86 N.W. 231 | N.D. | 1901
This is an appeal from a judgment rendered in mandamus proceedings by the District Court of Walsh county commanding the defendants and appellants, who constitute the county canvassing board of that county, and who as such were charged with the duty of canvassing the election returns in the year 1900, to canvass and count certain votes for the office of county superintendent, which it is alleged they omitted and refused to count in canvassing the returns for that office. The plaintiff, Sonderall, and one Ben Tronslin were opposing candidates for that office at the November, 1900, election. The canvass made by the board gave plaintiff, Sonderall, 2,159 votes, and Ben Tronslin 2,188 votes, or a majority for the latter of 29 votes. This canvass was made solely upon the certified statements of the election returned to the county auditor by the several election boards of the election precincts into which the county was divided, and it is not disputed that it correctly declared the result as shown by such certified statements. The plaintiff’s claim is that as to 12 precincts these certified statements are false, and do not correctly represent either the total number of votes cast for the office of county superintendent or the correct vote of either of the candidates. It is claimed that in these 12 precincts there were, in all, 258 votes cast by women voters for the office of county superintendent, and that none of these votes were counted or included in the certified statements of the election returned to the county auditor by the precinct officers, which statements, as we have before seen, constituted the sole basis of the canvass made by the defendants. Plaintiff’s further claim is that 161 of these votes were cast for him, and the remaining 97 for Tronslin, and that it was the duty of the board to add these excluded votes to those actually certified in the statements, and to declare the result as determined by such
Counsel for plaintiff calls attention to that portion of § 526 which relates to the custody of the ballot boxes. Said section requires the inspectors to retain the ballot boxes in safe custody for a period of 60 days next after the election, and further requires that it shall be the duty of such inspectors to cause the same to. be safely delivered to the county -auditor, upon the written notice of the board of canvassers, at any time during said period.' It is urged that the above provision contemplates a scrutiny and canvass of the ballots themselves by the board when necessary to ascertain the true number of votes cast for each candidate. It is true, the purpose of authorizing the board to have the ballot boxes brought in is not entirely clear, but, so far as it can be ascertained, it is merely to provide an additional safeguard for their custody in case of probable contests, by removing them from the custody of the inspectors to the safer custody of the county auditor, where they can be more safely guarded, and the character of the ballots contained therein thus be preserved as the best evidence of the vote actually cast. No authority is given to the board to open the box and canvass the ballots, and no such power can be inferred from the mere existence of the right to have the boxes sent to the auditor. The present case furnishes an instance where it would have been proper for the board to order the ballot boxes of the 12 precincts in question into the custody of the auditor, to safeguard plaintiff’s rights in case he should desire to challenge the result of the canvass of the official returns by a contest and appeal to the ballots for proof of his claims.
In his brief, counsel for respondent states that “the issue before this Court at this time is whether or not a candidate for public office shall receive all the votes cast for him, or whether he should be deprived of some votes, and perhaps his election, as in this case, by reason of the negligence, fraud, ignorance or inadvertence of local election boards,” and states that his right to the remedy by mandamus is based upon this general principle, — that it is the general purpose of the law “that the will of the people, as manifested by the votes, should be obeyed.” As to the issue involved, counsel is mistaken. The issue, and the only, issue, is as to the duty of the canvassing board in relation to the canvass. Was it their duty to act entirely upon the official returns, or could they go outside of them, and declare a result determined by a resort to other evidence? We have seen they could not. It is true, the purpose of the entire election