The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-01-08


to the Secretary of the Territory, bu
remain in charge OF the clerks. Til
law makes 40 provision for any in
spection OF the ballots o. OF the poll
lists By the Governor or Sscretsrl
before their canvass is completed AM
the certificates delivered 10 the sue
ce5sful candidates. 1t places nothini
before the Governor and SecretarI
except e certified copy of the nameI
oil the persons voted for and the
number Of votes cast for each. II TIT
law requires them not merely TO as
certain the number of votes shown by
the clerks returns to have been re-
celVed by each candidate, but thC
number of Votes shown by the ballots
and poll-lists, and by extrinsic proof
to have been legally cast for each
candidate-that lie to say, not merely
to canvass the clerks returns, but t
canvass the votes themselves and de.
termine their legslity-then the law
Is an outrage, not only on the
Governor and Secretary, who are
compelled to make "bricks without
straw" but on the candidates whose
rights are to be sdjudicated by officers
from whom the law deliberately with
holds the means essential to correct
adiudications. This would be a most
scandalous condition of the territorial
law If it really existed. But such is
net the law Of Utah.
The question now under considera-
ton has been adjudicated many times
by judicial and legislative tribunals
in the United States. upon statutory
provisions substantially like those en-
braced in sections %. q, and % Of
the Laws of Utah." 1t has never
been decided in faver of Mr.. Camp
bell. Mr. McCrary in his Laws of
Elections" (section 82). correctly
states the rule established by the con.
current authority of these decisions
to be, that the csnvassers "must re-
ceive and count the votes as shown
By the returns, and they cannot go be-
hind the returns for any purpose; and
this necessarily implies that when a
paper is presented az a return, and
there is question as to whether it is
return or not, they must decide that
question from what appears upon the
face of the paper ITSELF"
Under statutory provisions similar
to those of Utsh, the supreme court
of Missouri held that the powers OF
the canvassers we're restricted to the
determination of the result shown by
the returns. The following is the
provision of the Missouri statute:
The secretary OF state, in the presence
of the governor, shall proceed to open
the returns and to cast up the votes gwen
for all candidates for any "fiice, and shall
give to the person having the highest
number of votes for mem bers of Con
gress from each district, certificates of
election under his hand with the seal of
the state affixed there,o.
In State Us. Steers, a Nc, 224, the
court held:
Here is no discretion given, no power
to pass upon and adjudge VIII, Their votes
are legal or illegal, but the simple min
isterial duty to cast up and to award the
certificate to the person having the high
est number of votes.
The New York election law of
April IL, 1922, provides that the in
spector appointed for that purpose
"Shall in person, deliver TO the said
clerk at the Office, or to his deputy, or to
the keeper of the said Office, true copy
of the said statement OF votes" and
thereupon the beard of canva.sers "sha!l
proceed to calculate and ascertain the
whole number of votes which shall be
given at such election in the said county
for the several persons who shall be
voted for as governor, lieutenant-gOv-
ernor, senators, and representatives in the
Congress of the United States, or go many
of the said officers as shall be voted for,
and shall set down in writing the name
OF tie several candidates 50 voted for at
sny such election for any of the afIices
aforesaid, and the number of votes in
words written at full length which shall
be given for any such candidates at any
such election in the said county, and
shall certify the same to be true copy
Of the votes given in said county"
10 the case OF The People rs. Van
Slyck, 4 Cow, 1923. which was deci
ded in February, 1925, under the
statutory provision, the
court said:
The duties of the canvassers are min
steriRl. TIL y are required to attend at
he clerks office and calculate and sscer-
.ain the whole number of votes given at
my election, and certify the same to be-
rue canvass. This is not a Judicial act,
1u. merely ministerial They have no
power to controvert the votes Of the cleo
ors.
It lie provided in section % of the
Revised Statutes of Illinois (Is56)
hat the clerk OF the county commits
iioners' court, taking to his assistance
wo justices of tue peace OF his
county,
Shall proceed to open the returns and
make abstracts of the votes in the How
ng manner: And il
hall be the duty of the said clerk of the
ounty commissioners court immediately
o make out certificate of election to
ach of the persons having the highest
lumber Of votes.
The case of The People as. Head,
3 ILL.,, 327, the court held:
"This contest, under our statute, is an
riginsl proceeding instituted by the con-
estant for the purpose of trying the lie
atty of the election, and not of the Can.
ass. 1t goes behi d the canvass and l.
urges the election Itself The court, in
y ing it, is not confined to the poll-hooks
3 returned, but it can go behind these !
nd inquire, by proof deh0rs whether he
otes, or any of hem, We illegal. But
ne canvassers have no right to do this.
heirs is a mere mechanical OF, rather, {
rithmetical duty. They may prob,b y I
ldge whether the returns are in due 7
rm, but after that, they can only can +;
ass the votes cast for the several candi- }
ates and declare the result.
Section IS, chapter 6, of the Re- :
sed Statutes of Wisconsin (1S49) IS \
! these words: n
Whenever it shall satisfactorily appear il
at any person has received a plurality u
legal votes cast at any election f any a
ice, the cauvassers shall give %. such =
srson certificate of election, notwilh- y
andiDg tee provisions Of law may not II
I'VE been full y complied with in noticing 81
conducting the election, or canvassing q
e returns of votes, so thst the real will
the people may not be defeated by any h
-
Under this statute it was held by c.
Q supreme court of Wisconsin, in o
ltorney General CS. Barstow, Il
is, us, as follows: a.
Whether it would have been conpe- a.
1t for the legislature, under the consti- &c