*1 OLSON, Attorney ex rel. Allen I. STATE Meier,
General, Ben Petitioners,
State, THOMPSON, Judge the Bur
Alfred Court, County
leigh District Kuhn, Respondents. J.
Norma No. 9292.
Civ. of North Dakota.
Supreme Court
Dec. 1976. *2 Legislative District of
tive for 41st held on November general Meier as Ben North Dako- and that 1976] State, forthwith Secretary of issue ta Election, a Certificate Norma J. Kuhn Defendants show cause *3 and that Olson, Gen., Atty. and W. Allen I. Gerald this Writ before this Court return to due VandeWalle, Gen., Deputy Atty. Bis- Chief in the Burleigh Chambers at it’s [sic] marck, argued Mr. petitioners; by for Bismarck, North County at Courthouse VandeWalle. A.M., Dakota, 9:30 on 9th at o’clock Anderson, Durick, Pearce, December, Bis- 1976, Thames & or as soon there- day of counsel; Eaton, Jr., marck, heard, of Jonathan C. why as counsel after Minot, respondents; argued by for B. Timo- absolute.” Order should Bismarck, Durick, and Mr. Eaton. thy December, 1976, of is the day The 9th third organizational 3-day of the session of the PAULSON, Judge. by 54-03.1-02, legislature required 53 of the C.C. Section North Dakota Con- petition supervi- for original This an a organizational mandates brought stitution that Writ Prohibition sory of during be held the month of session of Decem- Attorney the State of North General following the election of its of of the ber members Secretary and the State Dakota legislature authorizes the and set the requesting of that this North Dakota State for the control, specific organizational dates session. superintending exercise court Thereafter, Olson, Allen I. Attorney Gener- North Dakota Con- pursuant to § Meier, al, State, stitution, Secretary peti- and Ben Bur- over the District Court of this court for a ofWrit Prohibition specified in tioned leigh County manner to command requesting that this court petition, and such Dakota State Board compel the North Thompson, Judge . “. . Alfred purpose of re- meet for the Burleigh County, Canvassers District Court of necessary, and, correcting any if any proceeding from further desist election results of matter; previous certification the Court issue its order held on November general election directing commanding State Representative for office pursuant State to meet Board Canvassers Legislative District the State for the 41st 16-13-47.1 of the sections 16-13-15 and Dakota. recanvassing of North purpose of NDCC for the and, any necessary, correcting previous if December, 1976, on day of On 1st results certification Kuhn, the Honora- of Norma J. application Representative from the office State a Thompson, judge ble Alfred A. District; that the dissolve the 41st Court Court, District issued Burleigh County ofWrit Prohibition and Al- Alternative upon the members had served ofWrit Mandamus and dismiss ternative an instrument of Canvassers Board Petition therefore [sic].” Writ of Prohibition Alternative entitled Mandamus, ordering ofWrit Alternative following arose the Novem- This matter of Canvassers to State Board 2, 1976, general election. The ber County from of Ward forwarded refrain auditor desist “. Secretary abstract of in said matter certified proceedings [the further law, including necessary, correcting required by recanvassing votes Representative from the 41st District of election certification any previous Representa- follows: office of State as results recount shall be certified district Walsh .2,402 Forsberg. 1,928 state, judge or to the Wentz.2,283 in the case of county auditor of- 2,291 Kuhn. fices, no later than fifteen after the application for a recount has been filed. Subsequent to the receipt of such certifica- costs of such recount shall be borne tion, of State was served with counties involved. members copy of a Demand for Recount Janet county canvassing board or such Wentz, pursuant 16-13-47.1, N.D.C.C., persons other selected the district amended, provides as follows: recount assist shall re- congressional, state, compensation mileage “Recounts ceive pro- Procedure—Costs.—Any in section vided 16-13-16. results of offices — person losing primary, special, gener- of votes cast an election of *4 al election contest nomination or elec- legislative of the assembly a member congressional, state, legislative, tion to a be shall admissible in either house of the county may or office demand a recount of assembly, or before a commit- in the ballots cast manner and cir- house, of either tee as evidence to aid in provided. cumstances hereinafter determination of an election contest bemay made if person demand shall in that pending house.” primary failed to be nominated in a have demand, to such and upon Pursuant than by percent election less two of the General, of the Attorney advice the Secre- highest vote cast for a of candidate his tary of State did not issue a certificate of sought, office or the de- party for the Kuhn, Representative election as a State by any person made who may mand be Legislative 41st of the District. special general at a failed to be elected or fifteen days Within after the Demand for one per- less than one-half of Wentz, Recount was filed the Secretary highest cent of vote cast a candi- .for received of State the results of the recount office. date for that The demand must pursuant 16-13-47.1, conducted to § ten be made within after the can- C.C., amended, as certified the Honora- of vass of the votes such election. After Beede, ble William M. District Judge of upon application a judge demand and County, Ward which indicated the follow- court, of appropriate each