The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-03


members of the Utah commission
from a judgment rendered by Judge
Bartch granting, on the application of
J. D. Page and others of Sanpete
county, writs of mandate and writs of
prohibition, the former to compel the
Itah commission to issue certificates
CT election from the face of the returns
as shown on the judges lists and the
Nlstter prohibiting the commission from
- Eaking a recount of the votes from
the ballot boxes, came on before the
supreme court yesterday, Chief Justice
Merritt and Associate Justices Smith
and King on the bench.
The appeal is taken from the judg-
ment roll on the following agreed
statement;
The Agreed Statement.
That the evidence shows there were
discrepancies appearing between regis
try lists and poll lists which were more
1n number than the majority of the
plaintiff, and the evidence introduced
tended. ia show that the said dis
Crepancies We're false and forged, as is
by the ninth finding in this case stated
and set out, but it is admitted for the
purposes Of this appeal alone that the
said forgeries were not known to the
defendants at the time they assumed
the function of opening the ballot
boxes and counting the ballots, and
were not known 10 the defendants till
the evidence proving the same was ad-
duced in court at the trial
That all the testimony which was
introduced at the trial to prove, or
Which tended to prove, the said fasifi-
cations and forgerieS was introduced
over the objections and executions of
defendants, that the same was incom-
pftent, irrelevant and immaterial and
IS not tending 70 show want of juris-
tiictiOn in defendants to open said
ballots, and determine for themselves.
rs the canvassing authority under
Ia law, whether irregularities and dis
- sszpancies existed in said returns af-
7cting the result of the election as to
plaintiff and other candidates voted
tor at said election"
The defendants now assign the fol-
lowing errors
Errors in law occurring at the trial
and excepted TO by the defendants.
The court erred in admitting the
testimony offered and introduced on
behalf Of said plaintiff, for that the
Same is irrelevant and immaterial upon
the issues involved i'll said proceedings;
jp its several conclusions of law; in
ssaendering its judgment and decision
in the proceeding and granting to the
plaintiff the peremptOry writ of pro-
hibition prayed for, commanding the
defendants to deSist from issuing GER
fificates Of election in Sanpete county
for constitutional delegates, otherwise
than from the face Of the returns
The Appellants Contention.
The defendants and appellants claim
THAI under the ninth section of the
Edmunds law the canvass and return
of an the votes at elections IN this ter
FiuOry, for the members of the legiS-
aative assembly, are to be returned to
the comInls. R1n and canVassed by st.
and the same method is provided bv
she ena bling act for the canvass Of re
turns of the election for delegate to the
Constitutional convention.
The contention, is that the duty is TO
be performed by the Utah commission
under the provision of the Utah statute
which controlled The county courts in
making the canvass before The passage
of the Edmunds law. The casting of
that duty on the commission carries
with II the same authority as apDer-
.sl2fned to tne county court before the
Massage Of the Bdmunds law and the
question Of whether there are irregu-
laritfes or discrepancies affecting the
result is by the law clearly TO be de-
termined by the canvassers; there can
therefore be no doubt it is the right
and duty Of the canVasserS 10 oDen the
ballots 10 ascertain the result when dr-
Irregularities are found which might af-
feet the result.
This is the distinction between our
statute, which puts upon the board of
canyassers the exercise of judgment
and discretion, and statutes which re-
auire boards Of eanVasserS 10 merely
rsSt up the figures constituting toe re-
turuls from the several precincts and
10 determine the results, which is held
10 be strictly a ministerial act that is
an act IN respect TO which nothing is
left 10 discretion.
The Utah commission is vested with
discretionary powers and their duties
are therefore not of a. ministerial kind
and that leads unerTingly to the cor
rect rule, that the writ Of mandate in
such cases should be denied.
The proceedings in prohibition, the
appellants submitted, must in any
event be controlled by The determine
ton Of the questions involved in the
1llandamus proceedings and beyond
tglat il MAY be- suggested that the very
fact that rhe parties here have applied
Cor y uandaznus would indicate that
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