1890, said subdivision 3 was amended. Sess. Laws, p. 12. It is quite apparent that it has been the settled policy of the legislature to make live stock a subject of grand larceny, and that there was no intention to repeal any portion of section 278 of the act of 1876 by the act of 1886. The application for the writ is denied.

MERRITT, C. J., and SMITH, J., concur.

(11 Utah, 290)

In re OGILVIE.

(Supreme Court of Utah. Feb. 23, 1895.) Alexander Ogilvie, convicted of grand larceny for stealing live stock, being sentenced to imprisonment in the penitentiary, makes application for a writ of habeas corpus. Denied.

D. D. Houtz and S. A. King, for petitioner. The United States Attorney, for respondent.

BARTCH, J. The petitioner in this case was indicted, in the district court of the First judicial district, jointly with the petitioner in the case of In re Gannett (decided at this term) 39 Pac. 496, for the crime of grand larceny. He was tried separately, convicted, and sentenced to imprisonment in the penitentiary for a term of two years. The facts are the same in both cases, and precisely the same legal questions are involved, and therefore, for our decision of all the questions raised by the record in this case, we refer to the opinion in Re Gannett. On the authority of that case, the application for the writ herein is denied.

MERRITT, C. J., and SMITH, J., concur.

(11 Utah, 114)

In re WILSON. (Supreme Court of Utah. Jan. 28, 1895.) CRIMINAL LAW-CUMULATIVE SENTENCES.

Where a defendant is found guilty under several separate indictments, a judgment sentencing him to imprisonment for a specific term of years under each indictment, the sentence in each case after the first to commence and be in force from and after the expiration of the sentence in the case preceding, authorizes his detention for the aggregate period of all the sentences.

Application upon the relation of W. W. Wilson against the United States marshal of Utah territory for a writ of habeas corpus. Denied.

S. P. Armstrong, for petitioner. The United States Attorney, for respondent.

dictment charged was the taking of a horse, eight horses having been taken, from eight several owners. On March 3, 1890, the said court rendered judgment in the said eight cases, and sentenced the petitioner to imprisonment in the Utah Penitentiary for a term of one year on each indictment. The cases were numbered in the district court 555, 556, 557, 558, 559, 560, 561, and 562. The sentence in said district court, in case No. 555, was for the term of one year. The sentence in case No. 556 was for the term of one year, to commence and be in force immediately after the expiration of the sentence in case No. 555, and so on through the eight cases. Thus the sentences were made cumulative, each commencing at the expiration of a preceding sentence, the aggregate of the sentences being eight years. The petition is based on the ground that there is no authority of law to impose cumulative sentences. To the petition the United States district attorney filed a demurrer, on the ground that the facts stated in the petition did not entitle the petitioner to a discharge until the expiration of the several terms of imprisonment. Our statutes are silent on the subject, there being no legislation by the territory directing the courts as to the mode of procedure. We must therefore resort to the common law for a solution of the question. By the act of congress to establish a territorial government for Utah, among other things, it is provided "that the supreme court and the district court, established by said act, shall possess chancery as well as common-law jurisdiction." 1 Clawson v. U. S., 114 U. S. 477, 5 Sup. Ct. 949. 1 Bish. Cr. Law (7th Ed.) § 953, states the law as follows: "When a prisoner, under an unexpired sentence of imprisonment, is convicted of a second offense, or where there are two or more convictions on which sentence remains to be pronounced, the judgment may direct that such succeeding period of imprisonment shall commence on the termination of the period next preceding." In volume 1 of Bishop's Criminal Procedure (section 1310) the rule is stated as follows: "And at common law, if a sentence to imprisonment is to commence running on the expiration of another, it must be so stated, else the two punishments will be executed simultaneously." As before stated in this case, each sentence was to commence at the expiration of the next preceding one. In the case of People v. Forbes, 22 Cal. 135, it was ruled that "a judgment in a criminal action that the defendant be imprisoned for a specific term, to commence at the expiration of previous sentences, is valid, and warrants the detention of the defendant for the aggregate period for all of the sentences." See, also, Martin v. People, 76 Ill. 499; Johnson v. People, 83 Ill. 431; Ex parte Dalton, 49 Cal.

19 Stat. 455.

PAGE v. LETCHER et al. (No. 573.) (Supreme Court of Utah. Feb. 23, 1895.) ELECTION CANVASS OF VOTES IRREGULARITIES IN RETURNS-MANDAMUS PROCEEDINGS-EDMUNDS LAW-UTAH COMMISSION.