district such ing: directing court or courts shall issue orders pertaining all ballots to such office Kuhn 2,205 respec- shall be delivered forthwith to the Wentz 2,206 person tive court or courts. The demand- 2,311 Walsh copy such shall forward a Forsberg 1,850 state, application county or to the auditor in the case of 16-13-47.1, Pursuant 16-13-15 and §§ offices, at county the time it filed with N.D.C.C., advice the Attor- county canvassing the district court. The General, the ney Secretary of State called a county, per- board of each or such other meeting of the State Board Canvassers may select, sons as the court shall recount 1,1976, m., for December at 11:00 a. for the the presence the ballots in of the court and, recanvassing if necessary, and, in the requested, presence correcting any previous certification of elec- representatives. candidates or their Any tion for the Repre- results office any representative of any candidate or Legislative from sentative the 41st District. object such office may candidate for 13—15,N.D.C.C., provides Section as fol- 16— counting any ballot. All ballots lows: objected to shall the dis- referred to decision,
trict for his shall “Time rendered at once. The of such meeting required results —Oath —Reconsidera- 16-13-47.1, pursuant returns district court soon as the of canvass.—As tion auditor, but N.D.C.C. by the received elec- days after each five not later than proce note the use of the first We canvassing board shall tion, above, exemplified by set out an dure office, taking the oath of after meet in the North Dakota election contest Senate publicly canvass open and proceed to shall involving the admission of a state in 1957 meeting the initial After returns. Legislative from the 19th senator District. section, provided in this board as the candidate certified There may call a more members any two or Board of Canvassers issued a certifi upon approval board and meeting of the Secretary cate members, the board majority of the of the 35th Journal Session [Senate of the election the results shall recanvass (hereinafter Legislative Assembly correct portion thereof S.J.)]. Notice of an election contest had or certification or canvass previous State, with the who filed been Any such election. regard both transmitted the same to the President had any previous certification correction Senate, but the matter was not heard in this section election results after the had assembled until State Senate immediately dispatched to the shall be Legislative for the 35th Session—after a meet- state who shall call secretary of already senatorial candidate had certified of canvassers as the state board ing of organization of the State participated pur- section 16-13-36 *5 provided in S.J., p. the matter Once Senate [1957 12]. and, recanvassing necessary, if pose raised on the floor of the been State had previous certification of correcting any Senate, specially ap referred to a it was results.” the election proposed of five pointed committee which Board of Canvassers assembled The State pur the full for the to State Senate rules but, 1,1976, it took before on December judging said contest pose of [1957 matter, the aforesaid writs on the action 12, rules, S.J., Applying such pp. 16-17]. Judge Thompson which were executed committee conducted a recount special of the upon the members were served election and its contested submitted Board of Canvassers. S.J., findings to the Senate as a whole [1957 adopt 43-45], in turn acted to is which pp. before this court only issue S.J., forego p. findings Board of Can such authority of the State [1957 59]. many one of only as illustra close is offered subsequent to the to reconvene vassers how each house of the examples of meeting regular prescribed tive the board’s assembly power adopt has the to statute, necessary, legislative to recanvass changed which rules—rules previous certification of election its own correct to another—to legislative session No from one general election held on results of the pursuant to 47 1976, an election contest 2, Rep § resolve for the office vember Dakota Constitution. Each North Legislative 41st District. resentative for the adopt procedure free to whatever is house procedures perusal In our given appropriate for the case and deems Dakota to resolve contested North available process by house is neither affected results, legislative election we note that two acts of the Board ministerial are available to candidates procedures Canvassers, or of the of State (1) legislature: election contests election. issuing certificates legislative assembly wherein house Next, proce admission, we to the second turn contesting the candidate seeks intending to candidates available Con dure to 47 of the North Dakota pursuant § results—the bal N.D.C.C., legislative election stitution, 16-14, Chapter contest in 16—13— procedure set forth 54-03-07, N.D.C.C.; § (2) re lot recount ballot § N.D.C.C., earlier herein. We 47.1, set out presence counting in the and under procedure very is a recent such note that appropriate supervision each 352 laws, having Supreme to our Court of the
addition been the United States enacted amended in 1973 in stated: apply 16-13—47.1
