Fergus County argus., 1889-11-07
THAT MANDAMUs.
A synopsis Of the Opinion Rendered by the
Court--rhe Vote Ordered Counted.


Following we give the .ubst ance of
Judge DeWolfe's opinion in the now
famous mandamus case:
''In deciding upon the suIliciency OF
the cause here shown, it is necessary,
IN the first place, to consider and de-
termlne the iuris,lict ion and powers OF
the canvassing board. and whei her
their functions were ministerial only,
or partly ministerial and partly Judi
cial. II ministerial only. the court
can compel them 10y mandamis to
perform the duties required oi them
by law. Whereas. ii they act in a iudi-
clal or quasi-iudicial capacity. while
the court may by his proceeding COM
pei them To act, it cannot take from
them the discretion which pertains to
the exercise OF all judicial quest ions.
The powers ana duties o be performed
by the board, as also persons compris-
1t. defined by See. 1888 of the Fifth
division OF the revised statutes. is as
follows; After the iiiteent h day after
the close of any election held under
the provisions OF this chapter. or
sooner if the returns shall be re-
ceived, the chairman of the board of
county commissioners. or in his ah-
sence any other member of the board.
shall. taking to his assistance a pro-
bate Judge or Justice OF the peace and
one other officer of thecounty, or any
county officer, proceed to open the re-
turns and make abstracts OF votes.
such abstracts of votes for delegate to
congress shall be Oh one sheet: the alb
stract of votes for members of the
legislative assembly shall he on another
sheet; and the abstract OF votes for
territorial and district officers shall he
on another sheet. and the abstract OF
votes for county and township officers
shall he on another sheet Here it
will readily be seen is nothing which
partakes in he slightest degree oi the
exercise OF judicial or discretionary
authority. The only power conferred
is to open returns and make returns
OF votes, and what this means is
clearly manifest from the succeeding
clause Of the section which directs that
abstracts for delegate to congress. for
members OF the legislature and for ter
ritorial and district officers and for
county and township officers shall all
be on seperate sheets OF paper. Moth !
ing could be palmer than that what |
was here intended was that the board |
OF canvassers should summarize or |
add up the vote according to the re- |
turns as received 10y them, and that I
when this was done. their duty. as |
their power, was at an end. Not hing
whatever is said, IN The section referred |
TO, or IN any other section of law. as
% their duty OF inquirna into the le-
.allty or suiiiciency OF the returns
made by the Judges OF election.
IL IS proper. however, to refer to the
tecislOn OF our supreme court. in
which it enunciates the same nrincinle
n language most clear and emphatic.
n the case OF Chumasero Us Potts m
Montana. 2'O. Speaking on this very
question of the power of th.s. can.
iassing boards, the proceedings in n
case like this. the court Inv
Judge Knowles, SAYS: "Thi, i, n ones.
ION that canvassers of the return of
he abstracts of the votes had moth
ng to do with. It was no part of ftbeir
Iuty to determine what was the true
md legal vote cast. What they were
eqlIred to do was to determine what
he abstracts of the votes returned to
hem showed upon this subiect A.
hey have no right to 90 behind these
bstracts, they have no right 10 ossi,n
= a reason for not canvas.iny the ,
rue abstracts that there was an ille-
nj and fraudulent vote.
'fiicers whos duty 10y law it is to can
ass returns, have no other duties
han these to perform. and a, il Womb
OF be in the province OF proceedings
4 mandamus to go behind the ret ,,rns