State ex rel. Sunderall v. McKenzie

Citation86 N.W. 231,10 N.D. 132
Decision Date11 May 1901
CourtUnited States State Supreme Court of North Dakota

86 N.W. 231

10 N.D. 132



Supreme Court of North Dakota

May 11, 1901

Appeal from District Court, Walsh County; Sauter, J.

Application by the State, on the relation of Jacob Sonderall, for a writ of mandamus against William McKenzie and others. Judgment for plaintiff. Defendants appeal.



Jeff M. Myers, for appellant.

The board of election canvassers are ministerial officers whose duty it is to receive the returns from the precincts and declare results as shown by the face of the returns. 10 Enc. L. (2 Ed.) 746. And such canvassing board has no power to go beyond the returns. McCreary on Elections, § 81; Payne on Elections, § 603; McCoy v. State, 36 At. Rep. 81; People v. Hilliard, 29 Ill. 413; Franklin Co. v. State, 24 Fla. 55; Moore v. Kissler, 59 Ind. 152; People v. Circott, 97 Am. Dec. 141; Attorney General v. Board, 31 N.W. 539; McQuade v. Ferguson, 51 N.W. 1071; Taylor v. Taylor, 10 Minn. 107; State v. Canvassers, 31 P. 536; State v. Canvassers, 31 P. 879; State v. Tanzey, 32 N.E. 750; Smith v. Lawrence, 2 S.D. 185, 49 N.W. 7; Page v. Letcher, 39 P. 499; State v. Trimbell, 41 P. 153; State v. Canvassers, 36 Wis. 498. Canvassing boards have neither judicial nor quasijudicial, but solely ministerial powers. Section V Const. N.D. 85; § 547, Rev. Codes, 1899. It follows therefore unless the tally lists, whereon votes cast by the female voters were tallied, were a part of the returns to be sent to the county canvassing board, such board had no right to consider their contents. The tally list is not made a part of the poll book or returns. Sections 492, 495, 486, 487, 525, 256, Rev. Codes. And notwithstanding the tally list was forwarded by the local board as a part of the returns, it cannot in fact become a part of the legal returns. Mayo v. Freeland, 10 Mo. 392; State v. Trigg, 72 Mo. 365; State v. Barstow, 4 Wis. 567. The statute impliedly forbids the keeping of a separate tally list for women's votes. § 522 Rev. Codes. And when the separate tally sheet was kept and certified up it should have been rejected by the canvassing board. Smith v. Lawrence, 2 S.D. 185, 49 N.W. 7; Dalton v. State, 3 N.E. 695. Assuming that the tally list was properly a part of the returns then upon the record, whether the vote found in the women's tally list should or should not have been added to those included in certain of the statements, presented a problem for the judgment and determination of the canvassing board. Mandamus will not lie to interfere with the exercise of such judgment § 6110, Rev. Codes; High on Extraordinary Remedies, § 42; State v. Carey, 2 N.D. 36, 49 N.W. 164; Heintz v. Moulton, 7 S.D. 272, 64 N.W. 135; Commissioners v. Commissioners, 24 O. St. 401; Reddick v. People, 82 Ill.App. 85; People v. VanCleave, 55 N.E. 698. Where the duties of the canvassing board are ministerial and they are not authorized to hear evidence, mandamus will not issue to compel them to count votes unless their legal duty so to do is unequivocal. Clark v. Board, 126 Mass. 282; State v. Randall, 35 O. St. 64; State v. Higgin, 76 Mo.App. 319; Dent v. Board, 32 S.E. 250. The evidence of the local election officers was erroneously received by the trial court. Dalton v. State, 3 N.E. 685.

John H. Fraine, for respondent.