order elec- § statutes “All must be construed in the tions. We further note that purpose. their A light reading ballot literal procedure supplant does not de- of them would lead to absurd re- legislative termination each house of they avoided when can sults is to be qualified who members thereof. given application a reasonable consistent words and legislative with their with the respondents herein contend that purpose.” [Citations omitted.] 16-13-47.1, procedure in the recount 1-02-01, N.D.C.C., Finally, provides, in C.C., provide is intended evidence to part: pertinent proceeding be used in an election contest “Rule of construction of code.— . legislature pursuant Chapter held in the The code establishes the law of this state 16-14, interpretation, N.D.C.C. an re respecting subjects to which it re- contend, spondents compelled by the stat lates, provisions proceed- its and all 16-13, utory Chapter scheme set forth in ings under it are to be liberally, construed N.D.C.C., provide which does not effecting objects with a view to and to “recanvassing” recount results. We justice.” promoting contention, reject noting that such Hughes In v. State Farm Mut. Auto Ins. would make per construction the recount Co., (N.D.1975), 236 870 para- N.W.2d by the district court an formed idle act. graphs 5 and 6 of the syllabus, this court 31-11-05(23), N.D.C.C., provides: Section stated: requires “23. The law neither does nor construing legislation “5. In general- idle acts.” ly, duty attempt it is our to determine Perry Erling, 132 N.W.2d 896 In intent, and when intent is (N.D.1965), quoted approval this court with objective directed toward an prohibit- (1953): from C.J.S. Statutes § constitution, the state or ed federal statute, construing spirit “In legislation our construction of the should *6 must be considered the enactment compatible be in aid of and with this possible, should if be con- the statute intent. pur- in therewith. In strued accordance “6. Statutes must be construed with object giving of general of the suance policy reference to the intended to be legislature, of the effect to the intention accomplished, so as to leg- effectuate the the courts are not controlled the literal islative which prompted their en- statute, language the meaning of actment.” spirit but or intention of the law Applying the foregoing to the in thereof, being letter it prevails over the ease, stant this court finds that § 16-13—47.- generally recognized that whatever is 1, N.D.C.C., adopted provide to for a spirit within the is within statute recounting means of legis ballots cast for a statute, although is within the it not position lative when such a recount is de thereof, letter while that which is within manded; and if such recount is to be more letter, although spirit, not within the act, than an idle it must result in the is not is within the statute. Effect will be a certificate of election issued to suance given the real though intention even con- victor. Issuance of such certifi trary to the letter the law. usurp legislature’s not own cate does “The rule of according construction to pursuant decision-making power to 47 of spirit of the law is especially applica- ap Constitution. the North Dakota ble where adherence to the letter would has been dealt with before parent conflict ** result in absurdity injustice, or *.” court. In ex rel. Williams v. by this Haggar In 834, Co. v. Helvering, 389, 628, 308 127 N.W. 837 Meyer, U.S. 20 N.D. 394, 337, 339, 60 S.Ct. (1940), 84 (1910), L.Ed. 340 stated: this court
353 suggested of election “It is decision certificate to the successful of no force effect candidate, court will be though even charged section 47 the for the reason ineligible. is such candidate right ‘The judge of the is made the Senate hold office cannot be tried in a suit to qualifications its own returns enjoin certification an attempt This court does not members. being by quo warranto,’ remedy shall be seated. It is say what members contest, provide where the statutes question passing upon the of law simply 257; remedy. p. latter 32 C.J. ex determining a view presented with McFarland, Coffey supra; High rel. v. 2 auditor whether action (4th Ed.) Injunctions on 1312-1313.” §§ refusing peti- to file relator’s legal is Schmeding And in ex rel. v. District print as a and to his name candidate tion District, Court of Sixth Judicial 67 N.D. primary upon the election bal- for senator 196, 137, (1937), 143 271 N.W. this court unnecessary for us to consider lot. It stated: may have any our decision effect whether necessarily mean that “This does Senate upon action some issue is connected with a because elected, new senator be should a premises seat in the assembly, courts he the old senator claim both are from considering debarred it. Courts of the Legisla- branch upper seats to hear jurisdiction have and determine ture.” certificate nomination whether a Byrne, 65 N.D. ex rel. Sathre In State issue or whether should omitted] [citation 121, 124-125(1934), N.W. this court canvassers issue a should stated: of election certificate [citations omitted]. judiciál quasi power from “Aside These ministerial actions—duties genuineness determine The principle officers. involved various them, ap- before case of returns nature of the issue. As determines the parent mistake in the returns from ex rel. Meyer, shown in State Williams v. county, necessary steps take the etc., 628, 127 N.W. courts corrected, have such the func- mistakes power to direct the auditor have tions and duties of the members of the petition of to file the a candidate for are purely canvassers min- publication and direct the Senator his isterial. The state [Citations omitted.] ballot. upon the This does not in name has no authority canvassers fringe powers the constitutional of each any question concerning determine house to the election returns and of an legality pass election or to own qualifications members.” *7 eligibility of a candidate