The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-24
'ZlHE MANDATE
Writ STANDS
Continued from Page -

came SO corrupt and outrageous as to
bring the nation to the verge OF civil war
and with this historical example before
us it seems to me that we should be
slow to Enlarge the powers of such a body
in this territory in The direction claimed.
am therefore of the opinion that the
court properly permitted the evidence
offered by the plaintiff.
An intermediate Board Not Neces-
sary.
The last question is, did the court prop
erly render judgment awarding the per-
emptory writ? This brings us to the
consideration of the power and duties
of the defendant board. The board is
organized by the ninth section of what
is known as the Edmunds act. The third
clause OF that section provides: 1.-THE
elections in said territory Tor members
OF the legislative assembly thereof shall
also be returned to said board (meaning
the, defendants). which shall canvass all
election to the persons who, being eligi
BILE for such election, shall appear to have
been lawfully elected"
1t is admitted that this legislation OF
Congress creating the Utah commission
and authorizing it to appoint registration
and election officers did not repeal any
part of the election laws Of the
territory of Utah except that part which
laws We're to be executed. There is no
contention between counsel upon this
point. BY the enabling act delegates
to the constitutional convention are to
canVaSSed in the same manner provided
by law for canvass and certification OF
the election of the members of the leels-
lative assembly. The whole controversy
turns upon the proposition as to what
part OF the duties and powers conferred
by the territorial election law passed di-
rectly to the defendants ana what part
passed to their appointees, provided for
in the second clause OF the ninth section
OF the EdmundS law.
Formerly the county clerk and some
members of the county court received the
returns of election both for the leSisla-
ture, the county and precinct officers and
territorial officers direct from the Judges
of election; and the duties prescribed in
section 256, above cited, Of the election
law, we're the duties and powers conferred
upon the clerk and members OF the coun-
ty court as a canVasSlng board. IL is
claimed by one of the counsel for the
respondent that these duties are still to
be performed by some board appointed
in the county, or rather by some person,
to use the language OF the act OF. Con
gress, appointed in the county, while
one Of the counsel for the respondent and
both counsel for the appellant contend
that the judges of election are to return
the canvass Of votes for members OF the
legislature and therefore the canvass of
constitutional convention directly to The
defendant board. We agree in this latter
opinion. 1t seems to US the only con
struction which viii make all its parts
consistent, and which is the construction
which we placed upon the statute by
those charged with its execution IN
mediately after it was enacted twelve
years ago. If it were case OF doubt
this contemporaneous construction should
have great weight with the court in de-
termining the meaning of the statute.
However, its meaning appears plain to
us that the return Of votes means the re-
turn by the first agency who are making
the returns, to-wit: the Judges of election,
after they themselves have canYaSSed the
ballots cast
The language is '"The canvass and re-
turn of all the votes at the time OF the
election shall be returned TO said board.
We think this means that the Judges OF
election shall canvass the votes ana make
their return in the manner provided by
law, direct to the Utah commission, and
| that they shall thereupon proceed to can
Yass any such election in the same
formerly possessed, and no more. The
statute clearly provides that the defend,
| ant board shall, issue to The members OF
the legislature, and therefore ny the
enabling act to delegates to the conStitu-
| tional convention, certificates OF election
! to the persons who appear to have beer
| lawfully elected. AS we have ALREADY
| seen the returns show that the plaintiff
appears to have been lawfully elected.
| Our conclusion therefore is that the
court properly found there were no IT.
! reguldritieS or DISCREPANCIES alLectlng- Inc
| election of the plaintiff appearing upof
! the face of the returns. That the couft
| properly awarded the Derempt0ry VIII
| against the defendants commanding then
! to certify to the plaintiffs election.
/ We are asked to set aside the Judgmen
| for costs in this case because the defend
l ants are public officers acting in goot
| faith If the judgment against defendants
is right, and we have seen that at, II, u rs Is
for costs Section 1884, OF the compiled
laws provides. Costs are allowed, o
course to the plaintiff upon Judgmen
in his favor in the following cases;
| Fourth. In special proceeding. Thl
is a special proceeding. See code of civil
B9lS to s7is. pa 'Ai'''
the court below is affirmed with costs.
Prohibition Suits Useless.
In the prohibition cases the opinio
says: We do not care to go into
lengthy discussion Of this case. Thi
action was useless multiplication @
remedies, if it was a remedy at al
The whole question was before tn
court in a proceeding, of which, thi
is a mere counterpart. There would b
as much reason to permit a plainti
in eiectment, While his suit was pend
ing, to bring an action in equity t
enjoin his adversary from asserting
hostile title as to permit this proceed
ing; or to further illustrate, Will
mandamus proceedings were pendin
against a clerk to compel him to issu
an execution In favor Of the plainti
upon a Judgment in favor of til
plaintiff, to permit also a proceedin
in prohibition to prevent him from il
suing one in favor of some other pc,
son. This kind OF multiplication {