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

lnaC az an election 0olQ on the 1ZIn Gay OF
October, 1858, #. o Farrell, o. B. Bry.
ant, 81. w. Holly. and r. Wells, were
severally candidates for the Office of State
Senator from Fillmore county; that two
Senators were to be elected from said couu-
ty; that at said election said O'Farrell
received HOG votes; that said Bryant re.
ceived 1892 votes; that said Holly received
1915 votes, and that said Wells received
1919 votes; and that O'Farrell and Bryant
were therefore duly elected; that G.. M.
Colby was the officer authorized and requir-
ed by law to canvass the votes of Fillmore
county, and to issue certificates Of election
to the persons having the highest number of
votes; that before, twenty days after said
election said Colby had received the election
returns from all the precincts in the county,
and that the poll books returned from the
several precincts showed the number of
votes cast for the several candidates as
above stated; that O'Farrell and Bryant
demanded certificates of election, but that
said Colby refused to deliver them; that
Colby in making an abstract of the votes
of the county, neglected or refused to include
in his abstract the votes returned from Chat.
field precinct
Upon these representations the applicants
O'Farrell and Bryant pray the Court to
issue writ of mandamus to compel Colby
to issue certificates of election to the per-
sons entitled thereto.
Let US now examine in what way, and to
what extent the affidavit of Colby, in an
swer to the application, controverts the
representations therein. and what reason or
excuse it sets up for not performing duties
obligatory upon the Auditor to perform,
and which the application charges that he
did not perform.
The points, in his affidavit, are these {:
That he was, at the time stated in the ap-
plication, the canvassing officer in Fillmore
county; that he did receive all the election
returns of Fillmore county; that, within
twenty days after the election, he called to
his aid two justices of the peace, and that
the three, as a board of canvassers, did, on
the 25th day of October, make out an alb
stract of the legal votes contained in the
returns that, thereupon, be issued certi6-
Gates of election to Holly aud Wells, they
being the persons who had the highest mum.
Der of votes, as appears By said abstract; that
he denies that O'Farrell and Bryant were
duly and legally elected.
Now what allegations in the application
does his affidavit deny? Does it deny that
OFarrell had HOG votes? Does it deny
that Bryant had 1892? Does it claim more
than 1916 for Holly? Or more than 1919
for Wells? Does it allege that any votes
cast in Fillmore county were illegal? or
does it attempt to show in what the illegal
ity consisted? Nothing of the kind, it
claims that an abstract of the legal votes
was made and that by the abstract Holly
and Wells appeared to be entitled to certi6
Gates. Such allegations in legal papers
amount to nothing they raise no issue on
the allegations in the application; they con.
trovert rothing contained therein, they
admit all the essential allegations in the
application by failing to deny them; then
the final denial that O'Farrell and Bryant
were duly and legally elected without accom-
panying the denial with statement of facts
showing that they were not so elected is a
mere conclusion of law, and is worse than
useless in legal paper, or even admitting
that such an allegation in the affidavit was
of any effect, does the Auditor assume to
decide who are aid who are not legally
elected to the Senate? The Senate has the
sole power of making such decision, the
Auditor seems by the insinuations (for they
aye nothing else) in his affidavit to have
mistaken the duties of his Office. His duty is
to count votes and issue certificates to the
person or persons who, by the returns made
to him from the several precincts "appear
to have the greatest number of votes" 1t
is the prerogative of the Senate to decide
what votes properly returned to him from
the several precincts are legal and what
illegal. In section 81, chapter 6, Revised
Statutes, we find the following: On the
Goth day after the close OF any election, or
sooner if all the returns be received, the
Clerk OF the Board of County Commission.
ers (now County Auditory taking to his
assistance two Justices of the Peace of the
county, shall proceed to open said returns
and make abstracts Of the votes in the fol-
lowing manner" He is to open the returns
and make abstracts of the votes, not the
illegal votes"
Section Al, in the same Chapter, says
1" No election returns shall be refused by
any clerk of the Board of County Commis,
sioners, for the reason that the same may be
returned or delivered to him in any other
than the manner directed in this Chapter !;
nor shall he refuse to include any returns in
his esti nate of votes for any informality in
holding any election, or making returns
thereof; but all returns shall be received,
and the votes canvassed by such clerks, and
certificate given to the person or persons
who may, by such returns have the greatest
number of votes.
Here is the duty of the canvassers "spe-
cially enjoined." 1t is charg ed in the appli-
cation that he has not issued certificates of
election to the persons who by the returns
had the greatest number Of votes. He does
not deny the charge but evades by alleging
that he has issued certificates to the persons
who appear by has abstract to have thegreat-
est number.
We are of opinion, then, after examining
the application and the affidavit of Colby,
in answer thereto, that it was admitted and
plainly apparent to the court, that the audi
tor had neglected or refused to perform two
separate acts, which the law especially en-
joins as duties resulting from his Office,
namely, to canvass the Chatfied returns and
Tn issuo cortifcofoo IN the reraona who nv