office. [Ci- Further, if, after the acts of ministerial wholly matters tation are omitted.] ballots, elec- recounting certifying power beyond board results, issuing tion the certificates questions for canvassers and are determi- completed, and who in election are a candidate appropriate proceeding nation some in judicial receive certification still desires a tribunal. failed to contest, 16-13-47.1, N.D. file an § election C.C., provides that: specifically harmony principles “In with these any “. . The results of (practically courts have held unanimous- member of votes in an election of a cast may ly) that election officers not be re- assembly admissi- legislative shall be canvassing from the vote and strained legislative house of the as- ble in either declaring the result of an even a committee of either sembly, or before though alleged it be that there was fraud house, evidence to aid in the determi- illegality in the election. [Citation in 256, pending election contest pp. 32 257. Nor will nation of an C.J. omitted.] enjoined giving officers be from house.” foregoing law, note that if the according We “evidence” power has no or author- were the intended function use of a ity to make a recount. When this duty is 16-13-47.1, N.D.C.C., recount, such a re- § fully performed, is performed once be an idle act. count would Each house of forever, repeated. once and and cannot be assembly fully capable say, In Bowen v. Hixon the Court ‘To counting determining in ballots ballot that it suppose could be renewed—that way in no validity, is bound the rules day repeated the canvass of one could be court adopted by supervision a district in its next, and counter certificates be is- recount; 16-13-47.1 thus an inter- § of a sued to different light contestants as new respondents as advocated pretation brought or influence was to bear nothing to the statutory add scheme mind of the clerk—would render the ” 16-13, Chapter N.D.C.C. proceeding whole a farce.’ foregoing We believe the to dispose of by McCrary Both the text and the Mis- court, issue before this but lest we be souri decision are so age barnacled with charged having dispose with failed to they hardly pertinent light respondents’ arguments, briefly we will ad- development of election law in the in- arguments dress ourselves to as ex- integrity. terests of respondents’ from written tracted briefs In addition to the staleness of the Bowen arguments supporting their oral re- decision, we distinguishable believe it is premise spondents’ statutory basic that the both on the facts and on the law.1 13, Chapter set forth in scheme 16— C.C., provide does not for the “recanvass- Legislature The North Dakota has ing” of recount results. steps taken two canvassing allow first, reassembly. 1969, amended First, respondents contend that once a 16-13-15, N.D.C.C.,to add the following § canvassing adjourned, board has it cannot language: voluntarily support reassemble. In of their canvassing that a contention board cannot “. . Reconsideration of canvass. — and recanvass reconvene the recount of the ... After the initial meeting of ballots to make corrections provided certified section, the board provided the recount board for in 16- may two or more members call meeting a 47.1,N.D.C.C., respondents refer us upon approval of the board and 13— George McCrary, W. American Law of majority members, the board shall (4th 1897), ed. Elections which cites Bowen recanvass the results of the election or Hixon, Mo. Supreme Missouri any portion thereof correct decision rendered in part Court 1870. A previous canvass or certification or both McCrary reads, reference at regard to such election. Any correc- pages 201-202: any previous tion of certification of elec- having
“A once coun- tion results as in this section votes, ted the and declared the result shall be immediately dispatched to the Bowen, county canvassing 1. In filed, board con- had been and concluded that this action statutory period vened within the time and is- court, removed the matter to the leav- candidate, sued a certificate of election to one authority no board to days later, then reconvened several recounted act. ballots, *8 the and issued a second certificate of Thus, point we can see that Bowen is not in quite ap- election to another candidate. It is bar, particularly with the case at we have since parent reading opinion from our of the Bowen express statutory provisions pro- for recount Missouri, statutory provi- that in had no ceedings reassembly county and the of both ballots, certainly sion for a recount of court-supervised not a and state boards of canvassers. The decision proceeding recount such as in Bowen did not focus on whether there exist- 16-13-47.1, N.D.C.C., we have in § nor did authority ed to issue a second certificate of statutory provision Missouri have a for the authority but whether there existed reassembly board, canvassing as found in clearly recount the ballots —a matter 16-13-15, our § N.D.C.C. The Court Missouri settled in the instant case. also to tne tact referred that a notice of contest exception would not be within the a of 16- § who shall call meet- secretary state of 13-15, N.D.C.C., corrections, allowing canvassers as board of the state of pur- the 16-13-36 for not be allowed be by section would canvassed provided in necessary, recanvassing if Board pose of the State Canvassers because such previous certification of correcting any part a “regu- recount returns by county results.” made the lar returns election board of provided chapter”. as this canvassers in tois allow of such amendment 16-13-38, N.D.C.C. § to correct of canvassers county board or certification canvass any previous language “The . [State directing “Any correction of both, that only Board of canvass shall Canvassers] election results previous certification any regular by county returns made board shall be immedi- in this section provided as provided chapter” canvassers as in this in dispatched to the ately 16-13-38, N.D.C.C., believe, we was em- § meeting of the state board call a shall who clearly point out the State ployed section 16-13- provided in canvassers Board of Canvassers restricted from and, if recanvassing purpose of counting absentee ballots which arrived too certifica- correcting previous necessary, by be counted either late to results.”