Lansdon v. State Board of Canvassers

• Decision Date: 15 October 1910
• Citation: 111 P. 133,18 Idaho 596
• Parties: ROBERT LANSDON, Plaintiff, v. STATE BOARD OF CANVASSERS, Defendant
• Court: Idaho Supreme Court

111 P. 133

18 Idaho 596

ROBERT LANSDON, Plaintiff, v. STATE BOARD OF CANVASSERS, Defendant

Supreme Court of Idaho

October 15, 1910

PRIMARY ELECTION - CANVASSING RETURNS - DUTIES OF CANVASSING BOARD-JURISDICTION OF CANVASSING BOARD-WRIT OF REVIEW-CONDUCTING ELECTIONS A POLITICAL POWER-JURISDICTION OF COURTS IN ELECTION MATTERS.

(Syllabus by the court.)

1. A writ of review brings up the record of the tribunal, board or body whose acts are to be examined, and is issued for the purpose of reviewing the law applicable to the case, instead of examining the facts of the case, except in so far as an examination of the facts is necessary in the determination of the single question of jurisdiction. The purpose of the review is to determine primarily the law applicable to the case rather than the facts of the case.

2. The state board of canvassers in canvassing election returns sent up by the boards of canvassers of the several counties and computing the total vote received by each candidate and certifying to the secretary of state the names of the persons who received the majority or plurality, as the case may be of all votes cast for each respective office, is discharging a ministerial duty rather than a judicial function. Mathematical computation and calculation does not constitute the exercise of judicial functions.

3. It is the nature of the act to be performed rather than of the office, board or body which performs the act that determines whether or not it is the discharge of a judicial or quasi-judicial function.

4. The fact that the state board of canvassers on receiving returns from the boards of canvassers of the several counties did not consider such returns inaccurate, uncertain, or as showing on their face omissions or errors, and their consequent neglect or refusal to send the same back to the county boards of canvassers for correction, does not constitute an excess of jurisdiction, nor does it oust the board of the jurisdiction acquired to canvass returns and declare the results.

5. It is not the business or duty of the state board of canvassers to determine whether or not any illegal votes have been cast or legal votes rejected; they have no way to know whether more votes have been counted than were actually cast or that the count has been made in every instance correctly by the various election officers or canvassing boards. The duty of the state board of canvassers is that of casting up the returns and declaring and certifying the result as shown by the returns.

6. Green v. State Board of Canvassers, 5 Idaho 130, 95 Am.St 169, 47 P. 259, considered and distinguished.

7. The right to vote and hold office is not one of the inalienable rights of the citizen; the regulation of that privilege conferred on the citizen has been delegated to the political department of the state government, and will not be controlled or interfered with by the courts, except in so far as the law-making power has provided a remedy that may be pursued in the courts, or in cases where the law commands action and election officers or boards refuse to act, or where such officers or boards attempt to act in a manner contrary to or violative of the statute.

8. Under the direct primary nomination law of this state, there is no provision for the contest of the nomination of a candidate for the office of governor.

Original application by the secretary of state against the state board of canvassers for a writ of review. Demurrer to petition sustained, writ denied and action dismissed.

Demurrer sustained, writ denied and action dismissed. No costs awarded.

Edwin Snow, for Plaintiff.

Under our statute the state board of canvassers is certainly vested with judicial functions. (Sec. 458, Rev. Codes.)

The petition alleges that the abstracts of votes sent to the state canvassers from the various counties showed on their face that 6,849 more first choice votes for the office of governor on the Republican ticket were certified and returned than second choice votes.

The case of Adams v. Lansdon, ante, p. 483, 110 P. 280, decided that all ballots which failed to designate a second choice were illegal.

The face of the returns before the state canvassers clearly showed, then, without any room for dispute, that there were nearly twice as many illegal votes returned in the abstracts as the plurality of the leading candidate amounted to. Should it not, then, have clearly appeared to the canvassers, at least, that certain matters were omitted from the abstracts and that they should have been returned for correction? And was not this determination judicial in its nature? (Stein v. Morrison, 9 Idaho 426, 75 P. 246.)