1. Under 1 Comp. Laws, p. 324, § 256, providing that the canvassing board shall accept as correct the election returns, if no irregularity appear therein affecting the result of the election, the fact that the "voted" registry list contains fewer names than the number of votes actually cast is not an irregularity authorizing a recount, where the difference is less than the majority received by the successful candidate.

2. In the election of members of the constitutional convention, each voter was entitled to vote for seven candidates. The voted registry list showed that, in case each voter had voted for the full number of candidates, more votes would have been cast than the returns showed had been cast for all the candidates collectively. Held, that there was not an irreg ularity in the returns authorizing a recount, as all the voters may not have voted for the full number of candidates.

3. In mandamus proceedings to compel the canvassing board (the Utah commission) to issue a certificate of election, a finding of the board that there were irregularities in the returns requiring a recount may be reviewed, as their powers are purely ministerial.

4. Under the "Edmunds Law" (Act March 22, 1882), establishing the Utah commission, and providing that the canvass of the votes shall be returned to the board, the judges of the election are to return the canvass directly to the board.

5. Where no irregularity appears on the face of the returns, mandamus will lie to compel the commission to issue a certificate of election to the one who appears therefrom to be elected.

6. Mandamus to compel the canvassing board to issue a certificate of election is a "special proceeding" (Comp. Laws, § 3684), so as to entitle plaintiff, on a judgment in his favor, to an allowance for costs as of course.

Appeal from district court, Salt Lake county; before Justice George W. Bartch.

Mandamus proceeding, upon the relation of D. J. Page, against J. R. Letcher and others. From a judgment granting a peremptory writ, and from an order denying a new trial, defendants appeal. Affirmed.

Williams & Van Cott, H. P. Henderson, and O. W. Powers, for appellants. C. W. Bennett, John M. Zane, J. A. Miner, Ogden Hiles, and C. S. Zane, for respondent.

SMITH, J. This was a proceeding in mandamus begun by the plaintiff against the defendants to compel the issuance to him (the plaintiff) of a certificate of election as a delegate to the constitutional convention soon to meet under the enabling act to

The affidavit on behalf of plaintiff on which the alternate writ was issued set out substantially that the plaintiff was an elector duly registered in San Pete county, Utah territory, at the time of the general election held November 6, 1894, in said territory; that the defendants constitute the board commonly known and called the "Utah Commission," the same being created under section 9 of an act of congress approved March 22, 1882, and commonly called the "Edmunds Law"; that an election of delegates to the constitutional convention for the proposed state of Utah was legally held on November 6, 1894. It set out in detail that the judges of election were regularly appointed and qualified, and regularly received and canvassed the votes cast in San Pete county for election of the delegates to said convention. It was alleged that plaintiff was a candidate for delegate to said constitutional convention, and received a majority of the votes cast in said San Pete county for such office; that the judges of election made due and legal return of their canvass of the votes cast for the plaintiff to the defendants, who constitute the board of canvassers, as above stated; that there was no irregularity or discrepancy or disagreement appearing from the face of said returns; and that, by the face of the returns, the plaintiff was elected. It is then alleged that the defendants have completed their canvass of the votes, and bave refused to issue to plaintiff any certificate of election, although the plaintiff has demanded the same, and that the plaintiff has no plain, speedy, or adequate remedy in the ordinary course of law. The alternate writ of mandate was issued, and contained the substance of the affidavit. The defendants answered, and denied: First, that the plaintiff received a majority of the votes cast in San Pete county for delegate to the constitutional convention; second, denied that no irregularity, discrepancy, or disagreement appeared on the face of the returns, and alleged that there were irregularities, discrepancies, and disagreements that affected plaintiff's election, and alleged there was a disagreement as to the votes cast for plaintiff shown by the face of the returns; third, denied that their refusal to issue certificate of election to the plaintiff was wrongful or unlawful; fourth, denied that plaintiff was without remedy; and, fifth, alleged that, discrepancies and irregularities appearing on

the face of the returns, they have opened and canvassed the ballots, and that it is thus ascertained that plaintiff is not entitled to a certificate of election. Without setting out the findings of fact in this opinion in detail, it is sufficient to say that the court found the issues in favor of the plaintiff on all contested questions, and especially found that there was no irregularity or discrepancy apparent upon the face of the returns, and granted a peremptory writ of mandate,

the certificate of election as prayed for. A motion for a new trial was overruled, and the defendants appeal from the judgment and order denying a new trial. Several errors are assigned, but they may be grouped under three heads: First, that the evidence was insufficient to justify the judgment and decision of the court; second, the court erred in receiving any testimony on behalf of the plaintiff; and, third, the court erred in awarding a peremptory writ. We shall examine these assignments of error in the order stated.

