The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1880-10-02


A copy of which shall be posted up,
at least fifteen days before the cleo
ton, in three public places in said
precinct, best calculated to give
notice to all voters. Il shall also be
the duty of the Clerk of the County
Court to give notice on the lists so
posted, that the senior justices OF the
peace for said precinct will hear
objections to the right to vote, OF any
person registered, until sunset of the
fifth day preceding the day Of cleo
ton. Said objections shall be made
by a qualified voter in writing and
delivered to the said justice who shall
issue 8 written notice to the person
objected to, stating the place, day and
hour when the objection will be
heard. The person making the
objection shall serve, or cause to be
served, said notice upon the person
objected to, and shall also make re-
turns of such service to the justice be-
fore whom the objection shall be
heard. Upon the hearing of the
case, if raid justice shall find that the
person objected to is not qualified
voter, be shall, within three days
prior to the election, transmit a
certified list of the names of all such
unqualified persons to the judges OF
election, and said judges shall strike
such names from the Registry Lat be-
fore the opening OF the polls.
Granting that the issuance OF this
writ is within the jurisdictionaI
powers of tnis court, it is the law thai
it can be directed TO an officer to com
pei him to do mere ministerial act
which the relator has right to have
done by him, aud as to which the
officer has no discretion. But it mus
be to compel him to do mere
ministerial act, and this act must bt
one which by law he is required t
perform aud which he has refused
to Go.
Chief Justice fancy in the case o.
The State Of Mississippi rs. johnson
4. Wall. AIS has given clear def
milton OF d ministerial duty. HI
says: "a ministerial duty, tn
performance OF which nay, in prope
cases, be required, is one in which
nothing is left to discretion. It is {
simple, definite duty, arising unde
circumstances admitted or proved t
exist and i'm posed by law"
Are the duties required OF the As
SCISSOR in relation TO registering per
SONS and preparing the registration
lists, mere ministerial duties? II the.
are, and be has refused or neglectel
to perform them, be undoubtedly
could be compelled by mandamus I
na-form thoas. Following the de6
| hilton given to "a ministerial duty
as above quoted. these acts do not fal
within it. To be ministerial, nothiDI
is to be lett 10 the discretion OF thu
Assessor. In the case at bar, one OF th
duties imposed upon the Assessor
to ascertain upon what grounds an
and all persons claim to be voter:
and he is furthermore required I
make careful inquiry if any person
whose name is on the list has died O
removed from the precinct, or /
otherwise disqualified as q voter
These are all duties which require in
vestigation, research and opinion
discretion and consideration. II
must form a judgment and act upo
tina. Judgment and it is incumber
upon MIN to exercise discretion in a.
irving st that judgment. He has to
discretion upon the judgment forme
, by him from the inquiries he is re
: ouired to make, to erase from th
, Registration List of the preceding yea
, any name that may be thereon. A
these acts are not therefore mel
! ministerial duties, but are duties ss
which the officer has 9 discretion
} and are therefore not s1ch du.i,
} which he can be compelled to c
through the agency OF the writ
} msndamus.
} 1t was insisted in argument
2 counsel for the relator, that the cou
1 has the power by msndsmus to cor
t pei the respondent to perform an q
j not within the scope of his autborit
s if his refusal to do the act would wol
y an injury.
8 This court cannot impose q du
= on an officer which is not within Il
Is power imposed on him by law. q
d mandamus will not be granted
q command any person to exercise
}, jurisdiction which that person is L
most clearly and certainly appoint
,, to and bound by law to exercise;
Ie the court will not grant such writ {
y cept it clearly see that there is
Ie power lodged in the person agail
1r whom the msndsmus is prayed"
n In announcing this opinion on
le question OF the right of this court
ID issue the writ, His Honor Judge 30
e, man coucurs With Judge Hunt
III though upon other grounds, as !
t, appear from his opinion on E
r. Judge Emerson does not agree "
as the msioIity Of the court in this rig