Smith v. Lawrence
| Decision Date | 19 June 1891 |
| Citation | 49 N.W. 7,2 S.D. 185 |
| Parties | Smith v. Lawrence et al. [1] |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. When mandamus proceedings are instituted to redress a private wrong or enforce a private right, the party beneficially interested should be named as plaintiff.
2. When a plaintiff in mandamus proceedings demands greater relief than he is entitled to on the facts stated in his affidavit he will not thereby be precluded from obtaining less relief to which he is entitled under the facts stated.
3. Under section 1, c. 84, Laws 1890, a majority of the county commissioners in a county having five commissioners, duly taken to the assistance of the county auditor, constitutes with such auditor a legal board of canvassers, whether the county auditor is a candidate for office or not; such county auditor, however, acting only as clerk of said board in case he is a candidate for office. The provisions of section 18 of said chapter are called into exercise only in case the county auditor is a candidate for office, and he has taken to his assistance a majority of the county commissioners in a county having three commissioners, or only two of the other officers named in section 1, except so far as it defines his duties as clerk of the board.
4. When returns are made by the proper officers of a precinct in a county to the county auditor, within the proper time, it is the duty of the county board of canvassers to canvass and abstract the vote of such precinct, and, when such board fails or neglects to count, canvass, and abstract the vote of such precinct, it fails to perform a clear, plain, and specific duty imposed upon it by law, and mandamus is the proper proceeding to compel such board to perform its duty.
5. The fact that a board of canvassers has filed its abstract of the votes cast in a county with the county auditor, and adjourned sine die, and that the county auditor has issued a certificate of election to the person appearing by such abstract to have the highest number of votes for the office of sheriff, is no ground for a refusal of the writ, when it is shown that a part only of the returns have been canvassed and the omitted part would have changed the result.
6. On the trial a document purporting to be signed by the judges of election, and taken with the poll-book from the sealed envelope forwarded to the county auditor from precinct No 26, was offered in evidence by counsel for defendants, objected to, and excluded by the court. The document purported to detail the proceedings of the judges of election in reference to the votes of nine soldiers of the United States who were allowed to vote at said election in said precinct. Held, that this document was properly excluded by the court; that judges of election are not required or authorized to make or inclose any such document with their returns; and that it could have no force or effect, and was therefore incompetent, irrelevant, and immaterial. Held, further, that the certificate of officers not required or authorized by law has no more force or effect than the certificate of private persons. Held, further, that when votes have been received and deposited by the judges of election in the ballot-box, they have no further control over them except to count them, and include them in the entries they are required to make in their poll-books, and that any other statement by such judges in regard to such votes is beyond their powers as judges of the election, and clearly improper, and should have been entirely disregarded by the board of canvassers.
7. The duties of boards of canvassers are purely ministerial. They are vested with no authority to take evidence, or hear or determine any question relative to the validity or regularity of any election, or as to the qualification of any voter who may have voted, or the eligibility or non-eligibility of any candidate voted for. Their duties are to open the returns, and make abstracts of the votes from all the precincts appearing by said returns, and to sign and certify to such abstracts.
8. Questions of the regularity of the election, qualification of the voters, fraud in the election, etc., are matters exclusively for the court in proper proceedings, and are not matters which boards of canvassers have authority to hear or determine.
9. The fact that, since mandamus proceedings have been instituted in this case, Faust, the opposing candidate for sheriff, has entered upon the discharge of the duties of sheriff of said Sully county, is no ground for refusing the writ.
10. The plaintiff is entitled to have the abstract made and filed with the auditor show who received the highest number of votes for the office of sheriff of that county, and, if the returns of Sully county show that plaintiff has the highest number, he is entitled to the benefit of such a corrected abstract, and the certificate to which such abstract shows he is entitled.
11. It not appearing that the county auditor has refused or neglected to perform any duty imposed upon him, he is not an indispensable party to these proceedings. The court will presume that he will perform the duties of clerk of the board of canvassers when convened, and file any amended abstract that may be made by it, as county auditor, and issue the proper certificate thereon.
12. Mateer, a member of the board of canvassers, was a member of the board of county commissioners of Sully county at the time he was taken as such canvasser. His term of office as county commissioner expired in January, 1891. Held, that he still continues a member of the board of canvassers for the performance of such duties as were imposed by law upon the board, and which it neglected to perform as such board of county canvassers, and can be properly required to meet with the other members of the board, and complete the canvass of the vote of Sully county.
13. Where the duty of the board of canvassers is clearly and specifically imposed by law, and it has neglected to perform that duty, no special demand is necessary. "The law itself makes the demand, and the omission to perform is the refusal."
Appeal from circuit court, Sully county.Crawford & De Land and D. M. Anderson, for appellants. Walter C. Fawcett, andJohn F. Hughes, for respondent.
On the 27th day of December, 1890, Daniel M. Smith, plaintiff and respondent, applied to the circuit court of the sixth circuit, sitting in vacation, for a peremptory writ of mandamus, to be directed to the defendants, commanding them to reconvene as a board of canvassers of Sully county, and to complete said board by calling to its assistance another county officer, as provided by law, and to proceed to count canvass, and abstract all the votes cast in said county, including precinct No. 26. Notice of the application was duly served, with a copy of the affidavit on which the application was to be made annexed thereto. The affidavit is, in substance, as follows: That on the 4th day of November, 1890, a general election was held in the county of Sully, for the election of state and county officers and for members of congress; that at said election the respondent, Daniel M. Smith, and one Albert A. Faust were candidates for the office of sheriff of said Sully county; that there were in said county 28 precincts or polling places, from all of which returns were duly and regularly made prior to November 8, 1890,--one properly sealed up and forwarded to the county auditor of said county, and one deposited with the chairman of the board of county commissioners of said county, as provided by law; that upon said day the auditor of said county called to his assistance a majority of the board of county commissioners of said county who were not candidates for office at said election,--being the three persons named as defendants herein,--there being at that time five commissioners in said Sully county duly elected and qualified, and acting as such commissioners; that H. E. Kimmel was county auditor of said county, and was a candidate at said election for re-election to said office, and that he did not otherwise act in the canvass of the votes of said county than as clerk to said board of canvassers; that the defendants Lawrence, Maxwell, and Mateer immediately proceeded to canvass the vote of said county without calling to their assistance one of the officers of said county who was not a candidate for election to any office at said election, and without calling to their assistance any other person; that said Lawrence, Maxwell, and Mateer, as such board of canvassers, proceeded to count and canvass the votes as returned to said auditor for each of the election precincts of said county, with the exception of those returned from precinct No. 26 in said county, and that the result of said count and canvass was that said respondent, Daniel M. Smith, received 289 votes for the said office of sheriff, and said Albert A. Faust received for the same office 296 votes; that said canvassing board refused to count, consider, or canvass the votes returned from precinct No. 26; that the poll-book of said precinct No. 26 contained the names of every person voted for at said election, and that from said poll-book it appears that Daniel M. Smith, respondent, received 37 votes, and said Faust received 20 votes, as candidates for the office of sheriff of said county; that had said votes from precinct No. 26 been counted and canvassed by the said board, as by law required, the count and canvass should and would have shown that said Daniel M. Smith received as candidate for sheriff 326 votes, and said Faust 316 votes for the same office, thereby giving said Smith a majority of 10 votes over the said Faust, and, had said board been fully organized, entitled said Smith to a...
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