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1890, said subdivision 3 was amended. Sess. dictment charged was the taking of a horse, Laws, p. 12. It is quite apparent that it has eight horses having been taken, from eight been the settled policy of the legislature to several owners. On March 3, 1890, the said make live stock a subject of grand larceny, court rendered judgment in the said eight and that there was no intention to repeal cases, and sentenced the petitioner to imprisany portion of section 278 of the act of 1876 onment in the Utah Penitentiary for a term by the act of 1886. The application for the of one year on each indictment. The cases writ is denied.
were numbered in the district court 555, 556, 557, 558, 559, 560, 561, and 562.
The senMERRITT, C. J., and SMITH, J., concur. tence 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, (11 Utah, 290)
to commence and be in force immediately In re OGILVIE.
after the expiration of the sentence in case
No. 555, and so on through the eight cases. (Supreme Court of Utah. Feb. 23, 1895.)
Thus the sentences were made cumulative, Alexander Ogilvie, convicted of grand larceny for stealing live stock, being sentenced to im
each commencing at the expiration of a preprisonment in the penitentiary, makes applica
ceding sentence, the aggregate of the sen. tion for a writ of habeas corpus. Denied. tences being eight years. The petition is D. D. Houtz and S. A. King, for petitioner.
based on the ground that there is no auThe United States Attorney, for respondent. thority of law to impose cumulative sen
tences. BARTCH, J.
To the petition the United States The petitioner in this case was indicted, in the district court of the First
district attorney filed a demurrer, on the judicial district, jointly with the petitioner in ground that the facts stated in the peti. the case of In re Gannett (decided at this term) tion did not entitle the petitioner to a dis39 Pac. 496, for the crime of grand larceny. He was tried separately, convicted, and sen
charge until the expiration of the several tenced to imprisonment in the penitentiary for
terms of imprisonment. Our statutes are a term of two years. The facts are the same silent on the subject, there being no legis. in both cases, and precisely the same legal ques- lation by the territory directing the courts tions are involved, and therefore, for our decision of all the questions raised by the record in
as to the mode of procedure. We must this case, we refer to the opinion in Re Gannett. therefore resort to the common law for a soOn the authority of that case, the application lution of the question. By the act of confor the writ herein is denied.
gress to establish a territorial government MERRITT, C. J., and SMITH, J., concur. for Utah, among other things, it is provided
“that the supreme court and the district
court, established by said act, shall possess (11 Utah, 114)
chancery as well as common-law jurisdicIn re WILSON.
tion." 1 Clawson V. U. S., 114 U. S. 477, 5 (Supreme Court of Utah. Jan. 28, 1895.)
Sup. Ct. 919. 1 Bish. Cr. Law (7th Ed.) §
933, states the law as follows: "When a CRIMINAL LAW-CUMULATIVE SENTENCES.
prisoner, under an unexpired sentence of imWhere a defendant is found guilty under several separate indictments, a judgment prisonment, is convicted of a second offense, eentencing him to imprisonment for a specific
or where there are two or more convictions term of years under each indictment, the sen- which sentence remains to be protence in each case after the first to commence
nounced, the judgment may direct that such and be in force from and after the expiration of the sentence in the case preceding, authorizes
succeeding period of imprisonment shall his detention for the aggregate period of all commence on the termination of the period the sentences.
next preceding." In volume 1 of Bishop's Application upon the relation of W. W. Criminal Procedure (section 1310) the rule Wilson against the United States marshal is stated as follows: “And at common law, of Utah territory for a writ of habeas cor- if a sentence to imprisonment is to com. pus. Denied.
mence running on the expiration of another,
it must be so stated, else the two punishS. P. Armstrong, for petitioner. The United States Attorney, for respondent.
