The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-11-25

The state Of North Dakota, ex rel nj.
F. Minehan, plaintiff and respondent,
VS.. T.. E. Thompson, as county audi
tor, Mclean county, in the state of
North Dakota. defendant and appel
liant.
At the genera election in 1908 there
was submitted to the voters of Nc
Lean county three propositions for
county division, including that Of
the proposed county of Stevenson,
concerning which the election re-
turns from forty-fve only, of the
hfty-one precincts of Mclean county,
were. returned by the precinct election
boards to the county auditor, and only
forty-five precincts as were returned
were ~canvassed, distracted and certi-
ned as to the result of such election
by the county canvassing board, who
made return that in said forty-five
precincts 1,006 votes favored. the Gre
alton of Stevenson county, with TAI
votes against it's creation. No return
of h votes cast. on such county diYi-
sion proposition was ever made or can
Vassed or included in said return as
to the six omitted precincts of Doug
las, Turtle Lake, Butte, Roseglen,
Whitaker and Shell Greek; In which
six omitted precincts 354 electors yot-
ed at said election, sufficient in num-
Der to have constituted q majority
oSoiiiSl rSOuAly uiNlSlOu Ihdu 'IlSS OH
voted against such division. No proof
of the result of the election is in evil
denCe other than the certificate of the
~canVassing board of the county, show
ing ON its face such omission to can
vass these six precincts, and a Sttp-
ulation of their omission from the
returns and canvass, and that 354
electors voted in such six omitted pre-
cincts. In his mandamus proceed
ing hn SSH 1Innn tho phnUa faPfE- re-
garding which there is no dispute, in
which 1t is sought to compel the coun-
ty auditor tt certify to the secretary
of state that a majority of all votes
cast in said county at said election
on county division was for the Gre
alton of Stevenson county, and upon
his refusal to so certify it Is held:
1. 1t was the duty of the can
vassing board Of Mclean county,
under section 673, r. c. 1905, to pro-
duce the returns to be made and can
vassed from such six omitted pre-
Cincts.
g. That the abstract of the vote
upon such division proposition, re-
quired under section 651, r. c. 1905,
shows on it's face that it is incom-
plete and but a partial canvass of the
whole vote cast in the county on such
question.
3. Such returns. are prima facie
evidence of the precincts C~anvassed
and distracted by precincts as requtr-
ed by statute; and where it appears
on its face to be incomplete, as not
including the vote cast in six out on
ffty-one precincts in the county, such
returns are not prima facie evidence
of the result of the election as to all
precincts in the county. the proof of
the result of an election in forty-tive
precincts not constituting prima facie
proof as to the result of an election
held in fifty-one precincts, the whole
county of Mclean.
4. The burden Of establishing that
| county division carried by a majority
Of all votes east in said county of
! Mclean at said election is upon the
| relator. who Ivy his pleadings and
from the nature of the relief asked,
must establish such fact before the
court can find that Il majority existed
IN favor Of such county division prop
OSition.
;. Prima facie ~rOof as to The re-
suit. of such IN election as to forty
five precincts covered by such abstract
Of returns by precincts is insufficient
to entitle the relator to relief, the fur
thor burden resting upon him to es-
.ahlish that the. actual vote of such
precincts could not in fact change the
! result of the election as canvassed IN
| said. forty-five precincts; and there De-
ing no proof whatever of the vote on
such question and sHCh omitted pre-
cincts, and in which precincts the
court will presume some vote was
cast in each upon county division, II
is impossible to determine that a ma
jority Of all votes cast in the whole
county were in favor of county dlVl-
sion. Accordingly, relator has not met
! the burden of proof as to what the
| total vote of the country was upon the
proposed county division. =.
G. The petition and alternative Wrlt
alleging the submission of such ques-
ton at a general election, n that
the returns thereof from each n al
Of the election boards of all the pre-
| cincts in the county were made ano
returned and by the county canvass
ing board ~canVaSsed, with the reSul'
thereby determined in favor of such
! county division, it is proper Tor a
! county auditor against whom the pro
| ceedings are brought to answer, on be-
half of his self and parties interest
ed. and therein put in issue matters
| alleged in the petition and alternative
writ, and allege a failure of returns
! from a portion of the precincts can
Vassed by the board of only a part
| of all the precincts in the county. and
| hat the abstract of returns as made
by the county canvassing board is IN
| complete and not a finding of the re-
suit of the election in all the pre-
cincts of the county, and that county
division did not receive a majority OF
| all votes cast at the election in such
tcounty on such county division propo-
| sition. Such an answer but raises
issues of fact triable in mandamus;
and the abstract of the vote of a por-
ton only of the precincts of such
county does not have the force of a
| certificate Of election covering all pre-
cincts in said county, or preclude
| the trial of the issues of fact involved
in this mandamus proceeding and
compel the auditor to resort to a sta
tutory contest to determine the ac-
tual result Of the election.
z. 1t was proper to consider as EVIL
denee stipulated facts as to the mum
Der Of electors voting at such gem
eral election in the six omitted pre-
cincts 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 based the exer.
else of discretion by the court in the
granting or denial of the writ, the
right to which is not a strict lega
right but discretionary to the exten'
that the court should not issue thu
writ until the relator fully prove him,
self entitled to the redress sought b.
the writ. To determine the relatori
right to the writ the trial court coulC
receive testimony, even though
prima facie right thereto had BEEF