The fact that a ministerial officer performed his duties according to his judgment, is of no avail if the duties are not correctly performed. State v. Foster, 38 O. St. 599. Tally lists, poll books and blanks for election returns are sent by the auditor to the election precincts. § § 492, 495, Rev. Codes. The returns are made on these blanks and certified statement showing the number of votes cast for each person for each office. § 525, Rev. Codes. Such statement and one of the poll lists are delivered to the county auditor, and by implication the certified statement becomes prima facie evidence of the facts recited. § 527, Rev. Codes. To canvass the returns means the same as to canvass the votes. Bowler v. Eisenhood, 1 S.D. 500; Clark v. Tracy, 64 N.W. 291; People v. Sau Salito, 104 Cal. 500; Exparte Mackey, 15 S.C. 332; Hudson v. Solomon, 19 Kan. 160; State v. Marston, 6 Kan. 524; Russell v. State, 11 Kan. 524. A return is merely the record or report of official proceedings had. The necessities of the case make it prima facie evidence, but unless expressly made so by statute it is never conclusive. State v. Marston, 6 Kan. 524; Russell v. State, 11 Kan. 308. Where it is evident from the returns that they do not disclose the correct state of affairs, it is the duty of the board to scrutinize, inquire and examine in order to ascertain correctly for whom the votes were cast, and the number of the same. For this purpose they may send for the ballots themselves. § 526, Rev. Codes. And from a count of the ballots determine the truth of the matter. As between the ballots themselves and the copies of the polls, the ballots are controlling. Hudson v. Solomon, 19 Kan. 180.

OPINION [86 N.W. 232]

[10 N.D. 134] YOUNG, J.

This is an appeal from a judgment rendered in mandamus proceedings by the District Court of Walsh county commanding the defendants and appellants, who constitute the county canvassing board of that county, and who as such were charged with the duty of canvassing the election returns in the year 1900, to canvass and count certain votes for the office of county superintendent, which it is alleged they omitted and refused to count in canvassing the returns for that office. The plaintiff, Sonderall, and one Ben Tronslin were opposing candidates for that office at the November, 1900, election. The canvass made by the board gave plaintiff, Sonderall, 2,159 votes, and Ben Tronslin 2,188 votes, or a majority for the latter of 29 votes. This canvass was made solely upon the certified statements of the election returned to the county auditor by the several election boards of the election precincts into which the county was divided, and it is not disputed that it correctly declared the result as shown by such certified statements. The plaintiff's claim is that as to 12 precincts these certified statements are false, and do not correctly represent either the total number of votes cast for the office of county superintendent or the correct vote of either of the candidates. It is claimed that in these 12 precincts there were, in all, 258 votes cast by women voters for the office of county superintendent, and that none of these votes were counted or included in the certified statements of the election returned to the county auditor by the precinct officers, which statements, as we have before seen, constituted the sole basis of the canvass made by the defendants. Plaintiff's further claim is that 161 of these votes were cast for him, and the remaining 97 for Tronslin, and that it was the duty of the board to add these excluded votes to those actually certified in the statements, and to declare the result as determined by such [10 N.D. 135] addition. This, if done, would give plaintiff, 2,320 votes and Tronslin 2,285, or a majority of 35 for the former. Plaintiff made demand upon the board that these votes be counted and included in their canvass, and for a certificate of election. The board refused, and these proceedings were instituted by plaintiff to compel a canvass which should include the votes alleged to have been illegally excluded. It is the contention of plaintiff's counsel that it was the legal duty of said board to canvass and count such votes as requested, for the reason that the fact that they were cast as alleged was made to appear officially by certain tally lists or tally sheets which were found in and attached to the poll books of the several precincts, and returned to the county auditor along with the statements of the election, all of which were before the canvassing board. It is claimed that these tally sheets constitute parts of the returns, and are proper documents to be considered in determining the result of the election. These tally sheets have printed in one column the names of all of the various candidates to be voted for at that election. On the right of the names appear check marks obviously made to show the number of votes cast for the persons opposite whose name they appear. The totals of such marks appear at the extreme right. to illustrate the difference between the result of the election as shown by the tally sheets and that shown by the certified statements in these 12 precincts, we need refer to the facts in only one of them. The rest are similar in every way, except as to the number of votes involved, and that number is undisputably the number we have before stated. We will take the precinct of Forest River township. Two poll book were delivered to the election officers of this...

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