Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-09-05
Supreme Court

State OF North Dakota, IN the Supre'"'
Court. April. 1912, Term.
The state OF North Dakota. ex rei =.
". Johnson and l.. l.. Grihitb, Rc'a'orS
and Appellants.
Thomas Ely, Jerry Donovan, X
Blenker Ralph Abbott n W Maua
tin. as the C~anyassing Boarn W anJ
County. North Dakota, III"
Respondents. 1T.
l. Mandamus is not a writ OF r'en'
and viii not be granted TO compel lhe
performance Of an act when no pche'
rcial result would be attained by is per
Torrance.
. Mandamus az a general rule ~ a uis-
cre,ionary writ, and when appiicauo'
is made 10 the triaf court 10 issue man,
danus that court may take testimors
TO aid IL in determining now It's oisc'e-
ton should be exercised.
3. II is not an abuse Of discretion 70
deny a writ OF mandamus Wheh IL W u
shown tina its issuance Wouln a'ai'
nothing TO the REALTORS.
4 The county commissioner oil warn
county, when what Is now Burke county
was a part thereof, estabiisnea the vnu,
ing precincts and designated the poliins
places in certain townships In Burke
County. On the organization OF Burkc
County the commissioners thereof ialien
to re-estabIish voting precincts or de-
signata polling places. Held. That the
precincts and polling places established
by the commissioners OF Ward county
remain such until the commissioners OF
Burke county act thereon. :.
3. In accordance with Elvick V.
Groves, II y. u. sol. it is held that where
a voting place Is u established by
the county commissioners, an election
held at another place a considerable as
..uu -xsl-o ", sEn 1hlnrra nf gnQp-
ial reasons is authorized, and the re-
turns thereof should not be ~canvassed.
6. In zach Of the precincts involved
in his proceeding the commissioners oil
.Iard County in 1903 established the vot
ing places at the usual place" The re
cord shows that, at the next election
after such establishment, the 'otirS was
cone at places near the center Of nc
.ownships or precincts. y motion ri re-
la:ois and a JriIurrer fiicd u the return
o! the respondents both admit that the
election OF 1910 was not held at the place
designated. The evidence shows that II
was held at places several miles distant
on the extreme boundaries of the pre-
cincts: and it is held that. in the absence
OF any conflict in the evidence, the tria
court did not abuse its discretion in de-
Ginning to issue its writ of mandamus
to direct the canvassing board TO can
vass the votes alleged to rave been cas-
al SuCn Ileedl pc!iHIs pidtes anu winch
such board had refused to include In It's
canvass Of votes cast at the 1910 cleo.
ton.
:. Members OF a canvassing board arr
presumed TO know the locality OF the
designated voting places and TO take no
tice Of the geography Of the townships
in their jurisdiction, and when return:
clearly indicate that an election was helt
At a point distant from the designated
place such board Is justified in declining
TO canvass such returns, IN the abSenC,
o! special considerations. The trial cour
found. on inquiring into the facts and oI
the demurrer and motion above referred
10, in substance that on a contest of tn
election there would be no justification
| for changing the certificates issued b.
| the canvassing board, and declined I,
issue its writ of mandate Held that
This was not an abuse of its discretion
AIRY power.
S II may be conceded that a minorit,
| rule invoked by REALTORS differs from TIL
| rule established in this court, but ever
If such minority rule were to be fol
lowed ii would avail REALTORS nothing. a!
under it the burden was on them I,
chow that the change was made il
good faith without fraud and with no IN
/! tent to injure the cause of respondents
Of his vote by reason of the unauthor
lied change in the voting places. Rela
tors showed none of those things.
| tSyilabus by the court.)
Appeal from an order Of the distric
court of Burke county. Tempieton. J.
Affirmed.
Noble, Blood & Adamson, Minot, \. d.
, for REALTORS and appellaDes.
Fred B. Andrews. George r. Robbins
and George A. Bangs, Grand Forks, n
Oak, for defendants and respondents.
Opinion by Spalding, C.. j., Mr.. Jusric,
Goss, being disqualified, did not partici
pate.