The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-12

1t Is insist ed, however, by c0uHSsl Tor
defendants, that the powers and duties
10 be performed under sections Is aad
IS OF the act Of 1S7S. IN $50 far as cleo
tion for members Of the legislative as
sembly are concerned, are devolved up
on the defendants by section Of the
act OF Congress, of which another ma
terial clause affecting the question
reads as follows The canvass and re-
turn OF ali the votes at elections IN said
territory for members Of the legislative
assembly thereof shall also be returned
to said board, which shall canvass all
such returns and Issue certificates or
election ts5 those persons who, being
eligible for such election shall appear
to have been lawfully elected, which
certificates shall be the only evidence
OF the right of such persons to sit IN
such assembly,.
A County Contrasting hoard.
Notwithstanding the able arguments
of counsel in support of their position,
/ ann unable 10 agree that this or any
clause of said section confer5 such
power upon said board. Such a con-
struction would not only render useless
and Intellectual sections u and q OF
the act of 1878. without any words OF
repeal or limitation in the provision
which is Claimed to produce such a re-
suit, but also would 30 violence To- the
spirit and intent of the territorial act
and to the economical method of procs.
dure provided thereby in cases oil
irregularities and discrepa in the
returns which would affect the rights
OF persons to such offices If Congress
Z had intended such a result, if it had I'M
tended to confer upon the board such
great power. it is but reasonable to pre-
sumo tnat it wotlid not have left such
intention to mere Implication Nor is
,tnere any express provision in section
3 OF the act of Congress for the delivery
Of ballot boxes to said Board, by speeiai
messenger, or otherwise, as provided il
1.-THE act of 1878.
Ihls important provision of the ter
r1toria4 law, by which the purity of the
ballot could be preserved. would also be
rendered nugatory by the interprefa tor
| eontended for, unless that power tor
We're conferrerd upon the board by. mere
timp.icati0n
The rule of law is that such a board
/ being THE creature of statute, must iooE
TO such statute for its authority aae
power, which otherwise would not leyiel
I'm It's favor. and that it will NOT bs
aided by implication or judicial con
stTuction
! It evident that the word returns
IN ne clause Of section 9, last quoted
was used in the same sense, and shotIlc
| oe given the same Interpretation, as ii
section % of the terri torfal act.
BY comparison o. the two statutes
70 VIII be seen that before the usssagz
of the Edmunds law the assessors
were the registration officers; now
said officers are appointees Of said
board; then the Judges Of election were
appointed by the county court; now
fhey are apDoilltees of the board; Their
the clerk of the county court and ths
members thereof constituted the board
to canvass the returns from the Judges
of election and recount the baMCts ir
proper cases; now such canyassing
board must be appointed by the board
of commissioners; then The secretary OF
the territory, in the presence of The
governor. canvasssd the returns I'M
! der section %. which are provided fol
| in sections Il of the act of 1878, and is
lsued certificates Of election to the mem
bers of the legislature; now in addition
Ito making all the appointments o.
election officers, provided for in sait
last mentioned act, the board of com
nlisyioners perform the duties former
ly devolved upon The secretary of TIT
territory and the governor. Under thu
act of Congress OF 1894 to. admit TIM!
/ territory into the Union as a state
lvass the election returns for delegate
Ito the constitutional convention, wnicl
returns must be canv:ISsed and Ger
tificateS issued by the said board, IL
the manner provided in section % o
1.-THE territorial act.
An Assumption of Power.
Nowhere do / ind any authority
either by express provision of statut
or by necessary Implication for sal
board, in any case whatever, to go be
hind the returns and open the ballo
box for the purpose Of canvassIng tn
ballots to declare the result Of an
election of any candidate for office
This is an assumption of power III
authorized by law. Nor is mere an
provision of law which authorized tn
sending of a. ballot box 10 sdld BOAR
for any such purpose. or Tor any pun
nose. The ballot box, after the clSse
an election, must be kept, anu III
lt,allots disposed Of by a Doafo {
proper persons" appointed ny saL
.. board of commissioners, ana theg ll.l' /:
he kept and the. ballots disposed OF
the manner proVlaeu III
the act of 1913 -, e,,,es,tio,
NH, 1 e.t,os, noandanlus is the prope
'.a,,oadv TO enforce the performance
ON official duty on the part OIL sal
heard. in a case where they REFUSE SUI
|, a. performance os eneoif
acit ministerial in it's character, IS +
: fused by an officer, or board oL olL t
11ron whom the duty OF It's perform
a moo is devolved, and any person WI
{ 10 iniured because of such refusal. sue
= yyarson NAV have a writ of mandan'
(, r., c.ooDeI its performance.
f So where, as in the case au par,
f election board, whose duty it is to cal
} vass the. returns of an elecuOn, Hptt
: an abstract thereof, and issue a cert
cafe of election to the candidates Il
: offices, refuses. after the canvass al
L abstract have been made, 70 issue SUI
: certificates, which is purely a MINI
Z ferial duty, the person who will oe i
= i,,,-ed because of such refusal may nal
2 a writ of mandamus
: Thropp OF. Public officers, sections L
Z and 53S. orc
Board of Liquidation VS.. McComb,
United States, 5Sl.
The Legality of the Election.
t In this case. no question being MAJ
5 as to the legality of the election,
! though there appears ITO have be-
= some irregulartty' in its conduct. Il
+ court via presume, in order that ju
+ tice may be done, that the law was su
: lstantially complied with.
+ In the case of 'Fhe application for Il
: writ of prohibition, the controversy
r between tine same parties, and Vt!
e legal questions arising under the sta
: IItes are substantially the same, an
a therefore, the construction of the sta
f ute in the mandamus proceedings a
;, plies with equal force in this proceedin
= The only remaining question
d whether, under the circumstances
e this case, the writ of prohibition w
: lie to prohibit the said board from ca
e vassing the ballots and declaring t
! result OF the election as to- any cant
: date, and issue a certificate of electif
d on such canvass.
tlnaht