El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-04-26
BUCKLER'S DECISION.
RENDERED THIS MORNING IN THE
DISTRICT COURT.
He Holds That the City Council Has no
Right to go Behind the Returns
and Count the Ballots.

The following is the decision render
ed by Judge Buckler this morning in
the cOnte Sted election case:
At the threSh hold OF this investigd "a
tion lies this question: Has the pre-
sent city council the legal right to re-
fuse to open and canvass the returns
and declare the result of the late city
election, because there are ditferen t
parties claiming to have been elected
to the Office of mayor and aldermen!
That is because the opposing candi-
dates for mayor each claims to have
been elected and so with the opposing
candidates for aldermen. This ques-
ton involves the construction of Sec.
II of the charter, which provides that
ION the first Saturday following every
election, or as soon thereafter as pos
sible, the city council shall meet
and open and cavass the returns and
ascertain and declare the result of the
election. Il The candidates re-
ceiving the highest number of votes
respectively shall be declared elected, I"
etc.
This section of the charter requires
the council to meet at certain ii Ne
and for a certain purpose. 1t cOnsti-
tutes the council a board of canvassers
and prescribes exactly what they shall
do, and when they shall do it. 1t is not
directory statute, but mandatory. 1t
leaves no discretion to the city council
to disregard it from any cause. The
duty which it devOlves upon the city
council is purely ministerial. All the
powers that the city council has, must
be found in the charter, and if not
found there, the power does not exist.
When we look to the charter, we find
this plain, emphatic mandatory statute
with no proVisO, and without exception.
[ conclude that there is no law or au-
thority in the charter or elsewhere
that will justify the council in refusing
to open and canvass the returns and
declaring the result, no matter what
may be the supposed cause, excuse or
preteXt. 1t is cOntended that the coun-
Gil has the right to refuse TO open and
canvass the returns and to declare the
result of the election because, it is said,
a contest is pending before the council
involving the right to the offices
of mayor and aldermen. 1 would like
to know how the council can know
officially that an election was held,
or that any of the parties who are
claiming to be entitled to the offices,
were candidates and voted for by
the people, except from the returns.
The returns are, it is true, in possess
ion OF the council but they are sealed
up and convey no Information to the
council, further, than that they purport
to be the returns of an election. How
can the city council know officially that
Mr.. O'Keeffe or Mr.. Magoffiu Was a
candidate at the late election? Ger
tainly in no other way than by opening
the returns. Can it be TIE law that
the city council can act upon mere
rumOr that a certain man was a candi-
date for mayor aud claims to have been
elected and in consequence of such
claim refuse to perform Il plain duty
made manifest by the charter itself,
until his claim can be heard and adj
justed? / certainly think not. In this
matter as appears from the evidence
Mr.. O'Keetfe filed a regular petit on
with the city council setting up his
claim to the Office of mayor. This pc
tition complains of Joseph Magoffin. 1t
contains all the necessary allegations
OF petition in suit for the Office
OF mayor. He prays that his
right to the office may be adjusted by
the council; he prays that joseph Ma
gOtfin may be cited to appear before
the council and answer his petition.
What right has he TO complain of
Joseph Magotfin? Magoffin has done
him no wrong and is not withholding
from him any right Or thing of value to
which he is entitled. If the returns
were opened and canvassed they might
show that Mr.. O'Keeffc has re ceived a
majority of votes and entitled to be de-
clared elected. Again, the returns
may show that the officers of election
so dlsregarded the election laws that