ments will be executed simultaneously.” As before stated in this case, each sentence was
to commence at the expiration of the next MERRITT, C. J. The petition alleges that
preceding one. In the case of People v. the petitioner is imprisoned and unlawfully
Forbes, 22 Cal. 135, it was ruled that "a restrained of his liberty by the United States
judgment in a criminal action that the demarshal of Utah territory, by imprisonment
fendant be imprisoned for a specific term, in the Utah Penitentiary. That said impris
to commence at the expiration of previous onment is illegal, and without any probable
sentences, is valid, and warrants the detencause. That the illegality thereof consists
tion of the defendant for the aggregate periin this: That on the 28th day of February,
od for all of the sentences." See, also, 1890, in the Third district court of Utah, the
Martin v. People, 76 Ill. 499; Johnson v. petitioner pleaded guilty to eight indictments,
People, 83 Ill. 431; Ex parte Dalton, 49 Cal. each charging him with the crime of grand larceny. That the said offense in each in- 19 Stat. 455.
463; In re Packer, 33 Pac. 578. The writ, The affidavit on behalf of plaintiff on which is denied.
the alternate writ was issued set out sub
stantially that the plaintiff was an elector BARTCH, SMITH, and KING., JJ., con
duly registered in San Pete county, Utah cur.
territory, at the time of the general election held November 6, 1894, in said territory;
that the defendants constitute the board com(11 Utah, 119)
monly known and called the “Utah CommisPAGE v. LETCHER et al. (No. 573.)
sion," the same being created under section
9 of an act of congress approved March 22, (Supreme Court of Utah. Feb. 23, 1895.)
1882, and commonly called the “Edmunds ELECTION - CANVASS or VOTES - IRREGULARITIES Law"; that an election of delegates to the IN RETURNS-MANDAMUS PROCEEDINGS-ED
constitutional convention for the proposed MUNDS LAW-UTAH COMMISSIox.
state of Utah was legally held on November 1. Under 1 Comp. Laws, p. 324, § 256, pro- | 6, 1894. It set out in detail that the judges viding that the canvassing board shall accept as correct the election returns, if no irregularity
of election were regularly appointed and appear therein affecting the result of the elec- qualified, and regularly received and cantion, the fact that the "voted" registry list con- vassed the votes cast in San Pete county tains fewer names than the number of votes actually cast is not an irregularity authorizing a
for election of the delegates to said convenrecount, where the difference is less than the
tion. It was alleged that plaintiff was a canmajority received by the successful candidate. didate for delegate to said constitutional con
2. In the election of members of the con- vention, and received a majority of the votes stitutional convention, each voter was entitled cast in said San Pete county for such office; to vote for seven candidates. The voted registry list showed that, in case each voter had vot
that the judges of election made due and leed for the full number of candidates, more gal return of their canvass of the votes cast votes would have been cast than the returns for the plaintiff to the defendants, who conshowed had been cast for all the candidates col. stitute the board of canvassers, as above lectively. Hed, that there was not an irreg. ularity in the returns authorizing a recount, as
stated; that there was no irregularity or all the voters may not have voted for the full discrepancy or disagreement appearing from number of candidates.
the face of said returns; and that, by the face 3. In mandamus proceedings to compel the canvassing board (the Utah commission) to is
of the returns, the plaintiff was elected. It sue a certificate of election, a finding of the is then alleged that the defendants have board that there were irregularities in the re- completed their canvass of the votes, and turns requiring a recount may be reviewed, as
bave refused to issue to plaintiff any certifitheir powers are purely ministerial. 4. Under the “Edmunds Law" (Act March
cate of election, although the plaintiff has 22, 1882), establishing the Utah commission, and demanded the same, and that the plaintiff providing that the canvass of the votes shall be has no plain, speedy, or adequate remedy returned to the board, the judges of the elec
in the ordinary course of law. The altertion are to return the canvass directly to the board.
