the established voting places previously located by the board of county commissioners. This is in no wise a parallel question to any here involved. It was there held that the county canvassing board might take judicial notice of the locality of the designated voting places, and when the returns clearly indicated that an election was held at a point distant from.such designated place, the board was justified in declining to canvass such returns; and, further, that the trial court properly “inquired into the facts, and finding that on a contest of the election there would be no justification for changing the certificate, declined to issue the writ,” inasmuch as the writ of mandamus is not a writ of right. This holding is authority for the consideration of testimony in this case to determine whether judicial discretion shall be exercised in favor or against the creation of the new county, and that to receive testimony for such purposes in a mandamus case does not constitute, as Justice Burke avers it does, a contest of an election. And, again, we find the statement in the special- concurring opinion of the chief justice at variance with the facts, when he says we have overruled this case. And it is significant that the opinion in State ex rel. Johnson v. Ely, referred to, also written by the chief justice, has been filed during the time this case at bar has been before this court for consideration, and since it was argued and submitted fully on the merits.
Again, State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, is likewise said to be overruled by our holding. The question involved in that case is stated in the opinion to be: “Briefly stated the
He also charges us with overruling State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. An examination of page 383 shows this to be unfounded. That case is followed and furnishes precedent for our holding, in so far as it touches upon matters analogous to those here involved. That was an application for the exercise of the original jurisdiction of the supreme court by a writ of mandamus. The remedy was challenged. The court says: “The only question left relates to the remedy. The relator, having received the appointment and- having qualified, is in a position analogous to one who holds a certificate of election and has qualified. This prima facie title gives him the right to the office pending any investigation as to the ultimate title; the defendant not being as to him even a de facto officer, but holding the office without so much as a color of title. That it is proper to try in mandamus proceedings all questions relating to the prima facie title is not open to debate in this state, since our decision in State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025,” another case said to be overruled. Turning to the report of State ex rel. Butler v. Callahan, at page 492 of the state reports, we read: “In our judgment the better rule is that in cases like this nothing can be tried except such questions as affect the prima facie title of the relator,” and the court properly refused in a mandamus proceeding to investigate the respondent’s qualifications to hold the office where concededly the relator held an admittedly valid certificate of election to office, and had duly qualified for that office. Such legal and valid certificate constituted title to the office, and valid title to the office could not be overthrown in mandamus, as
In said dissent be also takes tbe peculiar position tbat because this mandamus proceeding is brought against a public officer, in tbe name of tbe state, on relation of an individual, and purporting to be in behalf of many citizens interested, that an answer denying tbe facts alleged by relator, and supplemented with matters purely of defense to tbe writ, must by some mysterious process of reasoning be considered as a. contest brought by tbe answering defendant against tbe relator instituting tbe suit; and because tbe party defendant could not contest in bis-own name, be should not be permitted to defend a mandamus proceeding, because to defend would be to contest. This seems queer doctrine-The fact must be admitted tbat no contest is created by the answer. A denial of tbe necessary averments of complaint cannot constitute the commencement of an action, proceeding, or contest. Tbe issue of fact merely is thus joined, and relator put upon bis proof, whereupon be offers an alleged prima facie conclusive piece of evidence, tbe abstract. Tbe court examines it, following State ex rel. Moore v. Archibald, and State ex rel. Butler v. Callahan, to ascertain by whom it was issued, upon what it was issued, and to determine in fact and law its legal
This review of the case, after the filing of the petition for rehearing, is made that counsel filing it may feel that all matters presented by it have been considered. The importance of the litigation demands full explanation of our reasons for the holding; and the charges, to our minds ungrounded and made without consideration, that we have overruled particular and established precedent with or without consideration, justifies our review of the authorities to establish the contrary, that we may “thereby prevent the confusion which necessarily follows whenever an opinion is in effect overruled without so stating,” quoting from the special concurring opinion of the chief justice.
On petition for rehearing, respondent questions the propriety of the dismissal of this action, contending in line with the suggestion contained in the opinion of the chief justice that the case should be remanded for further proof. To do so would be the equivalent of assuming that the result of the election could be established by competent proof at this late date. The authorities announce the rule that the result of an election may be established by other evidence than the returns, ballots, and election records, where from any cause such record evidence becomes incompetent or unavailable as evidence. 5 Enc. Ev. 69. But this general rule must be subject to some qualification as to time. McCrary, Elections, § 477, quoting Archer v. Allen, 1 Bart. Elect. Cas. 169. It cannot now be seriously contended that the ballots used in this election are still admissible .as evidence. The sixty-day period prescribed by statute, during which they must have been kept, and when so kept were primary evidence, elapsed four years ago, and with the termination of that period ended their evidentiary value. “When ballots are still in existence and have been kept as required by law” they are admissible. Cooley, Const. Lim. p. 625; McCrary, Elections, § 480. “But the right to have recourse to the ballots presupposes that they
The petition for rehearing is denied, and we adhere to our decision-
Rehearing
(on rehearing). My dissent heretofore filed expresses my sentiments regarding this case. When such dissent was filed the original opinion had been concurred in by but two justices of this court, but since-that time Justice Bruce has expressed himself as favoring the opinion
When my opinion was written in tbis case only-two members of tbe court bad joined in what now seems to be the majority opinion. Tbat opinion bad awaited tbe concurrence of a third member for many weeks, and such concurrence then seemed out of tbe question, as did any agreement of any three judges on anything-more than tbe result; and for tbat reason I did not deem it necessary 01-proper to more than call attention to some of my reasons for not concurring fully in tbe great number of questions attempted to be passed upon. Tbe statement tbat tbe decisions in tbe eases referred to are not overruled probably settles tbat as a fact, but interested litigants may not so regard it. It is wholly immaterial, as I view tbe question, whether-a case is overruled or not, as an abstract proposition; but it is highly important tbat tbe construction of a law be settled when it is in question, and tbat there be some degree of stability in tbe decisions of this, court; and if, as conceded, it is important tbat confusion be avoided tbe question of overruling a decision or not overruling it should bear-analysis, regardless of any naked statement of tbe fact. I shall not. add to tbe at least extraordinary length of tbe opinions in tbis case by-submitting an analysis of tbe cases referred to, because by so doing it might give tbe appearance of tbe existence of an unseemly controversy in tbis court, wbicb is not tbe fact. I will simply say tbat it seems to me-tbat a too narrow interpretation is given to State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231. Tbe facts were before tbis court and showed, or at least it was alleged and not in issue, tbat no. returns were made of tbe women’s votes for superintendent in certain precincts, and tbat bad returns been made of such votes tbe result would have been changed. Notwithstanding tbis, tbe candidate, having a. majority on tbe returns made, retained the office. There may be a distinction between partial returns from each precinct and complete returns from some precincts and none from others. It is true it was said in State ex rel Davis v. Willis, 19 N. D. 209, 124 N. W. 106, as quoted in tbe majority opinion herein, tbat “tbe reasonable presumption
Concurrence Opinion
I now and after the petition for rehearing concur both-in the above opinion and in the opinion chief by Mr. Justice Goss.,