The particular finding which is assailed as not supported by the evidence is the eighth, which is the finding, in effect, that there were no irregularities upon the face of the returns authorizing a recanvass of the ballots cast. We have carefully examined the evidence contained in the statement, including the original returns, which are made a part of it, and are unable to find any irregularities or discrepancies which in any way affect the result of the election of the plaintiff. The irregularities and discrepancies which defendants claim the returns disclose are as follows: The registry list, containing the word "Voted" opposite the names of certain voters, is compared with the poll list, or list of the names of voters made at the election, and they are found not to correspond in certain particulars, as follows: In the precincts of Chester, Ephram, Gunnison, and Moroni there is found to be an aggregate of 17 more names marked "Voted" than appear on the poll list or list of votes made at the election in these precincts; while in the precincts of Fairview, Fountain Green, Manti, Mt. Pleasant, and Spring there appears to be an aggregate of 21 more names of voters on the poll list than there are names marked "Voted" on the registry list; and in only one case does there appear to have been any larger number of votes canvassed as shown by the tally sheets than the smallest number shown by either the voted registry list or the poll list, and this case occurred at Mt. Pleasant, where only 498 names are marked "Voted" on the registry list, while 3,500 votes were cast for candidates for delegates to the constitutional convention, which would be 14 votes in excess of the number that could have been legally cast, as each voter could only cast 7 votes in that county, there being 7 delegates apportioned to San Pete county by the enabling act. This makes an apparent discrepancy of 2 votes on an average for each candidate, but in this precinct the poll list shows that 507 men voted, which would have permitted an aggregate legal vote of 3,549 if each man had voted a full ticket, or an average vote of 507 votes for the opposing candidates for each office of delegate for the constitutional convention. The plaintiff's majority, as appeared by the face of the returns, was 30 votes over his next competitor; so that, if it be conceded that there is an irregularity and discrepancy in the return

from Mt. Pleasant of two votes, still it would not affect his election.

But it is claimed that the difference between the voted registry list and the poll list are irregularities that authorize a recount of the ballots by the canvassing board. We cannot agree to this. The statute, after pointing out what shall constitute the returns, and that on their receipt by the canvassing board they shall be opened and examined, provides: "And if no irregularity or discrepancy appear therein affecting the result of election of any candidate, they shall accept said returns as correct; but if the right of any person voted for, for any office, is in any way affected, then [the canvassing board] shall open the ballots from said precinct and canvass the same, so far as to determine the rights of the person whose office may be affected." See section 256, p. 324, 1 Comp. Laws Utah. It will be seen that the irregularity and discrepancy must appear upon the face of the returns; in the language of the statute, "it must appear therein." It must be such as to affect the election of the candidate, and it is apparent, also, that it must be one wnich may be corrected or reconciled by a recount of the ballots; otherwise a recount can do no good. Now, let us see what irregularities or discrepancies would fulfill these manifest requirements, and whether the difference between the voted registry lists and the poll list are of such character. The tally sheets, according to the statute, are to be made in duplicate, and are a tabulation of the face of the ballots. Manifestly, therefore, if there appear to be more ballots counted than were cast as shown by the voted registry list and poll list, this is an irregularity indicating that the judges have made a mistake in the count, or that they have suffered ballots illegally to be put into the boxes and counted. A recount of the ballots will at once disclose which it is, and permit its instant correction. But it may be asked, if the tally sheets show a less number than the poll list and voted registry list, why is not this an irregularity? The answer is plain. The voter may not vote a full ticket. Some names may be scratched, and no others inserted. This would be perfectly legal. The presumption is that the judges of election have done their duty. Therefore, when they make a return which is legally consistent with itself, no irregularity is then apparent therein; and, where the tabulation of the ballots shows a number of votes counted no greater than was cast, then the return is legally consistent. The statute requires the tally sheets, as we have before stated, to be made and returned in duplicate. If they agree with each other, there is no discrepancy; if they disagree, then a recount of the ballots will show which, if either, is right. This discrepancy, therefore, is one pointed out by the statute that authorizes a recount of the ballots. We have seen that the return from San Pete

county at the late election in every instance shows either an equal or less number of votes counted than were cast, except at Mt. Pleasant, where there is a disagreement of two votes between the voted registry list and the tally sheets, and there is no discrepancy apparent in the duplicate tally sheets at all. The differences between the voted registry list and the poll list could in no wise be reconciled or explained by a recount of the ballots, and it is not pretended that they could. We are therefore of the opinion that there were no irregularities or discrepancies appearing upon the face of the returns affecting the plaintiff's election, and that the court below properly so found.