nate writ of mandate was issued, and con5. Where no irregularity appears on the tained the substance of the aflidavit. The face of the returns, mandamus will lie to com- defendants answered, and denied: First, pel the commission to issue a certificate of elec
that the plaintiff received a majority of the tion to the one who appears therefrom to be elected.
votes cast in San Pete county for delegate to 6. Mandamus to compel the canvassing the constitutional convention; second, deboard to issue a certificate of election is a “spe- nied that no irregularity, discrepancy, or discial proceeding'' (Comp. Laws, 8 3681), so as to
agreement appeared on the face of the reentitle plaintiff, on a judgment in his favor, to an allowance for costs as of course.
turns, and alleged that there were irregulari.
ties, discrepancies, and disagreements that Appeal from district court, Salt Lake coun
affected plaintiff's election, and alleged there ty; before Justice George W. Bartch.
was a disagreement as to the votes cast for Mandamus proceeding, upon the relation of plaintiff shown by the face of the returns; D. J. Page, against J. R. Letcher and others. third, denied that their refusal to issue cerFrom a judgment granting a peremptory tificate of election to the plaintiff was wrong. writ, and from an order denying a new trial, ful or unlawful; fourth, denied that plaintiff defendants appeal. Affirmed.
was without remedy; and, fifth, alleged that, Williams & Van Cott, H. P. Henderson, discrepancies and irregularities appearing on and 0. W. Powers, for appellants. C. W.
the face of the returns, they have opened Bennett, John M. Zane, J. A. Miner, Ogden and canvassed the ballots, and that it is thus Hiles, and C. S. Zane, for respondent.
ascertained that plaintiff is not entitled to a certificate of election. Without setting
out the findings of fact in this opinion in SMITH, J. This was a proceeding in detail, it is sufficient to say that the court mandamus begun by the plaintiff against i found the issues in favor of the plaintiff on the defendants to compel the issuance to all contested questions, and especially found him (the plaintiff) of a certificate of election that there was no irregularity or discrepas a delegate to the constitutional conven- ancy apparent upon the face of the returns, tion soon to meet under the enabling act to and granted a peremptory writ of mandate, form a constitution for the state of Utah. | requiring defendants to issue to the plaintifr the certificate of election as prayed for. A from Mt. Pleasant of two votes, still it would motion for a new trial was overruled, and not affect his election. the defendants appeal from the judgment But it is claimed that the difference beand order denying a new trial. Several er- tween the voted registry list and the poll rors are assigned, but they may be grouped list are irregularities that authorize a recount under three heads: First, that the evidence of the ballots by the canvassing board. We was insufficient to justify the judgment and cannot agree to this. The statute, after decision of the court; second, the court erred pointing out what shall constitute the rein receiving any testimony on behalf of the turns, and that on their receipt by the can. plaintiff; and, third, the court erred in vassing board they shall be opened and exawarding a peremptory writ. We shall ex- amined, provides: “And if no irregularity or amine these assignments of error in the or- discrepancy appear therein affecting the reder stated.