. The second of the election tion county canvassing or the board board. legislature our came change adopted by county board, (The canvassing as distin- 47.1, § the enactment with 16-13— from the State Board of guished Canvass- C.C., procedure in for a recount providing ers, was authorized count absentee bal- supervision presence of and under too late counted lots received to.be judge. As stated earlier court a district board.) procedure, to have herein, recount such A recount conducted under 16- § requires that the impliedly purpose, N.D.C.C., 13-47.1, return is power have of Canvassers Board county aof return made equivalent its canvass as to act to correct reassemble part Chapter board. It is a certification or of a recount or result 16-13, N.D.C.C. necessary. both instance The recount board that is raised second contention 16-13-47.1, same as the is that since was constituted § respondents (even if were se canvassing board others N.D.C.C., that recount provides specifically board, serve on the recount such aid in the deter- lected to be used “to are to results performed similarly a combined pending board of an election contest mination board and an elec house”, “evidence” func- a that such an function board). The return of the recount application the sole such tion to be tion is herein, “regular provision: within the earlier comes As stated board results. recount made board can use would render the disagree. returns we (mean chapter Further, interpre- vassers an idle act. recount 16-13, N.D.C.C.). [Emphasis ing Chapter give significance to the short fails to tation time, during which a recount under period added.]” demanded, N.D.C.C., 16-13-47.1, be can Further, the recount require period in which the short time language with the exact comply compiled and certi- results must
recount N.D.C.C., 16-13-15, by sending its certi- Secretary of State. fied to county results to the fied turn, canvassers, who, certify is that third contention Respondents’ to the 16-13-15, N.D.C.C., election results uses the term recounted since § idle act since require an not a of State —would “county board canvassers” canvassers”, of canvassers would results sent “recount board conduit, performing no other acting as a “recount Secretary of State *9 herein, “The case, earlier As stated canvassers”, instant function. as in the requires contesting former, neither does nor idle acts.” an election. The clearly law 31-11-05(23), unmistakably, N.D.C.C. has been is made and § part now a election process, which Fourth, respondents contend includes certification Secretary since the failed to State board, challenge whereas the latter is a a certificate of there is no issue process the election itself. 16-13-15, to correct as envisioned in error § For the stated in opinion, reasons We note that 16-13-15 calls for § N.D.C.C. petition to this court for a Writ of Prohibi- any previous correction certification of granted tion is accordingly, Alfred A. is necessary results—such Thompson, Judge the District Court of because, although case instant Secre Burleigh District, Fourth County, Judicial is perform tary of State failed to his ministe herewith commanded desist from him, pursuant duties required rial matter; proceedings further 16-13-48, 16-13-47, 16-13-51, §§ writs Judge issued said Alfred A. C.C., the State Board Canvassers did Thompson against Meier, directed Ben Sec- certify that Kuhn Norma J. was the duly retary State, and the members of the Representative State from elected the 41st Board State of Canvassers dated 1 Decem- Legislative District on November 1976. ber quashed; petition 1976 are of Nor- the Secretary If had issued a State cer upon ma J. Kuhn which the writs of Kuhn, of election Norma J. tificate dismissed; predicated district court were is certificate, results, in light of recount of State Ben Meier and have had to revoked. According Canvassers, State Board of in light of the it is ly, immaterial to action that the recount, court-supervised are herewith di- of election in certificate issued rected and commanded to meet forthwith instance. first purposes of recanvassing the re- Finally, respondents contend count of correcting the election ballots and State Board of Canvassers cannot any previous certification of election results statutory reassemble because peri time Representative for the office lapsed they has od which have authority Legislative the 41st District. assemble. Respondents 16-13-36, cite § N.D.C.C., provides: J., ERICKSTAD, SAND, J., C. con- “Meeting of state board of canvassers. cur. secretary —On call of the of state but not PEDERSON, (concurring part). Justice later than fourteen next following general special election, primary, I quashing concur in the of the writs state board of canvassers shall meet at issued the district court of secretary the office of the of state for the I Burleigh County. do not in all concur and ascertaining that is said what things about kinds of the result of the election. However, idle acts. I agree one that no of state shall notify the other members of perform should be commanded to acts. idle meeting.”
