The Nome nugget., 1920-05-15

THE COURT:
 | In passing mi the right of the pe-
 titi ,ncr for a writ of mandate in the
 case at bar, the Court does so without
 pas sing upon any Irregularities of the
 election board. canvassing board or
 others in the municipal election. which
 brought about the demand for the writ
 of mandate, nor does he pass upon the | right or legality of the Lovegren vote,
 nor must it be considered or understood in anything said in this memo opinion
 that any of the aforesaid acts would in any way effect its decision in another laction.
 l The demurrer or a renewal of the
 same at the close of the evidence strik- ing at the sufficinncy of the writ may ] have q great deal of merit in it, still there is sufficient for the court to act upon for all purposes in this case. While the court is of the opinion that
 the better practice would be to set forth in the writ the same facts as are set out in the petition. and thus avoid
 many complications, such as have arisen in this case. for instance This case has been q very complex one. and the Court has not been great ly aided by the pleadings and evidence. l have refused to strike certain allega- e'bi'S Ai eisN piehtbLt<5s' shiu auiilteu certain evidence, which would have been more applicable in a contest; it
 has done so not for the purpose of set tliE,s questions that would more pro- Derly come up dn d contested case, or | tes ing the legality of the Lovegren voi5: this of necessity must be so, for he purpose of assisting the Court to
 nc e accurately get at the true facts of affairs. AND AS TO WHAT WE'RE THE RETURNS.
 With this in view, and all supeTfiu- ,us matters eliminated the real issue s disclosed After listening to all the evidence. the arguments of respective
 ,ounsel. and the reading of the author .ti, |; as cited by both parties I find that there are but two points left for consideration: lst: What were the re- turns submitted to the canvassing board: and. 2nd: What were their duties? l believe from all the authori- ties and arguments advanced both | counsel agree that their duties are pu, ely ministerial, and that they can- not go beyond the returns of the elec- l tion beard: to do so would be the ex- ercise of judicial powers. which under the gixslt weight of authority they
 have no right to do, This. to my nltnd 1 is q good and salutory law because ! lue Ltlell ol tHtSt DOdFuS are IuyIINeQ1,
 inexperienced and not trained in the
 law. Elections would be controlled at
 the whim or interest of the canvass ing boards, or their friends. a condi- i ton that would be dangerous and fatal to the elective franchise, and against law and justice.
 1 The question in dispute is, WHAT ARE THE RETURNS. I believe all the votes, books certificates, tally sheets and other papers or envelopes duly authenticated by the election board and returned to the canvpssing board are the returns, and it is their duty to canvass the same, and by can vass I mean scrutinize and tabulate them, and make their findings in &C., cordance with the returns of the elec- tion board. unless there is a plain, unquestioned fraud on their face, or a mistake or error in the tabulatton. That Is all their duty-THEIR SOLE the exercise of'a judicial function, and not within their province. Now did they do this? Let us see. They tabu- lated the tally sheets and found no er- TOT: they gave Pearson 107, Harrison 10S and Rice 109 votes; they scrutinized the certificate, and what did that show? It showed the same result, with this addition, that no ballots ware de- stroyed. no ballots rejected and one
 ballot sealed in an envelope and not counted. What would be the next thing naturally for the Board to do? They turned to the envelope and writ ten on the envelope were these words:
 Ballot received from Clarence l..
 Lovegren sealed herein by said Love-
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