The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-24
Of RirrieK. Fonntain Green,

SuOWn u the NOlSQ ASSA7
try list, or the Pill list, and this case &C
! CURED at Mount Pleasant, where only 49S
| names are marl3d "voted' on the regis
Try nst, while 300 votes were cast Tor
cancloateS for dllegateS to the constltu-
tlonal conventioH, which would be four
oeen votes in EXCESS of the number that
could have been legally cast, as eaca
voter could only ,ast seven votes in that
county, there beng seven delegates TO
Sanpete county by the enabling act. This
makes an apparent discrepancy of two
put IN this precinct the poll list shows
lhat 5Uf men voted, which would have
permitted an aggregate legal vote OF 3549,
II each man had voted a full ticket, or
an average vote Of 507 votes for the OPP
posing candidates for each office of dele
gates Tor the constitutional convention
me plaintiffs majority, as appear by the
lace OF the returns was thirty votes over
ms next competitor, so that if it be con-
ceoeo that there is an irregularity and dis
crepancy In the return from Mount Pleas
ant or two votes, still it would not affect
ms election. But it is claimed that the
d1nerence between the voted registry list
ana the poll list are irregularities that
canVaSSing board. We cannot agree to
TINS. The statute. after pointing out
Mhat snail constitute. the returns and
board they shall be opened and exam
| ined. provides: And if no irregularity
or discrepancy appear therein affecting
the result of election Of any candidate.
| they shall accept said returns as correct;
but If the rights of any person voted for
tor any officials are in any way affected
| lnen Cthe cQnVRSSing board shall open the
! ballots from said precinct and canvass
the same SO far as to determine the
| rights OF the person whose Office may be
effected, See Sec. 256, par. 524 of Vol l.
| that the irregularity and discrepancy
must appear upon the face of the re-
turns; in the language of the statute:
1t must appear therein" 1t must be
! sueh as to affect the election Of the cam
| ol0ate, and 1t is apparent also that 1t
! must be one which may be corrected or
/ otherWiSe recount can do no good.
! Now let US see what irregularities or
discrepancies would fulfill these manifest
| requirements, and whether the difference
! between the voted registry lists and the
pol lists are of such character The
! taIly sheets, according to the statute are
| latlon OF the face of the ballots. Mani
! Lesuy therefore if there appears to be
more ballots counted than were cast as
SHOWN by the voted registry list and poll
! ust' TINS IS an irregularity indicating
| mat the judges have made q mistake in
! me COUNT, or that they have suffered bal
! Lots Illegally to be put into the boxes and
| counted. A recount Of the ballots will at
| once disclose which it is, and permit its
instant correction; but it may be asked if
/ Inc tally sheet shows q less number than
the poll list and voted registry list why
! is not this an irregularfty? The answer
| is plain. The voter may not vote a full
ucKet- Some names may be scratched
and no others inserted This would be
! perfectly legal
! The presumption is that the judges of
erection have done their duty. Therefore
when they make a return which is legally
consistent with itself no irregularity is
then apparent therein; and whether
ta bulation of the ballots shows a number
| OF votes counted no greater than is cast,
tnen the return is legally consistent. The
] statute requires the tally, Sheets as we
nave Delore stated to be made and re-
turned IA duplicate. If they agree with
! each other there is no diScrepancV: if
tEey disagree then a recount OF the bali
lots will show which, if either is right.
This discrepancy, therefore, is one
pointed OUT by the statute that author
! ICES a recount of the ballots. We have
seen that the return from Sanpete county
| at the late election in every instance
SHOWS either an equal or less number of
| Y0teS counted than were cast, except at
I Mount pleasant, where there is a dis
! agreement of two votes between the voted
registry list and the tally sheets, and
! there Is no discrepancy apparent in the
| duplicate tally sheets at all The DIFF
ferenees between the voted registry list
and the poll list could in no wise be rec
| 0nclled or explained by a recount of the
ballots, and it is not pretended that they
tcould. we are. therefore, of the opinion
that there we're no Irregularities or dis
erepaneles appearing upon the face of
I the returns anectlng the plaintiffs cleo
ton, and that the court below properly
so found.
Possess ministerial Power Only
The next question is whether the court
erred IN admitting evidence in support of
the alternative writ Of mandamuS The
contention of appellants is that inasmuch
as the defendant canYasSing board must
IN the nrSt instance, decide whether there
are irregularities, that their decision is
not subject to review by nlandamus, and
IT is not denied that this proceeding in
its nature does attempt to revise their
decision in this matter l DO not know
II the other members of the court agree
Withs me in this statement, but l am OF
the opinion that the powers of the can
E2SSIng board under section 29e, above
cited, are purely miniSterial-the last
clause OF that section mot embraced III
the citauon) is not involved here, but
F&nay say in passing that ! think it wholly
mandatory, as il does not empower the
board TO render any decision or take any
action on the proof which it may re-
ceiVe.
Every canYassing board must decide in
the trSt instance, what are the returns
of the election, but it has never beer
held that this was the exercise OF judicial
power. 1t must determine that fact from
the face of the returns themselves an[
cannot go farther, and it may not capri.
I ciouSly reject returns for some imaginary
or real informality which does not QeStroJ
The character of the returns as such Ir
the case of State VS.. Steers, II No. 233, il
was expressly decided that mandamus
would lie 10 compel canvassinE board
to accept and canvass a return from tht
precinct which they had undertaken K
reject 1t was held that their power;
We're purely ministerial. and subject Il
. control by mandamus even in respect tC
deciding what We're the returns OF al
election.
See also McGrary Oh election. thire
edition, section 226 and 227 1 have at
tempted TO show the determination as K
! whether there We're irregularities or dis
crepaneies was to be made from the face O.
the returns alone, and involved nothing
more than the simplest kind of a prob
lem in arithmetic, and if found TO arise
the resulting duty was to recount tn,
votes in the boxes, another purely min
iSterial act. To hold that either or al
of these duties are judicial I cannot, Al
we'll might've say that the action OF tn,
, county clerk in caaing up the tax roll o.
, that of a commissioner of schools il
apportioning school money amongst tn,
several districts of the territory is Judi
j cial. The truth is that the statute de
! Clares what the decision must be whel
; the mathematical calculation is com
pieted.
There is no room left for discretion O.
Judgment; there is no power or right II
decide in but one way, and that is ac
cording 10 the result of the mathematica
2 problem which must in its nature b.
exact.
II [ know the distinction between minis
terial and judicial duties the powers O
the canVassing board in this territory be
: long wholly TO the former class, and i
is not the duty of the court as l conceiv
2 such boards. There is much in the rec
ord in this case and in the kindred cas-
in prohibition which was heard with it il
this court 10 indicate corrupt and Grim
I inal practices intended TO affect the cleo
ton occurring between the election and tn
[ canvass by defendants. In fact in tn
prohioltion case the court expressly fonnC
5 there had been corrupt and criminal for
Y gerieS, and ii is not denied that such di
: exist upon the tally sheets and return
5 made. and While in my view this evidenc
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