State ex rel. Welty v. McFadden

• Decision Date: 09 January 1896
• Citation: 46 Neb. 668,65 N.W. 800
• Parties: STATE EX REL. WELTY v. MCFADDEN ET AL.
• Court: Nebraska Supreme Court

46 Neb. 668

65 N.W. 800

STATE EX REL. WELTY

v.MCFADDEN ET AL.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

1. The duties of canvassers of election returns are ordinarily purely ministerial, and, as a general rule, they are not clothed with either discretionary or quasi judicial powers.

2. Where it appears that an unauthorized alteration has been made in the return of the vote after the return has been delivered to the county clerk, the canvassers should disregard the alteration, and make the count according to the original and true return.

3. The returns of an election consist of the whole election proceedings which the statute requires to be entered upon the poll books and tally list, viz. the certificate of the election officers, the list of those voting, and the tally list of the number of votes cast for the different persons; and from these the abstract of the vote is to be made.

4. In case a discrepancy exists between the certificates and the tally list as regards the number of votes cast for a particular person, the canvassers must determine which is correct, after comparing them with the list of voters returned, and declare the result accordingly.

5. Where a board of canvassers has made a canvass, declared the result, and adjourned, mandamus will lie to compel it to reconvene and make a correct canvass of all the returns before it, if upon the first canvass the board had failed or refused to fully perform its duty.

Original application, on the relation of D. T. Welty, against one H. W. McFadden and others, for mandamus. Writ allowed.W. R. Starr and A. J. Rittenhouse, for relator.

J. T. McClure, for the State.

NORVAL, J.

This is an application for a writ of mandamus, brought originally in this court by D.T. Welty against the respondents, to compel them to reconvene as a board of canvassers, and recanvass the votes cast in Furnas county at the last general election for the office of judge of the Fourteenth judicial district. To the petition, answers were filed by the respondents; and thereupon, by the agreement of parties, John F. Cordeal, Esq., was appointed referee to take the testimony, and report the same to the court. The cause was heard upon the pleadings and proof, and, as prompt action was required to protect the rights of the parties, a peremptory mandamus was issued as prayed at the last term of this court, without waiting for the preparation of an opinion expressing our views upon the questions presented by the record. It appears that at the election held on the 5th day of November, 1895, the relator was the candidate of the People's Independent party for the office of judge of the Fourteenth judicial district; that George W. Norris was the candidate of the Republican party for said office, and W. W. Barngrover was the candidate of the Democratic party. Subsequent to said election, the respondents, as the county canvassing board, canvassed the votes cast at said election in said Furnas county for judge in the district court, and entered an abstract of the votes by precincts upon the book provided by the county clerk for that purpose, which abstract shows the votes cast in said county for said office were counted, canvassed, and declared as follows: For Barngrover, 108 votes; for Norris, 1,376 votes; for Welty, 881 votes. A copy of said abstract was transmitted to the secretary of state. It also appears that in Union precinct, in said county, the respondents found, and so certified, that there were cast for said office 10 votes for Barngrover, 46 votes for Norris, and for the relator 33 votes.

The first contention of the relator is that the returns made by the election board of Union precinct have been falsely and fraudulently tampered with and changed since they were lodged with, and received by, the county clerk, and while in his custody, by increasing the number of votes cast for Norris from 40 to 46, and that the respondents should have credited to Norris 40 votes from said precinct, instead of 46 votes. It is disclosedby the poll book of Union precinct conveyed to the county clerk that the names of 86 persons, and no more, were returned by the election board as having voted in said precinct at said election. The certificate of the judges and clerks of election of said precinct accompanying the returns states the number of votes cast for judge of the district court as follows: “Anna R. Woodby, one; W. W. Barngrover, ten; G. W. Norris, forty; D. W. Welty, thirty-three.” The tally sheet returned with the poll book from Union precinct now shows, inter alia, the following:

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It will be observed that there is a discrepancy on the face of the returns between the certificate of the votes cast for Norris for the office of district judge and the tally sheet or list of the votes received by him. The certificate of the judges and clerks of the election show that Norris received 40 votes, while the tally list of the poll books, counting the tally marks thereon, credits him with receiving 41 votes, although as now appearing the tallies are footed 46. The evidence discloses that, when the returns were made and delivered to the county clerk, the tallies marked opposite the name of Norris were carried out as either 40 or 41, and that the “0” or the “1” has been since fraudulently changed, but by whom it does not appear, into the figure “6,” so as to make the number read “46” votes for Norris, and the respondents, acting as canvassers, have canvassed the same as 46 votes for Norris in said Union precinct.

Under the law, it was the duty of the respondents to cast up the votes received by each person according to the returns of such votes transmitted to the county clerk by the judges and clerks of the election from the several voting districts of the county. It is the settled law of this and other states that the duties of canvassing boards are ordinarily ministerial, and that they possess no judicial functions. Hagge v. State, 10 Neb. 51, 4 N. W. 375;State v. Hill, 10 Neb. 58, 4 N. W. 514;State v. Stearns, 11 Neb. 106, 7 N. W. 743;State v. Peacock, 15 Neb. 442, 19 N. W. 685;Long v. State, 17 Neb. 66, 22 N. W. 120;State v. Kavanagh, 24 Neb. 506, 39 N. W. 431;State v. Elder, 31 Neb. 169, 47 N. W. 710; Lewis v. Com'rs, 16 Kan. 102; People v. Hilliard, 29 Ill. 413;People v. Head, 25...