Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-11-25

of the precincts canvassed and distracted BY
precincts Us required by statute, and where
il appears on its face to be incomplete, as
not including the vote case in six out Of
ff,y-on~ precincts in the county, such re.
turns arc not prima facie evidence Of the
result OF the election as 70 all precincts ia
the county, the proof Of the result OF al
election in forty-tive precincts not ~corstit.
uting prima facic proof as TO the result OF
an election held in ffty-onc precincts, the
whole county Of Mclean.
4. The burden Of establishing tha, county
division carried by a majority Of all votcs
cast in said county Of Mclean at said clcc.
ton is upon the ~relator, who by his plead.
ings and from the nature of the relief asked,
must establish such fact before the court
can find that a majority existed in favor OF
such county division proposition. /.
D.. Prima facic proof as TO the result OF
such an election as 10 forty.hvc precincts cove
cred by such abstract of returns by precincts
is insufficient 10 eniitlc relator to relief, the
further burden resting upon him to cstah.
lish that the actual vote Of such six pre-.
cincts could not in fact change the result
OF the election as c,nvasscd IN said forty.
FIVE precincts; and There being no proof
whatever of the vote on such question in such
omitted precincts, and in which precincts the
court will presume some vote was cast in
each upon county division, it is impossible
to determine that a majority OF all votes cast
in the whole county we're IN favor OF county
division. Accordingly, rela,or has not mel
the burden of proof as to what the total
vote of the county was upon the proposed
county division.
g.. The petition and alternative writ al.
leging the submission of such question at Il
general election, and that the returns there
of all the precincts in the county were made
and returned and by the county canvassing
board canvasscd, with the result thereby de-
icrmiilcd in favor of such county division, il
It proper for a county auditor against whom
the proceedings are brought 70 answer, or
therein put in issue matters alleged in the
petition and alternative writ, aud allcgc a
failure OF returns from a portion OF the
precincts, a canvass by the board OF only 4
part Of all the precincts in the county, and
that the abstract Of returns as made by
the county canvassing hoard is incomplete
and not n finding of the result OF the cleo
ton in all the precincts of the county, and
that county division did not receive a ma
jority of all votes cast at the election in such
Such an answer but raises issues OF fact tri-
able in mandamus ;and the abstract of the
vote of Il portion only of the precincts OF
such county does not have the force Of a
certificate Of election covering all precincts in
said county. or preclude the trial of the is
SNNN VI i.tl al tH'o Ild'i'itliluS pip~
ceeding and compel the auditor to resort to
a statutory contest to determine the actual
result of the election.
Z. 1t was proper to consider as evidence
stipulated facts as to the number of cleo
tors voting at such general election in the
six omitted precincts as additional proof that
the returns as certified were incomplete and
as being admissible under the burden of
proof upon %relator under the pleadings; and
also as showing facts upon which might be
lu,.,l ,Ia o..: 81 l:,rx..:a, L.. A. -..A
in the granting or denial OF the writ. the
right to which is not 4 strict legal right
but discretionary to the extent tina. the court
should not issue the writ until the relator
fully prove himself entitled to the redress
sought by the writ. To determine the re-
receive testimony, even though a prima facie
right thereto had been established.
s.. Section lsG OF the state constitution ,
providing that 'all changes in the boundar-
les OF organized counties before taking effect
shall be submitted to the electors Of the
county or counties to be affected thereby, at
a general election. and be adontcd by 4
majority of all the legal votes cast in each
county at such an election, makes it the
duty of the court to know that a proposed
majority vote of all electors in the county
voting upon the question before the court can
hold county division to have legally carried
and issue the writ of mandamus asked for.
Undc rthis constitutional provision all doub,
as to the result Of the election must be re-
solved against a relator seeking to obtain
a judicial determination that 4 new county
has been so created.
9. To entitle relator to the writ the bur
den is upon him to establish that i majority
of all votes cast in said county on said prop
osition at the election was in favor of such
county division; and no proof having, been
made in this case as to the result Of such
election in Mclean county. there is n failure
of proof; and it is ordered that the alternative
writ, and the pcremptory writ thereon is