The cases cited by the defendant board are inapplicable; first, because they are all from other states where the statutes governing the duties of the state board of canvassers differ from ours, and, secondly, because all the cases cited by defendant can be shown to have been decided under circumstances where the duties of the board with respect to determining who was elected were called in question, and not where the duties of the board with respect to determining the validity of the returns were raised.

The only reported case in which the action of the state board of canvassers was litigated in this court was upon a certiorari proceeding. (Green v. State Board of Canvassers, 5 Idaho 130, 95 Am. St. 169, 47 P. 259.)

Certainly it could not be contended that the board has jurisdiction to act in a patently unlawful manner and certify nominees upon returns shown on their face to be void. (State v. State Canvassers, 36 Wis. 498; State v. Baker, 38 Wis. 71; 15 Cyc. 381.)

Cavanah & Blake, and Edgar Wilson, for Defendant.

The act of the state board of canvassers, in certifying these nominations to the secretary of state, was not in any sense judicial, but purely ministerial in character. (Adleman v. Pierce, 6 Idaho 294, 55 P. 658; Murphy v. Board of Equalization, 6 Idaho 745, 59 P. 715; Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257.)

"Certiorari does not lie to review the acts of an election board in receiving votes, and announcing the result, as they are not judicial in character." (People v. Austin, 20 A.D. 1, 46 N.Y.S. 526; People v. Van Slyck, 4 Cow. (N. Y.) 297; McCreary on Elections, 3d ed., secs. 226, 229.)

In a republican form of government the courts should hesitate long before interfering in respect to the actions of canvassing boards affecting elections. That is not one of the functions of the courts, and we believe is never assumed to be the duty of the courts unless fraud is alleged and proven.

Even if boards of this character make errors (although in this case even error is not claimed in the petition), it is not the province of the courts to correct that by this extraordinary remedy. (Sherer v. Superior Court, 94 Cal. 354, 29 P. 716; People ex. rel. Lemby v. Dwinelle, 29 Cal. 632.)

"Where great public detriment or inconvenience would or might have resulted from interfering with the proceedings of public bodies which exercise rights in which the people at large are concerned, and no substantial injury would result from its refusal, the writ has been denied, and its allowance in such cases is discretionary." (6 Cyc. 748, and cases cited.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

In this proceeding it is sought to review the action of the state canvassing board. Since the right of the plaintiff to proceed by writ of review is questioned, it is necessary to recall the province of that writ and the scope of its operation. Under the statute, sec. 4962, the writ will only issue to review the exercise, or rather excessive exercise, of judicial functions. A writ brings up the record of the board, tribunal or body whose acts are to be examined. The statute, sec. 4968, provides that, "The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer." This is not, therefore, a remedy by which the facts in any given case or controversy may be reviewed, except in so far as it is necessary to consider the facts in the determination of the single and sole question of jurisdiction. The purpose of the review is to determine the law applicable to the case and not the facts.

In McConnell v. State Board of Equalization, 11 Idaho 652, 83 P. 494, this court said: "The writ of review is not a remedy for correcting errors and mistakes of judgment, neither can it be invoked for the purpose of reviewing the facts upon which the inferior tribunal, board or officer acted, except for the purpose of ascertaining the one fact of jurisdiction. Its province is limited entirely to a review of the questions of law involved in the matter. The court should in such cases always confine its inquiries to the question as to whether or not the action complained of was beyond and in excess of the jurisdiction conferred on the tribunal, board or officer."

That holding has been reiterated by this court time and again. (Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Adleman v. Pierce, 6 Idaho 295, 55 P. 658; Coeur D'Alene M. Co. v. Woods, 15 Idaho 26, 96 P. 210; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, 691.)

Now, it will appear at once that if the record, to wit, the election returns from the several counties as filed with the state board of canvassers should be certified up to this court as requested by the plaintiff, there would be nothing to determine by this court except as to whether or not the board had jurisdiction to canvass the returns, compute the total number of votes received by each candidate as they appear from the returns, and certify to the secretary of state the...