Davies v. Board of Com'rs of Nez Perce County
| Decision Date | 02 November 1914 |
| Citation | 26 Idaho 450,143 P. 945 |
| Parties | JOHN DAVIES et al., Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF NEZ PERCE COUNTY, Defendants |
| Court | Idaho Supreme Court |
WRIT OF MANDATE-COUNTY BOARD OF CANVASSERS-SPECIAL ELECTION-CANVASS OF ELECTION RETURNS-STATUTORY CONSTRUCTION-OPENING OF BALLOT-BOX.
1. Where the county board of canvassers rejects certain returns from certain precincts on account of informality, ambiguity or uncertainty, under the provisions of sec. 448, Rev. Codes the returns rejected must be delivered by the board to the sheriff of the county, who must proceed at once to summon and call together the judges of election of such precinct and inform them that the return made by them has been rejected and it is made the duty of such judges to meet publicly at the place where the election was held in such precinct and at once proceed to put said returns in due form and certify the same, and for the purpose of so doing they may have the ballot-box brought in and opened in their presence and the contents thereof inspected, and when such returns have been duly corrected, they must be delivered into the hands of the sheriff.
2. Sec 442, Rev. Codes, provides what must be done by the judges of election after the canvass of the votes, and further provides that the poll-box and ballots must be kept with the seal unbroken for at least eight months, unless the same is required as evidence in a court of law in any case arising under the election laws of the state, and then only when the judge having the ballot-box in charge is served with a subpoena to produce the same.
3. Held, that the provisions of said section are applicable when the returns are properly made and are not returned to the judges for correction. In that case the ballot-box must not be opened except as directed in said section; but where returns have been rejected, as provided by statute, and returned to the judges of election for correction, they may under the provisions of sec. 448, open the ballot-box for the purpose of correcting the returns.
4. Held, that the provisions of secs. 442 and 448 must be construed together in order to ascertain and carry out the true intention of the legislature.
5. Mandamus will lie in a proper case to compel action on the part of a canvassing board, but it will not direct what the result of their action must be.
Original application in this court for a writ of mandate to compel the county commissioners as a board of canvassers of election returns to reassemble and announce the result of the election in a different manner and to a different effect from that which they had already announced and entered of record such announcement. Writ denied.
Demurrer sustained and the writ denied. Costs awarded to the defendants.
E. O'Neill, P. E. Stookey and F. L. Ulen, for Petitioners.
When it is shown, as in our petition alleged, that the board has not performed the duty imposed upon them by law, of canvassing the legal returns, to wit, those which must be returned under the provisions of sec. 339, Rev. Codes, they have not performed their duty and the court has jurisdiction to compel them to recanvass and perform their duty, and they have no right to canvass changed returns. (State ex rel. Rice v. Marshall County Judge, 7 Iowa 186; State ex rel. Romig v. Wilson, 24 Neb. 139, 38 N.W. 31; State ex rel. Willard v. Stearns, 11 Neb. 104, 7 N.W. 743; People ex rel. McCauley v. Brooks, 16 Cal. 11; State v. Pigott, 97 Miss. 599, 54 So. 257, Ann. Cas. 1912C, 1254; State ex rel. Whittemore v. Peacock, 15 Neb. 442, 19 N.W. 685; Welty v. McFadden, 46 Neb. 668, 65 N.W. 800.)
"A board authorized to issue the writ of mandamus may compel the board of canvassers to discharge their duties by canvassing the lawful returns, leaving all questions as to the validity of the returns for election to the proper tribunal." (State v. Van Camp, 36 Neb. 9, 91, 54 N.W. 113.)
C. L. McDonald, D. E. Hodge, G. W. Tannahill and M. S. Johnson, for Respondents.
It is a well-settled principle of law that the courts will not, by mandamus, direct an inferior tribunal to act in a certain way. (Board of Commissioners v. Mayhew, 5 Idaho 572, 51 P. 411; Connolly v. Woods, 13 Idaho 591, 92 P. 573.)
This court has also held that the board of commissioners has jurisdiction to send the returns back to the judges for correction. (Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133.)
"Courts of equity have no inherent power to try contested elections." (Toneray v. Budge, 14 Idaho 621, 95 P. 26; 15 Cyc. 397; Nims v. Gilmore, 17 Idaho 609, 107 P. 79.)
In this case the petition shows that the board of canvassers has performed the very act sought to be commanded by the writ, but the result obtained by such performance is what has displeased the petitioners, and not the failure to perform, and mandamus cannot lie to afford them any relief. (State v. Carney, 3 Kan. 88; Sharpless v. Buckles, 65 Kan. 838, 70 P. 886; Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 P. 129, 19 L. R. A. 157; State ex rel. Harmon v. Hammel (Ala.), 11 So. 892; Bach v. Spencer, 24 Ky. Law Rep. 354, 68 S.W. 442; People ex rel. Wilson v. Mattinger, 212 Ill. 530, 72 N.E. 906; Booe v. Kenner, 105 Ky. 517, 20 Ky. Law Rep. 1343, 49 S.W. 330; State ex rel. Ingerson v. Berry, 14 Ohio St. 315; Roberts v. Marshall, 33 Okla. 716, 127 P. 703; Madden v. Moore, 228 Pa. 503, 77 A. 821; Orman v. People ex rel. Cooper, 18 Colo. App. 302, 71 P. 430; 26 Cyc. 277.)
"The writ will not issue . . . . where quo warranto or a statutory writ of contest or other proceedings at law affords a specific adequate remedy." (Wright v. Kelley, 4 Idaho 624, 43 P. 565; Jolly v. Woodward, 4 Idaho 496, 42 P. 512; Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614; Blomquist v. Board of Commrs., 25 Idaho 284, 137 P. 174; Chemung Min. Co. v. Morgan, 11 Idaho 232, 81 P. 384.)
This is an application for a writ of mandate to compel the board of county commissioners as a board of canvassers of the election returns of a special election held on May 27, 1914, in Nez Perce county, to reassemble and announce and enter of record the result of said election as claimed by plaintiffs. A demurrer to the petition has been submitted by the defendants.
The...
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