Omaha daily bee., 1896-12-19
CANVASSlNG BOARDS DUTIES
South Dakota Supreme Court Interprets
the Law on the Subject
FULL RETURNS THE BASIS OF ALL ACTION
Some Difference of Opinion. However,
ms TO the Exemption of the
states Executive from Nam
dnmus Proceedings.

certificates to the populists, some interest
naturally attaches to the decision Of the
court in the mandamus cases touching the
refusal of the board to issue certificates
on incomplete returns.
Each member of the supreme court read
a separate opinion on the mandamus case
of Richard j. Woods against Charles II.
Sheldon, governor of South Dakota, and
Thomas Thorson, secretary Of state of South
Dakota. The opinions, while on different
lines all sustain the action OF the otfcials
in refusing to issue certificates to electors
on an incomplete canvass of the state.
The opinion of Presiding Judge Corson
first reviews the demurrers filed in the
case and overrules both that filed by the
defendant and that by the plaintiff. Holding
"As the only ground of the demurrer IS
that the affidavit does not state tacts SUI
Gcient to constitute a cause of action, the
question of the jurisdiction of this court
is not raised"-and need not be decided IN
this proceeding.
In the discussion of the main case pre-
sented to the court, the presiding judge hrst
quoted section 3, chapter lXXXiv, Laws oil
1890 defining the duties of the state canvass
ing hoard in the canvass of the electoral
vote, then states:
DUTIES OF THE OFFICERS.
This section is somewhat vague and in,
definite and in order to tully unuel S@lauu @
the meaning of the section ana tne uulleS
imposed upon the governor and the secre-
nv of state, II will be necessary 10 eN-
anime other sections of the act. .,..,, l.,
The first section specifies the manner III ~
which the county board of canvassers shaIi
be organized, and their duties. Ihe SECOND
specifics the duties of the county auallor
in transmitting abstracts to the secretary
of state. And section provides that IL
the returns are not received by the seCre-
tary of state, within twenty days alSer
election, he shall send Il messenseaT ,Ii, ipr
them" While section does not speclhCaily
provide that the canvass shall be oil all tnC
votes from all the counties such uuty
is necessarily implied from the uuty I'M.
posed upon them to canvass the vote, III
is clearly the duty, therefore, of the gov
ernor and secretary of state 10 canvass
all the votes from all the counties OF tne
state, and until that duty has been per-
formed If the purportod returns are OBJ
tainable, there is no authority on the part
of those officers to mage any deciaratlon
of the result of the votes cast at the state
election or to issue certificates of election
to any candidate for presidential elector.
1t is. only, to each person son, ori1ag gu.g
to give the certificate of election. Ana the
canvassers can only determine who Is duly
elected" after a fun canvass or an the
votes cast in all the counties OF the state
If duly authenticated returns are OBTAIN
able.
appearing that the returns of some OF the
counties of the state have not been can
yassed, and the governor and secrethry OF
state, having taken recess from day TO
day until proper and legal returns can ne
obtained from those counties, the question
is presented as to the power of the can
vassers to take such recess, for rea-
sonable time in order to obtain proper ana
legal returns from those counties, they are
not in terms prohibited from taking such
a recess and their right to so take it, in
order to enable them to properly perform
the duties imposed upon them by law, II
seems to me, is necessarily implied and
Included in the powers granted. The re-
turns, or purported returns, are sealed up
by the auditor and in that condition trans
mitted to the office of the secretary OF
state.
BY section it is provided that such re
turns-"said abstracts"-shall be kept In
the Office of the secretary of state. un
opened, until the day appointed for open
ing them, and shall only be opened In the
presence of the board Suppose one of the
envelopes. when opened, contains no certi-
fled copy or any purported copy OF an an
stract of the votes cast for the candldaieS
for members of congress or presdentiai
the abstract of county officers of-the county
would it be seriously contended that the
failure of a county auditor to perform the
duty imposed upon him by law o,m,, could DIS DIS
deprive the officers actually rece living the
highest number of votes at the election oi
their certificates of election? | apprehend
not. Such a theory. If sustained, would
place it in the power of county auditor
or by accident or mistake. to
destroy an election and enable parties not
entitled thereto to obtain certihcates of elec-
'''" POWER OF THE CANvAssERs.
As we have seen, the envelopes purport to
contain the election returns, and are sealed
by the auditor and in that condition trans
mitted to the Office of the secretary of state:
When properly indorsed the secretary OF
state must presume that the envelopes con-
tain the duly authenticated returns he
N N
cept at the time of the canvass in pres
ence of the canvassers. He is precluded.
them as provided by section of the act.
If when opened the envelope contains no
are the canvassers without power to supply
the proper returns? Clearly not. There
must of necessity be vested in the abstract,
in order that they may perform the duties
imposed upon the law-namely to canvass
ali the votes and issue to the parties hay
ing the highest number of votes the GER
tifcates to which they are entitled.
The decision then holds that the power Is
thus certainly granted to the board to ad-
journ to a certain day, or take recess from
day to day to secure returns. And on the
question of their forthwith" canvassing,
that such direction means the canvass must
be completed within such reasonable time
as is required to perform the duty enjoined
upon the canvassers Does not pass upon
the suficlency of the purported returns sent
in, and in conclusion that the board not only
the power to adjourn to secure
proper returns. but that they were fully
justified in so doing under the facts dis
closed in their answer.
Judge Harey cOncurs with the presiding
Judge in the finding that the demurrer does
lot raise the question OF jurisdiction. and !
must be overrued Holds that the purported |
'eturns from Lawrence and Butte counties |
we're not returns, for lack OF the official |
seal of the county, which is necessary to |
make them such. The law provides for send |
ng a messenger after returns where coun- |
les have failed to make returns, and as |
loon as 1t was discovered that no returns |
lad been received from these counties II |
vas the duty OF the board to send a mes |
enger to secure the same, The action of the |
,oard in taking an adjournment and send
ng for the returns is mot only legal, but |
n the highest degree commendabe." 1T |
precedent which will tend to
insure care on the part of officers and will
doubtful returns by state canvassers when
10 necessity for such action Is required"
JUDGE FULLER'S VIEWS.
Judge Fuller takes different view OF the
aso in the fact that he takes up the argu-
nent presented on the demurrer filed by
he defendants and holds that the court lis
Without jurisdiction OF the subject matter"
iolds that the departments OF government |
endent duties, each entirely Independent
rom the influence and control OF the other
Quotations are then presented from the
thief Justice Marshall case of Marbury
gainst Madison in the United States SUI
rom Judge Cooley in the case OF Sutherland
ina In, Mtnk |