sult of election of any candidate, they shall The particular finding which is assailed accept said returns as correct; but if the as not supported by the evidence is the right of any person voted for, for any office, eighth, which is the finding, in effect, that is in any way affected, then [the canvassing there were no irregularities upon the face of board] shall open the ballots from said prethe returns authorizing a recanvass of the cinct and canvass the same, so far as to ballots cast. We have carefully examined determine the rights of the person whose the evidence contained in the statement, in- office may be affected." See section 256, p. cluding the original returns, which are made | 324, 1 Comp. Laws Utah. It will be seen a part of it, and are unable to find any ir- that the irregularity and discrepancy must regularities or discrepancies which in any appear upon the face of the returns; in the way affect the result of the election of the language of the statute, “it must appear plaintiff. The irregularities and discrepan- therein." It must be such as to affect the cies which defendants claim the returns dis- election of the candidate, and it is apparent, close are as follows: The registry list, con- also, that it must be one wnich may be cortaining the word “Voted" opposite the names rected or reconciled by a recount of the of certain voters, is compared with the poll ballots; otherwise a recount can do no good. list, or list of the names of voters made at Now, let us see what irregularities or discrepthe election, and they are found not to cor- ancies would fulfill these manifest requirerespond in certain particulars, as follows: In ments, and whether the difference between the precincts of Chester, Ephram, Gunnison, the voted registry lists and the poll list are and Moroni there is found to be an aggregate of such character. The tally sheets, accordof 17 more names marked "Voted” than ap- ing to the statute, are to be made in duplipear on the poll list or list of votes made at cate, and are a tabulation of the face of the the election in these precincts; while in the ballots. Manifestly, therefore, if there apprecincts of Fairview, Fountain Green, Man- pear to be more ballots counted than were ti, Mt. Pleasant, and Spring there appears to cast as shown by the voted registry list and be an aggregate of 21 more names of voters poll list, this is an irregularity indicating on the poll list than there are names marked that the judges have made a mistake in the "Voted” on the registry list; and in only one count, or that they have suffered ballots ilcase does there appear to have been any legally to be put into the boxes and counted. larger number of votes canvassed as shown A recount of the ballots will at once disclose by the tally sheets than the smallest number which it is, and permit its instant correction. shown by either the voted registry list or the But it may be asked, if the tally sheets show poll list, and this case occurred at Mt. a less number than the poll list and voted Pleasant, where only 498 names are marked registry list, why is not this an irregularity? “Voted" on the registry list, while 3,500 votes The answer is plain. The voter may not vote were cast for candidates for delegates to the a full ticket. Some names may be scratched, constitutional convention, which would be 14 and no others inserted. This would be pervotes in excess of the number that could fectly legal. The presumption is that the have been legally cast, as each voter could judges of election have done their duty. only cast 7 votes in that county, there being Therefore, when they make a return which is 7 delegates apportioned to San Pete county legally consistent with itself, no irregularity by the enabling act. This makes an appar- is then apparent therein; and, where the ent discrepancy of 2 votes on an average for tabulation of the ballots shows a number each candidate, but in this precinct the poll of votes counted no greater than was cast, list shows that 507 men voted, which would then the return is legally consistent. The have permitted an aggregate legal vote of statute requires the tally sheets, as we have 3,519 if each man had voted a full ticket, or before stated, to be made and returned in an average vote of 507 votes for the opposing duplicate. If they agree with each other, candidates for each office of delegate for the there is no discrepancy; if they disagree, constitutional convention. The plaintiff's then a recount of the ballots will show majority, as appeared by the face of the re- which, if either, is right. This discrepancy, turns, was 30 votes over his next competitor; therefore, is one pointed out by the statute so that, if it be conceded that there is an that authorizes a recount of the ballots. We irregularity and discrepancy in the return have seen that the return from San Pete county at the late election in every instance school money among the several districts of shows either an equal or less number of the territory is judicial. The truth is that votes counted than were cast, except at Mt. the statute declares what the decision must Pleasant, where there is a disagreement of be when the mathematical calculation is comtwo votes between the voted registry list pleted. There is no room left for discretion and the tally sheets, and there is no discrep- or judgment; there is no power or right to ancy apparent in the duplicate tally