the board of such This court in an engages idle act when it provision time commands a over 16-13-36 is a which it has no jurisdiction only (the Canvassers) time restriction on the Board of first assembly Canvassers,- to meet and State Board to take corrective action. is on the power not a restriction Because the North 47 of Dakota Consti- Secretary of to reassemble the State superimposed tution must be stat- all Board Canvassers to canvass returns of a assigning utes tasks either the executive any previous and to correct certifi- judicial government, or the branch of in a of election results. cation contest, those func- conclusion,
In it is our view that tions which expedite legis- or facilitate the demanding a recount not the same as lative determination are not idle acts.
357 certificate of election Board of Canvassers decides which as- would be If the State recognizes only by quo if it that voluntarily meet and sailable warranto or by a con- need more certi- Byrne, will not ex rel. v. legislature supra. test. State Sathre an election there is to show that fications But are now we faced with a situation contest, Canvassers Board of then the State State, Secretary where the upon the necessary is not that it will conclude the highest legal advice of official it would anything because such board do State, plain requirement has violated act. an idle only be That official the law. now asserts that issued, the certificate of since election is not VOGEL, (dissenting). Justice Board State of Canvassers may meet Board, Canvassing County Ward The certify again a new after winner a duties, certified Nor- performance held a under statute which I will of the two receiv- persons as one ma Kuhn justifies a recount but not recan- show a two highest number of votes ing the vass. Legislative positions in District Wentz, who received 41. Janet No. II votes, a highest demanded number third Attorney argu- General makes the recount. ment, majority accepts and a of this Court met, of Canvassers Board When argument, that two statutes which were had not been conducted the recount at different times and cover differ- enacted nothing before to indicate there was be subjects ent must somehow connected to it were incorrect. results certified other because re- with each otherwise the as elected Board certified Norma Kuhn provided by one statute count reported Secretary and so State. useful serve no and would be for State, upon Secretary of the advice personal only “the of a candi- satisfaction General, a did not issue certif- Attorney originally lost and was then date who found Kuhn. Section icate of election Norma words, be the winner.” In other simply N.D.C.C., 16-13-48, he so. requires that do a recount does not in and of itself because provides: It change (which of an the result can receiving each certified state- “After means), by judi- other changed we must determination made ment and unprovided some mechanism cially legislate canvassers, accomplish result. I de- by statute in his state shall record same office party a such a tortured con- cline forthwith shall make out trans- statutory language. struction persons to be to each of declared mit language forth the elected, provid- I will set relevant a of election certificate statutes, followed the two discussion of chapter. .” ed in this arguments parties. I (§ 16-13-15, A. The recanvass statute appears Secretary to me that the It N.D.C.C., last in 1969 amended Ch. peremptory require- has violated the S.L.): 1969 law, mandatory ment of a on the erroneous “As as the returns are soon received Attorney General. advice auditor, but later than five after each Secretary If the of State had done his and, canvassing board shall meet after discretionary which not but ministe- duty, office, proceed the oath of shall taking Byrne, rel. rial State ex Sathre [see publicly canvass such open and returns. (1934), 121 65 N.D. N.W. meeting initial of the board After the the duties of the Board of holds that section, inference, two or more Canvassers meeting a issuing call the board a certificate members of State approval majority ministerial], Norma Kuhn would have *11 members, board shall county canvassing the recanvass the The board of each any portion election or results of the county, or persons such other as the court may previous thereof and correct select, may shall recount the ballots in regard canvass or certification or both presence of the court . . the . The Any of any to such election. correction results recount votes cast in an previous certification of election results of a legislative member provided in this be as section shall imme- assembly shall be admissible in either diately dispatched to the legislative assembly, house or be- call a meeting state who shall house, a committee of either fore as evi- provided in section canvassers to aid in the dence determination of an recanvassing 16-13-36 for pending in election contest that house.” necessary, previous correcting any arguments I now to the come based on certification of election results.” the statutes. as to language recanvassing The was add- is to the judge 1. It be noted that before that, ed the 1969 amendment. Before may appoint whom recount is made only the section consisted of first sen- either members of the canvass- present tence of the section. 