June Term, 1860.

#### State ex rel. Gates vs. Fetter.

An act of the legislature authorized the electors of a certain county to vote, at the annual election on the first Tuesday in April, upon the question of the re-*567moyal of the county-seat of said county, and provided that the votes cast upon that question at such election should be canvassed, &c., by the same officers and at the time' and in the manner provided by law for canvassing, the result of elections for state or county officers, and that such result should be reduced to writing by the canvassing officers, and certified by them to be true and correct, and recorded by the clerk of the board of supervisors in a county record book in his office. *Held,*that the legislature intended that the votes cast upon said question at such election should be canvassed by the county board of canvassers, on the Tuesday following said election, when the votes for chief justice were canvassed.

An alternative mandamus, sued out to compel the clerk of the circuit court of said county to keep his office at A-, alleged that at such election a majority of the votes cast upon the question was in favor of the removal of the county-seat to A-, but that the board of canvassers had refused to count the votes of certain precincts in said county, which had given a majority of 157 votes in favor of such removal, on account of alleged defects in the returns of the votes cast therein, and had canvassed the votes of the remaining towns or precincts, and certified that a majority of 86 votes had been cast at said election against such removal. The return to the writ admitted that the board of canvassers had refused to count the votes of certain precincts, as stated in the writ, on account of defects in the alleged returns of the votes therein, but insisted that, inasmuch as the board of canvassers had made their certificate, as required by said act, showing that a majority of the votes cast upon said question at said election was against such removal, and such certificate had been recorded by the clerk of the board of supervisors, as in said act required, the respondent could not lawfully remove his office, &c. *Held,*on demurrer, that the return was, in effect, an admission of the incorrectness of the certificate of the board of canvassers, and that a peremptory mandamus should be awarded for the removal of said office to A-.

APPLICATION for a Mandamus.

By an act of tlie legislature, the electors of the county of Buffalo were authorized to vote, at the annual election on the first Tuesday of April, 1860, upon the question of the removal of the county-seat of that county from Upper Fountain City to the village of Alma. The act provided that the votes cast at such election should be canvassed, certified, and the result ascertained and declared, by the same officers, and at the time and in the manner provided by law for canvassing, certifying and ascertaining the result of elections for state or county officers; and that such result, when so ascertained, should, by the canvassing officers, be reduced to writing, and by them certified to be in all respects true and correct, and that when the same was so reduced to writing and certified, the clerk of the board of supervisors of said county should record the same in some county record book in his office.

*568^16 ^ay> TS60, tbe relator, a resident of said county, applied to this court for an alternative mandamus, sanding the respondent, who was clerk of tbe circuit court of said county, to keep bis office at said village of *j*7 *x*0 Alma, alleging, in bis affidavit, that said election was held pursuant to law, and that a majority of all tbe yotes cast upon tbe question of removal of tbe county-seat of said county to Alma, was in favor of such removal, but that tbe board of county canvassers bad rejected tbe returns of said election from tbe towns of Nelson and Naples, and tbe first ward of Buffalo City, in said county, which cast, in tbe aggregate, a majority of 157 votes in favor of such removal, on account of alleged insufficiency and defects in tbe form of such returns, and, having made a tabular statement of tbe votes cast in tbe remaining towns and wards of tbe county, bad certified that said tabular statement was true and correct, as compiled from tbe original returns, and that from such returns it appeared that tbe whole number of votes polled in said county at said election, upon tbe question of tbe removal of tbe county-seat, was 758, of which 336 were for tbe removal of tbe county-seat to Alma, and 422 against such removal.

An alternative writ having been granted upon this application, tbe respondent made return thereto, stating: 1. That the returns of the votes cast at said election, upon said question of removal, were required by law to be canvassed, and tbe result ascertained and declared, on or after tbe Tuesday next following tbe general election for state or county officers next thereafter to be held, and by the same officers who should then canvass and declare tbe result of tbe votes given at such general election. 2. That tbe respondent admitted that tbe said board of canvassers did refuse to count and canvass tbe votes which tbe relator claimed they should have counted, and that such refusal was on tbe ground of tbe insufficiency of tbe alleged statements and returns of tbe inspectors of tbe election in said towns of Naples and Nelson, and said first ward of Buffalo City, but alleged that after such refusal, said board of canvassers made their certificate in writing, as required by said act, showing the result of said *569election, and tbat a majority of tbe votes cast at sucb election was against tbe removal of said county seat to tbe lage of Alma, wbicb certificate was duly recorded by tbe clerk of said board, in a county record book in bis office, , * w , and tbe respondent insisted tbat if said board bad a right by law to canvass said returns, be was legally bound to refuse to remove bis office to said village of Alma. 3. Tbat tbe act under wbicb sucb election was beld, was unconstitutional. —To tbis return tbe relator demurred.

*Tucker &*Cole,for relator.

*F. Fox*Cook, for respondent.

October *15.*

*By the*Court,

Cole, J.

Tbe demurrer to tbe return must be-sustained, and a peremptory writ awarded.

There is no difficulty in arriving at tbe intention of tbe legislature in passing cbap. 110, General Laws, 1860, p. 100. Tbe act provided tbat tbe electors of Buffalo county might vote on tbe first Tuesday of April — tbe day on wbicb tbe town elections were beld — upon tbe question of tbe removal of the county seat of tbat county from Upper Fountain City to tbe village of Alma. And tbe legislature undoubtedly intended tbat tbe votes upon tbat question should be canvassed by tbe county board of canvassers on tbe Tuesday following tbe election, tbe day on wbicb tbe votes for chief justice were canvassed. It is unreasonable to suppose tbat tbe legislature did not intend that tbe votes upon tbe subject of removal should be canvassed until after the general election next Npvember. This construction of tbe law is unwarranted and not to be adopted.

In one part of bis return tbe respondent relies upon tbe certified statement made by tbe canvassing board, under tbe act, and recorded, in wbicb tbe canvassers certify and declare tbat a majority of tbe votes cast upon tbe subject of tbe removal of tbe county seat, was against sucb removal. Tbis official statement might perhaps have shown a good excuse or justification for tbe respondent’s refusing to remove bis office from Upper Fountain City to tbe village of Alma, bad be not in effect admitted tbe incorrectness of tbat statement, in consequence of tbe rejection-bytbe canvassing board *570of tbe votes of tbe towns of Naples and Nelson, and of tbe first ward of Buffalo City, as stated in tbe relation. If tbe votes cast upon tbe subject of removal in those towns and tbat ward, were counted, tben tbe result showed a clear majority in favor of tbe removal. So tbat tbe respondent, by bis own answer, impeached tbe correctness of tbe official canvass, and showed tbat it did not state tbe true result of tbe election.

Peremptory mandamus awarded.