sheets decide in but one way, and that is according at all. The differences between the voted to the result of the mathematical problem, registry list and the poll list could in no which must in its nature be exact. If I know wise be reconciled or explained by a recount the distinction between ministerial and judiof the ballots, and it is not pretended that cial duties, the powers of the canvassing they could. We are therefore of the opinion board in this territory belong wholly to the that there were no irregularities or discrep- former class, and it is not the duty of the ancies appearing upon the face of the re- court, as I conceive it, to in any wise extend turns affecting the plaintiff's election, and the powers of such boards. There is much that the court below properly so found. in the record in this case and in the kindred
The next question is whether the court case in prohibition which was heard with it erred in admitting evidence in support of in this court (39 Pac. 502) to indicate corrupt the alternative writ of mandamus. The con- and criminal practices intended to affect the tention of appellants is that inasmuch as the election occurring between the election and defendant canvassing board must, in the first the canvass by defendants. In fact, in the instance, decide whether there are irregulari- prohibition case the court expressly found ties, their decision is not subject to review there had been corrupt and criminal forby mandamus; and it is not denied that this geries; and it is not denied that such did proceeding, in its nature, does attempt to re- exist upon the tally sheets and returns made. vise their decision in this matter. I do not And while, in my view, this evidence could know if the other members of the court agree have no proper place in either of these cases, with me in this statement, but I am of the inasmuch as the canvassing board had no opinion that the powers of the canvassing power to hear evidence in regard to it, and board under section 256, above cited, are while it is not hinted on either side that the purely ministerial. The last clause of that defendants are in any wise responsible for section (not embraced in the citation) is not these practices, yet it only too clearly demoninvolved here, but I may say, in passing, that strated the danger to fair elections that I think it wholly nugatory, as it does not would result from the exercise of such power empower the board to render any decision as is claimed by an irresponsible returning or take any action on the proof which it may board. The performances of boards of this receive. Every canvassing board must de- character assuming judicial functions in Loucide, in the first instance, what are the re- isiana and other Southern states in 1876 are turns of the election, but it has never been matters of recent history in this country, held that this was the exercise of judicial and known to us all. They became so corpower. It must determine that fact from rupt and outrageous as to bring the nation the face of the returns themselves, and can- to the verge of civil war, and, with this not go further; and it may not capriciously historical example before us, it seems to me reject returns for some imaginary or real that we should be slow to enlarge the powers informality, which does not destroy the char- of such a body in this territory in the direcacter of the returns as such. In the case of tion claimed. I am therefore of the opinion State v. Steers, 44 Mo. 223, it was expressly that the court properly permitted the evidecided that mandamus would lie to compel dence offered by the plaintiff. a canvassing board to accept and canvass a The last question is, did the court properly return from the precinct which they had render judgment awarding the peremptory undertaken to reject. It was held that their writ? This brings us to the consideration powers were purely ministerial, and subject of the powers and duties of the defendant to control by mandamus, even in respect to board. The board is organized by the ninth deciding what were the returns of an elec- section of what is known as the “Edmunds tion. See, also, McCrary, Elect. (3d Ed.) 88 Act.” The third clause of that section pro226, 227. I have attempted to show that the vides: "The canvass and return of all the determination as to whether there were ir- votes at elections in said territory for memregularities or discrepancies was to be made bers of the legislative assembly thereof shall from the face of the returns alone, and in- also be returned to said board (meaning the volved nothing more than the simplest kind defendants) which shall canvass all such reof a problem in arithmetic; and, if found to turns and issue certificates of election to the exist, the resulting duty was to recount the persons who being eligible for such election. votes in the boxes,-another purely ministe- shall appear to have been lawfully elected." rial act. To hold that either or all of these It is admitted that this legislation of conduties are Budicial I cannot. As well might gress, creating the Utah commission, and au. we say that the action of the county clerk in thorizing it to appoint registration and eleccasting up the taxes on a tax roll, or that of tion officers, did not repeal any part of the a commissioner of schools in apportioning election laws of the territory of Utah, except that part which provided the agencies | convention, certificates of election to the per. by which such laws were to be executed. sons who appear to have been lawfully electThere is no contention between counsel up- ed. As we have already seen, the returns on this point. By the enabling act, dele- show that the plaintiff appears to have been gates to the constitutional convention are to lawfuliy elected. be elected and the votes therefor to be can: Our conclusion, therefore, is that the court vassed in the same manner provided by law | properly found there were no irregularities for canvass and certification of the election or discrepancies affecting the election of the of the members of the legislative assembly. plaintiff appearing upon the face of the reThe whole controversy turns upon the propo- turns; that the court properly awarded the sition as to what part of the duties and pow. | peremptory writ against the defendants, ers conferred by the territorial election law commanding them to certify to the plaintiff's passed directly to the defendants, and what election. part passed to their appointees, provided for We are asked to set aside the judgment for in the second clause of the ninth section of costs in this case, because the defendants are the Edmunds law. Formerly the county public officers acting in good faith. If the clerk and some members of the county court judgment against defendants is right,-and received the returns of election both for the we have seen that it is,-then we cannot dislegislature, the county, and precinct officers turb the judgment for costs. Section 3681 and territorial officers direct from the judges of the Compiled Laws provides: "Costs are of election; and the duties prescribed in sec- allowed of course to the plaintiff upon a tion 256, above cited, of the election law, judgment in his favor in the following cases: were the duties and powers conferred upon
Fourth. In a special proceeding." the clerk and members of the county court as This is a special proceeding. See Code Civ. a canvassing board. It is claimed by one Proc. pt. 3, tit. 1, 88 3716-3749. of the counsel for the respondent that these For the reasons stated, the judgment of duties are still to be performed by some the court below is affirmed, with costs. board appointed in the county, or rather by some proper person, to use the language of MERRITT, C. J., and KING, J., concur in the act of congress, appointed in the county; the judgment in this case. while one of the counsel for the respondent and both counsel for the appellants contend that the judges of election are to return the
(11 Utah, 134) canvass of votes for members of the legisla
PAGE v. LETCHER et al. (No. 574.) ture, and therefore the canvass of votes for candidates for delegate to the constitutional
(Supreme Court of Utah. Feb. 23, 1895.) convention, directly to the defendant board. ABATEMENT-ANOTHER ACTION PENDING. We agree to this latter opinion. It seems to
Where mandamus proceedings by plainus the only construction of the statute which tiff are pending to compel the issuance of a cer
tificate of election, he cannot bring prohibition will make all its parts consistent, and which
to prevent the issuance of a certificate to anis the construction which was placed upon other person, as it is a useless multiplication of the statute by those charged with its exe
remedies. cution immediately after it was enacted, 12
Appeal from district court, Salt Lake counyears ago. If it were a case of doubt, this
ty; before Justice George W. Bartch. contemporaneous construction should have
Action by J. D. Page against J. R. Letcher great weight with the court in determining
and others. From a judgment for plaintifs, the meaning of the statute. However, its
and an order denying a new trial, defendmeaning appears plain to us that the return
ants appeal. Reversed. of votes means the return by the first agency who are making the return, to wit, the
C. W. Bennett, John M. Zane, C. S. Zane, judges of election, after they themselves
J. A. Miner, and Ogden Hiles, for appelhave canvassed the ballots cast. The lan
lants. Williams & Van Cott, H. P. Hen. guage is: “The canvass and return of all the derson, and 0. W. Powers, for appellee. votes at the time of the election shall be returned to said board.” We think this means SMITH, J. This was a proceeding in prothat the judges of election shall canvass the hibition begun by the plaintiff to prohibit votes, and make their return in the manner the defendants from issuing a certificate of provided by law, direct to the Utah commis- election to any other person than himself sion, and that they shall thereupon proceed for the office of delegate to the constitutionto canvass any such election in the same al convention in the county of San Pete. manner that the county court was formerly No particular person is designated in the required to do; that they possess the same atlidavit as being the person to whom any power that the county clerk and members of such certificate of election is likely to be isthe county court formerly possessed, and no sued. It is claimed only that the defendmore. The statute clearly provides that the ants have illegally and without right opened defendant board shall issue to members of certain ballot boxes from certain precincts the legislature, and therefore, by the ena- in said county, and have counted the balbling act, to delegates to the constitutional lots therein contained, for the purpose of de