The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-01-13

act which the law specially enjoins as duty
resu lting from an Office, trust or station"
1t would be an insult to the common sense
of any intelligent man to undertake to
prove to him, that canvassiug the votes
of a county, and issuing certificates of cleo
ton to the person or persons who, by the
returns have the greater number of votes,
are duties which the law specially enjoins
upon the auditor, as resulting from his Of
flee. The proposition is too plain to be
susceptible of other proof than the state
ment of the proposition itself. If the
Auditor had refused to issue any certificate,
no one will deny that mandamus was the
proper process to compel him to perform
that duty; but if the Auditor has performed
an act without authority of law, or contrary
to law, can it be contended that he is
thereby relieved from performing an act
especially enjoined by law? If the Auditor
aItth0ut taU issues certificates to the persons
who by the returns have the lowest number
of votes, does that act relieve him of the
duty enjoined by law of issuing certificate
to person who by the returns has the
highest number of votes? Yet this is the
case before US. The Auditor does not deny,
it stands admitted, that O'Farrall and
Bryant were the persons who by the returns
had the highest number of votes.
Your Committee are of opinion that the
court lawfully and rightfully granted the
writ, and that it was the only remedy
whereby O'Farrall and Bryant could obtain
the certificates to which it is admitted that
by the returns they were entitled.
1t may be urged that O'Farrall and
Bryant had "plain, speedy and adequate
remedy" by direct appeal to the Senate, and
that therefore the "writ ought not to have
been issued" but the object of the writ was
to secure the certificates to which they were
entitled. The Senate does not issue certifi-
Gates of election to its members neither
can it compel the canvassing officer to issue
them.
If the foregoing reasoning is correct, your
Committee cannot avoid the conclusion that
by the certificates submitted to their exam
nation, l. F. O'Farrell and o. B. Bryant
are entitled to seats in this body as Senators
rom the County of Fillmore.
THOMAS COWAN,
Minority of Committee.
Mr.. HALL moved that the two reports
lie on the table. and be printed, because the
members had no opportunity to examine
them.
Mr.. HEATON opposed the motion of
Mr.. HALL, and wished the matter decided
at once.
Mr.. COWAN wanted the question dvi-
dsd-he was in favor of printing but wanted
to consider the question.
The motion to lie or the table was lost.
Mr.. HALL thought it useless to print
after the report was adopted.
The motion to print was adopted.
Mr.. HEATON moved the adoption of the
report.
Mr.. HALL wished to address members
who would, in case like this arise above
party feelings. He maintained that the
powers of the County Auditor were purely
ministerial, and that he had no discretion in
| the matter, but must give the certificate of
election to those who had the highest mum.
Der of votes, and that the County Auditor
in giving certificates to Messrs. Holly and
Wells had violated his oath, and arrogated
to himself the rights and powers of the
Senate. He quoted the opinions of Judge
Wilson upon the cases of other county
officers, which completely covered the pres
ent case. The whole power of the Auditor
was limited to the canvass of the votes re-
turned to him, and that he had no right to
take notice of rumors of fraud, but must
give the certificates to those who had the
| highest number of votes, according to the
returns. He cited many authorities in sup
port of the position that the duties of the
Auditor we're purely ministerial and would
have convinced any one, unless as one Sena-
tor stated in the morning session, that the
members of the Senate had already made up
their minds upon the question, even before
the reports had been received or arguments
made upon them. He refuted the idea
advanced in the report of the majority, that
the Supreme Court had attempted to inter-
fere with the powers of the Senate to judge
of the election of its own members. He took
the ground that the President was the only
judge of the prinaa facie evidence of mem.
bership.-and that the Senate had no right
to take that power from him, and the reso-
luton was not proper one to be considered
that the Senate could not go back of the
decision of the late President.
| Mr.. M'LAREN did not desire to do in
justice to Messrs. Bryant and O'Ferrall, but
thought it was not in the province of the
Senate to 60 back and decide who were
actually elected, but that the Senate had a
right to say who presented pr,ma facie evi.
dence of membership. He denied the
reality of the mandamus on the ground that
it was not issued to the Auditor in office at
the time of the election, but to his success
sOr.
MIR. COWAN said the Senate was not
legislating but passing Judgment adjudi-
eating upon election rights. He thought it
improper for the legislative branch to at
tack the judicial branch of the Government,
when it had made no attempt to interfere
with the rights of the Senate to Judge of the
election of its own members. He thought
that the writ of mandamus properly issued
when an officer refused or neglected to per-
form the duties of his Office. He argued
that the Auditor should not be the judge of
any fraud at elections that was the pro.
vince of the inspectors he was only
authorised to canvass the returns as they
were presented to him. He refuted COM
pletely the position of Mr.. M'Laren, that
the mandamus could not be issued to the sue
cessOr of the Auditor at the time of the