1969 lan- persons board or “such other as the guage recanvassing as to was added be- may select” the recounting. court to do cause a 100-vote mistake discovered then How can it be contended that county canvassing board after it had re- of such group action is the action of a ported the election results to the State county canvassing Only board? action of a Board of Canvassers. It was then realized can trigger no there was machinery correcting by the recanvass State Board of Canvassers errors, such arithmetical and the statute under Section 16-13-15. accordingly was amended. It was not new amended allow evidence as to re- makeup of a county canvassing counts, permit- since the recount then prescribed is Section 16-13-13. It is votes, tie ted was to decide up of three made ex-officio members—the be reported the results to court, of the district the county clerk audi- canvassing board which would then deliver tor, the chairman of board of county appropriate certificate of election. Sec. commissioners, representative and one 16-13-27, present N.D.C.C. statute on the district committee of each of the two tie, there recounts where is no 16- Section major political parties. 13-47.1, later, years two passed was in 1971. my point, To illustrate if the county can- statute, B. The recount 16-13- Section vassing board is made up of A, individuals 47.1, 1971 Chapter enacted in D, B, C, E, surely one could no claim Session Laws: V, W, Y,X, Z, that individuals appoint- “Any person losing gener- a . by the judge ed district to assist him in a al election contest for . election recount, are thereby transformed into the to a . . . de- office county canvassing Yet board. that is what mand a recount the ballots cast in the Attorney argues General ma- manner and circumstances hereinafter accepts. jority provided. . . . The must demand particular In it appears case made within ten after the canvass of all, some, but not persons designated the votes of such election. . . Af- judge district by the were members of application ter a demand and to a county canvassing It is judge appropriate court, board. immaterial each district they acting if they ap- such court or courts shall were under issue orders were— directing all pertaining pointment ballots district under Section 47.1, such office shall delivered forthwith to not as members of a county 16-13— respective court or courts. canvassing board. members, up precious using legisla- “re- other that the word must be noted 2. It days, the recan- tive waited until the recount was mentioned in is nowhere count” Legislature statute, completed so that the could be the word “recanvass” vass I, subjectively, suggest that the organized. statute. mentioned the recount nowhere re- procedure up intended that set avoid Legislature had If Legis- delay waste time the whole considered should be counts boards, having recounting done under have said so in 1971 surely lature *12 convening statute, prior to the two conditions enacted the recount controlled it when Legislature. in it the other statute after amended years recanvassing. to allow 1969 argued that the last sentence 5. It is was not intended to had intended to 16-13-47.1 Legislature the Section 3. If canvasses, of a only way in it the in which the results considered have recounts used, though in even no other the frame recount could be surely have altered time would canvassing is in If use mentioned the statute. possible the státutes. intended, Leg- days surely elec- use the within five after the another were meet must have so. and the abstract votes would said islature tion 16-13-15] [§ the auditor forwarded must be line, argued that Along same it is 6. the election 16- eight days after [§§ within intended, in because use recanvass must The State Board 13-20 16-13-24]. Congressional to applies 16-13—47.1 Section not later than four- must meet Canvassers legislative as of- offices well and State election, may ad- after the days teen fices, Legislative Assembly has days’ total not more than three for journ disputes as nothing to do with resolution of Upon receipt 16-13-36 16-13-41]. [§§ true, disputes as to This is but to them. Board of Can- report by use of offices can be resolved those other vassers, required of State is procedures or contest quo warranto [State “forthwith” of election issue certificates Callahan, 4 N.D. 61 ex Butler rel. 16-13-48]. [§ (1895)], while as to N.W. 1025 contests, judge of house shall be the procedure for a “Each provides But the recount qualifications returns and the days, and the recount the election within ten demand Constitution, within fifteen of its own members.” N.D. be certified result must appropriate for the may a It was therefore Thus the recount take 47. thereafter. provide the results of that twenty-five days, while entire statute total proceedings in not consume more than recount are admissible obvious, omitting that days, Legislature while with certification follow seventeen recount other races results “forthwith.” quo warranto be admissible have Legislature could made Surely the proceedings. contest appropri- computation, and made this same Attorney that his General admits if it had in- 7. The changes in the timetable ate in- statutes is interpretation of above con- recount should be that tended 16-13-38, which consistent with Section and certification sidered provides procedure. canvassers, can- “The procedure that the recount 4. It is said the result of vassing to ascertain no if it were not considered use would be regular only the shall canvass is a But this or recanvass.
