State ex rel. Davis v. Willis

• Decision Date: 18 January 1910
• Citation: 124 N.W. 706,19 N.D. 209
• Court: North Dakota Supreme Court

124 N.W. 706

19 N.D. 209

STATE OF NORTH DAKOTA EX REL L. M. DAVIS v. C. C. WILLIS, A. J. DELANCE, RALPH ABBOTT AND J. W. FABRICK, AS THE COUNTY CANVASSING BOARD OF WARD COUNTY, NORTH DAKOTA

Supreme Court of North Dakota

January 18, 1910

Appeal from District Court, Ward county; Templeton, J.

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.

Where canvassers have declared a result, they may be compelled by mandamus to reconvene and declare a correct result where they have neglected their duty in the first canvass. 15 Cyc. 384 and note 91; Smith v. Lawrence, 49 N.W. 7; Rich v. Board, 59 N.W. 181; Belknap v. Board, 54 N.W. 376 696.

Where the right or duty affects the state in the sovereign capacity apart from the people at large, action is by the proper public officer; but if the public apart from the state is affected, any citizen may sue out the writ of mandamus. 26 Cyc. 401-403; State v. Carey, 2 N.D. 36, 49 N.W 164; State v. Langlie, 5 N.D. 594, 67 N.W. 958; State v. Lien, 68 N.W. 748; State v. Matley, 24 N.W. 200. The person sought to be bound by res adjudicata, must have appeared in both actions in the same capacity. 24 Am. & Eng. Enc. Law, 734, 714.

To constitute laches in mandamus the delay must be gross and unreasonable. 26 Cyc. 393, 394 and 395; Barker v. Montana Gold Mining Company, 89 P. 66.

Unsettled state of law on account of conflicting decisions and pending litigation may excuse delay. People v. Lantry, 62 N.Y.S. 630; People v. Scannell, 59 N.Y.S. 679; Duke v. Turner, 204 U.S. 623.

Geo. A. Bangs, for respondent.

Where the duty is public in its nature, mandamus issues only at the instance of duly constituted authorities; a private citizen can apply only when he has a special interest not pertaining to other citizens. Dean vs. Dimmick, 18 N.D. 397, 122 N.W. 245; Smith v. Mayor, 81 Mich. 123, 45 N.W. 964; Thomas v. Hamilton, 101 Mich. 387, 59 N.W. 658; State v. Inhabitants, etc., 25 Me. 297; Mitchell v. Boardmen, 79 Me. 469, 10 A. 452; Weeks v. Smith, 81 Me. 538, 18 A. 325; State v. Co., 68 S.C. 540, 47 S.E. 979 at 983; Chapman v. People, 9 Colo.App. 268, 48 P. 153; Linden v. Board, 45 Cal. 6; Marina v. Graham, 67 Cal. 130, 7 P. 442; Colnon v. Orr, 71 Cal. 43, 11 P. 814; Ashe v. Supervisors, 71 Cal. 236, 16 P. 783; People v. Budd, 47 P. 594; Fritz v. Charles, 145 Cal. 512, 78 P. 1057; Doolittle v. Supervisors, 18 N.Y. 155; Bamford v. Hollinshead, 47 N.J.L. 439; Atwood v. Patre, 56 Conn. 80, 14 A. 85.

Relator, aware of his rights, should act promptly, prevent others acting to their detriment, relying upon the result of the proceedings. Rice v. Board, 50 Kan. 149 at 154, 32 P. 134; People v. Judge, 41 Mich. 31; Eggleson v. Judge, 15 N.W. 55; People v. Chapin, 104 N.Y. 96 at 102, 10 N.E. 141; State v. Supervisors, 38 Wis. 554; In re Depeaux's Estate, 50 P. 682; McConoughey v. Judge, 57 P. 81; Gray v. Judge, 14 N.W. 666; State v. Com'rs, 9 S.E. 692 at 694; State v. Court, 46 P. 232; Moore v. Ass'n, 47 S.W. 716; State v. Nichols, 73 P. 50; State v. Gibson, 86 S.W. 177 at 181; State v. Judge, 91 N.W. 175.

Court will not compel a board to do what in substance it has already done. Wiedwald vs. Dodson, 30 P. 580; State v. Com'rs, 26 Kan. 419; State v. Beck, 57 P. 935; People v. Board, 137 N.Y. 201, 33 N.E. 145; People v. Board, 129 N.Y. 360, 29 N.E. 345; State v. Wittemore, 9 N.W. 93; Highs Ex. Leg. Rem. Sec. 40, 14-26; Baker v. Board, 69 N.W. 656; Rice v. Board, 32 P. 134; Shellabarger v. Williamson, 32 P. 132; State v. U. S. Ex. Co., 104 N.W. 556.

Matters determined in action by the attorney general to fix the status of Mountraille county are res adjudicata. Freeman on Judgments, 178; 23 Cyc. 1406; Sauls v. Freeman, 4 So. 525, 12 A. S. R. 190; Nichols v. MacLean, 101 N.Y. 526, 5 N.E. 347; Giblin v. North Wisconsin Lumber Co., 111 N.W. 499; Kaufer v. Ford, 110 N.W. 364; Locke v. Comm., 69 S.W. 763; Lyman v. Faris, 5 N.W. 621; Cannon v. Nelson, 48 N.W. 1033; Silver v. Traverse, 47 N.W. 888, 11 L.R.A. 804; McConkie v. Ramley, 93 N.W. 505; City v. Ellis, 61 N.W. 886; Elson v. Comstock, 150 Ill. 303, 37 N.E. 207; Ashton v. City, 133 N.Y. 187-192, 30 N.E. 965, 28 A. S. R. 619; Harman v. Auditor, 123 Ill. 122, 13 N.E. 161; Sabin v. Sherman, 28 Kan. 205, Terry v. Town, 35 Conn. 526; S. P. R. Co. v. U.S. 18 S.Ct. 18.

A judgment against a county in a matter of general interest, binds all the people of the county. 2 Van Fleet's Former Adjudication, pages 1150 and 1157; McEntire v. Williamson, 65 P. 244; Shanahan v. So. Omaha, 89 N.W. 285; Holt Co. v. Co., 80 F. 686; Harshman v. Knox Co., 122 U.S. 306, 30 L.Ed. 1152; Scotland Co. v. Hill, 112 U.S. 183, 28 L.Ed. 692; Labette Co. Commr's. v. U.S. 112 U.S. 217, 28 L.Ed. 698; State v. Langlie, 5 N.D. 594, 67 N.W. 958, 32 L.R.A. 723.

OPINION

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 count 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 proposition, and upon the...