The next question is whether the court erred in admitting evidence in support of the alternative writ of mandamus. The contention of appellants is that inasmuch as the defendant canvassing board must, in the first instance, decide whether there are irregularities, their decision is not subject to review by mandamus; and it is not denied that this proceeding, in its nature, does attempt to revise their decision in this matter. I do not know if the other members of the court agree with me in this statement, but I am of the opinion that the powers of the canvassing board under section 256, above cited, are purely ministerial. The last clause of that section (not embraced in the citation) is not involved here, but I may say, in passing, that I think it wholly nugatory, as it does not empower the board to render any decision or take any action on the proof which it may receive. Every canvassing board must decide, in the first instance, what are the returns of the election, but it has never been held that this was the exercise of judicial power. It must determine that fact from the face of the returns themselves, and cannot go further; and it may not capriciously reject returns for some imaginary or real informality, which does not destroy the character of the returns as such. In the case of State v. Steers, 44 Mo. 223, it was expressly decided that mandamus would lie to compel a canvassing board to accept and canvass a return from the precinct which they had undertaken to reject. It was held that their powers were purely ministerial, and subject to control by mandamus, even in respect to deciding what were the returns of an election. See, also, McCrary, Elect. (3d Ed.) §§ 226, 227. I have attempted to show that the determination as to whether there were irregularities or discrepancies was to be made from the face of the returns alone, and involved nothing more than the simplest kind of a problem in arithmetic; and, if found to exist, the resulting duty was to recount the votes in the boxes,-another purely ministerial act. To hold that either or all of these duties are dicial I cannot. As well might we say that the action of the county clerk in casting up the taxes on a tax roll, or that of a commissioner of schools in apportioning

school money among the several districts of the territory is judicial. The truth is that the statute declares what the decision must be when the mathematical calculation is completed. There is no room left for discretion or judgment; there is no power or right to decide in but one way, and that is according to the result of the mathematical problem, which must in its nature be exact. If I know the distinction between ministerial and judicial duties, the powers of the canvassing board in this territory belong wholly to the former class, and it is not the duty of the court, as I conceive it, to in any wise extend the powers of such boards. There is much in the record in this case and in the kindred case in prohibition which was heard with it in this court (39 Pac. 502) to indicate corrupt and criminal practices intended to affect the election occurring between the election and the canvass by defendants. In fact, in the prohibition case the court expressly found there had been corrupt and criminal forgeries; and it is not denied that such did exist upon the tally sheets and returns made. And while, in my view, this evidence could have no proper place in either of these cases, inasmuch as the canvassing board had no power to hear evidence in regard to it, and while it is not hinted on either side that the defendants are in any wise responsible for these practices, yet it only too clearly demonstrated the danger to fair elections that would result from the exercise of such power as is claimed by an irresponsible returning board. The performances of boards of this character assuming judicial functions in Louisiana and other Southern states in 1876 are matters of recent history in this country, and known to us all. They became so corrupt and outrageous as to bring the nation to the verge of civil war, and, with this historical example before us, it seems to me that we should be slow to enlarge the powers of such a body in this territory in the direc tion claimed. I am therefore of the opinion that the court properly permitted the evidence offered by the plaintiff.

The last question is, did the court properly render judgment awarding the peremptory writ? This brings us to the consideration of the powers and duties of the defendant board. The board is organized by the ninth section of what is known as the "Edmunds Act." The third clause of that section provides: "The canvass and return of all the votes at elections in said territory for members of the legislative assembly thereof shall also be returned to said board [meaning the defendants] which shall canvass all such returns and issue certificates of election to the persons who being eligible for such election. shall appear to have been lawfully elected." It is admitted that this legislation of congress, creating the Utah commission, and au thorizing it to appoint registration and election officers, did not repeal any part of the election laws of the territory of Utah, ex