Idaho County free press. [volume] (Grangeville, Idaho Territory) 1886-current, 1891-01-23
The Mandamus Served on speaker
Elder Commanding Him to Open
and Publish Election Returns.

is the order OF the supreme court OF
Nebraska to Speaker Elder OF the
House OF Representatives commanding
him to open and publish the returns of
the November election in the presence
OF the two houses Of the legislature.
In the serving of this mandamus a ter
rife struggle took place, during which
both glass doors of the state house
were smashed and several people quite
painfully injured. Sheriff McClay. by
sheer force of strength, was almost
carried TO the speakers desk, In order
TO execute the mandate OF the court.
The court says;
We have examined into this matter
rs much as public exigencies will allow
us to do. We take this position that
in the matter of the canvass OF votes
of state officers section 1, article .
OF the constitution is conclusive OF the
question presented. Reading the Sec
ton. In repeated decisions of this
court and | think it is the settled law
in this state if any of the county Off
GERS or the county clerks in any coun-
ty if they should refuse or neglect to
send to the secretary of state the re-
turns so contemplated and application
were made to the court upon the point
its power and duty to compel by man
damus the performance of that duty
is not questioned in this court. II on
this return being lodged in the secre-
tarys Office. that officer should refuse
to place them in the hands OF the
speaker-elect of the house when the
time arrived for the discharge of that
duty, this court would not and could
not refuse to compel him to discharge
that duty in accordance with the law
of the constitution. We see no good
reason, nor has any heen suggested,
why this other officer designated by
the constitution TO perform the addi-
tional duty of opening these returns.
should be taken out of the pale of law
any more than these other officers.
1t is true there are some conditions at
tached to this duty to-wit: That he
shall do it in the presence of the two
houses, but no important consideration
can be given to that point in the case
at bar, because it appears that all the
conditions were present on yesterday,
the day. named by the constitution and
laws, all taken together, and that the
attendance OF this speaker has occurred
the day before when this duty should
be performed. This is duty imposed
upon that officer, to open these returns
and ascertain the result and have it
declared, or declare it. and this is II
duty imposed by the constitution. 1t
is not duty imposed by each house
on the two houses in joint convention,
and we are of the opinion that it can
not be controlled by them or either OF
them in the manner set out in the
answer, viz: Attempt to throw this
duty in whole or in part on some one
else, to-wit: A committee appointed
by the convention. That would
imply n right on their part to take the
papers out OF the body of the house and
possibly out OF the city and out OF the
control OF the legitimate authority.
There is a condition not contemplated
at all. The returns contain the history
so far as necessary of the election, and
the only history that is official or can
be recognized, and to admit the posi-
bility of accident that it is alleged
sometimes befall election returns. The
men that framed this constitution were
careful not to allow that state Of things
to exist The demurrer must be sus-
tanned to that part of the answer which
predicates the refusal or nature of that
officer to discharge that duty upon the
vote of the joint convention appoint
ing the committee. No one else has n
right to interfere with anything in the
face of the constitution of the state.
1t alone is the law of the land govern
ing this question. | do not know but
what l might stop right here, but as
somewhat different features have taken
place In other states or may have taken
place-but there we do not find the
same constitutional provisions prevail
ing. My mind has been diverted by
the reference made by Mr.. Allen to the
facts that have been settled by action
OF congress, and the comments in re-
spect to the counting of the vote OF the
president and vice president of the
United States. We do not feel that
the cases are exactly alike. My mind
is directed to that point being the ac-
ton OF the president and vice president
OF the United States. In that case
there is no power of custer behind this !
president to canvass, and it might well +!
be said to be something which must be
avoided. The possibility of seating a
man in the presidential chair that has
never been elected and who may be the |
most Objectionable man in the United
States. The question involves our re-
lations with foreign nations and all the i.
enormous issues OF war and peace. 1t |
cannot be said that these relations are |
present in the election of governor
OF the state. His duties are confined |
to tho domestic relations of the state
ana our relations with sister states. and |
do not involve the issues OF war and |
peace. Wisely the constitution has |
provided the method OF contestinr
elections in this state. 1t is our opin- |
ion that canvass and contest are sep
arate, and joint conventions must be
kept separate and distinct. 1t is a
duty which devolves upon the speaker
in the course of every two years. For
tunately up TO this time in this state.
there has been no contest for any of |
the offices, and it may be hoped that
there will be a long future before us
before it will occur again. This duty
imposed upon the speaker to open and
canvass the returns and declare the re-