State ex rel. Davis v. Willis

• Decision Date: 18 January 1910
• Citation: 124 N.W. 706,19 N.D. 209
• Parties: STATE ex rel. DAVIS v. WILLIS et al., County Canvassing Board.
• Court: North Dakota Supreme Court

19 N.D. 209

124 N.W. 706

STATE ex rel.DAVIS

v.WILLIS et al., County Canvassing Board.

Supreme Court of North Dakota.

Jan. 18, 1910.

Syllabus by the Court.

A petition in a mandamus proceeding brought in the name of the state, on the relation of a party who does not profess to act in an official capacity, which shows on its face that the relator is seeking to vindicate, not a private right of concern only to himself, but a matter of public interest, in which all electors and taxpayers of a county are concerned, and interested equally with him, may be properly made and presented to the court by any citizen of the locality affected.

Where the result of the canvass of the vote, cast upon the proposition to divide a county and create from a portion thereof a new county, is announced on November 30th, 1908, and a proceeding in mandamus, for the purpose of testing the accuracy and sufficiency of the certified statement produced and announced by the county board of canvassers, is commenced on January 22, 1909, and in the interval between these dates the only public act in any manner affecting the new county is the appointment by the Governor of county commissioners therefor, the laches and delay of the relator in the mandamus proceeding are not so gross and unreasonable that a court should refuse to consider his application upon the merits.

The writ of mandamus is not a mere writ of right, but a high, prerogative mandate that will, in the exercise of sound, judicial discretion, and on equitable principles, be issued only when called for by circumstances so exceptional that, if the extraordinary relief afforded by the writ is refused, a failure or miscarriage of justice will result. It will not be awarded in a proceeding involving only the public interest, even where a prima facie right to legal relief is shown, if it appears that it will serve no other purpose than to require an idle ceremony on the part of public officers, or will produce a barren and fruitless result, not affecting the public interest beneficially or otherwise.

A citizen of a county, acting as relator in a matter affecting only the public right, and applying in the name of the state for a writ of mandamus, will not be regarded as acting in any personal sense whatever, but only as a representative of the public interest, and is concluded with reference to any fact adjudged or admitted, or which might have been adjudged, in a former judicial proceeding in which the same public interest was plaintiff or defendant, and is bound by the facts that are or might have been adjudged in the former proceeding as fully as though he were named as a party thereto.

A judgment, duly entered in an action or proceeding of which the court has jurisdiction against a county or its legal representative, in a matter of general interest to all its citizens, is binding upon the latter, though they are not nominally parties to the suit. To hold that each citizen of the county, after a question is once adjudicated on the application of a public representative, is still at liberty to commence an action in court and relitigate the question in his own name would be in effect to nullify the judgment, and to ignore the rule that the well-being of society requires that matters once judicially settled shall not be again repeatedly brought into litigation.

Appellant, as a citizen of Ward county, applies for a writ of mandamus requiring the county board of canvassers to reconvene and prepare a new abstract of its canvass of the vote cast at an election, held upon a proposition legally submitted to divide Ward county and create from a part thereof the new county of Mountraille. As ground for such application he shows that said board, on its first canvass of the vote cast, considered and entered in its certified abstract certain results taken from tally sheets and other memoranda not entitled to official recognition.

Held that, unless it can be said that the appellant states facts showing that if the writ issue and the county board of canvassers produce a new abstract, it will show an aggregate result the reverse of that formerly produced, appellant does not present a case that will warrant the exercise of the extraordinary remedy of mandamus. If, however, it can be said that the petition shows that the result produced by a recanvass of the vote will be the contrary of that shown by the first canvass, appellant is concluded, and will not be heard to question such result, as in a proceeding in certiorari, formerly adjudicated and necessarily involving the same fact, the representative of the public interest admitted that the result shown by the abstract of the board of county canvassers upon its first canvass was the true result of the vote, and the court, in passing upon such fact, so determined and adjudged.

Appeal from District Court, Ward County; Chas. F. Templeton, Judge.

Application by the State of North Dakota, on the relation of L. M. Davis, for a writ of mandamus requiring respondents, as the county board of canvassers of Ward county, to reconvene and prepare a new abstract of the vote cast at an election held upon a proposition to divide Ward county and create from a portion thereof the new county of Mountraille. From an order of the district court denying the writ, relator appeals. Affirmed.

L. W. Gammons and John E. Greene, for appellant. George A. Bangs, for respondents.

ELLSWORTH, J.

This appeal is taken from an order of the district court of the Eighth judicial district denying the application of appellant for a writ of mandamus, directed to respondents as the county canvassing board of Ward county. Appellant alleges, in his petition to the district court for the writ of mandamus, that he is an elector and taxpayer of the county of Ward; that on the 3d day of November, 1908, a general election was held within said county of Ward, and at said election there was submitted to the electors of said county a proposition to change the boundaries of Ward county, and to create from a portion of the territory thereof a new county, to be known as Mountraille, and that such proposition was voted upon at said election; that the respondents, as the duly organized county canvassing board for Ward county, during the month of November, 1908, convened, and, after organizing as required by law, proceeded to make a canvass of the votes cast at said general election upon the proposition to create the county of Mountraille, and prepared and certified as the result of such election an abstract showing that there were 4,207 votes cast in favor of said proposition and 4,024 votes cast against it. The petition further alleges that the respondents, while acting as such county canvassing board, in making an abstract of the votes cast in Ward county upon the proposition to create said county of Mountraille, failed to perform the duty required of them by law, and failed to make a true, full, and complete abstract of the votes cast at said election upon the said proposition, but, on the contrary, made an incomplete, incorrect, and false abstract of said votes, and included in said abstract the number of 1,449 votes as having been cast at said election in favor of said proposition, of which said votes there was and is no certified return of election precinct inspectors or judges. Here follows a list of 52 precincts of Ward county, from each of which it is alleged there has been included in said abstract a certain number of votes as cast at said election, both in favor of and against the proposition to create the county of Mountraille. That the votes against the said proposition unlawfully included in the said abstract aggregate in number 858. That in each and all of said precincts the certified returns of the election officers do not disclose that any votes whatever were cast on the proposition to divide Ward county, and that there is not, and never has been, on file in the office of the county auditor of said county any certificate, or any information of any character, that may be lawfully considered to show that any votes were cast in many of said precincts, either in favor of or against said proposition. That appellant as relator in such petition is informed and believes that the respondents in preparing said abstract consulted certain tally sheets and other unofficial memoranda, and, wholly from such data unrecognized by law, determined and included in their abstract of votes, as having been cast in favor of said proposition, a total of 1,449 votes, and against said proposition a total of 858 votes. That the pretended votes alleged to be unlawfully and wrongfully included in said pretended abstract of votes are sufficient in number to change the result of the said election, as shown by said abstract so prepared, and that a true, complete, and lawful canvass of the votes cast at said election for and against said proposition will disclose that it is defeated by a large majority, and that said board should so make its abstract to show, and should so certify. Appellant then alleges that by reason of the foregoing facts the respondents, as the county canvassing board of Ward county, have not completed their duties as specified by law, and have not made a lawful canvass of the votes cast at said election on said proposition, and have not presented a true and complete abstract of the votes so cast, and prays for a writ of mandamus requiring the said board of canvassers to reassemble and reconvene for the canvass of the election returns of said county, on the proposition to create the county of Mountraille, and that in making such canvass they take into consideration only certified statements or returns duly signed by inspectors or judges of election in each of the several precincts, and refrain from reference to or consideration of any unofficial memoranda, tally sheets, or uncertified statements of any kind with respect to any votes cast, whether in favor of or against said proposit...