in the canvass of can- returns made determination, on based subjective chapter.” vassers we to search language. If were statutory suggests General Attorney a providing for recount a motivation I disa- repealed by implication. recanvass, would not be section it unconnected fa- are not Repeals by implication gree. legislatures in find. I think hard put on vored, interpretation I have laboriously and the seen some members past have ap- recognizes the the relevant statutes days, all all recounting ballots for while 360
plicability them, of all of above); which is tortuously the result it reads words into stat- we possible. must seek at all (point 2); utes which not in are them it implies the Legislature ignored repeals
“. by implication are not up set own favored. There time frames must be clear statutes repug- (point 3); nancy provisions between the it reads into the minds of the new legislators law and the old statute to such an motives other than extent obvious necessary that a implication saving legislative one of having arises’ that time legislature by enactment of recounting the latter do the someone else before the former, Act to repeal intended (point 4); session starts it assumes that the only then the extent its repugnan- Legislature meant the be used in cy.” First American Bank & one, Trust ways Co. v. more although specified than Ellwein, (1972), N.W.2d 5); (point it ignores one the fact that cases cited. disputes other electoral by quo resolved proceedings, Legislature warranto while the agree 8. Both sides that a canvassing *13 qualifications is the of its board cannot reconvene change prior and (point 6); requires members it and that a performed action once it has its duty, in the repealed by statute be implication, which is statutory authority absence of to do so. possible (point to be avoided whenever 7). Attorney General cites C.J.S. Elec- Finally, since there is statutory no authori- 239, 668, tions p. respondents cite ty to reconvene State Board of Canvass- Elections, Ed., McCrary on p. 4th 209. ers to consider results of a recount and I agree. I can Since find no statutory it authority cannot act without such (point authority reconvening except for to deal 8), the Board cannot be into recalled ses- report with a from a canvassing sion. board, request members, at the of two meeting no such I would affirm writ of mandamus to held, I would hold that there is Secretary compelling him to authority no reconvene the State Board issue a certificate of election to Norma of Canvassers. forbidding Kuhn and him to recall Board of Canvassers. It can be reconvened
CONCLUSION only upon by county certification canvass- Having arguments considered all the pro a mistake. No such certifica- con, I can only conclude that tion has been made. Section Recounts to be Legislature. to recanvassing reported 16-13-15 relates correct attack on An mistakes by rejected discovered the absent voters ballots meetings boards at two by change result, called or basis of the more [the advised, boards, those according rejection members of we are is the to its some 200 plain terms, while absent ballots Section 16-13-47.1 voters not initialed re- entirely inspector] lates procedure, to an different can made action declar- which, atory judgment a recount of votes in the case otherwise. an ac- recounts, be, reported proceeding are to tion or other via could be, should Legislature. expedited State to the so as to have a deter- statutes, separate integrat- two are not mination before the main begins session ed January. with each other in way Legis- lature, compatible with each other ease, In judgment final as to who doing great without violence to English was elected will be Legisla- made
language obvious legislative intent. ture. interpretation urged by the Attorney adopted by General and the majority treats entirely board which consist of non-
members as if were a board the makeup prescribed which is (point statute