The Princeton union. [volume] (Princeton, Minn.) 1876-1976, 1890-12-25
MEMORANDUM.

MEMORANDUM.
The application. for aperemptory writ
OF mandamus in this case is based upon
the ground that the defendant county
auditor of Morrison county, illegally
and wrongfully refuses to issue to the
plaintiff, who, as appears by the state
ment and returns hereinafter referred
to, was elected member of the legisla-
ture at the last general election, a GER
tiicate of his election.
Such statement and return gives the
votes cast in the legislative district in
which the plaintiff claims to have been
elected, as follows:
Then follows list of the candidates
voted for and the vote received by each.
Said legislative district is entitled to
but four members; it therefore clearly
appears from such statement and re-
turns that the plaintiff was one of the
four members elected; and as such, he
is entitled to certificate of election.
But the said defendant, with those he
had called to his assistance, without
any evidence before them except such
returns and the said statement (which
was made by them) assumed to declare
e. E. Price elected instead of the plain
tiff; and therefore, a certificate of cleo
ton was refused the plaintiff as before
stated. That the defendant county
auditor acted without authority and
contrary to law in refusing said certif-
cate to the plaintiff, and issuing one to
said Price, there can be no doubt. !. ::
Neither. he, or those acting with him
in the canvass of the returns of the diff
ferent counties had any power or au-
thority to declare any person elected
whose election was not shown by such
returns, and their acts in so doing are
void. Such canvassing board had no
power or authority to declare who was
in fact elected, but only to say who
upon the face of the returns, appeared
to have been elected. Nor can this
court in this action try the right of the
contestant in this action to the con-
tested seat in the legislature, or enter
upon an investigation of the claims
thereto, but like said canvassing board.
are bound by what appears on the face
of the returns. The power to dispose
of such cases upon their merits, is pro-
perly vested alone in the house of rep
resentatives.
1t seems to us that the law governing
this action is we'll settled in this State
by the case of O. Ferrall VS.. Calby. 2
MINI. 148, which case was substantially
the same as the one under consideration.
In this case the court say among
other things that 1.-THE aid of this court
is sought to prevent the consequence of
an assumption of authority on the part
OF the board of canvassers, and to COM
pei the defendant to do his duty. All
that we can do is to arm the parties en-
titled, with the credentials necessary to
enable them properly to assert their
rights before the proper tribunal,
whether they or either: of them were
legally elected is not question here.
One candidate may be entitled to a GER
tifcate of election, while his opponent
may have clear right to the office.''
AS will be seen by the abstract and
certificate of the votes cast for the sew
eral candidates for representative
made and signed by the canvassing
board-and which is the only evidence
before the court Of the result of such
canvass, E. E. Price and e. L, Price
are treated as different persons. the
former credited with 2,O86 votes and
the latter with 1,417 votes. In consid-
erlng this, therefore, it is not SO much
considering what the board might have
done, acting in a ministerial capacity.
as it is what they in fact did as evil
denced by the abstract of votes made
by them. Upon this canvass, as made
by the board, the auditor of Morrison
county had no right to assume to co,nt
the votes cast for E. L. Price for r. n
Price and issue a certificate to r. r.
Price.
The decision of this court must he
based upon the certificate and return Of